OLD MUTUAL SOUTH AFRICA EQUITY TRUST POS AMI
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Exhibit 9(m)
LOAN AGREEMENT
DATED: 20 MARCH, 1998.
BETWEEN:
(1) OLD MUTUAL SOUTH AFRICA EQUITY TRUST a trust organised under the laws of
Massachusetts and registered as an investment company under the United
States Investment Company Act of 1940 (the "BORROWER") whose principal
place of business is at Phase II, 4th Floor, Washington Mall, 00 Xxxxxx
Xxxxxx, Xxxxxxxx XX00, Xxxxxxx (Fax Number 0 000 000 0000) and
(2) XXXXXX XXXXXXX & CO. LIMITED (the "BANK") whose registered office is at 00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (Telex Number 297451) (Fax Number 0000 000
5036) or such other office as it may select from time to time
PRELIMINARY:
The Bank has agreed to provide the Borrower with an uncommitted revolving credit
facility in the aggregate principal amount not exceeding US$50,000,000 or its
equivalent as determined by the Bank in the Alternative Currency on the
following terms and conditions.
OPERATIVE PROVISIONS:
1 INTERPRETATION
1.1 DEFINITIONS In this agreement:-
"ADDRESS FOR SERVICE" means Norose Notices Limited 2855757, for the
attention of the Director of Administration, at the address of the
registered office for the time being (currently Xxxxxxx Xxxxx,
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx) or such other address in
England or Wales as the Borrower may from time to time designate by
not less than ten days' notice to the Bank for that purpose;
"ALTERNATIVE CURRENCY" means South African Rand;
"ADVANCE" means each amount advanced or to be advanced by the Bank, as
reduced by repayment from time to time;
"BUSINESS DAY" means a day (other than a Saturday) on which
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banks are open for business in London, New York and in so far as
payment in the Alternative Currency is to be made under this agreement
on a particular date the principal financial centre of the Alternative
Currency;
"COMMITMENT" means, subject to clause 2.3, the amount of US$50,000,000
LESS the aggregate of the amount the Bank has advanced under this
agreement;
"ENCUMBRANCE" includes any mortgage, charge (fixed or floating),
pledge, hypothecation or lien and any other arrangement or interest
(whether by way of assignment, trust, title retention or otherwise)
which has the effect of creating security or payment priority;
"INITIAL FINANCIAL STATEMENTS" means the audited financial statements
of the Borrower for its financial year ended 30 June 1997;
"LIBOR" means
(a) in the case of Advances in US dollars the LIBOR rate for US dollar deposits
in the same amount as the Advance and for the same period as the relevant Term
which appears on the display designated as "Page 3750" on the Telerate Service
(or such other page as may replace Page 3750 on that service) or such other
service as may be nominated by the British Bankers Association for the purposes
of displaying the British Bankers' Association Interest Settlement Rates for US
dollars at approximately 11:00 am on the second Business Day prior to the
proposed drawdown date; provided that:
(i) if the offered rate so appearing is replaced by the corresponding rates
of more than one bank, the rate shall be the arithmetic mean of the respective
rates so appearing;
(ii) if an offered rate does not appear on such screen for a period
corresponding to the relevant Term, the rate shall be the rate appearing on such
screen for the period closest in length to that Term adjusted in the reasonable
determination of the Bank to reflect the difference in such period; and
(iii) if the relevant page is unavailable, the rate at which the Bank was being
offered US dollar deposits in the same amount as the Advance for a period equal
to the relevant Term by prime banks in the London Interbank Market at
approximately 11:00am on the second Business Day prior to the proposed drawdown
date;
(b) in the case of Advances in the Alternative Currency the rate per
annum determined by the Bank to be the rate at which it was being
offered by prime banks in the London Inter-Bank Market at or
about 11.00 a.m. on the second Business Day prior to the proposed
drawdown date of the relevant Advance deposits in the currency
of, and in an amount equal to, the relevant Advance for a period
equal to its proposed Term;
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"LIQUIDITY FACILITY" means the undertaking of Old Mutual Fund
Holdings (Bermuda) Limited to sell assets of Old Mutual Global
Assets Fund Limited and apply the proceeds to make such
additional investments in the Borrower as may be required from
time to time in order to provide funds for redeeming the shares
of Old Mutual SAGA Fund and OMEGA Fund;
"LOAN" means the aggregate amount from time to time advanced to
the Borrower under this agreement and not repaid;
"MARGIN" means 0.3 per cent. per annum;
"MONTH" means a period starting on one day in a calendar month
and ending on the numerically corresponding day in the next
calendar month unless that later day is not a Business Day, in
which case it shall end on the next succeeding Business Day
Provided that if a period starts on the last Business Day in a
calendar month or if there is no numerically corresponding day in
the calendar month in which it is to end, it shall end on the
last Business Day in that later calendar month;
"NET ASSET VALUE" means the amount (expressed in US dollars)
