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EXHIBIT 9(c)
DATED 23rd OCTOBER 1995
SOUTH AFRICAN MUTUAL LIFE
ASSURANCE SOCIETY (1)
OLD MUTUAL FUND HOLDINGS (BERMUDA) LIMITED (2)
OLD MUTUAL SOUTH AFRICA EQUITY TRUST (3)
OLD MUTUAL EQUITY GROWTH ASSETS
SOUTH AFRICA FUND (4)
OLD MUTUAL SOUTH AFRICA
GROWTH ASSETS FUND LIMITED (5)
OLD MUTUAL GLOBAL ASSETS FUND LIMITED (6)
- and -
OLD MUTUAL ASSET MANAGERS
(BERMUDA) LIMITED (7)
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PORTFOLIO TRANSFER AND
SUBSCRIPTION AGREEMENT
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Xxxxxx Xxxx
London
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CONTENTS
CLAUSE HEADING PAGE
1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2 Transfer of the Portfolio and OMAM contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3 Transfer of the Global Fund Portfolio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4 Representations and warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5 Completion of transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7 Initial offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8 Establishment of the OMEGA Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9 Establishment of the SAGA Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10 Equalisation payments to OMB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11 Further issues of shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
12 Ring fencing of Master Trust and Global Fund and liquidity facility . . . . . . . . . . . . . . . . . . . . . . . . 10
14 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
15 Conditions precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
17 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
19 Governing law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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THIS AGREEMENT is made on 23rd October 1995 BETWEEN:
(1) SOUTH AFRICAN MUTUAL LIFE ASSURANCE SOCIETY (incorporated in terms of
the South Africa Mutual Life Assurance (Private) Act, 1966 and
registered in South Africa as a long-term insurer in terms of the
Insurance Act, 1943) whose registered address is at Mutualpark, Xxx
Xxxxx Xxxxx, Xxxxxxxxx 0000, Xxxxxxxx xx Xxxxx Xxxxxx ("OLD MUTUAL");
(2) OLD MUTUAL FUND HOLDINGS (BERMUDA) LIMITED (registered in Bermuda with
number EC21093) whose registered address is at Xxxxxxxx Xxxxx, 00
Xxx-xx-Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx ("XXX");
(3) 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");
(4) 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");
(5) 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");
(6) OLD MUTUAL GLOBAL ASSETS FUND LIMITED (registered in Bermuda with
number EC21103) whose registered address is at Xxxxxxxx Xxxxx, 00
Xxx-xx-Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx (xxx "GLOBAL FUND"); and
(7) OLD MUTUAL ASSET MANAGERS (BERMUDA) LIMITED (registered in Bermuda with
number EC21049) whose registered address is at Richmond House, 12
Par-la-Ville Road, Hamilton, Bermuda ("OMAM").
WHEREAS:
(A) Old Mutual is promoting the establishment of the Master Trust, the
OMEGA Fund and the SAGA Fund as funds investing in South Africa as
described in the Placement Memoranda;
(B) the Master Trust currently has no outstanding beneficial interest;
(C) the Global Fund currently has an issued share capital of US$12,000
divided into 12,000 shares of US$1 each, all of which are held (nil
paid) by OMB;
(D) Old Mutual is to transfer South African equity securities to the Master
Trust and to the Global Fund in exchange for OMB acquiring
substantially all of the
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beneficial interest in the Master Trust and for the paying up of the
12,000 shares and the issue of additional shares in the Global Fund
respectively;
(E) the Global Fund is to be established as part of the arrangements under
which liquidity is to be provided to the Master Trust to fund
redemptions as described in the Placement Memoranda;
(F) this Agreement provides, amongst other things, for the establishment of
the Funds, the transfer of the South African equity securities and the
provision of liquidity to the Master Trust;
(G) State Street Bank and Trust Company has been appointed as custodian and
State Street Cayman Trust Company, Ltd. has been appointed as
administrator to the Master Trust;
(H) OMB is an indirect and OMAM is a direct wholly owned subsidiary of Old
Mutual.
