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EXHIBIT 6(a)
PLACING AGREEMENT
relating to shares of
OLD MUTUAL EQUITY GROWTH ASSETS
SOUTH AFRICA FUND
dated as of October 27, 1995
among
OLD MUTUAL SOUTH AFRICA EQUITY TRUST
OLD MUTUAL EQUITY GROWTH ASSETS
SOUTH AFRICA FUND
SOUTH AFRICAN MUTUAL LIFE
ASSURANCE SOCIETY
OLD MUTUAL ASSET MANAGERS (BERMUDA) LIMITED
OLD MUTUAL FUND HOLDINGS (BERMUDA) LIMITED
and
X.X. XXXXXXX & CO. INC.
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THIS AGREEMENT is made as of October 27, 1995 by and among OLD MUTUAL
SOUTH AFRICA EQUITY TRUST, a Massachusetts trust organized as an open-end
investment company (the "MASTER TRUST"), OLD MUTUAL EQUITY GROWTH ASSETS SOUTH
AFRICA FUND, a Massachusetts business trust organized as an open-end investment
company (the "OMEGA FUND"), 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) ("OLD MUTUAL"), OLD MUTUAL ASSET MANAGERS (BERMUDA)
LIMITED, a company incorporated under the laws of Bermuda ("OMAM"), OLD MUTUAL
FUND HOLDINGS (BERMUDA) LIMITED, a company incorporated under the laws of
Bermuda ("OLD MUTUAL BERMUDA"), and X.X. XXXXXXX & CO. INC., a company
incorporated under the laws of the State of New York ("X.X. XXXXXXX").
WHEREAS, OMAM and Old Mutual Bermuda are, respectively, direct and
indirect wholly owned subsidiaries of Old Mutual;
WHEREAS, OMAM will be the investment adviser to the Master Trust and to
Old Mutual Global Assets Fund Limited (the "GLOBAL FUND"), an open-end
investment company incorporated under the laws of Bermuda which will be a wholly
owned subsidiary of Old Mutual Bermuda;
WHEREAS, the Master Trust has agreed to acquire a portfolio of South
African securities from Old Mutual in exchange for Old Mutual Bermuda acquiring
substantially all of the beneficial interest in the Master Trust;
WHEREAS, the OMEGA Fund will seek to achieve its investment objective
by investing all of its investable assets in the Master Trust;
WHEREAS, the Old Mutual South Africa Growth Assets Fund Limited, a
company organized under the laws of Bermuda (the "SAGA FUND"), will seek to
achieve its investment objective by investing all of its investable assets in
the Master Trust;
WHEREAS, by resolution of the board of trustees of the OMEGA Fund
passed on October 23, 1995 it was resolved to offer up to 10,000,000 shares of
beneficial interest in the OMEGA Fund at a price of $100 per share pursuant to
the Initial Offering on and subject to the terms and conditions set forth herein
and in the Private Placement Memorandum;
WHEREAS, SBC Warburg, pursuant to a Placement Agreement dated the date
hereof made with the SAGA Fund and others (the "NON-US PLACEMENT AGREEMENT") has
agreed, as agent of the SAGA Fund, to use its reasonable endeavors to offer and
sell shares of the SAGA Fund outside the United States; and
WHEREAS, the OMEGA Fund wishes to engage X.X. Xxxxxxx as its agent for
the purpose of soliciting offers to purchase Shares pursuant to the Initial
Offering and S.G.
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Warburg, on the terms, subject to the conditions and in reliance on the
representations, warranties, covenants and agreements of the other parties
hereto contained herein, wishes to accept such engagement:
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS. In this Agreement the following words and expressions
shall have the following meanings:
"AFFILIATE" means, in relation to any person, any entity that controls,
is controlled by, or is under common control with such person within
the meaning of Rule 405 under the Securities Act and Rule 12b-2 under
the Exchange Act
"BUSINESS DAY" means any day which is not a day on which banking
institutions in London or New York are generally obligated or
authorized by law or executive order to close
"COMMISSION" means the Securities and Exchange Commission
"ENGAGEMENT LETTER" means two letters dated September 1, 1995 from SBC
Warburg to Old Mutual relating to, inter alia, the Initial Offering
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
"FUND AGREEMENTS" means each of the agreements listed in Schedule I
hereto
"INITIAL CLOSING DATE" means November 10, 1995, or such earlier or
later Business Day (not being later than December 10, 1995) as X.X.
Xxxxxxx may in agreement with the OMEGA Fund and Old Mutual determine
on which the closing of the Initial Offering is to occur
"INITIAL OFFERING" means the offer and sale to investors that are
institutional "accredited investors" as defined in Regulation D under
the Securities Act of up to 10,000,000 Shares at the Offering Price and
otherwise on the terms and conditions set forth in this Agreement and
the Issue Documents
"INITIAL OFFERING TERMINATION DATE" means November 7, 1995, or such
earlier or later Business Day (not being later than December 10, 1995)
as may be agreed by X.X. Xxxxxxx, the OMEGA Fund and Old Mutual, after
which no further subscriptions for Shares pursuant to the Initial
Offering will be accepted
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended
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"ISSUE DOCUMENTS" means the Private Placement Memorandum and the
Subscription Agreement
"LIBOR" means the offered rate in the London Interbank Market quoted at
or about 11.00 a.m. (London time) on the Initial Closing Date for
overnight US dollar deposits on the page "LIBOR" of the Reuters Monitor
Money Rates Services or, if more than one rate is offered, the
arithmetic mean thereof
"MAJORITY OF OUTSTANDING VOTING SECURITIES" has the meaning assigned
thereto in the Investment Company Act
"MASTER TRUST 12B-1 PLAN" means the placement plan adopted by the
Master Trust pursuant to Rule 12b-1 under the Investment Company Act
"NON-US PLACEMENT MEMORANDUM" means the placement memorandum dated
October 27, 1995 prepared by the SAGA Fund in connection with the offer
and sale of the shares of the SAGA Fund
"OFFERING PRICE" means the sum of $100 per Share
"OMEGA FUND 12B-1 PLAN" means the placement plan adopted by the OMEGA
Fund pursuant to Rule 12b-1 under the Investment Company Act
"PORTFOLIO" means the portfolio of South African securities to be
transferred from Old Mutual to the Master Trust as described in the
Private Placement Memorandum
"PORTFOLIO TRANSFER DATE" means the date on which the Portfolio is to
be transferred from Old Mutual to the Master Trust pursuant to the
Portfolio Transfer and Subscription Agreement
"PORTFOLIO TRANSFER AND SUBSCRIPTION AGREEMENT" means the agreement
dated October 23, 1995 by and among Old Mutual, Old Mutual Bermuda, the
Master Trust, the OMEGA Fund, the SAGA Fund, the Global Fund and OMAM
relating to the transfer of the Portfolio to the Master Trust
"PRIVATE PLACEMENT MEMORANDUM" means the private placement memorandum
dated September 15, 1995 prepared by the OMEGA Fund in connection with
the offer and sale of the Shares and provided to X.X. Xxxxxxx, as the
same may be amended and supplemented from time to time up to and
including the Initial Closing Date
"PRIVATE PLACEMENT PROCEDURES" means the memorandum dated September 11,
1995 entitled "Placement Procedures for U.S. Private Institutional
Offering" prepared by Xxxxxxx, Xxxx & Xxxxx and furnished to X.X.
Xxxxxxx
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"QUALIFYING SHARES" means Shares that are (i) sold in the Initial
Offering or, if they are sold to "Category C Clients" as referred to in
the Engagement Letter, in the Second Offering and (ii) continuously
outstanding during the period ending on the third anniversary of the
Initial Closing Date
"REGULATION S" means Regulation S under the Securities Act
"REGISTRATION STATEMENTS" means the registration statements to be filed
by the OMEGA Fund and the Master Trust under the Investment Company Act
"RULES AND REGULATIONS" means the rules and regulations of the
Commission as then in effect
"SECOND OFFERING" means the offer for up to six months after the
Initial Closing Date of any remaining Shares at a price equal to their
net asset value plus a sales charge
"SECURITIES ACT" means the Securities Act of 1933, as amended
"SHARES" means shares of beneficial interest of the OMEGA Fund
"SUBSCRIBER" means a person who agrees, on the terms and subject to the
conditions set out or referred to in a Subscription Agreement, to
purchase Shares pursuant to the Initial Offering
"SUBSCRIPTION AGREEMENT" means an agreement, in the form of Exhibit 1
hereto, on the terms and subject to the conditions of which Subscribers
may subscribe for Shares pursuant to the Initial Offering
"TRUSTEES" means the trustees of the OMEGA Fund
"US DOLLARS" and "$" means the lawful currency of the United States of
America
"WARRANTORS" means each of the Master Trust, the OMEGA Fund, Old
Mutual, OMAM and Old Mutual Bermuda
2. REPRESENTATIONS AND WARRANTIES. Each Warrantor, severally and not
jointly, represents and warrants to and agrees with X.X. Xxxxxxx, for the
benefit of X.X. Xxxxxxx and each agent appointed pursuant to Section 3(b)
hereof, as set forth in Annex A hereto. Each of the representations, warranties
and agreements made in such Annex A shall be deemed made on and as of the date
hereof and on and as of the Initial Closing Date with the same effect as if made
on and as of such date.