which is the aggregate of the market value of all of the
securities and other assets of the Borrower less:-
(i) the value of any Unquoted Investments;
(ii) where the value of any single Quoted Investment
represents more than 5% of the value of the Borrower's
total assets, the value over 5%; and
(iii) the aggregate of all of the Borrower's liabilities,
(as evidenced in the latest valuation);
"OLD MUTUAL SAGA FUND" means Old Mutual South Africa Growth
Assets Fund Limited;
"OMEGA FUND" means the Old Mutual Equity Growth Assets South
Africa Fund;
"QUALIFYING BANK" means a financial institution which is:-
(i) a bank as defined in Section 840(A) of the Income and
Corporation Taxes Act 1988 and which is within the charge
to United Kingdon corporation tax as regards any interest
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received by it under this agreement and accordingly
satisfies the requirements of Section 349 of the Income
and Corporation Taxes Act 1988 enabling interest to be
paid without withholding tax; or
(ii) resident in a country with which the United Kingdom has
an appropriate double taxation treaty pursuant to which
it is entitled to receive principal, interest and fees
under this agreement without withholding of United
Kingdom income Tax (and such financial institution has
effectively claimed the benefit of such treaty in respect
of this agreement) so that the Borrower is not requested
to make any such withholding (or is otherwise entitled to
receive principal, interest and fee without such
withholding);
"QUOTED INVESTMENT" means any securities listed on the London
Stock Exchange Limited, the New York Stock Exchange or the
Johannesburg Stock Exchange;
"SOUTH AFRICAN RAND" means the lawful currency of South Africa;
"TAX" includes any form of taxation, levy, duty, charge,
contribution or impost of whatever nature (including any
applicable fine, penalty, surcharge or interest);
"TERM" means in relation to an Advance, the period for which such
Advance is borrowed as specified in the drawdown notice for such
Advance;
" TOTAL BORROWINGS" means, at any time, the aggregate (without
double counting) of the following:-
(i) the outstanding principal amount of any moneys borrowed
by the Borrower and any outstanding overdraft or debit
balance;
(ii) the outstanding principal amount of any debenture, bond,
note, loan stock or other security (other than equity
security) of the Borrower;
(iii) the outstanding principal amount of any acceptance under
any acceptance credit opened by a bank or other financial
institution in favour of the Borrower;
(iv) the outstanding principal amount of all moneys owing by
the Borrower in connection with the sale or discounting
of receivables (otherwise than on a non-recourse basis);
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(v) the outstanding principal amount of any indebtedness of
the Borrower arising from any advance or deferred payment
agreement arranged primarily as a method of raising
finance or financing the acquisition of an asset;
(vi) the capitalised element of indebtedness of the Borrower
in respect of a lease entered into primarily as a method
of raising finance or financing the acquisition of the
asset leased;
(vii) any fixed or minimum premium payable on the repayment or
redemption of any instrument referred to in sub-paragraph
(ii) above; and
(viii) the outstanding principal amount of any indebtedness of
any person of a type referred to in sub-paragraphs
(i)-(vii) above which is the subject of a guarantee
against financial loss by the Borrower;
any amount outstanding in a currency other than US dollars is to
be taken into account at its equivalent in US dollars as
determined by the Bank on the day the relevant amount falls to be
calculated;
"UNQUOTED INVESTMENT" means any securities which are not Quoted
Investments;
"VALUATION" means a valuation prepared by the Borrower, in the
form annexed hereto as Annex 1, providing details of the
Borrower's total assets and liabilities, including Net Asset
Value and the value of any Unquoted Investments; and
"US DOLLAR" and "US$" means the lawful currency of the United
States of America.
(c) REFERENCES In this agreement, each reference to:-
any document or agreement (including this agreement) is deemed,
unless stated otherwise, to include a reference to such document
or agreement as amended, novated, supplemented, substituted or
replaced from time to time;
the "BANK" and the "BORROWER", where the context so admits, is
deemed to include their respective successors, assigns and/or
transferees;
a provision of a statute is, unless otherwise indicated, deemed
to
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include a reference to such provision as amended, modified or
re-enacted from time to time;
the singular, where the context so admits, is deemed to include
the plural and vice versa; and
a person is deemed to include a reference to a company,
partnership, unincorporated body and any other entity and vice
versa.
(d) TITLES The title of any provision of this agreement shall not
affect the meaning of that or any other provision.
2 THE FACILITY
2.1 NATURE OF FACILITY The loan facility is an uncommitted facility
and the Bank is under no obligation to make any Advance to the
Borrower. It is also subject to review by the Bank from time to
time and may be terminated by the Bank at any time by notice to the
Borrower in accordance with clause 5.2.