NOW IT IS HEREBY AGREED as follows:
1 DEFINITIONS
1.1 In this Agreement (including its Recitals), unless the context
otherwise requires, the following expressions have the following
meanings:
"ADMINISTRATOR" means State Street Cayman Trust Company, Ltd., as
administrator of the Master Trust
"ADMISSION" means the admission to listing on the Irish Stock Exchange
of shares in the SAGA Fund
"ADVISORY AGREEMENT" means the investment advisory agreement dated 23rd
October 1995 between the Master Trust and OMAM
"BOOK CAPITAL ACCOUNT" has the meaning given in the Declaration of
Trust
"BUSINESS DAY" has the meaning given in the Placement Memoranda
"COMPLETION" means the completion of the steps set out in clause 5
"CUSTODIAN" means State Street Bank and Trust Company, as custodian of
the Master Trust
"DECLARATION OF TRUST" means the declaration of trust of the Master
Trust dated as of 1st September 1995
"FUNDS" means the Master Trust, the OMEGA Fund and the SAGA Fund
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"GLOBAL FUND PORTFOLIO" means the securities on the list provided under
clause 3.1 subject to adjustment under clause 3.4
"GLOBAL FUND PROSPECTUS" means the first prospectus issued for the
Global Fund
"INITIAL CLOSING DATE" means 10th November 1995
"INITIAL OFFERING" has the meaning given in the Placement Memoranda
"INITIAL OFFERING TERMINATION DATE" means 7th November 1995
"JSE" means The Johannesburg Stock Exchange
"MANAGEMENT FEE" means the fee payable to OMAM under the Advisory
Agreement
"NON-US PLACING AGREEMENT" means the agreement to be entered into
between the Master Trust, the SAGA Fund, Old Mutual, OMAM, OMB and
Swiss Bank Corporation relating to the placing of shares in the SAGA
Fund
"PLACEMENT MEMORANDA" means the private placement memorandum relating
to the OMEGA Fund dated 15th September 1995 (as amended by any
subsequent published supplements) and the draft placement memorandum
relating to the SAGA Fund dated 15th September 1995
"PORTFOLIO" means the securities on the list provided under clause 2.1
subject to adjustment under clause 2.7
"US PLACING AGREEMENT" means the agreement to be entered into between
the Master Trust, the OMEGA Fund, Old Mutual, OMAM, OMB and XX Xxxxxxx
& Co. Inc. relating to the placing of shares in the OMEGA Fund
"TRANSFER DATE" means 3rd November 1995
"VALUATION RULES" means the rules for the valuation of the assets of
the Master Trust as adopted at the meeting of its trustees held on 22nd
and 23rd October 1995.
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 TRANSFER OF THE PORTFOLIO AND OMAM CONTRIBUTION
2.1 Old Mutual shall on 1st November 1995 provide to the Master Trust in
writing a list of securities. That list shall include the specified
types of securities issued by each of the issuers listed in schedule 1
(and no others). The percentage of the entire listed Portfolio which
each holding represents shall (when rounded to the nearest 0.1%) be
that specified in the third column of schedule 1. The list provided to
the Master Trust shall specify the aggregate value in US dollars of the
listed securities (based on the closing ruling prices on the JSE on
31st October 1995 and exchange rates prevailing at that close) and Old
Mutual shall procure that such value is within US$200,000 of
US$1,000,000,000. Old Mutual shall procure that that valuation is
carried out substantially in accordance with the Valuation Rules.
2.2 Old Mutual shall, on the Transfer Date, sell and transfer or procure
the sale and transfer of the Portfolio to the Master Trust free from
all liens, charges, encumbrances and equitable interests and with all
rights attached to the Portfolio as at the Transfer Date.
2.3 Old Mutual and the Master Trust shall procure that the Portfolio is
valued in US Dollars by the Administrator as at 10.00 a.m. (US Eastern
Time) on the Transfer Date in accordance with the Valuation Rules.
2.4 Old Mutual shall, on the Transfer Date, make a capital contribution of
US$4,750,000 to the Master Trust.
2.5 In consideration for the sale and transfer of the Portfolio and the
capital contribution under clause 2.4, the Master Trust shall on the
Transfer Date register OMB as a holder of beneficial interest in the
Master Trust and shall credit its Book Capital Account with the
aggregate of the value determined by the Administrator in accordance
with clause 2.3 and the amount of the capital contribution under clause
2.4.
2.6 Old Mutual shall procure that, on the Transfer Date, OMAM makes a
capital contribution to the Master Trust of US$100. In consideration
for such capital contribution, the Master Trust shall on the Transfer
Date register OMAM as a holder of beneficial interest in the Master
Trust and shall credit its Book Capital Account with the amount of such
capital contribution.
2.7 If between the close of the JSE on 31st October 1995 and the Transfer
Date Old Mutual shall determine that the value of the Portfolio has
increased or decreased by 5% or more, it may on or prior to Completion
with the prior consent of the Master Trust remove securities from the
Portfolio (as far as possible pro rata) or increase the number of
securities within the Portfolio holdings (as far as possible pro rata)
such that the value of the Portfolio on the Transfer Date approximates
more closely to US$1,000,000,000.
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3 TRANSFER OF THE GLOBAL FUND PORTFOLIO
3.1 Old Mutual shall on 1st November 1995 provide to the Global Fund in
writing a list of securities. That list shall include the specified
types of securities issued by each of the issuers listed in schedule 2
(and no others). The percentage of the entire listed Global Fund
Portfolio which each holding represents shall (when rounded to the
nearest 0.01%) be that specified in the third column of schedule 2. The
list provided to the Global Fund shall specify the aggregate value in
US dollars of the listed securities (based on the closing ruling prices
on the JSE on 31st October 1995 and exchange rates prevailing at that
close) and Old Mutual shall procure that such value is within
US$100,000 of US$500,000,000.
3.2 Old Mutual shall, on the Transfer Date, sell and transfer or procure
the sale and transfer of the Global Fund Portfolio to the Global Fund
free from all liens, charges, encumbrances and equitable interests and
with all rights attached to the Global Fund Portfolio as at the
Transfer Date.