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3. APPOINTMENT OF AGENT.
(a) The OMEGA Fund, pursuant to the OMEGA Fund 12b-1 Plan, hereby
irrevocably appoints X.X. Xxxxxxx to act as the exclusive agent of the OMEGA
Fund for the purpose of soliciting offers to purchase Shares pursuant to the
Initial Offering, and X.X. Xxxxxxx hereby accepts such appointment.
(b) Without prejudice to the generality of subsection (a) above, the
OMEGA Fund hereby authorizes X.X. Xxxxxxx to appoint, on behalf of the OMEGA
Fund, with the prior approval in each case of the OMEGA Fund and Old Mutual, one
or more agents (each, an "AUTHORIZED AGENT") for the purpose of soliciting
offers to purchase Shares pursuant to the Initial Offering, which shall be the
agents of the OMEGA Fund and not of X.X. Xxxxxxx. Such appointments shall be on
such terms as the OMEGA Fund and Old Mutual shall approve, such approvals not to
be unreasonably delayed or withheld. X.X. Xxxxxxx shall have no liability
whatsoever for the acts or omissions of any Authorized Agent, or for the
negligence, fraud or default of any such agent, unless such agent is an
Affiliate of X.X. Xxxxxxx.
(c) On the terms, subject to the conditions and in reliance on the
representations, warranties, covenants and agreements of the other parties
hereto set forth herein, X.X. Xxxxxxx hereby undertakes, as agent for the OMEGA
Fund, to use its best efforts to solicit offers to purchase Shares on the terms
and subject to the conditions set forth in this Agreement and the Issue
Documents. X.X. Xxxxxxx X.X. Xxxxxxx shall have no liability to the OMEGA Fund
or any other party hereto in the event any such purchase is not consummated for
any reason.
(d) Nothing in this Agreement shall oblige X.X. Xxxxxxx to purchase any
Shares pursuant to the Initial Offering or otherwise or impose an absolute
obligation on X.X. Xxxxxxx or any Authorized Agent to procure Subscribers
therefor pursuant to the Initial Offering or otherwise.
(e) If it should appear reasonably likely that the aggregate amount of
all subscriptions for Shares in the Initial Offering plus all subscriptions for
shares of the SAGA Fund in the Initial Offering (as defined in the Non-US
Placement Agreement) will be less than $1,000,000,000, the parties hereto will,
as soon as practicable after the execution of this Agreement, negotiate in good
faith with each other and with Xxxxxxx Xxxxxx and Rand International with a view
to entering into a separate agreement relating to the Second Offering as soon as
practicable. Such negotiations will be with a view to X.X. Xxxxxxx, Xxxxxxx
Xxxxxx and Xxxx International acting as agents for the purpose of soliciting
offers to purchase Shares pursuant to the Second Offering and the Second
Offering being made on substantially the terms and conditions described or
referred to in the Private Placement Memorandum and in the Engagement Letter.
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4. OFFERING BY AGENT; OTHER WARRANTIES. X.X. Xxxxxxx represents and
warrants to and agrees with the OMEGA Fund, the Master Trust and Old Mutual
that:
(i) it has duly authorized and executed this Agreement and, assuming
its due authorization and execution by each other party hereto, this
Agreement constitutes the legal, valid, binding and enforceable
obligation of X.X. Xxxxxxx, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity;
(ii) it is duly registered as a broker-dealer under the Exchange Act
and is in compliance with all applicable registration and reporting
requirements thereunder, to the extent material to its obligations
under this Agreement as agent for the solicitation of offers to
purchase Shares in the Initial Offering;
(iii) it has not taken and will not take any action or actions that,
without more, would cause the offering of the Shares pursuant to the
Initial Offering to be subject to registration under the Securities
Act;
(iv) it has not offered and will not offer the Shares in the Initial
Offering in contravention of any applicable state securities laws;
(v) it has not offered and will not offer the Shares in the Initial
Offering in contravention of the restrictions set forth in the sections
captioned "OFFERING OF SHARES - Initial Offering" and "GENERAL
INFORMATION - Transfers of Shares" in the Private Placement Memorandum;
and
(vi) it has not taken and will not take any action or actions in
connection with the offering of the Shares in the Initial Offering that
contravene, in any material respect, the Private Placement Procedures.
5. FEES AND EXPENSES.
(a) For the services rendered by X.X. Xxxxxxx under this Agreement:
(i) the Master Trust shall pay to or to the order of X.X.
Xxxxxxx a placement fee equal to 0.25 per cent of an amount determined
by multiplying (x) the total number of Shares sold in the Initial
Offering by (y) the Offering Price; and
(ii) OMAM shall pay to or to the order of X.X. Xxxxxxx an
amount equal to the out-of-pocket expenses (including but not limited
to legal and accounting fees and disbursements in any jurisdiction)
reasonably incurred by X.X. Xxxxxxx in connection with the Initial
Offering.
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The amount payable pursuant to clause (i) above shall become due and payable to
or to the order of X.X. Xxxxxxx by the Master Trust at 3:00 p.m., New York time,
on the Initial Closing Date. The amount payable pursuant to clause (ii) above
shall be payable to or to the order of X.X. Xxxxxxx by OMAM on demand, and OMAM
shall thereafter be reimbursed for such payment by the OMEGA Fund in accordance
with the OMEGA Fund 12b-1 Plan.
(b) Subject to Section 10 of this Agreement and to the OMEGA Fund 12b-1
Plan and the Master Trust 12b-1 Plan, respectively, each of the OMEGA Fund and
the Master Trust hereby agrees with X.X. Xxxxxxx that it shall be liable for,
and shall promptly pay, all its organizational and offering expenses, including
without limitation, all accounting and legal expenses in any jurisdiction and
public relations consultants', design consultants' and other professional fees,
the costs of printing, advertising and circulating the Issue Documents and any
related documents, and all costs of marketing the Initial Offering (including,
without limitation, roadshows).
(c) All sums payable to X.X. Xxxxxxx under this Section 5 or otherwise
under this Agreement shall be paid free and clear of all deductions or
withholdings unless the deduction or withholding is required by law, in which
event the party required to make such payment shall pay to X.X. Xxxxxxx such
additional amount as shall be required to ensure that the net amount retained by
X.X. Xxxxxxx is equal to the full amount that would have been received had no
such deduction or withholding been made, and the same shall apply with respect
to all sums paid to the order of X.X. Xxxxxxx under this Agreement.
(d) OMAM shall, on the third anniversary of the Initial Closing Date,
pay or procure the payment to SBC Warburg, for providing or procuring the
provision of ongoing services for holders of Shares, a servicing fee in respect
of all Qualifying Shares in an amount equal to 0.125 per cent per annum of the
proportion of the Master Trust's daily net assets represented by the Qualifying
Shares during the period ending on such third anniversary.
(e) Each of OMAM and Old Mutual agrees with X.X. Xxxxxxx that it shall
at its own expense take such steps as may be necessary and as shall be
reasonably satisfactory to X.X. Xxxxxxx in order to ensure that Qualifying
Shares are at all times capable of being identified for the purpose of
determining the amount of the servicing fee payable to SBC Warburg pursuant to
subsection (d) above and each of the OMEGA Fund and the Master Trust agrees to
facilitate the taking of such steps by OMAM and Old Mutual to the extent
practicable. For the purpose of determining such servicing fee if a holder of
both Shares which are eligible to become Qualifying Shares ("Eligible Shares")
and other Shares redeems any Shares he shall be deemed not to have redeemed any
Eligible Shares until all such other Shares have been redeemed by him. Any
dispute or difference as to such servicing fee shall be referred to the auditors
of the Master Trust for the time being who shall be deemed to be acting as
experts and not as arbitrators and whose certificate as to such servicing fee
shall be final and binding on the parties. The fees of such auditors shall be
borne by Old Mutual and X.X. Xxxxxxx equally and such parties shall undertake
liability to such auditors for the payment of their fees.
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(f) OMAM shall provide or cause to be provided to the boards of
trustees of the Master Trust and the OMEGA Fund, respectively, such written
reports regarding the amount and purpose of any expenditures made pursuant to
the Master Trust 12b-1 Plan and the OMEGA Fund 12b-1 Plan, respectively, as may
be required by Rule 12b-1(b)(3)(ii) under the Investment Company Act.