2.2 PURPOSE The Loan will be used by the Borrower solely for the
purpose of funding delays in settlement resulting from the sale and
purchase of investments by the Borrower. The Bank will not be
obliged to ascertain whether the Loan is so used.
2.3 MAXIMUM AMOUNT AVAILABLE The maximum amount which the Bank is
prepared to consider making available to the Borrower is the lower
of (i) US$50,000,000 or its equivalent as determined by the Bank in
the Alternative Currency and (ii) 5% of the value of the total
assets of the Borrower (expressed in US dollars) as shown in the
latest Valuation delivered to the Bank or its equivalent as
determined by the Bank in the Alternative Currency.
2.4 ANNUAL RENEWAL FEE The Borrower will pay to the Bank an annual
renewal fee of US$12,500 at the end of each 12 Month period
commencing on the date of this agreement or, if the Borrower has
notified the Bank that it no longer wishes to utilise the facility
or the facility is no longer available under clauses 5.2 or 5.3, on
the date of such notification or termination of the facility, the
Borrower will pay to the Bank a fee, the amount payable being the
annual renewal fee pro-rated for the period since the date of
signing this agreement or, if later, the date on which the annual
renewal fee was last paid pursuant to this clause, provided that
such fee shall be reduced to the extent of the excess (if any) over
US$20,000 of payments in respect of Margin accruing on Advances
made by the Borrower to the Bank in the relevant period.
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3 DRAWINGS
3.1 CONDITIONS PRECEDENT The Borrower will not be entitled to request
any Advances under this agreement until the Bank confirms to the
Borrower that the Bank has received each of the documents and
evidence specified in schedule 1 in form and substance acceptable
to it.
3.2 MECHANICS Subject to clause 3.1, the Borrower may request Advances
on separate Business Days by sending to the Bank:
3.2.1 a duly completed and executed notice in the form of
schedule 2 (to be received by the Bank no later than
10.00 a.m. on the second Business Day prior to the proposed
drawdown date) specifying:-
(i) the amount and currency of the Advance (which is to be in an
amount which is equal to or less than the Commitment and, if
less than the Commitment, is to be in an amount of at least
US$500,000 or its equivalent as determined by the Bank in
the Alternative Currency and a multiple of US$250,000 or its
equivalent as determined by the Bank in the Alternative
Currency); and
(ii) the Term of the Advance which shall be a period of up to 60
days; and
3.2.2 an up to date Valuation.
If the Bank agrees to make available the requested Advance (which
it will have no obligation to do) and if each of the
representations and warranties contained in clause 7 are true and
accurate on the proposed drawdown date, then the Bank shall make
the Advance available to the Borrower by payment to such bank
account of the Borrower as the Borrower has specified in the
relevant drawdown notice.
COMPENSATION If for any reason an Advance is not drawn down after
its drawdown notice has been given and accepted by the Bank, the
Borrower will pay to the Bank on demand such amount as the Bank
reasonably considers necessary to compensate it for any cost,
expense or loss incurred in relation to the proposed Advance.
4 INTEREST
4.1 CALCULATION Interest will accrue from day to day on each Advance
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and will be calculated at the applicable rate for its Term, both
before and after judgment, on the basis of the actual number of
days elapsed in a 360 day year in the case of Advances denominated
in US dollars and a 365 day in the case of Advances denominated in
the Alternative Currency. Interest on an Advance will be payable
by the Borrower in arrears on the last day of its Term.
4.2 ORDINARY RATE The rate of interest applicable to each Advance
during its Term will be the aggregate of LIBOR and the Margin.
4.3 CHANGES The Bank will give notice to the Borrower if at any time
on or before the first day of its Term the Bank determines that:-
4.3.1 by reason of circumstances generally affecting the London
Inter-Bank Market adequate and fair means do not exist for
ascertaining LIBOR for such Term; or
4.3.2 deposits in the relevant currency are not available to the
Bank in the London Inter-Bank Market in sufficient amounts
and for the relevant maturity in the ordinary course of
business.
4.4 ALTERNATIVE RATE If a notice is given under clause 4.3 then the
Term will be of such duration as the Bank may think appropriate and
the rate of interest applicable to the relevant Advance will be the
aggregate of the Margin and the rate per annum determined by the
Bank to be the rate which represents the cost to the Bank of
funding that Advance from whatever sources it may select.
