Securities Lending Agreement Template for South Africa

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Key Requirements PROMPT example:

Securities Lending Agreement

"I need a Securities Lending Agreement governed by South African law for a bilateral arrangement between our bank and a local pension fund, with standard collateral requirements and settlement procedures through STRATE."

Document background
The Securities Lending Agreement serves as the primary contractual framework for institutions engaging in securities lending transactions within the South African market. This document is essential when financial institutions wish to establish ongoing securities lending arrangements, whether for yield enhancement, short selling coverage, or market making activities. The agreement comprehensively addresses all aspects of securities lending transactions, including loan terms, collateral requirements, rights and obligations of parties, and default scenarios, while ensuring compliance with South African regulatory requirements, particularly the Financial Markets Act No. 19 of 2012 and Exchange Control Regulations. It is designed to align with international best practices while incorporating specific provisions required under South African law.
Suggested Sections

1. Parties: Identifies the lender and borrower, including their registration details and addresses

2. Background: Sets out the context of the agreement and the parties' intentions to enter into securities lending transactions

3. Definitions and Interpretation: Defines key terms used throughout the agreement and establishes interpretation principles

4. Loans of Securities: Core provisions governing the lending and borrowing of securities, including loan procedures and terms

5. Collateral Requirements: Details the types, delivery, and maintenance of acceptable collateral

6. Marking to Market: Procedures for daily valuation of loaned securities and collateral

7. Income Payments and Corporate Actions: Handling of dividends, interest, and other corporate events affecting loaned securities

8. Tax and Withholding: Treatment of taxes, including withholding tax and manufactured payments

9. Events of Default: Defines events of default and their consequences

10. Set-off and Close-out: Rights and procedures for set-off and closing out transactions

11. Representations and Warranties: Standard representations and warranties from both parties

12. Covenants: Ongoing obligations of the parties

13. Indemnity and Limitation of Liability: Scope of indemnification and limitations on liability

14. Notices: Communication procedures between parties

15. Governing Law and Jurisdiction: Specifies South African law as governing law and jurisdiction for disputes

16. General Provisions: Standard boilerplate clauses including amendments, assignments, and severability

Optional Sections

1. Agency Lending: Required when either party acts as agent for underlying principals

2. Custody Arrangements: Needed when involving third-party custodians

3. Automated Trading Systems: Required when using electronic trading platforms

4. Foreign Exchange Transactions: Needed for cross-border lending involving currency exchange

5. Specific Securities Provisions: Special terms for particular types of securities (e.g., fixed income, equities)

6. Central Counterparty Clearing: Required when transactions are cleared through a CCP

7. Buy-in Procedures: Detailed procedures for buying in securities in case of failure to deliver

8. Sanctions and Anti-Money Laundering: Enhanced compliance provisions for high-risk transactions

Suggested Schedules

1. Schedule 1 - Form of Loan Confirmation: Standard form for confirming individual loan transactions

2. Schedule 2 - Eligible Securities: List and characteristics of securities eligible for lending

3. Schedule 3 - Eligible Collateral: Acceptable forms of collateral and applicable haircuts

4. Schedule 4 - Agency Terms: Detailed terms for agency lending arrangements

5. Schedule 5 - Communications Procedures: Technical specifications for notices and communications

6. Schedule 6 - Market Practice: Specific South African market practices and requirements

7. Schedule 7 - Fee Schedule: Lending fees, rebate rates, and other charges

8. Schedule 8 - Settlement Instructions: Standard settlement and payment instructions

9. Appendix A - Contact Details: List of authorized personnel and contact information

10. Appendix B - Tax Documentation: Required tax forms and declarations

Authors

Alex Denne

Head of Growth (Open Source Law) @ Genie AI | 3 x UCL-Certified in Contract Law & Drafting | 4+ Years Managing 1M+ Legal Documents | Serial Founder & Legal AI Author

Relevant legal definitions
Clauses
Relevant Industries

Financial Services

Banking

Investment Management

Securities Trading

Asset Management

Pension Fund Management

Insurance

Hedge Fund Management

Broker-Dealer Services

Capital Markets

Relevant Teams

Legal

Compliance

Risk Management

Securities Operations

Trading

Treasury

Settlement

Client Services

Collateral Management

Portfolio Management

Documentation

Front Office

Middle Office

Back Office

Relevant Roles

Legal Counsel

Securities Operations Manager

Compliance Officer

Risk Manager

Treasury Manager

Securities Lending Trader

Portfolio Manager

Collateral Manager

Settlement Officer

Relationship Manager

Chief Operating Officer

Head of Trading

Legal Director

Chief Risk Officer

Head of Operations

Industries
Financial Markets Act No. 19 of 2012: Primary legislation governing securities trading, clearing and settlement systems, and market infrastructure in South Africa. It provides the framework for securities lending transactions.
Securities Services Act 36 of 2004: Although largely replaced by the Financial Markets Act, some provisions remain relevant for securities lending arrangements and market conduct.
Income Tax Act 58 of 1962: Governs the tax treatment of securities lending arrangements, including the treatment of dividends, manufactured payments, and capital gains.
Exchange Control Regulations: Regulates cross-border securities lending transactions and associated payments, particularly relevant when dealing with foreign counterparties.
Financial Intelligence Centre Act 38 of 2001: Sets out anti-money laundering requirements and due diligence procedures for financial transactions including securities lending.
Companies Act 71 of 2008: Relevant for understanding the corporate governance requirements and shareholder rights when lending securities of South African companies.
Consumer Protection Act 68 of 2008: May be applicable when dealing with non-institutional clients, affecting disclosure requirements and fair treatment principles.
Financial Advisory and Intermediary Services Act 37 of 2002: Relevant when the securities lending arrangement involves financial intermediaries or advisors.
Financial Sector Regulation Act 9 of 2017: Establishes the twin peaks model of financial sector regulation and affects overall compliance requirements for securities lending.
Teams

Employer, Employee, Start Date, Job Title, Department, Location, Probationary Period, Notice Period, Salary, Overtime, Vacation Pay, Statutory Holidays, Benefits, Bonus, Expenses, Working Hours, Rest Breaks,  Leaves of Absence, Confidentiality, Intellectual Property, Non-Solicitation, Non-Competition, Code of Conduct, Termination,  Severance Pay, Governing Law, Entire Agreemen

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