South African Reserve Bank
As you already know, Sharemax Investments (Pty) Ltd (Sharemax Investments) and the Sharemax Investments-promoted investment companies, of which you are a shareholder, were placed under Directives and Statutory Managers were appointed in terms of the Bank Act, by the South African Reserve Bank (SARB) on 16 September 2010. This was because the SARB was of the opinion that Sharemax Investments and the public and private companies having been promoted by Sharemax Investments (“the Sharemax promoted companies”) were contravening the Banks Act.
The appointment of the Statutory Managers has had far reaching consequences for the Sharemax promoted companies and for the investors in the various property investment projects. Details of the main consequences are provided hereunder.
The Statutory Managers are under instructions to protect the investors’ (shareholders’) capital. For this purpose, the SARB and the Statutory Managers have approved the structuring and proposing of Schemes of Arrangement in regard to the Sharemax promoted companies, in order to serve the best interests of all the shareholders and the companies under Directives. More detail regarding the present status of the scheme of arrangement process is provided hereunder.
The Independent Boards are pleased to advise that the High Court of South Africa has granted a Court Order providing leave to the Independent Boards to convene meetings of investors (shareholders) and creditors, in terms of Section 311 of the Companies Act, in respect of Zambezi Holdings and Zambezi Retail Park and as between the companies and their various creditors and investors (shareholders). Details of the Zambezi scheme are provided hereunder.
Sharemax Investments
Sharemax Investments was mainly focused on promoting unlisted property investment products. Sharemax Investments also fulfilled the role of administrator and property investment manager, although the day to day property management was contracted to external property management companies.
After the appointment of the Statutory Managers and in order to ensure that these functions and responsibilities continue uninterrupted, certain staff, well versed with these functions at Sharemax Investments, were employed by a new company named Frontier Asset Management and Investments (Pty) Ltd (“Frontier”). Frontier relieved Sharemax from all its admin functions.
It was announced recently in a formal press release by the New Boards of Directors (“The Independent Boards”) of the Sharemax promoted companies that Sharemax Investments and its shareholders and directors, namely Mr. Willem Botha and Mr. André Brand, no longer have any interests in or control over Frontier.
The same applies to Sharemax Investments and its shareholders and directors relating to the Sharemax promoted companies. The divesting of Sharemax Investments of any interests in or control over the Sharemax promoted companies occurred by virtue of a formal agreement entered into by the Independent Boards with, inter alia, Sharemax Investments and its directors and shareholders, including Messrs Botha and Brand. In this process, all previous interests of Sharemax Investments and its directors and shareholders have been transferred to a new company, having been established, for this purpose, by the Independent Boards, which new company is under the ownership and management control of the new boards.
The Independent Boards
The Independent Boards of the Sharemax promoted companies consist of Honourable Judge W. Hartzenberg, economist Dawie Roodt, chartered accountant Rudi Badenhorst, Dirk Koekemoer and Dominique Haese.
Frontier
Frontier’s focus is purely asset management, property management and investor administration.
Frontier does not intend to carry out or promote property syndications and will therefore focus on its core skills i.e., asset management, property management and investor administration at market related fees. Frontier will always strive to render an effective and friendly service to its clients.
The current Frontier board of directors consists of Dominique Haese (Managing Director), Dirk Koekemoer, Matthew Osterloh, Corrie van Rooyen, and Nel van Zyl. These individuals were key administrative personnel in the Sharemax Investments stable, responsible for the asset management, property management and investor administration functions, which Sharemax Investments carried out on behalf of the Sharemax promoted companies, and they bring with them a wealth of knowledge, insight and continuity to Frontier.
Communication
We acknowledge that communication may have been less than as expected by investors, since the SARB issued the Directives over the various Sharemax promoted companies. There are however various valid reasons for this.
The Independent Boards respect the necessity for communication and are committed to do so, when accurate reports can be handed down. Numerous, to say the very least, intricate negotiations surrounding the affairs of the Sharemax promoted companies had to be undertaken and concluded and many issues had to be resolved by the Independent Boards, before it was possible to gain SARB approval in regard to many issues, prior to the Independent Boards being able to commence implementing its restructuring plans and, especially, the Schemes of Arrangement process referred to above.
Information Sessions
The Independent Boards of the Sharemax promoted companies noted that their press releases were perceived as lengthy and complicated. In order to assist and inform investors further as to the current status of the affairs of the Sharemax promoted companies and the plans of the Independent Boards, investors will be invited to attend informal information sessions to be called by the Independent Boards of the Sharemax promoted companies, once the schemes of arrangement process has commenced.
Investors will be informed of dates, times and venues via sms. Information will also be posted on the Investors’ Forum website for investors without sms facilities.
At these sessions a designated panel of professionals and directors of both the Frontier and Independent Boards will be available for “question and answer” exchanges.
This panel will aim to further inform investors on the following matters:
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The status of their current investments.
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Implications brought about by the directives of the SARB.
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Reasons for some offers submitted to the Independent Boards not being considered or presented to investors where applicable.
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The process of the proposed Schemes of Arrangement.
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Why it was decided to engage in this process.
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What protection investors will be offered and how it will impact on them and other parties, eg creditors.
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The proposed timelines, content and beneficial effects of the schemes of arrangement, compared to the extreme negative impacts of value destruction and the incurring of unnecessary additional fees, commissions and costs invariably incurred in a liquidation- or judicial management process.
Progress Summary
The Independent Boards have made extensive progress since the beginning of this year, specifically in regard to
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The Villa and Zambezi Retail Park projects;
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various other individual projects ie. Flora Centre, Lydenburg Pick ‘n Pay, The Fern in Dainfern and Whale Rock in Margate. In particular, funding has again started to flow in respect of Flora Centre, and uncompleted work is being completed and improvements are underway;
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most notably, in regard to the shareholders and directors of Sharemax Investments, to the effect that Sharemax Investments, its shareholders and directors have no further control over or interests in the Property Companies. All rights, assets and claims of Sharemax Investments have been transferred away from Sharemax Investments to vest under the control of the Independent Boards as referred to above;
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equally notably, is the fact that all the interests of all external parties in the “Premie Plan” companies and structures have been transferred to the control of the Independent Boards, and are currently owned and administered through the same new company, having been established by the Independent Board, which holds and controls Frontier and its affairs;
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agreements reached to avoid liquidation; and
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settlements reached with creditors and other affected parties.
As Sharemax Investments may no longer support “interest payments”, investors in the various Income Plan syndications are currently receiving actual income generated by their underlying investments. Due to, amongst others, the current economic climate leading to higher vacancies and higher defaults, this income will fluctuate and is in some cases less than in previous years. The economy will dictate.
The directors of Frontier are well aware of the implications and have already appointed JHI as from 1st March, 2011 to primarily address vacancies on specific properties.
We are working for the sole purpose of protecting your investment and unlocking the best possible value for you, the investor. We are also comfortable with the fact that the Independent Boards have the same objectives.
Scheme of Arrangement Process
Zambezi project
To reiterate: The primary aim of the Independent Boards, under the scrutiny and protection of the SARB, is to ensure that the Scheme of Arrangement will be in the interests of all investors, will be implemented as soon as possible and will offer the protection of a lawful future investment structure without any further SARB Directives and presence.
As was stated above, the first Scheme of Arrangement which has already been embarked upon, pertains to the Zambezi project (“the Zambezi scheme”).
The Zambezi scheme provides, inter alia, for the payment of the claims of creditors of Zambezi Holdings and Zambezi Retail Park, in full (100 cents in the Rand). The Zambezi scheme also encapsulates and provides for the payment of the claims of those creditors of Capicol who have amounts outstanding to them by virtue of construction related work having been done by them in respect of the Zambezi Mall.
The Zambezi scheme furthermore provides for the restructuring of the legal relationships between investors and Zambezi Holdings and Zambezi Retail Park, to the extent that the nature of the investments of investors will no longer be in contravention of the Bank’s Act. It is envisaged that the investments of investors will be repaid, in full, over a period of time. The implementation of the Zambezi scheme is subject to certain conditions, and the ultimate sanctioning thereof by the High Court of South Africa and the formal approval of the SARB, followed by the withdrawal of the Directives.
Full details of all the aforesaid matters and/or matters ancillary thereto will, within the next few weeks be formally notified to all relevant creditors and investors by way of a formal notice, which notice will be formally dispatched, in accordance with the terms, conditions and requirements of the Court Order.
The Independent Boards have also commenced with the preparation of documentation in regard to various Schemes of Arrangement, due to follow shortly on the Schemes of Arrangement process underway in regard to the Zambezi project.
The Zambezi scheme was capable of being processed through the Court process following an overall settlement agreement between the relevant companies and the various creditors of Zambezi Holdings and Zambezi Retail Park. One of the matters dealt with in the settlement agreement; and after careful consideration by the new Boards and having taken extensive advice in regard to numerous existing agreements, the new Boards decided not to continue to demand transfer of the Zambezi property to Zambezi Retail Park. The main reason for taking this decision was the existence of a “buy-back” agreement between Zambezi Retail Park and Capicol. In terms of this agreement, Capicol was entitled to buy-back the Zambezi property after 3 (three) years (of which little more than 2 (two) years remain). In practice this meant that Capicol could have, after little more than 2 (two) years, demanded transfer of the Zambezi property back to Capicol at a projected low price. Ultimately, this agreement in the view of the board, would have impacted adversely in its effects on the interests of creditors and investors of Zambezi Holdings and Zambezi Retail Park.
The Zambezi scheme followed extensive negotiations by the Independent Boards and appointed specialist advisors with creditors and interested parties. If the Independent Boards have not reached agreement with all parties concerned, it may well be possible that Zambezi Retail could have been liquidated. Any such liquidation, in the present economic climate, would probably have lead to the Zambezi property being auctioned off at a fraction of its real value, and extensive litigation would have followed, amounting to serious delays, wasted costs and value destruction.
The aforesaid extremely negative effects on the interests of investors have been averted by the scheme of arrangement process in respect of the Zambezi project.
The Villa project
The Independent directors are aware of the plight of the investors in The Villa project. Negotiations regarding a scheme of arrangement in respect of The Villa project have been concluded and a Schemes of Arrangement in regard to The Villa project will be proposed shortly. The aim is to reach a result, similar to that of the Zambezi project. More information will be made available as soon as possible.
The settlement agreement with Capicol will be fully dealt with in the circular due to be dispatched to creditors and shareholders. The Capicol settlement agreement is subject to the sanctioning of the Zambezi scheme, and will be implemented in terms of the processes of the implementation of the Zambezi scheme.
Finally
The Independent Boards express their commitment with the process they have embarked upon and are satisfied that the eventual outcome will deliver the best alternative to all parties concerned. The High Court order in respect of Zambezi is the first concrete step in this process and proof of the board’s commitment.
To improve communication with all investors and financial advisors, an investors’ Forum has been put in place. The committee members will liaise with the directors on a regular basis to share information. A website with a blog facility is also available for communication from the Company under “News Feed” and for informal exchanges by all investors. Please use the facility freely. The website can be accessed through www.frontieram.co.za
Kind regards