6. UNDERTAKINGS.
(a) The OMEGA Fund agrees (i) to make no amendment or
supplement to the Private Placement Memorandum (other than as described in
clause (ii) below) without the prior written consent of X.X. Xxxxxxx, which
consent shall not be unreasonably withheld or delayed, (ii) if , prior to the
Initial Closing Date, any event shall have occurred as a result of which the
Private Placement Memorandum would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it should be necessary to amend or supplement the
Private Placement Memorandum to comply with applicable law, to prepare an
amended Private Placement Memorandum or supplement to the Private Placement
Memorandum which will correct such statement or omission or will effect such
compliance and (iii) to furnish without charge to X.X. Xxxxxxx as many copies as
X.X. Xxxxxxx may from time to time reasonably request of any such amended
Private Placement Memorandum or supplement thereto. If for any reason referred
to in clause (ii) above the Private Placement Memorandum must be amended or
supplemented, then, (x) from and after receipt by X.X. Xxxxxxx of notice from
the OMEGA Fund that the OMEGA Fund is preparing an amended Private Placement
Memorandum or a supplement thereto, X.X. Xxxxxxx will distribute the Private
Placement Memorandum only as so amended or supplemented and (y) as soon as
practicable after receipt of a sufficient number of copies of such amended
Private Placement Memorandum or supplement thereto, X.X. Xxxxxxx will furnish
copies thereof to each investor to which it previously furnished a copy of the
Private Placement Memorandum.
(b) Each Warrantor agrees with X.X. Xxxxxxx that it shall notify X.X.
Xxxxxxx promptly after becoming aware that any of its representations or
warranties set forth in Annex A hereto is untrue or inaccurate in any material
respect or would, if repeated by reference to the facts and circumstances
existing at any time prior to the Initial Closing Date, be untrue or inaccurate
in any material respect.
(c) Old Mutual agrees with X.X. Xxxxxxx that it shall ensure (i) that
each of Old Mutual Bermuda and OMAM complies with its obligations under this
Agreement and (ii) that prior to the Initial Closing Date, each of the OMEGA
Fund and the Master Trust is duly registered as an open-end management company
under the Investment Company Act.
(d) Each of the Warrantors agrees with X.X. Xxxxxxx that it shall
comply with the obligations undertaken by it under the Portfolio Transfer and
Subscription Agreement.
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(e) The Master Trust agrees with X.X. Xxxxxxx and the OMEGA Fund that
it shall not (i) within a period of 12 months from the Initial Closing Date
without prior consultation with X.X. Xxxxxxx and the OMEGA Fund, issue any
beneficial interests in the Master Trust to investors other than OMAM, the OMEGA
Fund, the SAGA Fund and Old Mutual Bermuda in accordance with the arrangements
described in the Portfolio Transfer and Subscription Agreement, the Private
Placement Memorandum and the Non-US Placement Memorandum or (ii) issue any
beneficial interests in the Master Trust if the result of such issue would be to
prejudice the interests of the OMEGA Fund.
(f) Each of the OMEGA Fund and the Master Trust agrees with X.X.
Xxxxxxx that (i) prior to termination of this Agreement, it shall not file any
amendment to its Registration Statement without prior notice to X.X. Xxxxxxx, it
being understood that nothing contained in this Agreement shall in any way limit
the right of the OMEGA Fund or the Master Trust to file any such amendment to
its Registration Statement it may deem advisable, (ii) it shall promptly advise
X.X. Xxxxxxx of (x) any request of the Commission for any amendment of its
Registration Statement or for any additional information relating to or that
could affect disclosure in such Registration Statement and (y) the issuance by
the Commission of any order suspending its registration under the Investment
Company Act, or the institution or (to the best of its knowledge) threatening of
any proceeding for that purpose, (iii) it shall use its best efforts to prevent
the issuance by the Commission of any such order or suspension and, if issued,
to obtain as soon as possible the withdrawal or suspension thereof, (iv) as soon
as practicable (giving effect to the normal periodic reporting requirements
under the Investment Company Act and the Rules and Regulations thereunder), it
shall make generally available to X.X. Xxxxxxx (with sufficient copies for any
Authorized Agents) a report containing the financial statements required under
Section 30(d) of the Investment Company Act and Rule 30d-1 thereunder and (v) at
all times after the date hereof until the date on which the OMEGA Fund's audited
accounts for the period ending June 30, 1996 are published, notify X.X. Xxxxxxx
in advance of and forward to X.X. Xxxxxxx for comment final proofs of (x) all
documents to be sent by the OMEGA Fund to the holders of Shares, (y) all
documents to be filed with the Commission pursuant to the Investment Company Act
and the Rules and Regulations thereunder and (z) any announcement of profits or
losses and dividends of the OMEGA Fund or the Master Trust.
(g) The OMEGA Fund agrees with X.X. Xxxxxxx that, except as may be
required by any regulatory authority or under any applicable laws or by any
provision of this Agreement, neither the OMEGA Fund nor any person on its behalf
will at any time prior to the date on which the OMEGA Fund's audited accounts
for the period ending June 30, 1996 are published make any public announcement,
public statement or public communication regarding the OMEGA Fund which is
material in relation to the Initial Offering or the Shares, whether in response
to inquiries or otherwise, without the prior consent of X.X. Xxxxxxx, which
consent shall not be unreasonably withheld or delayed.
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7. CLOSING, SETTLEMENT AND ALLOTMENT.
(a) Allocations of Shares pursuant to the Initial Offering
shall be determined by X.X. Xxxxxxx at its discretion after consultation with
Old Mutual and the OMEGA Fund, and X.X. Xxxxxxx shall notify Old Mutual and the
OMEGA Fund if it wishes to reject any proposed subscription in whole or in part;
provided, however, that no allocation of Shares pursuant to the
Initial Offering shall be made (i) to any investor which, together with its
Affiliates, proposes to subscribe for 1,500,000 or more Shares without the
consent of the OMEGA Fund and Old Mutual or (ii) to any investor that the OMEGA
Fund, after consultation with X.X. Xxxxxxx, reasonably believes is not an
"accredited investor" within the meaning of Regulation D under the Securities
Act. The OMEGA Fund shall, as soon as practicable following fulfillment or
waiver of the conditions set forth herein and in any event not later than 5:00
p.m. (Bermuda time) on the Initial Closing Date issue to each Subscriber the
number of Shares such Subscriber has purchased pursuant to the Initial Offering
in such proportions and such names as X.X. Xxxxxxx shall previously have
notified to the OMEGA Fund.
(b) The Subscription Agreements will require Subscribers to
make payment for their Shares directly to a nominated bank account of the OMEGA
Fund by not later than 9:30 a.m. (New York time) on the Initial Closing Date and
the OMEGA Fund will provide details in writing to X.X. Xxxxxxx by not later than
10:00 a.m. (New York time) on the Initial Closing Date of any Subscriber that
has not made payment to the OMEGA Fund for the Shares for which it has agreed to
subscribe. With respect to any such Subscriber, X.X. Xxxxxxx may either cancel
the relevant allocation to such Subscriber on behalf of the OMEGA Fund or
accept, with the consent of the OMEGA Fund, such late payment with interest
thereon (for the account of the OMEGA Fund) at LIBOR plus one per cent in
respect of each day (or part thereof) from the due time for such payment to the
time when such payment is actually made.
(c) The OMEGA Fund shall procure that, at the cost of the OMEGA
Fund, as soon as reasonably practicable after allotment of the Shares allotted
pursuant to subsection (a) above, the register of shares of the OMEGA Fund shall
be made up by the transfer agent to reflect such allotments.
8. CONDITIONS.
The obligations of X.X. Xxxxxxx hereunder shall be subject to the accuracy in
all material respects of the representations and warranties of each other party
hereto contained herein as of the dates when made or deemed to have been made,
to the performance in all material respects by each other party hereto of its
obligations hereunder and to the following additional conditions:
(i) a Registration Statement meeting the requirements of the
Investment Company Act and the Rules and Regulations thereunder shall
have been filed with the Commission in respect of each of the OMEGA
Fund and the Master Trust prior to the
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Initial Closing Date, and no order suspending or revoking the
registration of the OMEGA Fund or the Master Trust under Section 8(e)
of the Investment Company Act shall have been issued and no proceedings
therefor initiated or threatened by the Commission;
(ii) Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxxx, South African legal
advisers to SBC Warburg, the Master Trust, the OMEGA Fund and the SAGA
Fund, shall have furnished to X.X. Xxxxxxx their legal opinion, dated
the Initial Closing Date, in form and substance satisfactory to X.X.
Xxxxxxx and its counsel, to the effect set forth in Annex B hereto;
(iii) Xxxxxxx, Xxxx & Xxxxx, United States legal advisers to
the Master Trust, the OMEGA Fund and the SAGA Fund, shall have
furnished to X.X. Xxxxxxx their legal opinion, dated the Initial
Closing Date, in form and substance satisfactory to X.X. Xxxxxxx and
its counsel, to the effect set forth in Annex C hereto;
(iv) Xxxxxxx, Xxxx and Xxxxxxx, legal advisers in Bermuda to
the Master Trust, the OMEGA Fund and the SAGA Fund, shall have
furnished to X.X. Xxxxxxx their legal opinion, dated the Initial
Closing Date, in form and substance satisfactory to X.X. Xxxxxxx and
its counsel, to the effect set forth in Annex D hereto; and
(iv) the OMEGA Fund shall have procured the delivery to X.X.