4.5 DEFAULT RATE If the Borrower fails to pay any amount payable by it
under this agreement on its due date, the Borrower will on demand
by the Bank from time to time pay interest on such overdue amount
from its due date up to its date of actual payment in full, both
before and after judgment, at the rate per annum determined by the
Bank to be the aggregate of one per cent. per annum, LIBOR for such
period or periods (not exceeding three Months) as it shall consider
appropriate and the Margin. For the purposes of calculating such
interest, such overdue amount and each such period will be deemed
to be an "Advance" and a "Term" respectively and, if a notice is
given under clause 4.3 in relation to any such period, LIBOR will
be replaced by the Bank's cost of funding as contemplated in clause
4.4.
5 REPAYMENT, TERMINATION, PREPAYMENT AND CANCELLATION
5.1 REPAYMENT AT END OF TERM Without prejudice to clauses 5.2 and 5.3,
the Borrower will repay each Advance to the Bank on the last day of
its Term and amounts repaid under this clause will be available for
redrawing.
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5.2 DEMAND REPAYMENT AND TERMINATION OF FACILITY The Bank may at any
time:-
5.2.1 demand repayment within six Business Days of all outstanding
Advances, accrued interest thereon, fees and all other
amounts outstanding under this agreement provided that the
Bank may demand immediate repayment of all such Advances,
interest, fees and other amounts if the Bank is advised by
legal counsel that it is necessary or desirable to do so in
order to protect the Bank's interests; and/or
5.2.2 give notice that the facility is no longer available and
that no further requests for Advances may be made.
5.3 CANCELLATION OF LIQUIDITY FACILITY Without prejudice to clause
5.2, if at any time notice is given by Old Mutual Fund Holdings
(Bermuda) Limited to cancel the Liquidity Facility or the Liquidity
Facility is terminated, then the Borrower will immediately repay
all outstanding Advances, accrued interest thereon, fees and all
other amounts outstanding under this agreement. Thereafter, the
facility will no longer be available and the Borrower will not be
entitled to make any request for Advances hereunder.
5.4 CANCELLATION The Borrower may at any time, provided that no
Advances are then outstanding, give notice to the Bank that it no
longer wishes to request Advances hereunder.
5.5 PREPAYMENT The Borrower will be entitled to prepay the whole or
any part of an Advance at any time if:-
5.5.1 the Borrower has given to the Bank not less than 10 Business
Days' prior written irrevocable notice of such prepayment;
and
5.5.2 any prepayment of part is in respect of an amount or
multiple of US$500,000 or its approximate equivalent in the
Alternative Currency.
6 EXTERNAL FACTORS
6.1 WITHHOLDINGS If at any time the Borrower is required by law to
make any deduction or withholding from any payment due from the
Borrower to the Bank, the Borrower shall simultaneously pay to the
Bank whatever additional amount is necessary to ensure that the
Bank receives a net sum equal to the payment it would have received
had no deduction or withholding been made.
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6.2 TAXES ON RECEIPT If the Bank is required to pay Tax (other than
Tax on its overall net income) on any payment receivable or
received under this agreement or any liability to Tax in respect of
any such payment is assessed, imposed or levied on the Bank, then
the Borrower will indemnify the Bank on demand against such payment
or liability.
6.3 INCREASED COSTS If any introduction of or change in law or in its
interpretation or administration by any relevant governmental
authority or any request from or requirement of any other fiscal,
monetary or other authority:-
6.3.1 subjects the Bank, or any holding company of the Bank, to a
cost in relation to its performance of this agreement, its
maintenance of its Commitment or its making of any Advance
or the Loan or increases any such cost; or
6.3.2 imposes or changes any reserve or other requirement against
or in respect of any commitments or assets of the Bank, or
any holding company of the Bank, (including the Commitment
or any Advance or the Loan); or
6.3.3 imposes on the Bank, or any holding company of the Bank, any
other condition or payment obligation in relation to the
Commitment, any Advance, the Loan or any other matter
arising under this agreement or affects the manner in which
the Bank, or any holding company of the Bank allocates its
capital resources to its obligations under this agreement
and the result of any of the above is to increase the cost to the
Bank of making or maintaining all or any part of the Commitment or
any Advance or the Loan or otherwise to reduce the Bank's, or any
holding company of the Bank's, expected return from any advance or
all or any part of the Loan, then:
(a) the Bank, or the holding company of the Bank (as the case
may be), will promptly notify the Borrower of the happening
of such event; and
(b) the Borrower will pay to the Bank, or the holding company of
the Bank (as the case may be), on demand from time to time
such amounts as the Bank or the holding company of the Bank
(as the case may be) determines will compensate it for such
increased cost or for such reduced return which
determination the Bank shall provide to the Borrower in
writing in reasonable detail.