3.3 In consideration for the sale and transfer of the Global Fund
Portfolio, the 12,000 shares in the Global Fund shall be paid up as to
their nominal value and a premium of US$49 and the Global Fund shall
allot and issue to OMB credited as fully paid such number of additional
shares of US$1 each in the Global Fund as is equal to the result of
dividing (a) the value in US dollars (based on the closing ruling
prices on the JSE on the Transfer Date and exchange rates prevailing at
that close) of the Global Fund Portfolio on the Transfer Date less
US$600,000 by (b) US$50.
3.4 If between the close of the JSE on 31st October 1995 and the Transfer
Date Old Mutual shall determine that the value of the Global Fund
Portfolio has increased or decreased by 5% or more, it may on or prior
to Completion remove securities from the Global Fund Portfolio (as far
as possible pro rata) or increase the number of securities within the
Global Fund Portfolio holdings (as far as possible pro rata) such that
the value of the Global Fund Portfolio on the Transfer Date
approximates more closely to US$500,000,000.
4 REPRESENTATIONS AND WARRANTIES
4.1 Old Mutual represents and warrants to each of the Funds as follows:
(a) Old Mutual has the power to execute, deliver and perform its
obligations under this Agreement;
(b) the execution and delivery of, and the performance of the
obligations of Old Mutual under, this Agreement have been duly
authorised by all necessary action on the part of Old Mutual
whether under its constitution or otherwise;
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(c) this Agreement constitutes, and the other documents which are
to be delivered by Old Mutual at Completion will, when
executed, constitute, legal, valid and binding obligations
enforceable in accordance with their respective terms;
(d) Old Mutual is or will be entitled at Completion to sell and
transfer to the Master Trust the full legal and beneficial
ownership of the Portfolio free from all liens, charges,
encumbrances and equitable interests and with all rights
attached thereto;
(e) all necessary consents and approvals (whether from any
governmental or administrative body or authority, the policy
holders of Old Mutual or from any other person or entity where
applicable) to or for the sale and transfer of the Portfolio
under this Agreement have been obtained and are and will be at
Completion in full force and effect, including (without
prejudice to the generality of the foregoing) the consent of
the South African Reserve Bank and of the South African
Registrar of Insurance;
(f) the Master Trust will, at Completion, acquire the Portfolio
free from any exchange control or other restrictions imposed by
any South African governmental or administrative body or
authority such that the Master Trust will be free to dispose of
the securities comprised in the Portfolio, to exchange any X.X.
Xxxx proceeds for US dollars and to remit those US dollars out
of South Africa.
4.2 Old Mutual agrees to indemnify and at all times to keep indemnified
each of the Funds against any liabilities, expenses (including legal
expenses), demands, proceedings or judgements whatsoever which may be
made, incurred, brought or established against any of the Funds which
result from any breach of the representations and warranties contained
in clause 4.1.
5 COMPLETION OF TRANSFERS
5.1 Completion of the transfers and the capital contributions provided for
in clause 2 and clause 3 shall take place in Johannesburg at the
offices of Standard Bank of South Africa Limited (as South African
sub-custodian to the Master Trust), in London at the branch offices of
the Custodian and in Bermuda at the offices of Xxxxxxx, Xxxx & Xxxxxxx
(Bermuda counsel to the Master Trust) (or at such other place or places
as may be agreed between Old Mutual and the Master Trust) on the
Transfer Date when all (but not part only unless Old Mutual and the
Master Trust shall so agree) of the following business shall be
transacted:
(a) Old Mutual shall deliver to the Master Trust (or as it shall
direct) transfers in respect of the Portfolio duly completed
and executed in favour of the Master Trust (or as it may
direct) together with the certificates therefor and such other
documents as may be reasonably required to give the Master
Trust a good title to the Portfolio and to
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enable the Master Trust or its or its custodian or sub-custodian's
nominee to become the registered holder thereof;
(b) Old Mutual shall pay the capital contribution under clause 2.4
and OMAM shall pay US$100 by telegraphic transfer to the
account of the Master Trust with the Custodian as notified by
the Master Trust to Old Mutual prior to the Transfer Date;
(c) the Master Trust shall deliver to Old Mutual a certified copy
of the resolution of the board of trustees of the Master Trust
(or a duly authorised committee thereof) directing that:
(i) OMB be registered as a holder of beneficial interest
in the Master Trust as described in clause 2.5;
(ii) OMAM be registered as a holder of beneficial interest
in the Master Trust as described in clause 2.6;
(d) Old Mutual shall deliver to the Global Fund (or as it shall
direct) transfers in respect of the Global Fund Portfolio duly
completed and executed in favour of the Global Fund (or as it
may direct) together with the certificates therefor and such
other documents as may be reasonably required to give the
Global Fund a good title to the Global Fund Portfolio and to
enable the Global Fund or its or its custodian or
sub-custodian's nominee to become the registered holder
thereof;
(e) the Global Fund shall credit as paid up the shares, and allot
and issue to OMB the consideration shares, as referred to in
clause 3.3.
5.2 Without prejudice to Old Mutual's obligations under clause 2.2, it is
agreed and understood between the Master Trust and Old Mutual that some
or all of the transfers provided for in clause 2.2 may be effected on
duly established branch registers of members of the relevant companies
outside South Africa and that, although Old Mutual will be the legal
and beneficial holder of all securities, the named transferor on
transfers delivered and the named holder on certificates delivered
pursuant to clause 5.1(a) may not be Old Mutual.
6 INDEMNITY
6.1 Old Mutual agrees with the Master Trust:
(a) to pay any stamp duty, transfer duty or other similar tax,
whether in South Africa, the United Kingdom or elsewhere
(including any late payment or other penalty or fine and any
duty levied under section 15(5) or 23(17) of the South African
Stamp Duties Act, 1968), due in respect of the transfers of the
Portfolio to be delivered by Old Mutual to the Master Trust at
Completion;
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(b) to indemnify and at all times keep indemnified the Master Trust
against any liabilities, expenses (including legal expenses),
demands, proceedings, judgements, penalties or fines whatsoever
which may be made, incurred, brought, established or imposed
against the Master Trust or its assets which result from any
breach of Old Mutual's obligations under this clause 6.
6.2 Old Mutual shall not be liable under clause 6.1(a) in repect of any
stamp duty, transfer duty or other similar tax incurred as a result of
a delay in the registation of the transfers referred to in that clause
by more than 6 months after the date of the transfers.
7 INITIAL OFFERING
7.1 Prior to 10.00 a.m. (US Eastern time) on the Initial Closing Date, OMB
shall submit a request to the Master Trust that OMB's interest in the
Master Trust be reduced by a capital withdrawal of an amount in US
dollars equal to the aggregate amount received by the OMEGA Fund in
respect of the Initial Offering by 9.30 a.m. (US Eastern time) on the
Initial Closing Date.
7.2 Prior to 10.00 a.m. (US Eastern time) on the Initial Closing Date, OMB
shall submit a request to the Master Trust that OMB's interest in the
Master Trust be reduced by a capital withdrawal of an amount in US
dollars equal to the aggregate amount received by the SAGA Fund in
respect of the Initial Offering by 9.30 a.m. (US Eastern time) on the
Initial Closing Date.
7.3 Prior to 10.00 a.m. (US Eastern time) on the Initial Closing Date, OMAM
shall submit a request to the Master Trust that OMAM's interest in the
Master Trust be redeemed (as defined in the Declaration of Trust) and
the Master Trust shall immediately following the capital contributions
in clauses 8.2 and 9.2 effect that redemption.
7.4 The Master Trust shall procure that its assets are valued by the
Administrator in US dollars as at 10.00 a.m. (US Eastern time) on the
Initial Closing Date in accordance with the Valuation Rules. The Master
Trust shall procure that the Administrator provides Old Mutual with
written notice of such valuation.
7.5 The maximum number of shares in the OMEGA Fund available in the Initial
Offering shall be determined by dividing the value of the assets of the
Master Trust determined pursuant to clause 7.4 (rounded down to the
nearest 100) by 100.
7.6 The maximum number of shares in the SAGA Fund available in the Initial
Offering shall be determined by dividing the value of the assets of the
Master Trust determined pursuant to clause 7.4 (rounded down to the
nearest 50) by 50.
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8 ESTABLISHMENT OF THE OMEGA FUND
8.1 The OMEGA Fund shall (a) prior to 10.00 a.m. (US Eastern time) on the
Initial Closing Date apply for an interest in the Master Trust of an
amount in US dollars equal to the aggregate amount received by the
OMEGA Fund in respect of the Initial Offering by 9.30 a.m. (US Eastern
time) on the Initial Closing Date; and (b) on the Initial Closing Date
apply the proceeds of the Initial Offering received by the OMEGA Fund
(without deduction or withholding) in making a capital contribution to
the Master Trust. The proportionate interest in the Master Trust
obtained by the OMEGA Fund by virtue of such capital contribution shall
be determined on the basis of the valuation carried out pursuant to
clause 7.4.
8.2 On receipt of the capital contribution from the OMEGA Fund, the Master
Trust shall with effect from the Initial Closing Date reduce the Book
Capital Account balance of OMB by an amount equal to that capital
contribution and shall within 7 days of such reduction pay to OMB an
amount in US dollars equal to that capital contribution.
9 ESTABLISHMENT OF THE SAGA FUND
9.1 The SAGA Fund shall (a) prior to 10.00 a.m. (US Eastern time) on the
Initial Closing Date apply for an interest in the Master Trust of an
amount in US dollars equal to the aggregate amount received by the SAGA
Fund in respect of the Initial Offering by 9.30 a.m. (US Eastern time)
on the Initial Closing Date; and (b) on the date of Admission apply the
proceeds of the Initial Offering received by the SAGA Fund (without
deduction or withholding) in making a capital contribution to the
Master Trust. The proportionate interest in the Master Trust obtained
by the SAGA Fund by virtue of such capital contribution shall be
determined on the basis of the valuation carried out pursuant to clause
7.4.
9.2 On receipt of the capital contribution from the SAGA Fund, the Master
Trust shall with effect from the date of Admission reduce the Book
Capital Account balance of OMB by an amount equal to that capital
contribution and shall within 7 days of such reduction pay to OMB an
amount in US dollars equal to that capital contribution.
10 EQUALISATION PAYMENT TO OMB
At 10.00 a.m. (United Kingdom time) on 13th November 1995 the Master
Trust shall become liable to pay to OMB an amount equal to 0.25% of the
value of the interest in the Master Trust which OMB retains or will
retain following the reductions in its Book Capital Account balance
made or to be made pursuant to clause 8.2 and 9.2.
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11 FURTHER ISSUES OF SHARES
If, on any Business Day when OMB is the holder of a beneficial interest
in the Master Trust, the aggregate of any capital contributions made to
the Master Trust by the OMEGA Fund and the SAGA Fund exceed the
aggregate of any capital withdrawals from the Master Trust made by the
OMEGA Fund and the SAGA Fund, the Master Trust shall procure that the
Administrator notifies OMB of the amount of such excess (the
"Contribution Excess") on such Business Day. OMB hereby submits a
standing request to the Master Trust that OMB's interest in the Master
Trust be reduced with effect from that Business Day by a capital
withdrawal of the lesser of the value of OMB's interest in the Master
Trust on that Business Day and the Contribution Excess, provided that
in no case shall OMB's Book Capital Account balance be reduced to less
than US$100.
12 RING FENCING OF MASTER TRUST AND GLOBAL FUND AND LIQUIDITY FACILITY
12.1 OMB agrees with each of the Funds:
(a) not to make any withdrawal from the Master Trust except
pursuant to clauses 8.2, 9.2, 11 or 15.4 or following the
termination or dissolution of the Master Trust;
(b) to apply the proceeds of any withdrawal from the Master Trust
made pursuant to clause 8.2, 9.2 or 11 in subscribing at net
asset value for shares in the Global Fund,
save that this clause 12.1 will not apply to any withdrawls
made by OMB from the Master Trust in respect of income or
realised capital gains.
12.2 OMB agrees with each of the Funds:
(a) not to redeem shares in the Global Fund or to receive any form
of income or capital distribution from the Global Fund except
for (i) redemptions made to comply with OMB's obligations
under clause 12.3 and (ii) dividend distributions made by the
Global Fund to OMB which comply with clause 12.5(g);
(b) to apply the proceeds of any redemption of shares in the
Global Fund in making capital contributions to the Master
Trust.
12.3 OMB undertakes to each of the Funds to apply, on request by or on
behalf of the Master Trust (which may be a standing request), the
amount to which OMB is entitled on the redemption of shares in the
Global Fund in making capital contributions to the Master Trust in US
dollars of an amount equal to that required by the Master Trust to fund
capital withdrawals requested on any Business Day by the OMEGA Fund or
the SAGA Fund (to the extent such
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capital withdrawals are not offset on such Business Day (the "relevant
Business Day") by capital contributions to the Master Trust by the
OMEGA Fund or the SAGA Fund).
12.4 OMB shall comply with its obligations under clause 12.3 as soon as is
practicable and in any event within 3 Business Days of the relevant
Business Day.
12.5 Old Mutual and OMB agree to procure that, without the prior written
consent of the Master Trust, the OMEGA Fund and the SAGA Fund:
(a) OMB remains the sole beneficial owner of shares in the Global
Fund;
(b) the management or other fees payable by the Global Fund do not
exceed those referred to in the Global Fund Prospectus;
(c) OMB does not borrow money of an amount exceeding US$1,000,000;
(d) the Global Fund does not incur borrowings of an amount
exceeding 5% of its net assets provided that, for this
purpose, "borrowings" shall not include short term borrowing
to fund redemptions;
(e) the investment objective and policies of the Global Fund do
not change materially from those described in the Global Fund
Prospectus and are complied with by the Global Fund;
(f) the Global Fund does not go into voluntary liquidation,
reorganise, reduce or repurchase its share capital or make any
form of capital distribution;
(g) in any calendar year, the amount per share distributed by the
Global Fund does not exceed 10 per cent. of its net asset
value per share at the end of that calendar year provided that
this restriction shall not apply to distributions made in
order to enable Old Mutual to ensure compliance with the
requirements of the South African Reserve Bank;
(h) the Global Fund does not dispose of its assets other than for
a fair value on arms' length terms.
12.6 The obligations of OMB under clause 12.3 do not apply for any period
during which the SAGA Fund and the OMEGA Fund have suspended or the
Master Trust has suspended the calculation of net asset value.
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13 REDEMPTION FEE AND MANAGEMENT FEE REBATE
13.1 For so long as OMB's obligations under clause 12 continue and are
complied with:
(a) the OMEGA Fund shall pay to OMB an amount equal to 1.75 per
cent. of the amount which becomes payable by the OMEGA Fund to
a redeeming shareholder on the redemption of shares of
beneficial interest in the OMEGA Fund (without, for the
purposes of this calculation, deducting any redemption fee
charged by the OMEGA Fund);
(b) the SAGA Fund shall pay to OMB an amount equal to 1.75 per
cent. of the amount which becomes payable by the SAGA Fund to a
redeeming shareholder on the redemption of shares in the SAGA
Fund (without, for the purposes of this calculation, deducting
any redemption fee charged by the SAGA Fund).
13.2 The amounts referred to in clause 13.1 shall be paid to OMB within 7
days of the date of the relevant redemption.
13.3 No amount shall be payable to OMB under clause 13.1(b) in respect of a
redemption of shares by the SAGA Fund pursuant to bye-law 10(7) of its
Bye-laws.