Xxxxxxx as soon as reasonably practicable following the making of a
request in writing therefor by X.X. Xxxxxxx to the OMEGA Fund, of all
such further information and documents as X.X. Xxxxxxx may reasonably
request.
If any of the conditions set forth in this Section 8 is not fulfilled or
expressly waived in writing by X.X. Xxxxxxx or varied by written agreement of
the parties hereto, the provisions of Section 10(f) shall apply.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) Each of the Warrantors, severally and not jointly, agrees to
indemnify and hold harmless X.X. Xxxxxxx, the directors, officers, employees and
agents of X.X. Xxxxxxx and each person who controls X.X. Xxxxxxx within the
meaning of either the Securities Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Securities Act, the Exchange Act, the
Investment Company Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Private Placement Memorandum or in any amendment thereof or supplement thereto,
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or (iii) any
breach or alleged breach of any of the representations, warranties or
undertakings by it (in the case of the
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Master Trust or the OMEGA Fund) or by any Warrantor (in the case of Old Mutual,
OMAM and Old Mutual Bermuda), and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that no Warrantor shall
be liable in any such case to the extent that any such loss, claim, damage or
liability (or action in respect thereof) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Private Placement Memorandum or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the OMEGA
Fund or Old Mutual by X.X. Xxxxxxx expressly for use therein. The parties agree
that Annex E sets forth all of the written information so furnished by X.X.
Xxxxxxx at the date of this Agreement. This indemnity agreement will be in
addition to any liability which the Warrantors may otherwise have.
(b) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under subsection (a) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in subsection (a)
above. An indemnified party will consult with the indemnifying parties regarding
the defense and possible settlement of any action to which the obligations
provided in this Section 9 apply, and will keep such indemnifying parties
apprised as to the progress of any such action. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. No indemnifying party shall be liable under this Section 9
for any settlement or compromise entered into without its consent (provided that
such consent shall not be unreasonably withheld or delayed).
(c) In the event that the indemnity provided in subsection (a) above is
unavailable to or insufficient to hold harmless an indemnified party for any
reason, each Warrantor agrees, severally and not jointly, to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which X.X. Xxxxxxx may be subject in such proportion
as is appropriate to reflect the relative benefits received by it (in the case
of the
12
14
Master Trust or the OMEGA Fund) or by the Warrantors generally (in the case of
Old Mutual, OMAM and Old Mutual Bermuda), on the one hand, and by X.X. Xxxxxxx,
on the other hand, from the Initial Offering. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, each Warrantor
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also its relative fault (in the case of the Master Trust
or the OMEGA Fund) or that of the Warrantors generally (in the case of Old
Mutual, OMAM and Old Mutual Bermuda), on the one hand, and of X.X. Xxxxxxx, on
the other hand, in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Warrantors shall be deemed to be equal to the total net proceeds
from the Initial Offering (before deducting expenses), and benefits received by
X.X. Xxxxxxx shall be deemed to be equal to the amount received by it in
connection with the Initial Offering in accordance with Section 5 hereof.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Warrantors or by
X.X. Xxxxxxx. The Warrantors and X.X. Xxxxxxx agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
subsection (c), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who controls X.X.
Xxxxxxx within the meaning of either the Securities Act or the Exchange Act and
each director, officer, employee and agent of X.X. Xxxxxxx shall have the same
rights to contribution as X.X. Xxxxxxx.
(d) If a claim is made under this Agreement against a Warrantor other
than the OMEGA Fund or the Master Trust, such Warrantor shall not have, or
pursue, any claim or third party action to join, claim against, seek a
contribution from or otherwise claim or seek damages or compensation from the
OMEGA Fund or the Master Trust.
10. TERMINATION.
(a) The obligations of the OMEGA Fund and the Master Trust,
respectively, under this Agreement shall continue in effect for a
period beyond one year from the date hereof only so long as such
continuance is specifically approved at least annually in the manner
described in Rule 12b-1(b)(2) under the Investment Company Act, and if
not so approved shall be deemed terminated.
(b) The obligations of the OMEGA Fund and the Master Trust,
respectively, under this Agreement may be terminated at any time,
without the payment of any penalty, by (i) a majority of the members of
the board of trustees of the OMEGA Fund or the Master Trust (as the
case may be) who are not interested persons of the OMEGA Fund or the
Master Trust (as the case may be) and have no direct or indirect
financial interest in the operation of the OMEGA Fund 12b-1 Plan or the
Master Trust 12b-1 Plan (as the case may be) or in any agreements
related to such plan or (ii) the vote of a Majority of the Outstanding
Voting Securities of the OMEGA Fund or the Master Trust (as the case
may be) on 60 days' notice given to each other party hereto in
accordance with Section 11 hereof.
(c) This Agreement will automatically terminate in the event of
its assignment (as defined in the Investment Company Act) by X.X.
Xxxxxxx.
13
15
(d) If at any time prior to the Initial Closing Date it shall
come to the knowledge of any Warrantor or X.X. Xxxxxxx that:
(i) any statement contained in the Private Placement
Memorandum is or has become untrue, inaccurate or misleading;
or
(ii) any matter has arisen which would, if the Private
Placement Memorandum were issued at that time, constitute an
omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; or
(iii) any of the representations and warranties set
forth in Annex A hereto was untrue or inaccurate as at the date
hereof or would, if repeated by reference to the facts and
circumstances existing at any time prior to the Initial Closing
Date, be untrue or inaccurate; or
(iv) any Warrantor has not complied or cannot comply
with its obligations under this Agreement
and such fact or event is, of itself or taken together with any other
such fact or event, material in the context of the Initial Offering,
the relevant Warrantor or X.X. Xxxxxxx (as the case may be) shall
forthwith give notice thereof to the other parties to this Agreement
and X.X. Xxxxxxx shall have the right (exercisable in its absolute
discretion but after consultation with Old Mutual and the OMEGA Fund)
at any time prior to the Initial Closing Date by notice in writing to
the other parties to terminate this Agreement.
(e) This Agreement shall be immediately terminable by the OMEGA
Fund by written notice to X.X. Xxxxxxx in the event that X.X. Xxxxxxx
shall be in material breach of this Agreement.
(f) If at any time prior to the Initial Closing Date any
government regulation, crisis of international or national effect or
change in the conditions prevailing in any relevant financial market
occurs or comes into effect which is likely materially and adversely to
affect the OMEGA Fund and/or the Portfolio or which will make it
inadvisable or inexpedient to proceed with the Initial Offering, each
of X.X. Xxxxxxx and Old Mutual shall have the right (subject to the
prior consent of the other) at any time prior to the Initial Closing
Date by notice in writing to the other parties to this Agreement to
terminate this Agreement.
(g) In the event that this Agreement shall be terminated
pursuant to this Section 10, or if the provisions of this Section shall
apply by virtue of Section 8, all the outstanding obligations of X.X.
Xxxxxxx hereunder (and accordingly all obligations of Subscribers) and
any outstanding obligations of any Xxxxxxxxx xxxxx xxxxxxxxx xxx xxxx
00
00
of the parties hereto shall have any claim against any other in respect
of any matter or thing arising out of or in connection with this
Agreement for compensation, costs, damages or otherwise, except as
provided in Section 12 of this Agreement and except that:
(i) Old Mutual shall be liable for the legal fees and
disbursements reasonably incurred by X.X. Xxxxxxx in connection
with the Initial Offering and its associated transactions and
all such costs, charges, fees and expenses as are referred to
in Section 5.(b) hereof;
(ii) such termination shall not prejudice any accrued
rights or claims by any party against any other party hereto
(including without limitation any right to make a claim under
Section 2 hereof in relation to any matter that gave rise to a
right to terminate this Agreement under subsection (c) above)
(it being understood that no claim for lost profits or
commissions will survive any such termination occurring prior
to the Initial Closing Date); and
(iii) if so requested in writing by X.X. Xxxxxxx, the
OMEGA Fund shall circulate such notice or other communication
as may be reasonably required by X.X. Xxxxxxx.
11. NOTICES. All statements, requests, notices and agreements hereunder
shall be in writing with copies to each party hereto, and shall be delivered or
sent by mail or facsimile transmission, as follows:
if to X.X. Xxxxxxx, to 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, fax
no. 000 000 0000, to the attention of Xxxxx Xxxxx;
if to the Master Trust, the OMEGA Fund, OMAM or Old Mutual Bermuda, to
Xxxxxxxx Xxxxx, 00 Xxx-xx-Xxxxx Xxxx, Xxxxxxxx, Xxxxxxx, fax no. 809
292 4720, to the attention of J.C.R. Xxxxxx; and
if to Old Mutual, to Mutualpark, Xxx Xxxxx Xxxxx, Xxxxxxxxx 0000, XX
Xxx 00, Xxxx Xxxx, Xxxxx Xxxxxx, fax no. 0000 000 0000, to the
attention of Xxxxxxx Xxxxxxx.
Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
12. REPRESENTATIONS AND WARRANTIES TO SURVIVE.
The respective agreements, representations, warranties, indemnities and other
statements of the Warrantors and X.X. Xxxxxxx set forth in or made pursuant to
this Agreement will, to the extent permitted by applicable law, remain in full
force and effect regardless of any investigation made by or on behalf of any
Warrantor or X.X. Xxxxxxx or any of the officers directors or controlling
persons referred to in Section 10 hereof and will survive the offer of
15
17
the Shares. The provisions of Sections 5, 9 and 10 hereof shall, to the extent
permitted by law, survive the termination or cancellation of this Agreement.
13. GOVERNING LAW AND JURISDICTION.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(b) Each Warrantor irrevocably (i) agrees that any legal suit,
action or proceeding against such Warrantor brought by X.X. Xxxxxxx or
by any officer or director of X.X. Xxxxxxx or by any Affiliate of X.X.
Xxxxxxx arising out of or based upon this Agreement or the transactions
contemplated herein may be instituted in the federal courts of the
United States or in the courts of England, (ii) waives, to the fullest
extent it may effectively do so, any objection which it may now or
hereafter have to the laying of venue of any such proceeding and (iii)
submits to the non-exclusive jurisdiction of such courts in any such
suit, action or proceeding. Each of the Warrantors agrees to maintain
an authorized agent in New York and in London, upon whom process may be
served in any such suit, action or proceeding and to take any and all
action, including the filing of any and all documents and instruments,
necessary to keep such appointments in full force and effect. Each of
the Warrantors (i) has appointed Norose Notices Limited, Xxxxxxx Xxxxx,
Xxxxxxxx Xxxxxx, Xxxxxx XX0 0XX as its authorized agent for service of
any writ, decree or other document in the United Kingdom (the
"Authorized English Agent") and represents and warrants that the
Authorized English Agent has agreed to act as such and (ii) has
appointed Xxxxxxx, Xxxx & Xxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, as its authorized agent for service of any writ,
decree or other document in the United States (the "Authorized U.S.
Agent") and represents and warrants that the Authorized U.S. Agent has
agreed to act as such. Service of process upon the Authorized English
Agent or upon the Authorized U.S. Agent (or any successor authorized
agent) and written notice of such service to any Warrantor shall be
deemed, in every respect, effective service of process upon such
Warrantor.
14. PROTECTION OF TRUSTEES.
This Agreement is executed and made by the trustees of the OMEGA Fund
not individually, but as trustees under the Declaration of Trust of the OMEGA
Fund dated as of September 1, 1995, and the obligations of this Agreement are
not binding upon any of the shareholders of the OMEGA Fund individually, but
bind only the trust estate of the OMEGA Fund.
This Agreement is executed and made by the trustees of the Master Trust
not individually, but as trustees under the Declaration of Trust of the Master
Trust dated as of September 1, 1995, and the obligations of this Agreement are
not binding upon any of such trustees individually.
16
18
15. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which will
be deemed to be an original, but all such counterparts will together constitute
one and the same instrument.
IN WITNESS whereof this Agreement has been entered into the day and
year first above written.
SIGNED by XXXXXXX XXXXX
for and on behalf of
OLD MUTUAL SOUTH AFRICA
EQUITY TRUST
/s/ XXXXXXX XXXXX
-------------------------
Duly authorized signatory
SIGNED by XXXXXXX XXXXXXXX
for and on behalf of
OLD MUTUAL EQUITY GROWTH
ASSETS SOUTH AFRICA FUND
/s/ XXXXXXX XXXXXXXX
-------------------------
Duly authorized signatory
SIGNED by XXXXXXX XXXXXX
for and on behalf of
SOUTH AFRICAN MUTUAL LIFE
ASSURANCE SOCIETY
/s/ X. X. XXXXXX
-------------------------
Duly authorized signatory
SIGNED by XXXXXXX XXXXXXX
for and on behalf of
OLD MUTUAL ASSET MANAGERS
(BERMUDA) LIMITED
/s/ XXXXXXX XXXXXXX
-------------------------
Duly authorized signatory
17
19
SIGNED by XXXXXXX XXXXXX
for and on behalf of
OLD MUTUAL FUND HOLDINGS
(BERMUDA) LIMITED
/s/ X. X. XXXXXX
-------------------------
Duly authorized signatory
SIGNED by XXXXX X. XXXXX
for and on behalf of
X.X. XXXXXXX & CO. INC.
/s/ XXXXX X. XXXXX
-------------------------
Duly authorized signatory
18
20
SCHEDULE I
The following constitute the "Fund Agreements" as defined in this Agreement:
1. the Investment Advisory Agreement between the Master Trust and OMAM;
2. the Subscription and Portfolio Transfer Agreement among Old Mutual, Old
Mutual Bermuda, the Master Trust, the OMEGA Fund, the SAGA Fund, and
the Global Fund;
3. the Administrative Services Agreement between State Street Bank and
Trust Company and the OMEGA Fund;
4. the Administrative Services Agreement between State Street Cayman Trust
Company and the Master Trust;
5. Custodian Agreements between State Street Bank and Trust Company and
each of the OMEGA Fund and the Master Trust, respectively.
21
ANNEX A
WARRANTIES
Each of Old Mutual, OMAM and Old Mutual Bermuda represents and warrants to and
agrees with, and each of the OMEGA Fund and the Master Trust represents and
warrants to and agrees with (but only for or as to itself, as the case may be),
X.X. Xxxxxxx as follows:
1. Each of the OMEGA Fund and the Master Trust meets the requirements for
use of Form N-1A under the Investment Company Act and the Rules and
Regulations thereunder.
2. The notification of registration on Form N-8A, as amended, by the OMEGA
Fund and the Master Trust will comply in all material respects with the
applicable requirements of the Investment Company Act and the Rules and
Regulations thereunder.
3. From and after the time each Registration Statement is filed with the
Commission through the Initial Closing Date, such Registration
Statement (as amended or supplemented from time to time) will conform,
in all material respects, with the Investment Company Act and the Rules
and Regulations thereunder and will not include any untrue statement of
a material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that no
representation or warranty is given with respect to any statement
contained in any such Registration Statement that is made in reliance
upon and in conformity with written information furnished to the OMEGA
Fund or the Master Trust by X.X. Xxxxxxx expressly for use therein.
4. No person is, and no person at any time through the Initial Closing
Date will be, serving or acting as an officer or director of or
investment adviser to the OMEGA Fund or the Master Trust except in
accordance with the Investment Company Act and the Investment Advisers
Act of 1940, as amended, and the Rules and Regulations under each such
act.
5. The Private Placement Memorandum does not, and at all times through the
Initial Closing Date will not, include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
6. The OMEGA Fund has been duly created and is lawfully and validly
existing as a business trust, and the Master Trust has been duly
created and is lawfully and validly existing as a trust, under the laws
of the Commonwealth of Massachusetts, in each case with full power and
authority to enter into this Agreement and consummate the transactions
contemplated herein, and to own its properties and conduct its business
as described in its Registration Statement and in the Private Placement
Memorandum;
22
each of the OMEGA Fund and the Master Trust is duly qualified to
transact business in each other state and every other jurisdiction in
which it is required to be so qualified; and the Declaration of Trust
and By-Laws of each of the OMEGA Fund and the Master Trust complies
and, from and after the time the OMEGA Fund's Registration Statement is
filed with the Commission will comply, in all material respects with
all applicable requirements of the Investment Company Act and the Rules
and Regulations thereunder.
7. The issuance of the Shares as contemplated by this Agreement and by the
Private Placement Memorandum has been duly and validly authorized by
the OMEGA Fund and the Shares, when issued and paid for as contemplated
herein and therein, will be validly issued and fully paid and
nonassessable and will conform in all material respects to the
description thereof contained in the Private Placement Memorandum. The
issuance and sale of beneficial interests in the Master Trust to the
OMEGA Fund and the SAGA Fund as contemplated by the Subscription and
Portfolio Transfer Agreement and the Private Placement Memorandum has
been duly and validly authorized by the Master Trust, and such
beneficial interests, when issued as contemplated therein, will be
validly issued and will conform in all material respects to the
description thereof contained in the Private Placement Memorandum.
8. Each of this Agreement and each of the Fund Agreements to which it is a
party has been duly authorized, executed and delivered by each of the
Warrantors, complies in all material respects with all applicable
provisions of the Investment Company Act and the Rules and Regulations
thereunder and, assuming its due authorization, execution and delivery
by each of the parties thereto other than such Warrantor, constitutes
the legal, valid, binding and enforceable obligation of such Warrantor,
subject to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity.