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6.4 ILLEGALITY If at any time it becomes unlawful for the Bank to
allow the Commitment to remain in effect or to make or fund any
Advance or allow the Loan to remain outstanding then the Bank will
promptly notify the Borrower and:-
6.4.1 the Bank will not be required to make any Advances and the
Commitment will be reduced to zero; and
6.4.2 if the Bank so requires by notice to the Borrower, the
Borrower will repay the Loan and pay to the Bank all accrued
interest, fees and other sums owed by the Borrower under
this agreement within six Business Days of such notice or
such shorter period as may be required by the relevant law.
6.5 MITIGATION If circumstances arise which would result in an increase
in the amounts payable by the Borrower under this agreement
pursuant to Clauses 6.1, 6.2 and 6.3 above, the Bank shall consult
with the Borrower with a view to taking all reasonable steps to
mitigate the effects of such circumstances (provided that nothing
herein shall require the Bank to take any action which would or
might have any adverse effect on its business) and, if the Bank
obtains a credit against, or relief or remission for, or a payment
of, any Tax as a result it shall use all reasonable endeavours to
identify the amount concerned and to pay the Borrower such amount
as leaves the Bank in the same position as if such circumstances
had not arisen (provided that nothing herein shall interfere in the
right of the Bank to organise its tax affairs as it thinks fit nor
oblige it to disclose any information relating to its tax affairs
or any computations in respect thereof).
7 REPRESENTATIONS AND WARRANTIES
7.1 BORROWER REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank that:-
7.1.1 STATUS it is duly established and in good standing under
the laws of Massachusetts and it has the appropriate power
and authority to own its property and assets and to carry on
its business as now conducted;
7.1.2 POWERS, APPROVALS AND OBLIGATIONS BINDING it has the
appropriate power to enter into and perform this agreement,
it has taken all necessary action to authorise the
execution, delivery and performance of this agreement, and
the obligations expressed as being assumed by it constitute
its valid, legal and binding obligations and their
performance will not contravene any provision of its
constituting documents or any law or other obligation
binding upon it;
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7.1.3 CONSENTS no approval, authorisation, consent, licence,
permit or registration of or with any governmental, judicial
or other authority or other third party is required by it or
desirable to be obtained by it in connection with the
execution, performance, validity or enforceability of this
agreement;
7.1.4 AUTHORISATIONS it holds (and has at all times complied with
in all material respects) all authorisations required to
carry on its business and it is not aware of any event or
circumstance which could reasonably be expected adversely to
affect its right to hold and/or to obtain renewal of all
such authorisations and/or to obtain any new authorisations
which will be required in the future to enable it to carry
on its business;
7.1.5 ENCUMBRANCES except as disclosed in writing to the Bank
prior to the date of this agreement, there are no
Encumbrances affecting any of its property, assets or
undertaking (whether present or future) and it has not given
any guarantee, indemnity or other assurance against loss in
relation to the liability of any other person;
7.1.6 INFORMATION the factual information provided by it to the
Bank prior to the date of this agreement was true, complete
and accurate in all material respects when so provided and
it is not aware of any material facts or circumstances that
have not been disclosed and which might, if disclosed, make
any such information misleading in any material respect;
7.1.7 INITIAL FINANCIAL STATEMENTS the Initial Financial
Statements give a true and fair view of the Borrower's
financial condition as at the end of the period to which
they relate and there has been no material adverse change in
the Borrower's financial condition since that date;
7.1.8 LITIGATION AND OTHER PROCEEDINGS no litigation, arbitration
or administrative proceedings before or of any court or
governmental authority are presently pending or (to the best
of its knowledge, information and belief) threatened which
would have a material adverse effect on its ability to
perform its obligations under this agreement; and
7.1.9 INSOLVENCY/DISSOLUTION it is not insolvent or in liquidation
or administration or subject to any other insolvency
procedure, no receiver, manager, trustee, custodian or
analogous officer has been appointed in respect of all or
any part of its property, undertaking or assets and no vote
has been passed or other
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step taken for its termination or dissolution.
7.2 REPETITION The representations and warranties contained in clause
7.1 shall be deemed to be repeated by the Borrower on each drawdown
date by reference to the facts and circumstances then existing on
each drawdown date save that references to Initial Financial
Statements in clause 7.1.7 shall be deemed to be references to the
latest audited financial statements delivered pursuant to clause
8.1.3.
7.3 BANK REPRESENTATION AND WARRANTY The Bank represents and warrants
to the Borrower that it is a bank falling within subsection (i) of
the definition of Qualifying Bank. If the Bank ceases to be such a
Qualifying Bank it will as soon as practicable notify the Borrower.
