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EXHIBIT 9(d)
CONFORMED COPY
DATED 23rd OCTOBER 0000
XXX XXXXXX XXXXX XXXXXX EQUITY TRUST (1)
OLD MUTUAL EQUITY GROWTH ASSETS
SOUTH AFRICA FUND (2)
- and -
OLD MUTUAL SOUTH AFRICA
GROWTH ASSETS FUND LIMITED (3)
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INVESTMENT RESTRICTIONS UNDERTAKING
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Xxxxxx Xxxx
London
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THIS AGREEMENT is made on 23RD October 1995 BETWEEN:
(1) OLD MUTUAL SOUTH AFRICA EQUITY TRUST (organised as a Massachusetts
trust) whose principal office is at Xxxxxxxx Xxxxx, 00 Xxx-xx-Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxx (xxx "MASTER TRUST");
(2) OLD MUTUAL EQUITY GROWTH ASSETS SOUTH AFRICA FUND (organised as a
Massachusetts business trust) whose principal office is at Xxxxxxxx
Xxxxx, 00 Xxx-xx-Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx (xxx "OMEGA FUND"); and
(3) OLD MUTUAL SOUTH AFRICA GROWTH ASSETS FUND LIMITED (registered in
Bermuda with number EC2110) whose registered address is at Xxxxxxxx
Xxxxx, 00 Xxx-xx-Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx (xxx "SAGA FUND").
WHEREAS:
(A) application has been made for shares in the SAGA Fund to be admitted to
listing on the Irish Stock Exchange;
(B) this Agreement sets out undertakings of the Master Trust as to changes
in its investment objective, policies and restrictions given in
connection with that application.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS
1.1 In this Agreement, unless the context otherwise requires, the following
expressions have the following meanings:
"DECLARATION OF TRUST" means the declaration of trust of the OMEGA Fund
dated as of 1st September 1995
"HOLDERS" means holders of beneficial interest in the OMEGA Fund
"PLACEMENT MEMORANDUM" means the placement memorandum relating to the
SAGA Fund dated 1st November 1995
"SHAREHOLDERS" means the registered holders of shares in the SAGA Fund.
1.2 The headings to clauses and schedules shall not affect their
interpretation.
1.3 Reference to clauses and schedules are reference to clauses of and
schedules to this Agreement.
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2 MASTER TRUST UNDERTAKINGS
2.1 The Master Trust hereby irrevocably undertakes to the OMEGA Fund and
the SAGA Fund that:
(a) the Master Trust will not make any material change in its
investment objective described under the heading "Investment
Objective" in the Placement Memorandum or to its investment
policies described under the heading "Investment Policies" in
the Placement Memorandum except in unforeseen circumstances and
with the approval of a majority vote of Shareholders and a
majority vote of Holders;
(b) the Master Trust will comply with the investment restrictions
set out in the schedule and will not change those restrictions
for so long as shares in the SAGA Fund are listed on the Irish
Stock Exchange.
2.2 If the Master Trust wishes to effect a change requiring approval under
clause 2.1(a), the SAGA Fund and the OMEGA Fund agree to procure the
holding of a meeting of Shareholders and Holders respectively at which
a resolution is put seeking such approval.
3 GENERAL
3.1 This Agreement is conditional on the SAGA Fund acquiring an interest in
the Master Trust and on shares in the SAGA Fund being admitted to
listing on the Irish Stock Exchange.
3.2 This Agreement shall cease to have effect on the earlier of the SAGA
Fund ceasing to hold an interest in the Master Trust and the shares in
the SAGA Fund ceasing to be listed on the Irish Stock Exchange.
3.3 The undersigned trustee or officer of the Master Trust has executed
this Agreement not individually but as trustee or officer under the
Declaration of Trust and the obligations of this Agreement are not
binding upon any of the trustees or officers of the Master Trust
individually.
3.4 The undersigned trustee or officer of the OMEGA Fund has executed this
Agreement not individually but as trustee or officer under the
declaration of trust of the OMEGA Fund and the obligations of this
Agreement are not binding upon any of the trustees or officers of the
OMEGA Fund individually but as to the OMEGA Fund bind only the Trust
Estate (as defined in the declaration of trust of the OMEGA Fund).
3.5 This Agreement may be executed in two or more counterparts, each of
which shall constitute an original but which, when taken together,
shall constitute one agreement.
4 GOVERNING LAW
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This Agreement shall be governed by and construed in accordance with
English law and each of the parties hereby submits to the non-exclusive
jurisdiction of the High Court of Justice in England.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
SCHEDULE 1
IRISH STOCK EXCHANGE INVESTMENT RESTRICTIONS
(i) No more than 20% of the gross assets of the Master Trust may be
lent to or invested in the securities of any one issuer;
(ii) the Master Trust will not take legal or management control of
investments in its portfolio;
(iii) not more than 10% of the gross assets of the Master Trust will
be invested in physical commodities;
(iv) not more than 10% of the gross assets of the Master Trust will
be invested in real estate;
(v) the Master Trust will not engage in any property development
activity;
(vi) the Master Trust will adhere to the principle of
diversification in relation to any derivative investments;
(vii) the Master Trust will not make any investment which would
expose it to unlimited liability, including participation in an
unlimited partnership;
(viii) the Master Trust will only enter into underwriting or
sub-underwriting contracts to a limited extent and incidental
to the investment activities of the Master Trust; and
(ix) the Master Trust will not have a net exposure to a single
financing counterparty that exceeds 20% of its gross assets.
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SIGNED by XXXXXXX XXXXX )
for and on behalf of )
OLD MUTUAL SOUTH AFRICA )
EQUITY TRUST )
in the presence of: XXXXXX XXXXXXXX ) XXXXXXX XXXXX
SIGNED by XXXXXXX XXXXXXXX )
for and on behalf of )
OLD MUTUAL EQUITY GROWTH )
ASSETS SOUTH AFRICA FUND )
in the presence of: XXXXXX XXXXXXXX ) XXXXXXX XXXXXXXX
SIGNED by XXXXXXX XXXX )
for and on behalf of )
OLD MUTUAL SOUTH AFRICA )
GROWTH ASSETS FUND LIMITED )
in the presence of: XXXXXX XXXXXXXX ) XXXXXXX XXXX
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