SECURITIES LENDING AND COLLATERAL MANAGEMENT MANDATE AGREEMENT

Transcription

1 ENSafrica 1 North Wharf Square Loop Street Foreshore Cape Town 8001 P O Box 2293 Cape Town South Africa 8000 docex 14 Cape Town tel info@ensafrica.com ENSafrica.com SECURITIES LENDING AND COLLATERAL MANAGEMENT MANDATE AGREEMENT entered into between.. Registration Number: (hereinafter referred to as Client ) And. Registration Number :. (hereinafter referred to as Computershare ) law tax forensics IP Edward Nathan Sonnenbergs Incorporated registration number 2006/018200/21

2 2 TABLE OF CONTENTS Clause number and description Page 1. INTERPRETATION APPOINTMENT GMSLAS AND LOANS AUTHORISED WARRANTIES DUTIES OF AGENT CORPORATE ACTIONS RIGHTS AND DUTIES OF CLIENT CLIENT S WARRANTIES COMPUTERSHARE S WARRANTIES REMUNERATION OF NAVISHARE THE CLIENTS FEES TERMINATION BREACH DOMICILIUM JURISDICTION TRANSFER OF RIGHTS AND DUTIES COSTS RENUNCIATION OF BENEFITS VARIATION, INDULGENCE, SEVERABILITY RECORDING EXECUTION IN COUNTERPARTS... 14

3 3 1. INTERPRETATION 1.1. In this Agreement the following words will have the meaning set out below; Agreement means this agreement and any annexures hereto; Approved Borrower means a Borrower, as defined in the GMSLA, with whom Computershare has concluded a GMSLA; Base Currency means, in relation to a Loan, the currency stipulated as such in the GMSLA; Borrow Request means a request made by an Approved Borrower, by telephone or otherwise specifying the description, title and number of Securities required, the Settlement Date and duration of such borrowing and the date, time, mode and place of delivery and which shall, upon acceptance by Computershare on behalf of the Client, be confirmed by Computershare in a Confirmation Note; Business Day means any day which is not a Saturday, Sunday or Public Holiday in the Republic of South Africa and on which the relevant exchange is open for business; Cash Collateral has the meaning given in the GMSLA; Client means [ ], as such Client may be represented by an investment manager other agent; Collateral has the meaning given in the GMSLA; Confirmation means a confirmation of the specific details of a Loan between Computershare, on behalf of the Client, and an Approved Borrower; Effective Date means the date on which this Agreement is signed by the last of the parties; Equivalent Securities has the meaning set out in the GMSLA; Event of Default has the meaning set out in the GMSLA; Financial Markets Act means the Financial Markets Act, 2012; GMSLA means the 2010 Global Master Securities Lending Agreement published by the International Securities Lending Association, amended by the inclusion of a standard South African schedule thereto and concluded between Computershare and each Approved Borrower; Income means any interest, dividends or other distributions of any kind whatsoever with respect to any Securities or Collateral; Income Record Date has the meaning given in the GMSLA;

4 Lender in respect of a Loan, means Computershare, acting on behalf of the Client, in its capacity as Lender as defined in a GMSLA; Lending Requirements means the Client s requirements in respect of Loans, as set out in Annexure A hereto; Loan has the meaning set out in the GMSLA; Loaned Securities has the meaning set out in the GMSLA; Navigare means Navigare Securities Proprietary Limited, a limited liability company duly incorporated in accordance with the laws of South Africa, with registration number 2008/025723/07 and its registered address at 51 West Street, Houghton, Johannesburg; Navishare means Navigare, acting in its capacity as Computershare s agent to perform Computershare s duties under this Agreement; Non-Cash Collateral has the meaning set out in the GMSLA; Party means each of Computershare and the Client; Settlement Date means the agreed date upon which Securities are to be delivered to the Approved Borrower in accordance with the Borrow Request; and STRATE means Strate Limited, a licensed central securities depository in terms of the Financial Markets Act Unless inconsistent with the context or save where the contrary is expressly indicated: if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in this interpretation clause, effect shall be given to it as if it were a substantive provision of this Agreement; when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the next succeeding Business Day; in the event that the day for payment of any amount due or for performance of any obligation to be performed in terms of this Agreement should fall on a day which is not a Business Day, the relevant day for payment shall be the following Business Day; any reference in this Agreement to an enactment is to that enactment as at the Effective Date and as amended or re-enacted from time to time; any reference in this Agreement to this Agreement or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document as they may have been, or may 4

5 from time to time be, amended, varied, novated or supplemented in accordance with the provisions of clause Error! Reference source not found. of his Agreement; no provision of this Agreement constitutes a stipulation for the benefit of any person who is not a Party to this Agreement; and a reference to a Party includes that Party s successors-in-title and permitted assigns Unless inconsistent with the context, an expression which denotes: any one gender includes the other genders; a natural person includes an artificial person and vice versa; and the singular includes the plural and vice versa The headings to the clauses and schedules of this Agreement are for reference purposes only and shall in no way govern or affect the interpretation of nor modify nor amplify the terms of this Agreement nor any clause or schedule hereof The schedules to this Agreement form an integral part hereof and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such schedules. To the extent that there is any conflict between the schedules to this Agreement and the provisions of this Agreement, the provisions of this Agreement shall prevail Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the same meaning as ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause The rule of construction that, in the event of ambiguity, the contract shall be interpreted against the Party responsible for the drafting thereof, shall not apply in the interpretation of this Agreement The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this This Agreement shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, permitted assigns or liquidators of the Parties as fully and effectually as if they had signed this Agreement in the first instance and reference to any Party shall be deemed to include such Party s estate, heirs, executors, administrators, trustees, permitted assigns or liquidators, as the case may be The use of any expression in this Agreement covering a process available under South African law such as winding-up (without limitation eiusdem generis) shall, if any of the 5

6 Parties to this Agreement is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such other jurisdiction Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail. 2. APPOINTMENT 2.1. With effect from the Effective Date, the Client hereby appoints Computershare as its agent on the terms and conditions set out in this Agreement and hereby specifically authorizes Computershare to: subject to the Client s Lending Requirements and any restriction contained in clause below, conclude Loans for and on behalf of the Client with Approved Borrowers; exercise all the rights and perform all the obligations of and on behalf of the Client in terms of such Loans and the GMSLAs under which such Loans are concluded, including, inter alia, by transferring the Client s Securities to Approved Borrowers, receiving and managing Collateral from Approved Borrowers and returning such Collateral to Approved Borrowers; give the representations and warranties set out in clause 4 below to Approved Borrowers on the Client s behalf; sign such documentation and do such things as may be necessary or desirable to give effect to the appointment of Computershare in terms of this Agreement; and appoint Navigare as Computershare s agent to perform the duties set out in this Agreement, such that all obligations and duties of Computershare under this Agreement shall be performed for and on behalf of the Client by Navishare Computershare accepts the appointment referred to in clause 2.1 with effect from the Effective Date. 3. GMSLAS AND LOANS 3.1. In terms of this Agreement, Navishare has provided the Client with a list of potential borrowers that meet Navishare s credit requirements and with whom Navishare, on behalf of Computershare, has concluded GMSLAs (each such borrower an Approved Borrower ) In terms of such GMSLAs, Navishare, on behalf of Computershare, may act as agent on behalf of disclosed principal Lenders Unless otherwise agreed between Navishare and the Client, Loans may be concluded on the Client s behalf with any Approved Borrower Navishare may update the list of Approved Borrowers from time to time on notice to the Client. If within [five (5)] Business Days of receipt of such notice the Client does not object to any new Approved Borrowers, Navishare shall be 6

7 entitled to conclude Loans on the Client s behalf with such new Approved Borrowers The Client shall be entitled to exclude any Approved Borrower from borrowing its Securities at any time on notice to Navishare, provided that any existing Loans to such Approved Borrower shall not be affected by such notice In terms of this Agreement, Client has provided Navishare with its Lending Requirements Unless Navishare obtains Client s written consent prior to concluding such Loans, Navishare will not conclude Loans with Approved Borrowers that are not compliant with (or on terms better than) the Lending Requirements Client shall be entitled to amend the Lending Requirements at any time on [five (5)] Business Days notice to Navishare, provided that any existing Loans shall not be affected by such notice Upon receipt of Borrow Requests from Approved Borrowers, Navishare may conclude corresponding Loans of the Client s Securities, provided that such Loans comply with the Client s Lending Requirements The Client shall be entitled to request copies of GMSLAs with Approved Borrowers at any time For the avoidance of doubt, Loans will be concluded by Navishare with Approved Borrowers on the Client s behalf, e.g. the Client and the Approved Borrowers will be the principals to the Loans. 4. AUTHORISED WARRANTIES Computershare is authorised to give the following representations and warranties to Approved Borrowers on behalf of the Client: 4.1. the Client is duly authorised and empowered to perform its duties and obligations in terms of the relevant GMSLA; 4.2. the Client is not restricted under the terms of its constitution or in any other manner from lending Securities in accordance with the relevant GMSLA or from otherwise performing its obligations thereunder; 4.3. the Client is absolutely entitled to pass full legal and beneficial ownership of all Securities provided by it under the relevant GMSLA to the Approved Borrower free from all liens, charges and encumbrances; and 4.4. the Client is not relying on any communication (whether oral or written, except for the express representations, warranties, covenants, undertakings and agreements set forth in the relevant GMSLA) of the Approved Borrower, Navishare or Computershare as advice, warranties or representations, and it has obtained such independent professional tax, accounting, regulatory, legal and financial advice as it has deemed necessary. 7

8 8 5. DUTIES OF AGENT 5.1. In respect of each Loan Navishare shall exercise, on behalf of the Client, all the rights of the Lender and shall perform all the obligations of the Lender as set out in the relevant GMSLA, provided that the Client shall be obliged to provide Navishare with all reasonable assistance necessary for the performance of the Client s obligations under the GMSLA Without limiting the generality of clause 5.1 above the parties expressly agree that Navishare shall perform the obligations as set out in clause 5.3 to clause 5.8 below. Settlement of Loans 5.3. Navishare shall, on behalf of the Client, deliver the Loaned Securities to the Approved Borrower for settlement on the Settlement Date and in the manner provided for in the relevant GMSLA against the Approved Borrower s delivery to Navishare, on behalf of the Client, of the relevant Collateral On termination of the Loan, as determined by the Client or the Approved Borrower pursuant to the terms of the relevant GMSLA, Navishare, on behalf of the Client, shall take delivery of the Equivalent Securities from the Approved Borrower and deliver Equivalent Collateral to the Approved Borrower. Collateral management 5.5. Navishare, on behalf of the Client, shall: take delivery of all Collateral, and, if applicable, any appropriate instrument of transfer or title in respect of the Collateral; satisfy itself that the relevant entries under and in terms of section 39 of the Financial Markets Act are effected in respect of all Non-Cash Collateral that is pledged and ceded in securitatem debiti to the Client; and ensure that the Collateral is dealt with as provided for in the GMSLA Navishare shall be entitled to: Income [ ] Navishare shall collect on its due date and immediately pay over to the Client any Income or other amounts payable by an Approved Borrower to the Client in respect of Loaned Securities Navishare shall pay on its due date any Income or other amounts payable to the Approved Borrower on behalf of the Client in respect of any Collateral. Breach 5.9. If an Approved Borrower in respect of whom one or more Loans are outstanding commits a breach of the provisions of a GMSLA, Navishare shall immediately inform the Client of the breach.

9 9 6. CORPORATE ACTIONS The Client acknowledges that Approved Borrowers shall have no obligation to arrange for voting rights in respect of Loaned Securities to be exercised in accordance with the Client s instructions. Similarly, Navishare shall have no obligation to arrange for voting rights in respect of Non-Cash Collateral delivered to Navishare on behalf of the Client to be exercised in accordance with the Approved Borrower s instructions. 7. RIGHTS AND DUTIES OF CLIENT The Client shall: 7.1. timeously make the Securities available to Navishare to enable Computershare to deliver the Securities to the Approved Borrower on the relevant Settlement Date; 7.2. observe and comply where necessary with all applicable laws, regulations, rules or other measures imposed in respect of the performance of its obligations under this Agreement; 7.3. pay to Navishare any amounts payable by the Client to the Approved Borrower in terms of a Loan; and 7.4. [inform Navishare of any upcoming Income, no later than 5 (five) working days before the relevant Income Record Date. ] 8. CLIENT S WARRANTIES The Client warrants, represents and undertakes to Computershare that: 8.1. it is duly authorised and empowered to perform its duties and obligations in terms of the this Agreement and, in respect of each Loan, the relevant GMSLA; 8.2. it is not restricted under the terms of its constitution or in any other manner from lending Securities in accordance with this Agreement and, in respect of each Loan, the relevant GMSLA, or from otherwise performing its obligations thereunder; 8.3. it is absolutely entitled to pass full legal and beneficial ownership of all Securities provided by it under this Agreement and, in respect of each Loan, the relevant GMSLA, to Approved Borrowers free from all liens, charges and encumbrances; and 8.4. it is not relying and will not rely on any communication (whether oral or written, except for the express representations, warranties, covenants, undertakings and agreements set forth in this Agreement and, in respect of each Loan, the relevant GMSLA) of Approved Borrowers, Navishare or Computershare as advice, warranties or representations, and it has obtained such independent professional tax, accounting, regulatory, legal and financial advice as it has deemed necessary the execution, delivery and performance of this Agreement and, in respect of each Loan, the relevant GMSLA, are within its powers, have been and shall remain duly authorised by all necessary action, and will not violate or constitute a default under any applicable law or regulation or of any decree, order, judgement, agreement or instrument binding on the Client; and

10 8.6. this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms. 9. COMPUTERSHARE S WARRANTIES Computershare warrants, represents and undertakes to the Client that: 9.1. it is duly authorised and empowered to perform its duties and obligations under this Agreement; 9.2. it is not restricted by its constitution or in any other manner to perform its obligations hereunder; and 9.3. it shall comply with the exchange control requirements if such Securities are borrowed by non-resident Approved Borrowers. 10. REMUNERATION OF NAVISHARE The parties agree that no remuneration is payable by the Client to Computershare or Navishare for services rendered by it in terms of this Agreement The Client irrevocably consents to Computershare negotiating with an Approved Borrower for a fee, commission or other remuneration whether payable in cash or as a rebate (as the case may be) in respect of any payment to be made to Computershare by the Approved Borrower in terms of this Agreement or any GMSLA and retaining such fee, commission or other remuneration for Computershare s own benefit and account The Client irrevocably waives any right and/or entitlement to the amount payable to Computershare as a fee, commission or other remuneration in terms of clause 10.2 and to any other fee, commission or remuneration of Computershare. 11. THE CLIENTS FEES Each GMSLA shall contain the fee structure as set out in the rest of this clause 11. Such fees are the fees that are due and payable by the Approved Borrower to the Client [TBD] 12. TERMINATION Either Party may give [30 (thirty)] days prior written notice to the other Party that this Agreement will terminate (hereinafter referred to as the Termination Notice ) Once a Termination Notice has been received by either Party, neither Computershare nor Navishare shall have any further authority to conclude Loans on behalf of the Client Once a Termination Notice has been received by either Party, this Agreement shall continue to be of full force and effect until all the Client s rights and obligations under the Loans GMSLAs have been performed, after which this Agreement will automatically terminate. 10

11 BREACH The following shall be an Event of Default for purposes of clause 13.2: If: a Party passing a resolution for its own voluntarily winding-up or placement into business rescue (otherwise than for the purpose of corporate reconstruction or amalgamation); a third party applying for the winding-up of or placement into business rescue of a Party and such application is not dismissed within 30 (thirty) days of it having been made; a Party ceasing or threatening to cease to carry on its business; a Party compromising or attempting to compromise with its creditors or any class of creditors; an Event of Default occurs in respect of the Client under any GMSLA pertaining to an outstanding Loan between the Client and an Approved Borrower; a Party being suspended or expelled from any exchange; or any of the warranties in clauses 8 and 9 are untrue or ceases to be true an Event of Default occurs; or a Party commits a breach of its obligations in terms of this Agreement and fails to remedy such a breach within a period of 7 (seven) days after receipt of a notice by the non-defaulting Party to do so, then the non-defaulting Party (hereinafter referred to as the Non-Defaulting Party ) may terminate this Agreement forthwith by giving notice to that effect to the defaulting Party (hereinafter referred to as the Defaulting Party ). Such cancellation will take place without prejudice to any other rights that the Non-Defaulting Party may have against the Defaulting Party as a result of the Defaulting Party s breach The Defaulting Party indemnifies the Non-Defaulting Party from all and any costs (including attorneys costs on an attorney and own client basis) losses, damages and expenses which the Non-Defaulting Party may incur as a result of or due to an Event of Default including but not limited to any claim by an Approved Borrower in respect of the early termination of a Loan (it however being recorded that termination of this Agreement will not per se affect the rights of the Client or an Approved Borrower under any Loan).

12 DOMICILIUM The Client chooses the following physical address, fax number and as a place where any legal process meant for it may be served, or any notice, demand or other communication meant for it may be sent or delivered. [ ] Computershare chooses the following physical address (not post office box, private bag or poste restante), fax number and as a place where any legal process meant for it may be served, or any notice, demand or other communication meant for it may be sent or delivered. [ ] Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing but it shall be competent to give notice by Each of the Parties chooses its physical address provided above as its domicilium citandi et executandi at which documents in legal proceedings in connection with this Agreement may be served Either Party may by written notice to the other Party change its domicilium to another physical address within South Africa that is note a post office box or post restante Any notice to a Party contained in a correctly addressed envelope; and sent by prepaid registered post to it at its chosen address; or delivered by hand to a responsible person during ordinary business hours at its chosen address; shall be deemed to have been received in the case of clause , on the seventh (7 th ) Business Day after posting (unless the contrary is proved) and, in the case of clause on the day of delivery Any notice by to a Party at its address shall be deemed, unless the contrary is proved, to have been received on the first Business Day after the date of transmission Notwithstanding anything to the contrary contained in this clause 14, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen address. 15. JURISDICTION This Agreement shall be governed by and construed in accordance with the laws of South Africa The Client agrees that any legal action or proceedings arising out of or in connection with this Agreement may be brought against it in the Gauteng Local Division, Johannesburg, of

13 the High Court of South Africa (or any successor to that court) and irrevocably submits to the non-exclusive jurisdiction of such court. The Client irrevocably waives any objection it may now or hereafter have that such action or proceeding has been brought in an inconvenient forum. 16. TRANSFER OF RIGHTS AND DUTIES 17. COSTS A Party shall not transfer all or any of its rights or obligations in terms of this Agreement without the prior written consent of the other Party. The costs (including any value added tax) which any Party shall be obliged to pay to the other Party on account of the other Party enforcing its rights in respect of this contract, shall include: legal costs as between attorney and own client; and collection commission. 18. RENUNCIATION OF BENEFITS The Client expressly waives and renounces the legal benefits and exceptions no monies received, no value received, revision of accounts and errors in calculation and declares itself to be fully acquainted with the meaning and effect of those exceptions and the renunciation thereof. 19. VARIATION, INDULGENCE, SEVERABILITY This Agreement is valid only if it is signed by the Client and Computershare No addition to or variation (in the widest sense), consensual cancellation or novation of this Agreement, and no waiver of any right arising from this Agreement or its breach or termination, is valid unless it is in writing and signed by both parties. Any such waiver must be interpreted as relating strictly to the specific matter and instance for which it was made or given This Agreement contains the entire agreement between the parties, and supersedes any prior agreement regarding the subject matter of this Agreement No indulgence (in the widest sense) granted by a Party, and no single or partial exercise of any right by a Party, in any circumstances, operates or must be interpreted as an implied consent by that Party, or as a waiver or novation of that Party s rights and will not affect that Party s rights, nor stop that Party from enforcing, at any time and without notice, strict and punctual compliance by the other Party of every provision of this Agreement Each provision, or each part of each provision, in this Agreement is severable from the other provisions, or the other part of that provision. If it is not enforceable for any reason, the enforceability of the other provisions, or other parts of that provision, shall not be affected thereby. 20. RECORDING The parties agree that each may record all telephonic conversations between them. 13

14 EXECUTION IN COUNTERPARTS This Agreement may be executed in one or more counterparts all of which, when read together, shall constitute one and the same instrument. A copy sent via shall constitute a valid counterpart for all purposes hereunder. DATED at this day of 2016 For: Signature: who warrants that he / she is duly authorised thereto Name: Capacity: DATED at this day of 2016 For: Signature: who warrants that he / she is duly authorised thereto Name: Capacity:

15 15 ANNEXURE A LENDING REQUIREMENTS [tbd]