8 UNDERTAKINGS
8.1 POSITIVE The Borrower will:-
8.1.1 PARI PASSU procure that its liabilities under this
agreement rank all times at least pari passu with all its
other unsecured liabilities except those preferred solely by
law;
8.1.2 INSURANCE maintain such insurance against such risks and at
such levels in relation to its assets and business as is
reasonable and customary for a company engaged in the same
or a similar activity and in the same or similar localities
to the Borrower;
8.1.3 FINANCIAL STATEMENTS provide the Bank:
(a) as soon as the same become available, but in any event
within 180 days after the end of each of the Borrower's
financial years, with copies of its annual audited
financial statements;
(b) as soon as the same become available, but in any event
within 120 days of the end of the first half-year of
each of the Borrower's financial year, with copies of
its unaudited financial statements for that period;
8.1.4 VALUATION provide the Bank with a Valuation:
(a) within five Business Days of the end of each month; and
(b) on the next Business Day following a 15% decline in the
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Johannesburg Stock Exchange Actuaries All-Share Index over any period of one or
more days between the date of a Valuation received by the Bank (or, if a
Valuation is not received in respect of a month, the due date of such Valuation)
and the due date of the next following Valuation; and
(c) at any other time on the reasonable request of the
Bank.
8.1.5 PROVISION OF FURTHER INFORMATION provide the Bank with such
other financial or other information as the Bank may
reasonably require from time to time;
8.1.6 FINANCIAL COVENANTS ensure that at all times :-
(a) its Net Asset Value is greater than US$500,000,000; and
(b) Total Borrowings shall not exceed 10 per cent of its
Net Asset Value.
These covenants will be tested monthly by reference to the
Valuation delivered to the Bank at the end of each month and
at any other time following a 15% decline in the JSE
Actuaries All-Share Index over any period of one or more
days between the date of a Valuation received by the Bank
(or, if a Valuation is not received in respect of a month,
the due date of such Valuation) and the due date of the next
following Valuation;
8.1.7 AUTHORISATIONS obtain, observe and renew all such
authorisations, consents and licences which are required in
relation to its business or in order to perform its
obligations under this agreement;
8.1.8 LITIGATION immediately upon becoming aware of the same,
give the Bank notice in writing of all litigation,
arbitration or administrative proceedings falling within the
provisions of clause 7.1.8;
8.1.9 STATUS retain its status as a trust established under
Massachusetts law and an investment company registered under
the United States Investment Company Xxx 0000; and
8.1.10 INVESTMENT MANAGER forthwith give notice to the Bank if (i)
it intends to replace its existing investment manager or
(ii) it receives notice from its investment manager that
such manager wishes to resign or (iii) it intends to appoint
any additional investment manager.
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8.2 NEGATIVE The Borrower will not without the prior written consent
of the Bank:-
8.2.1. ENCUMBRANCES create or permit to arise or continue any
Encumbrance or other third party right affecting any of its
property, assets and undertaking (whether present or future)
other than (i) an Encumbrance created solely by operation of
law or (ii) any lien arising from the provision in the
standard terms of business of a custodian in respect of
amounts not more than 30 days overdue and not exceeding in
aggregate US$1,000,000;
8.2.2 CHANGE IN BUSINESS make, or permit to be made, any change
in the nature of its business as carried on at the date of
this agreement;
8.2.3 SUBSIDIARIES acquire, create or permit to subsist any
subsidiaries (as defined in section 736 Companies Act 1985)
of itself;
8.2.4 CHANGE IN INVESTMENT POLICY fundamentally change its
investment policy or the investment restrictions in each
case as described in the Placing Memoranda of Old Mutual
SAGA Fund and OMEGA fund dated 1 June 1997;
8.2.5 FINANCIAL YEAR END change its financial year end; or
8.2.6 LOANS ETC make any loans (other than securities lending in
the ordinary course of business), grant any credit (save in
the ordinary course of business) or give any guarantee,
indemnity or other assurance against loss to or for the
benefit of any person or otherwise voluntarily assume any
liability, whether actual or contingent, in respect of any
obligation of any other person.
9 INDEMNITIES
9.1 GENERAL COSTS The Borrower will from time to time on demand
reimburse the Bank for all costs and expenses (including legal
fees) and VAT chargeable on them reasonably incurred in or in
connection with the preparation, negotiation, execution,
preservation and/or enforcement of this agreement.
9.2 STAMP DUTIES The Borrower will pay on demand all stamp and other
duties and Taxes, if any, to which this agreement may be subject or
give rise and indemnify the Bank on demand against any and all
liabilities with respect to or resulting from any delay or
15
omission on the part of the Borrower to pay any such duties or
Taxes.
9.3 BREAK COSTS If any repayment of all or any part of an Advance is
made otherwise than on the last day of its Term, the Borrower will
pay to the Bank on written demand showing the Bank's basis of
calculation such additional amount as the Bank may reasonably
determine is necessary to compensate it for any related loss,
premium, penalty or expense incurred or to be incurred by it
(including, without limitation, the costs of redeploying any funds
borrowed or other commitments entered into by the Bank in respect
of this agreement) and the Bank agrees that if such repayment
produces a profit, the Bank will account to the Borrower for such
profit, less reasonable costs within ten Business Days of the date
on which such profit is realised.
9.4 DEFAULT The Borrower will indemnify the Bank on demand against any
loss or expenses (including legal fees) sustained or incurred as a
consequence of any failure by the Borrower to perform any of its
obligations under this agreement.
10 PAYMENTS
10.1 SET OFF The Bank shall be entitled at any time or times without
notice (both before and after demand) to set off any liability of
the Borrower to the Bank against any liability of the Bank to the
Borrower (in either case whether actual or contingent, present or
future and irrespective of the branch or office, currency or place
of payment) and may for such purpose convert or exchange any
currency.
10.2 CURRENCY The Borrower's liability under this agreement is to
discharge its payment obligations in the currency in which the
obligation is payable. If at any time the Bank receives any payment
(including by set-off) referable to any of the Borrower's
liabilities under this agreement from any source in a currency
other than in the required currency then such payment shall take
effect as a payment to the Bank of the amount in US dollars or the
Alternative Currency which the Bank is able to purchase (after
deduction of any relevant costs) with the amount of the payment so
received in accordance with its usual practice.
10.3 INDEMNITY If a payment is made under a court order and is treated
by clause 10.2 a payment of an amount which falls short of the
relevant liability of the Borrower expressed in the relevant
currency, the Borrower as a separate and independent obligation
shall on demand from time to time indemnify the Bank against such
shortfall and shall pay interest on such shortfall from the date of
such
16
payment to the date the shortfall is paid. Such interest will be
calculated under clause 4.5 as if such shortfall were an overdue
amount.
10.4 FUNDS All payments made by the Borrower to the Bank shall be made
in the required currency in immediately available cleared funds to
the credit of such account as the Bank may designate. Such payments
shall be made in full without set off or counter-claim and free and
clear of any deduction or withholding for or on account of any Tax
(save for such deductions or withholdings as are required by law)
or any other matter.
10.5 CERTIFICATES A certificate signed by an official of the Bank as to
any amount due or owing from the Borrower shall be conclusive
evidence against the Borrower except in the case of manifest error
or any question of law.
11 COMMUNICATIONS
11.1 WRITTEN All communications under this agreement must be in
writing.
11.2 ADDRESSES Any communication may be sent by prepaid post, telex or
fax or delivered to the Bank or the Borrower at its address, telex
or fax number shown above unless it has communicated another
address, telex or fax number to the other in which case it must be
sent to the last address, telex or fax number so communicated to
the other for this purpose. Communications to the Borrower may
also be sent or delivered to the Address for Service.
11.3 DELIVERY A communication by post will be deemed made on the day
after posting by first class post, postage prepaid (but, if to
another country, ten days after posting by airmail, postage
prepaid). Communications by telex or fax will be deemed completed
upon receipt of the appropriate answerback (in the case of a telex)
or when confirmed by the transmitting machine (in the case of a
fax).
12 LAW AND JURISDICTION
12.1 LAW This Agreement is governed by and will be construed in
accordance with English law.
12.2 JURISDICTION For the benefit only of the Bank, the parties
irrevocably agree that the English courts are to have jurisdiction
to settle any disputes and to entertain any suit, action or
proceedings in each case arising out of or in connection with this
agreement (together, in this clause 12, "PROCEEDINGS").
17
12.3 OTHER COURTS Nothing contained in this clause 12 shall limit the
right of the Bank to take proceedings against the Borrower in the
courts of any country in which the Borrower has assets or in any
other courts of competent jurisdiction, nor shall the taking of
proceedings in one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not.
12.4 WAIVER The Borrower irrevocably waives any objection which it may
now or in the future have to any court referred to in this clause
12 as a venue for any proceedings and any claim which it may now or
in the future be able to make that any proceedings in any such
court have been instituted in an inconvenient or inappropriate
forum.
12.5 JUDGMENTS A judgment in any proceedings against the Borrower in
any court referred to in this clause 12 shall be conclusive and
binding upon the Borrower and may be enforced in the courts of any
other jurisdiction.
12.6 SERVICE The Address for Service shall be an effective address for
service of proceedings in the English courts on the Borrower.
13 ASSIGNMENT AND TRANSFER
13.1 CONSENT The prior written consent of the Borrower (not to be
unreasonably withheld or delayed) is required prior to the
assignment and/or transfer by the Bank of any one or more of its
rights and/or obligations under this agreement to any other person
provided that in no event shall any such rights and/or obligations
be assigned and/or transferred to any person that is not a
Qualifying Bank.