9. No consents, approvals, authorizations or orders are required to be
obtained under the Investment Company Act or the Rules and Regulations
thereunder in order to permit the solicitation by X.X. Xxxxxxx of
offers to purchase Shares pursuant to the Initial Offering as
contemplated by this Agreement and the Private Placement Memorandum;
and the solicitation by X.X. Xxxxxxx of offers to purchase Shares
pursuant to the Initial Offering as contemplated by this Agreement and
the Private Placement Memorandum will not result in a violation of the
provisions of the Investment Company Act or the Rules and Regulations
thereunder.
10. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body
(including without limitation any consent, approval, authorization,
order, registration or qualification under the Investment Company Act
and the Rules and Regulations thereunder) is required for the
consummation by each Warrantor of the transactions contemplated in this
Agreement or the Fund Agreements to which it is a party, except the
registration of the OMEGA
A-2
23
Fund and the Master Trust under the Investment Company Act and such as
have already been obtained and are in full force and effect or such as
may be required under state securities laws.
11. The execution and delivery by each Warrantor of this Agreement and the
Fund Agreements to which it is a party, and the compliance with and
consummation of the transactions contemplated in this Agreement and the
Fund Agreements to which it is a party by such Warrantor, will not
conflict with, result in a breach of, or constitute a default under,
the constitutive documents of such Warrantor or the terms of any other
agreement or instrument to which such Warrantor is a party or by which
it is bound, or any order or regulation applicable to such Warrantor of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Warrantor or any of its
properties.
12. The execution and delivery by each Warrantor of this Agreement and the
Fund Agreements to which it is a party, and the compliance with and
consummation of the transactions contemplated in this Agreement and the
Fund Agreements to which it is a party by such Warrantor, will not
result in a violation of the Investment Company Act and Rules and
Regulations thereunder or any applicable law, rule or regulation of
Bermuda or the Republic of South Africa.
13. Except as stated or contemplated in the Private Placement Memorandum,
(i) neither the OMEGA Fund nor the Master Trust has incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, whether or not in the ordinary course of business, that
are material to the OMEGA Fund or the Master Trust, (ii) there has not
been any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or
other) of the OMEGA Fund or the Master Trust (except that no
representation is made with respect to fluctuations in the value of the
Portfolio as a result of changes in the prices of the underlying
securities), (iii) there has been no dividend or distribution paid or
declared in respect of the OMEGA Fund or the Master Trust and (iv)
neither the OMEGA Fund nor the Master Trust has incurred any
indebtedness for borrowed money.
14. The OMEGA Fund will elect or has elected to be treated as a regulated
investment company as defined in Section 851(a) of the U.S. Internal
Revenue Code of 1986 for its first taxable year and will operate so as
to qualify as such in such first taxable year.
X-0
00
00. No provision of the Declaration of Trust or By-Laws of the Master Trust
or of the Investment Company Act or the Rules and Regulations
thereunder and no other reason disqualifies the Master Trust from being
deemed resident in a jurisdiction other than the United States for U.S.
income tax purposes.
16. The OMEGA Fund does not own any securities or have any beneficial
interest in any other company or entity (other than the Master Trust)
and the OMEGA Fund has not entered into any binding commitment to
acquire any investment (other than beneficial interests in the Master
Trust) or to enter into any joint venture arrangement.
17. None of the Warrantors has taken or will take any action or actions
that, without more, would cause the offering of the Shares to be
subject to registration under the Securities Act.
18. None of the Warrantors has offered or will offer any Shares for sale
prior to the Initial Closing Date except as contemplated by this
Agreement.
19. Except as contemplated in the Private Placement Memorandum, on the
Portfolio Transfer Date and at all times subsequent thereto through the
Initial Closing Date, each of the OMEGA Fund and the Master Trust will
own all of its assets free and clear in all material respects of all
liens, security interests, pledges, mortgages, charges and other
encumbrances or defects and all governmental or other consents required
for the transfer of the Portfolio to the Master Trust will have been
obtained and will be in full force and effect.
20. On the Portfolio Transfer Date and at all times subsequent thereto
through the Initial Closing Date, the Global Fund will own all of the
assets to be transferred to it pursuant to the Portfolio Transfer and
Subscription Agreement free and clear in all material respects of all
liens, security interests, pledges, mortgages, charges and other
encumbrances or defects and all governmental or other consents required
for the transfer of such assets to the Global Fund will have been
obtained and will be in full force and effect.
In addition to the foregoing, each of Old Mutual, OMAM and Old Mutual Bermuda
represents, warrants and agrees as follows:
21. Neither the SAGA Fund nor any person acting on its behalf has offered
or sold or will offer or sell shares in the SAGA Fund in the United
States or to or for the account of a U.S. Person, as such term is
defined in Regulation S (except that no representation is made as to
the actions of SBC Warburg or any of its Affiliates).
22. Neither the SAGA Fund nor any person acting on its behalf has engaged
or will engage in directed selling efforts (as defined in Regulation S)
with respect to the shares of the
A-4
25
SAGA Fund (except that no representation is made as to the actions of
SBC Warburg or any of its Affiliates).
A-5
26
ANNEX B
Private and Confidential
[Letterhead of Xxxxxx Xxxxxxxxxx Xxxxxx Xxxxxxx Inc]
To: SBC Warburg
0 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
X.X. Xxxxxxx & Co. Inc.,
OMEGA Fund
[Address details]
SAGA Fund
[Address details]
Master Trust
[Address details]
Dear Sirs,
Old Mutual Equity Growth Assets South Africa Fund.
Old Mutual South Africa Growth Assets Fund
Placing of Shares
We refer to the proposed placings ("the Placings") by X.X. Xxxxxxx & Co. Inc.
(X.X. Xxxxxxx") of shares in the Old Mutual Equity Growth Assets South Africa
Fund Limited ("OMEGA Fund") and by Swiss Bank Corporation, acting through its
division SBC Warburg "SBC Warburg") of shares in Old Mutual South Africa Growth
Assets Fund ("SAGA Fund").
We have been asked to express an opinion on various legal aspects of the
proposed Placings under South Africa law. We are familiar with international
transactions involving South Africa and are qualified to give this opinion to
you.
This opinion is limited to the laws of the Republic of South Africa ("South
Africa"), as they are at the date of the opinion.
1 Definitions
Words and expressions defined in the Glossary in each of the Placement
Memoranda referred to in paragraphs 2.1(a) and 2.1(b) below, and which
are not defined in this opinion shall have the same meanings in this
opinion as those ascribed to them in those
27
Glossaries.
2 Documents Examined
2.1 We examined the following documents in connection with the
Placings:-
(a) the draft Private Placement Memorandum dated September
15, 1995, prepared for the Initial Offering by the
Omega Fund of up to 10,000,000 Shares of beneficial
Interest at U.S.$100 per share;
(b) the draft Placement Memorandum dated 15 September,
1995 prepared for the Initial Offering by the Saga
Fund of up to 20,000,000 Shares at U.S.$50 per share;
(c) the South African Mutual Life Assurance Society
(Private) Act, 1966 (Act 52 of 1966), as amended by
Act 53 of 1980 and by the further amendments made in
terms of Section 73 of that Act, and confirmed by
orders of the Cape Provincial Division of the Supreme
Court of South Africa granted on 21 December 1966, 12
December 1968, 19 February 1974 and 17 December 1981
("the Old Mutual Act");
(d) the bye-laws of the Old Mutual made in terms of
Chapter 7 of the Old Mutual Act;
(e) the Resolutions of the Board of Directors of Old
Mutual passed on ________________ 1995;
(f) correspondence between the South African Reserve Bank
("the Reserve Band") as the representative of the
Treasury and Old Mutual, including the following:
letter dated 1 August 1995 from Old Mutual to the
Reserve Bank; letter dated 28 August 1995 from the
Reserve Bank to Old Mutual; letter dated 29 August
from Old Mutual to the Reserve Bank; letter dated 30
August 1995 from the Reserve Bank to Old Mutual;
letter dated 22 September 1995 from Old Mutual to the
Reserve Bank;
(g) a copy, certified to our satisfaction, of the
Portfolio Transfer and Description Agreement dated __
October 1995 ("the Transfer Agreement");
(h) a copy, certified to our satisfaction, of the Placing
Agreement relating to shares of the Omega Fund dated
as of ___________ 1995 ("the Omega Placing
Agreement");
B-2
28
(i) a copy, certified to our satisfaction, of the
Agreement dated ___________ 1995 relating to the
placing of up to ___ shares of U.S.$____ each in the
Saga Fund ("the Saga Placing Agreement");
(j) a copy, certified to our satisfaction, of the letter
agreement dated 23 August 1995 between SBC Warburg and
Old Mutual read together with the separate letter of
the same date between the same parties (the
"Engagement Letters").
2.2 We have also made such other enquiries and examined such other
documents as we have considered appropriate for the purpose of
giving this opinion.