13.4 Following a termination of OMB's obligations under clause 12, any
redemption fee collected by the SAGA Fund or the OMEGA Fund shall be
paid to the Master Trust.
13.5 OMAM undertakes to rebate a portion of the Management Fee to the Master
Trust or to reduce the Management Fee accepted by OMAM (so as to allow
the Master Trust to make compensatory payments to the OMEGA Fund and/or
the SAGA Fund) so that the ordinary operating expenses accrued for by
each of the OMEGA Fund and the SAGA Fund do not exceed 1.00% per annum
of the average of the daily net assets of such Funds during any month
(or part of a month) for which the Management Fee is payable. Ordinary
operating expenses includes, without limitation, the Management Fee and
administration and custody fees and expenses but does not include (a)
extraordinary expenses (such as the cost of litigation), (b) placement
fees and amounts payable to OMB under clause 8.2, 9.2, 10 or 11, (c)
sales charges on shares in the OMEGA Fund or the SAGA Fund, (d)
brokerage expenses or (e) the redemption fee due to OMB under clause
13.1. If any dispute shall arise as to the amount of the rebate or
reduction of the Management Fee or as to what constitutes ordinary
operating expenses the matter shall be referred to the auditors of the
Master Trust for the time being whose determination shall be final and
binding, who shall act as experts not arbitrators and whose costs shall
be borne equally by the Master Trust and Old Mutual.
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14 TERMINATION
14.1 OMB's and Old Mutual's obligations under clause 11 and clause 12 shall
terminate with effect from 120 days after the service of written notice
by OMB on the holders of shares in the SAGA Fund and the OMEGA Fund
notifying them of the termination of the liquidity facility (and so
that requests received by OMB from the Master Trust under clause 12.3
on or before that 120th day shall be complied with by OMB pursuant to
that clause). OMAM's obligations under clause 13.5 shall terminate with
effect from 120 days after the service of written notice by OMAM on the
holders of shares in the SAGA Fund and the OMEGA Fund notifying them of
the termination of the undertaking in that clause. The Bye-laws of the
SAGA Fund and the By-laws of the OMEGA Fund shall apply for the
purposes of determining the effective date for the service of such
notices.
14.2 OMB may terminate OMB's and Old Mutual's obligations under clause 11
and clause 12 with immediate effect on service of written notice on the
Master Trust (specifying this clause of this Agreement) at any time
after OMAM ceases to be investment adviser to the Master Trust (other
than by reason of the voluntary termination of the Advisory Agreement
by OMAM).
14.3 OMAM may terminate its obligations under clause 13.5 with immediate
effect on service of written notice on the Master Trust (specifying
this clause of this Agreement) at any time after OMAM ceases to be the
sole investment adviser to the Master Trust.
15 CONDITIONS PRECEDENT
15.1 The transfer of the Portfolio pursuant to clause 2 and the transfer of
the Global Fund Portfolio pursuant to clause 3 shall not be subject to
any conditions precedent.
15.2 Clause 8, and the request submitted by OMB pursuant to clause 7.1, are
conditional on the US Placing Agreement becoming fully unconditional.
15.3 Clause 9, and the request submitted by OMB pursuant to clause 7.2, are
conditional on the Non-US Placing Agreement becoming fully
unconditional.
15.4 If the Initial Offering of the OMEGA Fund and/or the Initial Offering
of the SAGA Fund shall be terminated, OMB may make a capital withdrawal
or withdrawals from the Master Trust in accordance with the Declaration
of Trust so as to fund any expenses of the Initial Offering for which
Old Mutual is liable.
15.5 If, following Completion, neither clause 15.2 nor clause 15.3 become
unconditional on or before 10th December 1995 each party to this
Agreement (other than Old Mutual), if requested by Old Mutual, agrees
to take all lawful steps within its power for its dissolution or
winding up.
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16 NAME
In the event that OMAM ceases for any reason to serve as investment
adviser of the Master Trust:
(a) the OMEGA Fund shall forthwith on request by Old Mutual change
the OMEGA Fund's name so that it does not include the words
"Old Mutual" or "OMEGA" or any variation or combination
thereof;
(b) the SAGA Fund shall forthwith on request by Old Mutual procure
that a general meeting of the SAGA Fund is convened and held
within a period of 30 days of such request at which a
resolution is proposed for the change in the name of the SAGA
Fund to one not including the words "Old Mutual" or "SAGA" or
any variation or combination thereof. On and with effect from
the expiry of such 30 day period, pending such change of name
becoming effective, the SAGA Fund shall pay to Old Mutual a
licence fee for the use of those words, monthly in advance, of
an amount equal to 0.01 per cent. of the SAGA Fund's gross
asset value on the date of such request.
17 NOTICES
17.1 Any notice or demand given under this Agreement shall be in writing
and, without prejudice to any other effective mode of making the same,
be deemed to have been properly served if delivered or sent by letter,
telex or telefax:
(a) if to Old Mutual, to the registered office for the time being
of Old Mutual (attention X.X. Xxxxxx) (fax no (0000) 000 0000)
(or to such other address, person or number as may be notified
by Old Mutual to the Master Trust, the OMEGA Fund and the SAGA
Fund);
(b) if to OMB, to the registered office for the time being of OMB
(attention X. Xxxxxxx) (fax no (000) 000 0000) (or to such
other address, person or number as may be notified by OMB to
the Master Trust, the OMEGA Fund and the SAGA Fund);
(c) if to the Master Trust, to its principal office for the time
being (attention J.C.R. Xxxxxx) (fax no. (000) 000 0000) (or
to such other address, person or number as may be notified by
the Master Trust to the other parties);
(d) if to the OMEGA Fund, to its principal office for the time
being (attention J.C.R. Xxxxxx) (fax no. (000) 000 0000) (or
to such other address, person or number as may be notified by
the OMEGA Fund to the other parties);
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(e) if to the SAGA Fund, to its registered office for the time
being (attention J.C.R. Xxxxxx) (fax no. (000) 000 0000) (or
to such other address, person or number as may be notified by
the SAGA Fund to the other parties).
17.2 Any such notice shall be deemed to be served (in the case of a letter)
when delivered and (in the case of a telefax) when transmitted.
17.3 Any notice to be served on the Master Trust or the OMEGA Fund shall be
copied to Xxxxxxx, Xxxx & Xxxxx of 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx (or any replacement address) attention Xxxxx Xxxxxx.
18 GENERAL
18.1 Any time, date or period mentioned in this Agreement may be varied or
extended by agreement between Old Mutual and the Master Trust but not
to beyond 10th December 1995.
18.2 This Agreement sets forth the entire agreement and understanding
between the parties in connection with the matters described and
provided for in this Agreement.
18.3 Neither this Agreement nor any of the rights of the parties may be
assigned in whole or in part by any party except with the prior written
consent of each other party.
18.4 Old Mutual shall procure that each of OMB and OMAM complies with its
obligations under this Agreement.
18.5 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.
18.6 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).
18.7 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.
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19 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts without regard to any
choice of law principles that would require application of the laws of
any other jurisdiction. The parties hereto absolutely and irrevocably
consent to the jurisdiction of the courts of the Commonwealth of
Massachusetts and of any Federal court located in said Commonwealth in
connection with any actions or proceedings arising out of or relating
to this Agreement and waive any objection to the convenience of any
such court.
IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
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SCHEDULE 1
PORTFOLIO
Name of Company Type of security % holding to represent
--------------- ---------------- ----------------------
of Portfolio (rounded
---------------------
to nearest 0.1%)
----------------
Anglo American Corporation of SA Ltd. Ordinary Shares 5.0
Xxxxxx Ltd. Ordinary Shares 5.0
X.X. Xxxxx Ltd. Ordinary Shares 5.0
Xx Xxxxx Consolidated Mines Ltd. Ordinary Shares 5.0
Nedcor Ltd. Ordinary Shares 5.0
South African Breweries Ltd. Ordinary Shares 5.0
Safmarine and Rennies Holdings Ltd. Ordinary Shares 5.0
Standard Bank Investment Corp. Ltd. Ordinary Shares 5.0
Sasol Ltd. Ordinary Shares 4.8
Rembrandt Group Ltd. Ordinary Shares 4.3
Anglovaal Ltd. "N" Ordinary Shares 4.2
Wooltru Ltd. "N" Ordinary Shares 3.4
Gencor Ltd. Ordinary Shares 3.0
Anglovaal Industries Ltd. Ordinary Shares 2.8
Reunert Ltd. Ordinary Shares 2.4
Gold Fields of SA Ltd. Ordinary Shares 2.2
Lydenburg Platinum Ltd. Ordinary Shares 2.0
Sappi Ltd. Ordinary Shares 1.9
Rand Mines Ltd. Ordinary Shares 1.9
Iscor Ltd. Ordinary Shares 1.8
Trencor Ltd. Ordinary Shares 1.6
Foschini Ltd. Ordinary Shares 1.6
Anglo American Coal Corp. Ltd. Ordinary Shares 1.6
Johnnies Industrial Corporation Ltd. Ordinary Shares 1.5
African Oxygen Ltd. Ordinary Shares 1.1
JCI Ltd. Ordinary Shares 1.0
Anglo American Platinum Corporation Ltd. Ordinary Shares 1.0
Driefontein Consolidated Ltd. Ordinary Shares 0.8
Genbel Investments Ltd. Ordinary Shares 0.8
Liberty Life Association of Africa Ltd. Ordinary Shares 0.7
Middle Witwatersrand (Western Areas) Ltd. Ordinary Shares 0.7
Engen Ltd. Ordinary Shares 0.7
Samancor Ltd. Ordinary Shares 0.7
X.X. Group Ltd. Ordinary Shares 0.7
X.X. Xxxxx Foods Ltd. Ordinary Shares 0.7
Impala Platinum Holdings Ltd. Ordinary Shares 0.7
Anglo Alpha Ltd. Ordinary Shares 0.6
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Bidvest Group Ltd. Convertible Debenture Stock 0.6
AECI Ltd. Ordinary Shares 0.6
Mutual & Federal Insurance Co. Ltd. Ordinary Shares 0.6
Xxxxxx & Xxxxxxx Holdings Ltd. Ordinary Shares 0.5
Tiger Oats Ltd. Ordinary Shares 0.5
Allied Electronics Corporation Ltd. Ordinary Shares 0.5
Nampak Ltd. Ordinary Shares 0.4
Omni Media Corporation Ltd. Ordinary Shares 0.4
Investec Holdings Ltd Ordinary Shares 0.4
Everite Holdings Ltd. Ordinary Shares 0.4
Malbak Ltd. Ordinary Shares 0.4
Sentrachem Ltd. Ordinary Shares 0.4
Imperial Holdings Ltd. Ordinary Shares 0.4
Metropolitan Life Ltd. Ordinary Shares 0.4
Associated Ore and Metal Corp. Ltd. Ordinary Shares 0.3
Amalgamated Banks of SA Ltd. Ordinary Shares 0.3
IBM South Africa Group Ltd. Ordinary Shares 0.3
Grintek Ltd. Ordinary Shares 0.3
Southvaal Holdings Ltd. Ordinary Shares 0.3
Vaal Reefs Exploration and Mining Co. Ltd. Ordinary Shares 0.2
Forward Corporation Ltd. Ordinary Shares 0.2
First National Bank Holdings Ltd. Ordinary Shares 0.2
Independent Newspapers Holdings Ltd. Ordinary Shares 0.2
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SCHEDULE 2
GLOBAL FUND PORTFOLIO
Name of Company Type of security % holding to represent of
--------------- ---------------- -------------------------
Global Assets Portfolio
-----------------------
Anglo American Corporation of SA Ltd. Ordinary Shares 8.00
Xx Xxxxx Consolidated Mines Ltd. Ordinary Shares 8.00
South African Breweries Ltd. Ordinary Shares 8.00
Xxxxxx Ltd. Ordinary Shares 8.00
Gencor Ltd. Ordinary Shares 5.00
Liberty Life Association of Africa Ltd. Ordinary Shares 5.00
Anglovaal Ltd. Ordinary Shares 5.00
Genbel Investments Ltd. Ordinary Shares 5.00
Sasol Ltd. 8.5% Convertible Debentures 4.00
Anglovaal Industries Ltd. 5.5% Convertible Debentures 4.00
Tiger Oats Ltd. Ordinary Shares 4.00
Bidvest Group Ltd. Convertible Debentures 3.00
Imperial Holdings Ltd. Ordinary Shares 3.00
Trencor Ltd. 6% Convertible Debentures 3.00
Nedcor Ltd. Ordinary shares 2.00
Gold Fields of SA Ltd. Ordinary Shares 2.00
JCI Ltd. Ordinary Shares 2.00
Lyndenburg Platinum Ltd. Ordinary Shares 2.00
Johnnies Industrial Corporation Ltd. Ordinary Shares 2.00
Sappi Ltd Ordinary Shares 2.00
Safmarine and Rennies Holdings Ltd. Ordinary Shares 1.50
Rand Mines Ltd. Ordinary Shares 1.50
Anglo American Coal Corp. Ltd. Ordinary Shares 1.50
Rembrandt Group Ltd. Ordinary Shares 1.00
Wooltru Ltd. "N" Ordinary Shares 0.60
Reunert Ltd. Ordinary Shares 1.00
X.X. Xxxxx Foods Ltd. Ordinary Shares 1.00
Standard Bank Investment Corp. Ltd. Ordinary Shares 1.00
Iscor Ltd. Ordinary Shares 1.00
Vaal Reefs Exploration and Mining Co. Ltd. Ordinary Shares 1.00
Middle Witwatersrand (Western Areas) Ltd. Ordinary Shares 1.00
Richemont Ltd. Ordinary Shares 1.00
Impala Platinum Holdings Ltd. Ordinary Shares 0.50
Fidelity Ltd. Convertible Loan stock 0.50
Citylodge Ltd. 11% Convertible Debentures 0.50
CNA Xxxxx Ltd. Ordinary Shares 0.40
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SIGNED by XXXXXXX XXXXXX )
for and on behalf of )
SOUTH AFRICAN MUTUAL LIFE )
ASSURANCE SOCIETY )
in the presence of: XXXXXX XXXXXXXX ) /s/ XXXXXXX XXXXXX
------------------
SIGNED by XXXXXXX XXXXXX )
for and on behalf of )
OLD MUTUAL FUND HOLDINGS )
(BERMUDA) LIMITED )
in the presence of: XXXXXX XXXXXXXX ) /s/ XXXXXXX XXXXXX
------------------
/
SIGNED by XXXXXXX XXXXX )
for and on behalf of )
OLD MUTUAL SOUTH AFRICA )
EQUITY TRUST )
in the presence of: XXXXXX XXXXXXXX ) /s/ 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 ) /s/ XXXXXXX XXXXXXXX
--------------------
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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
------------
SIGNED by XXXXXXX XXXXXXX )
for and on behalf of )
OLD MUTUAL GLOBAL ASSETS )
FUND LIMITED )
in the presence of: XXXXXX MITHCELLL ) XXXXXXXX XXXXXXX
----------------
SIGNED by XXXXXXX XXXXXXX )
for and on behalf of )
OLD MUTUAL ASSET MANAGERS )
(BERMUDA) LIMITED )
in the presence of: XXXXXX XXXXXXXX ) XXXXXXX XXXXXXX
---------------
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