13.2 ASSIGNMENTS Upon notice to the Borrower of any assignment (under
and in accordance with clause 13.1) of rights against the Borrower
under this agreement, such assignment shall take effect as an
absolute assignment and the assignee shall be entitled to xxx the
Borrower without joining the assignor as a party to the
proceedings. For the avoidance of doubt the assignor shall be
entitled to xxx the Borrower pursuant to any right not assigned
without joining the assignee as a party to the proceedings.
13.3 TRANSFERS The Borrower irrevocably agrees that if it receives
notice of any transfer (under and in accordance with clause 13.1)
of obligations owed to the Borrower under this agreement and the
transferee confirms in such notice that it will perform such
transferred obligations, then such obligations shall be novated and
after that shall be owed to the Borrower by the transferee and not
18
the transferor.
13.4 PROHIBITION The Borrower may not assign and/or transfer any one or
more of its rights and/or obligations under this agreement.
13.5 DISCLOSURE The Bank may give to a proposed assignee, transferee or
any other person entering into contractual relations with it in
respect of this agreement such information relating to the Borrower
as it thinks fit provided the recipient of such information agrees
to hold it confidential and the Borrower has given its prior
approval (not to be unreasonably withheld or delayed).
14 MISCELLANEOUS
14.1 DELAYS The Bank's rights and powers under this agreement will not
be affected or impaired by any delay or omission by the Bank in
exercising them or any previous exercise of any such rights or
powers.
14.2 SEVERABILITY Each of the provisions of this agreement shall be
severable and distinct from one another and if at any time any one
or more of these provisions (or any part of them) is or becomes
invalid, illegal or unenforceable the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
THIS AGREEMENT has been signed on the date first stated on page 1 above.
19
SCHEDULE 1
CONDITIONS PRECEDENT
1 A copy, certified as true complete and up to date by the secretary or a
trustee of the Borrower, of the declaration of trust, bye-laws and other
constituting documents of the Borrower.
2 A copy, certified as true complete and up to date by the secretary or a
trustee of the Borrower of a vote of the trustees of the Borrower approving the
Borrower's entry into and performance of this agreement and giving details of
the persons authorised to sign this agreement and any communications and
documents relating to it on behalf of the Borrower, together with their specimen
signatures.
3 An opinion of the Borrower's Counsel in Massachusetts.
4 Copies, certified as true complete and up to date by the secretary or a
trustee of the Borrower, of each approval, consent, licence, permit and
registration document (if any) as is mentioned as being required in relation to
this agreement in the opinion of the Bank's Counsel.
5 An up to date Valuation.
20
SCHEDULE 2
DRAWDOWN NOTICE
To: Xxxxxx Xxxxxxx & Co. Limited
From: Old Mutual South Africa Equity Trust
Date: [ ]
Dear Sirs
US$50,000,000 LOAN AGREEMENT DATED [ ] 1998
-------------------------------------------------------
We refer to the above loan agreement (the "LOAN AGREEMENT") made between (1)
ourselves as Borrower and (2) yourselves as Bank. Expressions defined in the
Loan Agreement will have the same meaning in this notice.
We give you notice that we wish to make a drawing of [specify currency and
amount] with a Term of [ ] on [ ] under
the Loan Agreement. Please make it available to our account number:
[ ] with [ ].
As at the date of this notice the representations and warranties contained in
Clause 7 of the Loan Agreement are true and accurate.
Yours faithfully
00
XXX XXXXXXXX
XXX XXXXXX XXXXX XXXXXX EQUITY TRUST
By:
THE BANK
XXXXXX XXXXXXX & CO. LIMITED
By:
22
DATED 1998
______________________________________________________
(1) OLD MUTUAL SOUTH AFRICA
EQUITY TRUST
(2) XXXXXX XXXXXXX & CO. LIMITED
_________________________________________
LOAN AGREEMENT
_________________________________________
XXXXXXXXXX XXXXXXX
XXX, XX. XXXX'X XXXXXXXXXX
XXXXXX XX0X 0XX
TEL: 0000 000 0000
FAX: 0000 000 0000
REF: (537/114)
TABLE OF CONTENTS
PAGE
1 INTERPRETATION 108
2 THE FACILITY 113
3 DRAWINGS 114
4 INTEREST 115
5 REPAYMENT, TERMINATION, PREPAYMENT
AND CANCELLATION 116
6 EXTERNAL FACTORS 117
7 REPRESENTATIONS AND WARRANTIES 119
8 UNDERTAKINGS 120
9 INDEMNITIES 123
10 PAYMENTS 124
11 COMMUNICATIONS 125
12 LAW AND JURISDICTION 125
13 ASSIGNMENT AND TRANSFER 126
14 MISCELLANEOUS 127