3 Assumptions
For the purposes of this opinion we have made the following
assumptions;
3.1 that all signatures on all documents are genuine;
3.2 that copies of all original documents submitted to us are
complete and conform with the originals;
3.3 that all Resolutions shown to us have been validly passed;
3.4 that all the amendments to the Old Mutual Act which were made
in terms of Section 73 of that Act and confirmed by orders of
the Cape Provincial Division of the Supreme Court of South
Africa, which are referred to above, were validly made and
confirmed;
3.5 that the approval of the Financial Services Board which is
referred to in the letter dated 28 August 1995 from the Reserve
Bank to Old Mutual and which is said in that letter to have
been obtained for Old Mutual's "original proposal" was in fact
obtained; and that such approval satisfies the requirements of
the Insurance Xxx 0000 (Act 27 of 1943) in so far as that Act
requires any approval from the Financial Services Board for the
transfer of the Portfolio to the Master Trust and the Global
Fund Portfolio to the Global Fund and for any of the other
transactions or arrangements mentioned or described in this
opinion;
3.6 that each of the four agreements referred to in paragraphs
2.1(g), 2.1(h), 2.1 (i) and 2.1(j) above, has been duly
authorised, executed and validly entered into by every party to
it other than Old Mutual.
4 Acknowledgement
We understand and acknowledge that in order for the Placings to proceed
in accordance
B-3
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with what is stated in the Placement Memoranda referred to in
paragraphs 2.1(a) and 2.1(b) above, it is intended that the following
will take place:
4.1 that Old Mutual will transfer, or will procure the transfer of
the Portfolio to the Master Trust, and of the Global Fund
Portfolio to the Global Fund, prior to the Initial Closing so
that ownership of the Portfolio and the Global Fund Portfolio
will be transferred to and become vested in the Master Trust
and the Global Fund respectively;
4.2 prior to the transfers of the Portfolio and the Global Fund
Portfolio, Old Mutual will have received the necessary
approvals required in terms of the Exchange Control
Regulations, 1961 ("Excon Regulations") made in terms of the
Currency and Xxxxxxxxx Xxx 0000 (Act 9 of 1933), to effect
those transfers and arrange for the Placings;
4.3 prior to those transfers any approval required from the
Financial Services Board in terms of the Insurance Xxx 0000 for
those transfers will have been received;
5 Opinion
On the basis of and subject to the aforegoing, we are of the opinion
that:
5.1 Old Mutual is duly incorporated and exists as a body corporate
by virtue and in terms of the Old Mutual Act;
5.2 Old Mutual is also duly registered under the Insurance Act,
1943 to carry on in South Africa the following classes of
insurance business: Life business and sinking fund business.
5.3 Old Mutual has the requisite capacity to enter into each of the
agreements referred to in paragraphs 2.1(g), 2.1(h), 2.1(i) and
2.1(j) above and to perform its obligations under each of those
agreements.
5.4 Each of those agreements has been duly authorised and executed
by Old Mutual and is valid, legally binding and, subject to
what is stated below, enforceable against Old Mutual in
accordance with its terms;
5.5 The necessary approvals required from the Treasury (represented
by the Reserve Bank) in terms of the Excon Regulations, have
been obtained for the following obligations of Old Mutual under
the Transfer Agreement:
(a) the transfer of the Portfolio to the Master Trust;
B-4
30
(b) the transfer of the Global Fund Portfolio to the
Global Fund;
(c) the payment of the amount of U.S.$5,000,000 by Old
Mutual to the Master Trust to meet initial costs.
5.6 If Old Mutual becomes liable under the Transfer Agreement to
pay any other monies to or in favour or on behalf of any party
who is not a resident of South Africa, the approval of the
Treasury would be required for such payment in terms of the
Excon Regulations; and that approval would have to be applied
for and decided upon by the Treasury at the time the obligation
to make the payment arises.
5.7 No approvals are required now from the Treasury in terms of the
Excon Regulations for any of Old Mutual's obligations under
either of the Placing Agreements referred to in paragraph
1.1(h) and 1.1(i) above. However, if Old Mutual becomes liable
under either of those two Agreements to pay any monies to, or
in favour or on behalf of any person resident outside the
Republic the approval of the Treasury would be required in
terms of the Excon Regulations for the payment; and that
approval would have to be applied for and decided upon by the
Treasury at the time the obligation to make the payment arises.
5.8 The entering into and the performance by Old Mutual of its
obligations under each of the four agreements referred to in
paragraphs 2.1(g), 2.1(h), 2.1(i) and 2.1(j) will not violate,
contravene or conflict with any law in force in South Africa,
or be unenforceable because it is contrary to public policy in
South Africa.
5.9 Subject to what is stated above no consent, permit, licence,
approval, authorisation or exemption under the laws of South
Africa is required for Old Mutual to enter into or perform any
of its obligations under any of those four agreements.
5.10 Neither SBC Warburg nor X.X. Xxxxxxx will be deemed to be
resident, domiciled or carrying on business, or will be subject
to taxation in South Africa by reason only of the negotiation,
preparation, execution, delivery, performance, observance,
enforcement of, or receipt of any payment or repayment pursuant
to the transfers of the Portfolio and the Global Fund Portfolio
or otherwise in connection with the effecting of the Placings.
5.11 Following the implementation of the Transfer Agreement, and the
proper transfer of the Portfolio to the Master Trust in terms
of and pursuant to that agreement, the Master trust would
become the owner of and have good and marketable title to all
the securities in the Portfolio.
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5.12 Following the implementation of the Transfer Agreement, and the
proper transfer of the Global Fund Portfolio to the Global Fund
in terms of and pursuant to that agreement, the Global Fund
would become the owner of and have good and marketable title to
all the securities in the Global Fund Portfolio.
5.13 Subject to what is stated in paragraphs 5.14 and 5.15 below the
transfer of the Portfolio to the Master Trust and of the Global
Fund Portfolio to the Global Fund Portfolio pursuant to the
Transfer Agreement will attract stamp duty in South Africa in
terms of the Stamp Duties Act, 1968 (Act 77 of 1968) at the
rate of 1% of the value of all the securities so transferred.
That value should be the value determined for the securities in
accordance with the relevant provisions of the Transfer
Agreement. It should be noted that if transfer of any of the
securities is registered after the expiry of a period of 6
months from the date of execution of the statutory instrument
of transfer which will be required for the registration, the
duty increases to three times the duty which would have been
payable if the transfer had been registered before the expiry
of that period of 6 months.
5.14 If the statutory instrument of transfer required to be executed
for the registration of transfer of any securities in the
Portfolio or in the Global Fund Portfolio is executed outside
South Africa and the registration of the transfer is executed
in any branch register kept by the issuer of the securities
outside South Africa the registration would be exempt from
stamp duty in South Africa, provided the branch register
satisfies certain requirements of the Stamp Duties Act, 1962.
5.15 If the transfer of any of those securities is effected through
a purchase by a stock broker where the transaction attracts
Marketable Securities Tax in terms of the Marketable Securities
Tax Act, 1948 (Act 32 of 1948), then that tax will be payable
in lieu of stamp duty. Any marketable securities tax so payable
on any of the securities will be 1% of the consideration for
which they are so purchased.
5.16 Save as mentioned above there is no stamp duty, marketable
security tax, capital duty or increase in capital duty or any
other documentary or registration tax or impost of any nature
which will be payable by any party in connection with the
transfer of the Portfolio to the Master Trust or the Global
Fund Portfolio to the Global Fund in terms of the Transfer
Agreement.
5.17 SBC Warburg will be entitled without limit or restriction and
without the need to obtain any consent, approval, licence or
permission of any person to exercise all or any of its rights
under the Saga Placing Agreement without having to establish a
place of business in South Africa or to carry out any other
requirement, save as stated in paragraph 5.19 below.
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5.18 The same applies to X.X. Xxxxxxx in relation to the exercise of
all or any of its rights under the Omega Placing Agreement.
5.19 A final judgment obtained against Old Mutual in any
jurisdiction outside South Africa will be recognised and
enforced in South Africa in accordance with and subject to the
principles of South African law applicable to the recognition
and enforcement of foreign judgments in civil matters. Very
briefly there are four essential requirements that need to be
fulfilled. First foreign court must have had international
competence to decide the case, as determined by South African
legal principles. Second the judgment must be final and
conclusive. Third the recognition and enforcement of the
judgment must not be against public policy in South Africa,
including observance of the rules of natural justice. Fourthly
if the Protection of Businesses Act, 1978 (Act 99 of 1978)
applies to the judgment the consent of the Minister of Trade
and Industry must be obtained. In our opinion it is not certain
that this Act would apply to any judgment of a foreign court
obtained against Old Mutual to enforce any of its obligations
under any of the agreements referred to in paragraphs 2.1(g),
2.1(h), 2.1(i) and 2.1(j) above. But if that Act were to apply
and if the consent of the Minister were required we are of the
opinion that it is unlikely that his consent would be refused.
Moreover if his consent were refused, it might be possible now
to challenge the validity of the Act in terms of the new
constitution which is the Constitution of the Republic of South
Africa Act, 1993 (Act 200 of 1993).
Yours faithfully,
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ANNEX C
[Form of Xxxxxxx, Xxxx & Xxxxx Opinion]
00
XXXXX X
Xxxxxxxx -, 0000
Xxxxx Bank Corporation
SBC Warburg
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Dear Sirs:
Re: Old Mutual South Africa Growth Assets Fund Limited ("SAGA Fund")
Old Mutual Asset Managers (Bermuda) Limited ("OMAM")
Old Mutual Fund Holdings (Bermuda) Limited ("OMB")
Old Mutual Global Assets Fund Limited ("Global Assets Fund")
all together (the "Companies")
Initial Offering of Shares of SAGA Fund
We have acted a special legal counsel in Bermuda to the Companies in
connection with the initial offering of up to 20,000,000 shares (the "Shares")
of SAGA Fund at US$50.00 per Share.
For the purposes of giving this opinion, we have examined the following
documents:
(i) [a draft of] an agreement among Old Mutual South Africa Equity
Trust (the "Master Trust"), SAGA Fund, South African Mutual Life
Assurance Society ("Old Mutual"), OMAM, OMB and Swiss Bank
Corporation dated -, 1995 relating to the placing of up to
20,000,000 shares of US$1.00 each in SAGA Fund (the "Placing
Agreement");
(ii) [a draft of] an agreement among the Master Trust, Old Mutual
Equity Growth Assets South Africa Fund ("OMEGA Fund"), Old
Mutual, OMAM, OMB and X.X. Xxxxxxx & Co. Inc. dated -, 1995
relating to the placing of up to 10,000,000 shares of OMEGA Fund
in a United States private placement (the "US Placing
Agreement");
(iii) [a draft of] the Portfolio Transfer and Subscription Agreement
among Old Mutual, OMB, OMAM, the Master Trust, OMEGA Fund, SAGA
Fund and Global Assets
35
Page -2-
November -, 1995
Opinion to Swiss Bank Corporation
Fund dated -, 1995;
(iv) [a draft of] the Advisory Agreement between OMAM and the Master
Trust dated -, 1995;
(v) [a draft of] the [SAGA Custodian Agreement] between SAGA Fund
and State Street Bank and Trust Company dated -, 1995;
(vi) [a draft of] the SAGA Administrative Services Agreement between
SAGA Fund and State Street Cayman Trust Company, Ltd., dated -,
1995; and
(vii) [a draft of] the Investment Restrictions undertaking among the
Master Trust, OMEGA Fund and SAGA Fund dated -, 1995.
The Placing Agreement, the U.S. Placing Agreement, the Portfolio
Transfer and Subscription Agreement, the Advisory Agreement, the [SAGA Custodian
Agreement], the SAGA Administrative Agreement and the Investment Restrictions
Undertaking are herein sometimes collectively referred to as the "Documents".
We have also reviewed the memorandum of association and the bye-laws of
the Company, minutes of meetings of its directors and such other documents and
made such enquiries as to questions of law as we have deemed necessary in order
to render the opinion set forth below.
We have assumed (a) the genuineness and authenticity of all signatures
and the conformity to the originals of all copies of documents (whether or not
certified), (b) the capacity, power and authority of each of the parties to the
Documents, other than the Companies, (c) the due execution and delivery of the
Documents by each of the parties thereto, [other than the Companies], (d) the
accuracy and completeness of all factual representations made in the Documents
and other documents reviewed by us, (e) that there is no provision of the law of
any jurisdiction, other than Bermuda, which would have any implication in
relation to the opinions expressed herein, (f) the validity and binding effect
under the laws of England [or -, as the case may be] (the "Foreign Laws") of the
Documents which are expressed to be subject to such Foreign Laws in accordance
with their respective terms, (g) the validity under the Foreign Laws of the
submission by the Companies pursuant to the Documents to the non-exclusive
jurisdiction of the English courts [or -, as the case may be] (the "Foreign
Courts").
The obligations of the Companies under the Documents (a) will be
subject to the laws from time to time in effect relating to bankruptcy,
insolvency, liquidation, possessory liens, rights of set off, reorganisation,
amalgamation, moratorium or any other laws or legal procedures, whether of a
similar nature or otherwise, generally affecting the rights of creditors, (b)
will be subject to statutory limitation of the time within which proceedings may
be brought, (c) will be
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Page -3-
November -, 1995
Opinion to Swiss Bank Corporation
subject to general principles of equity and, as such, specific performance and
injunctive relief, being equitable remedies, may not be available, (d) may not
be given effect to by a Bermuda court, whether or not it was applying the
Foreign Laws, if and to the extent they constitute the payment of an amount
which is the nature of a penalty and not in the nature of liquidated damages.
We have made no investigation of an express no opinion in relation to
the laws of any jurisdiction other than Bermuda. This opinion is to be governed
by and construed in accordance with the laws of Bermuda and is limited to and is
given on the basis of the current law and practice in Bermuda. This opinion is
issued solely for your benefit and is not to be relied upon by any other person,
firm or entity or in respect of any other matter.
On the basis of and subject to the foregoing, we are of the opinion
that:
1. The Companies are duly incorporated and existing under the laws of
Bermuda.
2. Each Company has the necessary corporate power and authority to enter
into and perform its obligations under the Documents to which it is a
party. The execution and delivery by each Company of the Documents to
which it is a party and the performance by each Company of its
obligations thereunder will not violate the memorandum of association
or bye-laws of such Company nor any applicable law, regulation, order
or decree in Bermuda.
3. Each Company has taken all corporate action required to authorise its
execution, delivery and performance of the Documents to which it is a
party. [When duly executed and delivered by or on behalf of each
Company, the Documents will constitute]/[The Documents to which a
Company is a party have been duly executed and delivered by or on
behalf of the Company, and constitute] the valid binding obligations of
such Company in accordance with the terms thereof.
4. No order, consent, approval, licence, authorisation or validation of or
exemption by any government or public body or authority of Bermuda or
any sub-division thereof is required to authorise or is required in
connection with the execution, delivery, performance and enforcement of
the Documents or the allotment or issue of the Shares except such as
have been duly obtained in accordance with Bermuda law.
5. The Documents will not be subject to ad valorem stamp duty in Bermuda.
6. The SAGA Fund has the power under its memorandum of association and
bye-laws, and the directors of SAGA Fund are empowered, to allot and
issue the Shares without any sanction or consent by the members of the
SAGA Fund or any class of them.
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Page -4-
November -, 1995
Opinion to Swiss Bank Corporation
7. The choice of the Foreign Laws to govern the Documents is a valid
choice of law and the submission therein by each Company which is a
party to the non-exclusive jurisdiction of the Foreign Courts is valid
and binding upon such Company.
8. [With respect to the Placing Agreement, the Investment Restrictions
Undertaking and -, such final and conclusive judgment in the superior
court of the Foreign Courts against a Company under which a sum of
money is payable (not being in respect of multiple damages, or a fine,
penalty, tax or other charge of similar nature) would, on registration
in accordance with the provisions of The Judgments (Reciprocal
Enforcement) Xxx 0000 be enforceable in the Supreme Court of Bermuda
against such Company without the necessity of any retrial of the issues
subject of such judgment or any re-examination of the underlying
claims; however, where such foreign judgment is expressed in a currency
other than Bermuda dollars the registration will involve the conversion
of the judgment debt into Bermuda dollars on the basis of the exchange
rate prevailing at the date of such judgment as is equivalent to the
judgment sum payable. The present policy of the Bermuda Monetary
Authority is to give consent for the Bermuda dollar award made by the
Supreme Court of Bermuda to be paid in the original judgment currency.]
[With respect to the Portfolio Transfer and Subscription Agreement and
-, the courts of Bermuda would recognise as a valid judgment, a final
and conclusive judgment in personam obtained in the Foreign Courts
against a Company which is a party to such agreements based upon such
agreements under which a sum of money is payable (other than a sum of
money payable in respect of multiple damages, taxes or other charges of
a like nature or in respect of a fine or other penalty) and would give
a judgment based thereon provided that (a) such courts had proper
jurisdiction over the parties subject to such judgment, (b) such courts
did not contravene the rules of natural justice of Bermuda, (c) such
judgment was not obtained by fraud, (d) the enforcement of the judgment
would not be contrary to the public policy of Bermuda, (e) no new
admissible evidence relevant to the action is submitted prior to the
rendering of the judgment by the courts of Bermuda and (f) the due
compliance with the correct procedures under the laws of Bermuda.]
Yours faithfully,
XXXXXXX, XXXX & XXXXXXX
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ANNEX E
The following constitutes all of the written information furnished by
X.X. Xxxxxxx to the OMEGA Fund for inclusion in the Private Placement Memorandum
at the date of this Agreement:
