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KKM ASSIGNMENT
CLOSED TYPE JSC KARAKUDUKMUNAY
as Assignor
and
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
as Security Trustee
Dated 7 February, 2000
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WHITE & CASE
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THIS DEED OF ASSIGNMENT dated 7 February, 2000 is made as a deed
(this "Deed") between:
(1) CLOSED TYPE JSC KARAKUDUKMUNAY, a company organised and existing
under the laws of the Republic of Kazakhstan (the "Assignor"); and
(2) THE LAW DEBENTURE TRUST CORPORATION P.L.C. a company organised
and existing under the laws of England, acting as security trustee for the
Finance Parties (as defined in the Loan Agreement) (the "Security
Trustee").
RECITALS
(A) Pursuant to a loan agreement dated 1 November, 1999 (the "Loan
Agreement") between the Borrower, the Co-Obligors, Shell Capital Limited,
Shell Capital Services Limited and the Lenders (as such terms are defined
in the Loan Agreement), the Lenders have agreed to make available to the
Borrower secured loan facilities in an aggregate principal amount not
exceeding US$24,000,000 on the terms and subject to the conditions
contained in the Loan Agreement.
(B) At the request of the Facility Agent, the Security Trustee has
agreed to act as trustee under the Security Trust Deed and to hold the
benefit of the security constituted by or pursuant to the Security
Documents and the covenants and obligations of the Obligors under the
Security Documents on trust for the Finance Parties.
(C) It is a condition precedent to making the loans under the Loan
Agreement that the Assignor shall have executed and delivered this Deed to
the Security Trustee.
NOW IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Unless the context requires otherwise or a word or phrase is
differently defined in this Deed, words and phrases defined in the Loan
Agreement shall have, when used in this Deed, the same meanings herein as
therein and, in addition, in this Deed the following terms have the meaning
given to them in this Clause 1.1:
"Acknowledgement of Notice of Assignment" means an acknowledgement of
assignment in the form set out in Schedule 2, with such amendments as may
be approved by the Security Trustee.
"Act" means the Law of Property ▇▇▇ ▇▇▇▇.
"Administration" means administration under Part II of the Insolvency
Act.
"Approved Contract" means the Offtake Agreement.
"Assigned Agreements" means all rights, titles, benefits and interests
of the Assignor whatsoever, present and future, whether proprietary,
contractual or otherwise under, or arising out of, or evidenced by, the
Approved Contract with the full benefit of all negotiable or non-negotiable
instruments, guarantees, indemnities, debentures and Security Interests in
respect of the Approved Contract, including, but not limited to, all claims
for damages or other remedies in respect of any breach thereof.
"Assigned Assets" means the Book Debts and the Assigned Agreements.
"Attorney" means any person so appointed by the Assignor pursuant to
Clause 19.1 (Appointment).
"Book Debts" means all book and other debts, revenues and claims both
present and future (including things in action) which may give rise to a
debt, revenue or claim due or owing or which may become due or owing to the
Assignor under, or by virtue of, the Assigned Agreements or in connection
with the rights of the Assignor evidenced by them and the present and
future rights, titles, benefits and interests of the Assignor to, or in,
them together with all rights and remedies relating to, or for enforcing,
the Assigned Agreements including but not limited to all reservation of
proprietary rights, rights of tracing and all other rights and remedies of
whatsoever nature now or hereafter held by the Assignor in respect of all
or any of the foregoing and all moneys from time to time becoming due or
owing thereunder or in connection therewith.
"Default Rate" has the meaning set out in Section 19.2(a) of the Loan
Agreement.
"Delegate" means a delegate or sub-delegate appointed pursuant to
Clause 12.5 (Delegation).
"Dissolution" of a person includes the bankruptcy, insolvency,
liquidation, amalgamation, reconstruction, reorganisation, Administration,
administrative or other receivership, or dissolution of that person, and
any equivalent or analogous proceedings by whatever name known and in
whatever jurisdiction, and any step taken (including, but without
limitation, the presentation of a petition or the passing of a resolution)
for or with a view to any of the foregoing.
"Insolvency Act" means the Insolvency ▇▇▇ ▇▇▇▇.
"Notice of Assignment" means a notice of assignment in the form set
out in Schedule 1, with such amendments as may be approved by the Security
Trustee.
"Offtake Agreement" means the agreement dated 1 November 1999 entered
into between the Assignor and STASCO to offtake liquid hydrocarbons
produced by the Project as amended by an amendment agreement dated the date
of this Deed.
"Proceedings" shall have the meaning ascribed thereto in Clause 27.2
(Jurisdiction).
"Reassignment Deed" means a deed of reassignment in the form set out
in Schedule 3 with such amendments as made by the Security Trustee in its
sole discretion from time to time.
"Receiver" means a receiver and manager or other receiver appointed in
respect of the Assigned Assets under this Deed or the Act.
"Rights" means rights, benefits, powers, privileges, authorities,
discretions, remedies, easements, quasi-easements and appurtenances (in
each case, of any nature whatsoever).
"Secured Liabilities" means all moneys and liabilities (whether actual
or contingent) which are now or may at any time hereafter be due, owing or
payable to any of the Finance Parties from or by the Obligors under or in
connection with (i) the Loan Agreement, (ii) this Deed, and (iii) any other
Finance Document, together with all legal and other costs, charges and
expenses which any of the Finance Parties may incur in enforcing or
obtaining, or attempting to enforce or obtain, payment of any such moneys
and liabilities.
"STASCO" means Shell International Trading and Shipping Company
Limited, a company organised under the laws of England.
"Tax" includes any present or future tax (including value added tax),
levy, impost, duty, charge, fee, deduction or withholding of any nature,
and any interest or penalty in respect thereof.
1.2 INTERPRETATION
In this Deed, unless the context requires otherwise:
(a) references to Clauses and Schedules are to clauses of, and
schedules to, this Deed;
(b) headings to Clauses are for convenience only and are to be
ignored in construing this Deed;
(c) subject to Clause 11.1 (Powers), references to a statute shall be
construed as a reference to such statute as from time to time amended
or re-enacted;
(d) any reference to any English legal term for any action, remedy,
method of judicial proceeding, legal document, legal status, court,
official or any legal concept or thing shall, in respect of a
jurisdiction other than England, be deemed to include that which most
nearly approximates in that jurisdiction to the English legal term;
(e) any reference to the "Assigned Assets" shall be a reference to
all the Assigned Assets and/or to each and every part of the Assigned
Assets and reference to any other defined term or noun in the plural
number or collective plural shall be interpreted MUTATIS MUTANDIS in
the same manner; and
(f) references in this Deed to this "Deed" or any other deed,
agreement or instrument including, without limitation, the Loan
Agreement are references to this Deed or, as the case may be, the
relevant deed, agreement or instrument as amended, supplemented,
replaced or novated from time to time and include references to any
document which amends, supplements, replaces, novates or is entered
into, made or given pursuant to, or in accordance with, any of the
terms of this Deed or, as the case may be, the relevant deed,
agreement or instrument.
2. COVENANT TO DISCHARGE OBLIGATIONS
2.1 COVENANT TO PAY
The Assignor covenants with the Security Trustee that it will on
demand pay and discharge the Secured Liabilities at the time or times when
due.
2.2 VALIDITY OF DEMANDS
Any person dealing with the Security Trustee or any Receiver shall not
be concerned to see or enquire as to the validity of any demand made by the
Security Trustee or the Receiver under this Deed.
3. SECURITY INTERESTS AND ITS TERMINATION
3.1 ASSIGNMENT
The Assignor, with full title guarantee and as continuing security for
the payment and discharge of the Secured Liabilities, assigns absolutely to
the Security Trustee for the benefit of the Finance Parties the Assigned
Assets.
3.2 REASSIGNMENT
If the Security Trustee is satisfied, acting on the instructions of
the Facility Agent, that all the Secured Liabilities have been paid or
discharged in full and that none of the Finance Parties is under any
further obligation (contingent or otherwise) to provide any banking or
other accommodation to any Obligor under the Finance Documents then,
subject to Clause 3.3 (Retention of This Deed), the Security Trustee shall,
at the request and cost of the Assignor, reassign to the Assignor or its
nominee such interest as it may then have in the Assigned Assets (without
any warranty as to its title or interest in them) by executing and
delivering to the Assignor a Reassignment Deed covering the Assigned
Assets.
3.3 RETENTION OF THIS DEED
If the Assignor requests the Security Trustee to reassign the Assigned
Assets following any payment or discharge of the Secured Liabilities by a
person other than the Assignor (a "Relevant Transaction"), the Security
Trustee shall at the cost of the Assignor execute such documents and deeds
and do all such acts and things as may be necessary to reassign the
Assigned Assets provided the Security Trustee is satisfied that the payment
or discharge will not be avoided, reduced or invalidated. If the Security
Trustee is not so satisfied, the Security Trustee shall be entitled to
retain this Deed and shall not be obliged to reassign the Assigned Assets
until the expiry of the Retention Period (being the period which commences
on the date when that Relevant Transaction was made or given, and ends on
the date falling one month after the expiration of the maximum period
within which that Relevant Transaction can be avoided, reduced or
invalidated by virtue of any applicable law or for any other reason
whatsoever in relation to that Relevant Transaction). If at any time before
the expiry of that Retention Period the Dissolution of such other person
has commenced, the Security Trustee may continue to retain this Deed and
shall not be obliged to reassign the Assigned Assets for such further
period as the Security Trustee may determine.
4. REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES
The Assignor represents and warrants to the Security Trustee that:
(a) the Approved Contract is in full force and effect and constitutes
the legal, valid and binding obligation of the Assignor and, to the
knowledge of the Assignor, the other party thereto, enforceable in
accordance with its terms;
(b) each Assigned Agreement relating to the Approved Contract is in
full force and effect and constitutes the legal, valid and binding
obligation of the Assignor and, to the knowledge of the Assignor, each
of the other parties thereto respectively, enforceable in accordance
with the its terms;
(c) this Deed constitutes the legal, valid and binding obligation of
the Assignor enforceable in accordance with the terms of this Deed;
(d) the Assignor is the sole legal and beneficial owner of all rights
and interests which the Approved Contract and each Assigned Agreement
creates in favour of the Assignor, subject only to the assignment
constituted by, and the other terms of, this Deed;
(e) the Assignor has the right, without requiring the concurrence,
consent or authority of any other person, to create, in respect of all
the Assigned Assets, the Security Interests which Clause 3 (Security
Interests and its Termination) purports to create;
(f) no third party has any Security Interests or any other right,
interest or claim over, in, or in relation to, the Assigned Assets;
(g) the copy of the Approved Contract and each Assigned Agreement
delivered to the Security Trustee in connection with this Deed is a
true and complete copy;
(h) the Assignor has not created or attempted to create or permitted
to subsist any Security Interests (other than Permitted Security
Interests) on, or over, the Assigned Assets or interest in them or
sold, assigned, discounted, factored or otherwise disposed of the
Assigned Assets or attempted or agreed so to do other than as provided
in this Deed and the other Finance Documents;
(i) to the knowledge of the Assignor, each other party to the
Approved Contract and each Assigned Agreement is in compliance with
its obligations thereunder; and
(j) all Consents required or advisable in connection with the
execution, delivery, performance, validity, admissibility in evidence
and enforceability of each Book Debt, the Approved Contract and each
Assigned Agreement or the payment of any sum to the Security Trustee
in accordance with Clause 6.8 (Payment of Monies Received in Respect
of Assigned Assets) or the instructions contained within any Notice of
Assignment have been obtained or effected (or, in the case of
registrations, will be effected within any applicable required period)
and (if obtained or effected) are in full force and effect; all fees
and registration and similar tax (if any) payable in connection with
them have been paid if due; and there has been no default in the
performance of any of their terms and conditions.
4.2 REPETITION
The representations and warranties contained in Clause 4.1
(Representations and Warranties) shall be made on the date of this Deed and
shall be repeated thereafter on each Interest Payment Date during the
continuance of the Security Interest constituted by this Deed by reference
to the facts and circumstances then existing.
5. RESTRICTIONS ON DEALING WITH ASSIGNED ASSETS
5.1 NEGATIVE PLEDGE
The Assignor shall not, without the prior written consent of the
Security Trustee, create or permit to subsist any Security Interests on,
over, or with respect to, the Assigned Assets except for the Permitted
Security Interests.
5.2 DISPOSAL OF ASSIGNED ASSETS
The Assignor shall not, without the prior written consent of the
Security Trustee, sell, transfer, alienate or deal with the Assigned Assets
or any interest in the Assigned Assets or attempt or agree to do so.
6. COVENANTS RELATING TO ASSIGNED ASSETS
6.1 DURATION
The covenants contained in Clause 5 (Restrictions on Dealing with
Assigned Assets) and in this Clause 6 (Covenants relating to Assigned
Assets) shall remain in full force and effect during the continuance of the
security constituted by this Deed.
6.2 NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT THEREOF
The Assignor shall, immediately following execution of this Deed,
serve a Notice of Assignment on STASCO and the Assignor shall procure
that STASCO promptly (and in any event within seven days of the receipt of
the Notice of Assignment) executes and delivers to the Security Trustee
(with a copy thereof to the Assignor) an Acknowledgement of Notice of
Assignment.
6.3 DEPOSIT OF ASSIGNED AGREEMENTS
The Assignor shall deposit with the Security Trustee a copy of the
Approved Contract and the Assigned Agreements and copies of all other
related documents including but not limited to all variations, extensions
or replacements from time to time made to the Approved Contract or the
Assigned Agreements.
6.4 HOLDING IN TRUST
The Assignor shall hold in trust for the Security Trustee the Approved
Contract or any Assigned Agreement not from time to time deposited with the
Security Trustee and keep them safe and undefaced.
6.5 ACCESS TO ACCOUNTS
The Assignor shall, whenever so required, permit any officer of the
Security Trustee to have access to, and possession of, all books and
accounts relating to the Assigned Assets.
6.6 COMPLIANCE WITH APPROVED CONTRACT AND ASSIGNED AGREEMENTS
The Assignor shall duly and punctually observe and perform all the
conditions and obligations assumed by it under the Approved Contract and
the Assigned Agreements and, when required, produce to the Security Trustee
the receipts for payments made by it under the Approved Contract and the
Assigned Agreements and generally do all things which may be necessary to
cause the moneys agreed to be paid to the Assignor thereunder to become
payable and, at its own cost, co-operate fully and use its best endeavours
to procure the prompt payment of those moneys to the Assignor and to
procure, whether by legal proceedings or otherwise, that all other relevant
parties to the Approved Contract and the Assigned Agreements do likewise.
6.7 NO VARIATION OR RELEASE OF ASSIGNED ASSETS
The Assignor shall not, without the prior written consent of the
Security Trustee:
(a) vary any of the Assigned Assets;
(b) release, waive, suspend, subordinate or permit to be lost or
impaired any interest or right forming part of, or relating to, any
Assigned Asset;
(c) waive any person's breach the terms of any Assigned Asset;
(d) rescind or terminate any Assigned Asset or treat itself as
discharged or relieved from further performance of any of the
obligations or liabilities assured by it in relation to an Assigned
Asset;
(e) purport to vary or revoke any notice or instruction relating to
this Deed which it has given or may later give to any person; or
(f) grant time for payment or other indulgence, or compound with,
discharge, waive, release, or vary the liability of any other person
under an Assigned Asset or do or permit any set-off or other act or
thing whereby the recovery of any moneys payable under, or in respect
of, the Assigned Assets may be delayed or impeded.
6.8 PAYMENT OF MONIES RECEIVED IN RESPECT OF ASSIGNED ASSETS
Subject to the terms of the Notice of Assignment, the Assignor shall
forthwith upon receipt by it (or by any person acting on its behalf) pay
over or transfer to the Security Trustee (or as the Security Trustee may
direct) any moneys or other property which the Assignor (or any person
acting on its behalf) may receive or recover in connection with an Assigned
Asset and all property which may, directly or indirectly, represent, accrue
on, or be derived from, any such moneys or property.
6.9 ACTION TO PROTECT VALIDITY OF ASSIGNED ASSETS
The Assignor shall:
(a) use its best endeavours to ensure that all interests and rights
conferred by each Assigned Asset remain valid and enforceable in all
respects and retain the priority which they were intended to have; and
(b) without prejudice to its obligations under paragraph (a) of this
Clause 6.9, take any action which the Security Trustee may specify
with a view to ensuring or protecting the validity, enforceability
and/or priority of any such interest or right.
6.10 ACTION TO ENFORCE ASSIGNED ASSETS
The Assignor shall take any action which the Security Trustee may
direct for the purpose of enforcing (through legal process, arbitration or
otherwise) any right which is part of, or which relates to, the Assigned
Assets.
6.11 PROVISION OF INFORMATION RELATING TO ASSIGNED ASSETS
The Assignor shall forthwith:
(a) inform the Security Trustee if any breach of an Assigned Asset
occurs or a serious risk of such a breach arises and of any other
claim, dispute, event or matter affecting an Assigned Asset which is
material to the Security Trustee;
(b) provide the Security Trustee, promptly after service, with copies
of all notices served on or by it under, or in connection with, the
Assigned Assets;
(c) provide the Security Trustee with any information which it
requests about any Assigned Asset or any matter relating to, or
affecting, the Assigned Assets; and
(d) generally provide the Security Trustee and its officers and
representatives with full and prompt co-operation and assistance
relating to the Assigned Assets.
6.12 NO ACTION TO JEOPARDISE SECURITY INTERESTS CONSTITUTED HEREBY
The Assignor shall not do or fail to do or cause or permit another
person to do or omit to do anything which is liable to jeopardise the
effectiveness or priority, in relation to any Assigned Asset, of any
security constituted by this Deed.
6.13 INDEMNITY
Without prejudice to the provisions of Clause 14.4 (Indemnity), the
Assignor shall keep the Security Trustee (and any Receiver appointed by the
Security Trustee) fully and effectively indemnified from and against all
actions, proceedings, costs, charges, claims, demands, expenses,
liabilities, legal and other professional fees (including any tax)
whatsoever in respect of any breach, non-observance or non-performance of
any covenants, obligations, warranties or undertakings on the part of the
Assignor contained in this Deed or the making good of any such breach, non-
observance or non-performance.
7. SECURITY TRUSTEE'S DISCRETION
7.1 SECURITY TRUSTEE MAY CURE BREACHES OF COVENANTS
In the event of the failure of the Assignor to observe or perform the
provisions of this Deed, the Security Trustee may do all such acts and
things as may be necessary to secure the observance or performance thereof
without thereby becoming liable as a mortgagee in possession.
7.2 EXPENSES SO INCURRED
The Assignor hereby agrees and acknowledges that all moneys expended and
all costs incurred by the Security Trustee in carrying out any of its
discretions or powers referred to in Clause 7.1 (Security Trustee May Cure
Breaches of Covenants) shall be considered to have been properly incurred
by the Security Trustee and shall be recoverable from the Assignor under
Clause 23 (Costs and Expenses).
8. FURTHER ASSURANCES
8.1 GENERAL ASSURANCE
The Assignor shall, at its own cost, promptly execute and do all such
assurances, acts and things in such form as the Security Trustee may from
time to time require for perfecting, preserving or protecting the security
constituted by this Deed or the priority thereof and for facilitating the
realisation of the Assigned Assets or the exercise of any Rights vested in
the Security Trustee or in any Receiver, and the Assignor shall, in
particular but without limitation, execute all such transfers, conveyances,
assignments and assurances of the Assigned Assets whether to the Security
Trustee or to its nominees or otherwise, and give all such notices, orders,
instructions and directions which the Security Trustee may consider
expedient.
8.2 ADDITIONAL SECURITY INTERESTS
Without prejudice to the generality of Clause 8.1 (General Assurance),
the Assignor shall, at its own cost, promptly execute and deliver to the
Security Trustee in such form as the Security Trustee may require such
other Security Interests over such of the Assigned Assets as shall be
required by the Security Trustee (whether generally or specifically, and
whether for the purpose of obtaining legal title to the relevant Assigned
Assets, creating Security Interests which is effective under the laws of a
foreign jurisdiction, or otherwise).
9. ENFORCEMENT
9.1 SECURITY INTERESTS TO BECOME ENFORCEABLE
The Security Interests constituted by this Deed shall become
enforceable at any time after the occurrence and during the continuance of
an Event of Default or if the Assignor shall fail to comply with any of the
obligations assumed by it in this Deed, and immediately thereafter the
powers conferred upon the Security Trustee by section 101 of the Act as
varied and extended by this Deed shall be exercisable without the
restrictions imposed by Section 103 of the Act as to the giving of notice
or otherwise.
9.2 SECTION 101 OF THE ACT
The powers conferred by section 101 of the Act, as varied and extended
by this Deed, shall be deemed to have arisen immediately on the execution
of this Deed.
9.3 SECTIONS 93 AND 103 OF THE ACT
Sections 93 and 103 of the Act shall not apply to this Deed.
9.4 STEP-IN RIGHTS
Without prejudice to the provisions of Clause 11 (Receivers) and
Clause 12 (Rights of Security Trustee):
(a) the Security Trustee may, upon this security becoming
enforceable, notify each of the other parties to the Approved Contract
and each Assigned Agreement that it shall be entitled (but without
accepting or assuming any obligation to that effect) to perform, or
procure through a third party the performance of, the obligations
assumed by the Assignor in respect of that Approved Contract or
Assigned Agreement, the costs and expenses so incurred by the Security
Trustee or third party being borne by the Assignor; and
(b) the Security Trustee may but shall not be obliged to:
(i) demand, ▇▇▇ for, collect or receive money or property at
any time due, payable or receivable in relation to that Approved
Contract or Assigned Asset;
(ii) compromise and settle with any person liable under that
Approved Contract or Assigned Asset; and
(iii) extend the time for payment or otherwise change the terms
of that Approved Contract or Assigned Asset as to any party
liable thereon,
without in any case incurring any responsibility or liability to the
Assignor.
10. APPOINTMENT OF RECEIVERS
10.1 APPOINTMENT
At any time after the security constituted by this Deed has become
enforceable pursuant to Clause 9.1 (Security Interests to Become
Enforceable) (whether or not the Security Trustee shall have taken
possession of the Assigned Assets), at the request of the Assignor, or
following the Dissolution of the Assignor, without any or further notice,
the Security Trustee may, by deed or writing signed by any officer or
manager of the Security Trustee or any person authorised for this purpose
by the Security Trustee, appoint any person to be Receiver, and may
similarly remove any Receiver whether or not it appoints any person in its
place. If the Security Trustee appoints more than one person as Receiver,
the Security Trustee may give the relevant persons power to act either
jointly or severally.
10.2 SCOPE OF APPOINTMENT
Any Receiver may be appointed either Receiver of all the Assigned
Assets or Receiver of such part of the Assigned Assets as may be specified
in the appointment. In the latter case, the Rights conferred on a Receiver
by Clause 11 (Receivers) shall have effect as though every reference in
that Clause to the "Assigned Assets" were a reference to the part of the
Assigned Assets so specified or any part thereof.
11. RECEIVERS
11.1 POWERS
Any Receiver appointed under this Deed shall (subject to any contrary
provision specified in his appointment) have the powers granted to a
receiver under Section 109 of the Act (as in force at the date of this
Deed) and the powers which are granted to an administrative receiver as
listed in Schedule 1 to the Insolvency Act (as in force at the date of this
Deed) and, in addition shall have the right, either in its own name or in
the name of the Assignor or otherwise and in such manner and upon such
terms and conditions as the Receiver thinks fit:
(a) in connection with any sale or disposition of the Assigned
Assets, to receive the consideration therefor in a lump sum or in
instalments and to receive shares by way of consideration;
(b) to grant options, licences or any other interest whatsoever in
relation to the Assigned Assets;
(c) to do all other acts and things which the Receiver may consider
desirable or necessary for realising the Assigned Assets or incidental
or conducive to any of the rights, powers or discretions conferred on
a Receiver under, or by virtue of, this Deed; and
(d) to exercise in relation to the Assigned Assets all the powers,
authorities and things which the Receiver would be capable of
exercising if the Receiver were the absolute beneficial owner of the
same.
11.2 CONFLICT
If there is any ambiguity or conflict between the powers conferred on
the Receiver by the Act or by Schedule 1 of the Insolvency Act and the
powers conferred by Clause 11.1 (Powers), the powers conferred by Clause
11.1 (Powers) shall prevail.
11.3 AGENT OF COMPANY
Any Receiver shall be the agent of the Assignor for all purposes and
the Assignor shall be solely responsible for such Receiver's contracts,
engagements, acts, omissions, defaults and losses and for all liabilities
incurred by him.
11.4 REMUNERATION
Subject to section 36 of the Insolvency Act, the Security Trustee may,
from time to time, determine the remuneration of any Receiver (without
being limited to the maximum rate specified in section 109(6) of the Act)
and may direct payment of such remuneration out of moneys accruing to him
as Receiver but the Assignor alone shall be liable for the payment of such
remuneration and for all other costs, charges and expenses of the Receiver.
12 RIGHTS OF SECURITY TRUSTEE
12.1 RIGHTS OF RECEIVER
Any Rights conferred by this Deed upon a Receiver may be exercised by
the Security Trustee after the security constituted by this Deed has become
enforceable, irrespective of whether the Security Trustee shall have taken
possession or appointed a Receiver.
12.2 REDEMPTION OF PRIOR SECURITY INTERESTS
The Security Trustee may, at any time, redeem any Security Interests
over the Assigned Assets having priority to the Security Interests
constituted by this Deed or procure the transfer thereof to the Security
Trustee and may settle the accounts of encumbrancers. Any accounts so
settled shall, in the absence of manifest error, be conclusive and binding
on the Assignor. The Assignor shall, on demand, pay to the Security Trustee
all principal moneys, interest, costs, charges, losses, liabilities and
expenses of, and incidental to, any such redemption by or transfer to the
Security Trustee.
12.3 SUSPENSE ACCOUNT
The Security Trustee may, for as long as the Secured Liabilities have
not been paid or discharged in full, at its sole discretion, place and
retain on an interest-bearing suspense account on deposit, for as long as
it considers fit, any moneys received, recovered or realised under, or in
connection with, this Deed to the extent of such Secured Liabilities
without any obligation to apply the same in or towards the discharge of
such Secured Liabilities.
12.4 NEW ACCOUNT
At any time after (i) the Security Trustee having received notice
(either actual or constructive) of any subsequent security affecting the
Assigned Assets or (ii) the Dissolution of the Assignor, the Security
Trustee may open a new account in the name of the Assignor (whether or not
it permits any existing account to continue). If the Security Trustee does
not open such a new account, it shall nevertheless be treated as if it had
done so at the time when the notice was received or was deemed to have been
received or, as the case may be, the Dissolution commenced. Thereafter, all
payments made by the Assignor to the Security Trustee or received by the
Security Trustee for the account of the Assignor shall be credited or
treated as having been credited to the new account and shall not operate to
reduce the amount secured by this Deed at the time when the Security
Trustee received or was deemed to have received such notice or, as the case
may be, the Dissolution commenced.
12.5 DELEGATION
The Security Trustee may delegate in any manner to any person any of
the Rights which is for the time being exercisable by the Security Trustee
under this Deed. Any such delegation may be made upon such terms and
conditions (including power to sub-delegate) as the Security Trustee may
think fit.
12.6 SET-OFF
The Security Trustee may, without notice to the Assignor and without
prejudice to any of the Security Trustee's other Rights, set off any
Secured Liabilities which are due and unpaid against any obligation
(whether or not matured) owed by the Security Trustee to the Assignor,
regardless of the place of payment or booking branch, and for that purpose
the Security Trustee may convert one currency into another at the rate of
exchange which may be obtained by the Security Trustee on the date of set-
off.
13. APPLICATION OF MONEYS
All moneys arising from the exercise of the powers of enforcement
under this Deed shall (except as may be otherwise required by applicable
law) be held and applied in the following order of priority (but without
prejudice to the right of the Security Trustee to recover any shortfall
from the Assignor):
(a) FIRSTLY, in or towards payment of all costs, charges, losses,
liabilities and expenses of, and incidental to, the appointment of any
Receiver and the exercise of its Rights including its remuneration and
all outgoings paid by it;
(b) SECONDLY, in or towards the payment and discharge of such of the
Secured Liabilities in such order as the Security Trustee in its
absolute discretion may from time to time determine; and
(c) THIRDLY, after all the Secured Liabilities have been paid or
discharged in full, in payment of any surplus to the Assignor.
14. LIABILITY OF SECURITY TRUSTEE, RECEIVERS AND DELEGATES
14.1 POSSESSION
If the Security Trustee, any Receiver or any Delegate shall take
possession of the Assigned Assets such Security Trustee, Receiver or
Delegate may at any time relinquish such possession.
14.2 SECURITY TRUSTEE'S LIABILITY
The Security Trustee shall not, in any circumstances (whether by
reason of taking possession of the Assigned Assets or for any other reason
whatsoever and whether as mortgagee in possession or on any other basis
whatsoever), be liable:
(a) to account to the Assignor or any other person for anything
except the Security Trustee's own actual receipts; or
(b) to the Assignor or any other person for any costs, charges,
losses, damages, liabilities or expenses arising from, or connected
with, any realisation of the Assigned Assets or from any act, default,
omission or misconduct of the Security Trustee, its officers,
employees or agents in relation to the Assigned Assets.
14.3 RECEIVER'S LIABILITY
All the provisions of Clause 14.2 (Security Trustee's Liability) shall
apply, MUTATIS MUTANDIS, in respect of the liability of any Receiver or
Delegate or any officer, employee or agent of the Security Trustee, any
Receiver or any Delegate.
14.4 INDEMNITY
The Security Trustee and every Receiver, Delegate, attorney, manager,
agent or other person appointed by the Security Trustee hereunder shall be
entitled to be indemnified out of the Assigned Assets in respect of all
liabilities and expenses incurred by any of them in the execution or
purported execution of any of their respective Rights and against all
actions, proceedings, costs, claims and demands in respect of any matter or
thing done or omitted in any way relating to the Assigned Assets, and the
Security Trustee and any such Receiver, Delegate, attorney, manager, agent
or other person appointed by the Security Trustee hereunder may retain and
pay all sums in respect of the same out of any moneys received unless such
liabilities and expenses were incurred as a result of the gross negligence
or wilful default of the Security Trustee, Receiver, Delegate, attorney,
manager, agent or other person appointed by the Security Trustee.
15. PROTECTION OF THIRD PARTIES
15.1 CONTRACTUAL PROTECTION
No person dealing with the Security Trustee, any Receiver or any
Delegate shall be concerned to enquire:
(a) whether any event has happened upon which any of the Rights
conferred under or in connection with this Deed, the Act or the
Insolvency Act is or may be exercisable, or
(b) whether any consents, regulations, restrictions or directions
relating to such Rights have been obtained or complied with; or
(c) as to the propriety or regularity of acts purporting or intended
to be in exercise of any such Rights; or
(d) as to the application of any money borrowed or raised; or
(e) as to the application of the proceeds of enforcement.
15.2 STATUTORY PROTECTION
All the protections to purchasers contained in sections 104 and 107 of
the Act, section 42(3) of the Insolvency Act or in any other legislation
shall apply to any person purchasing from, or dealing with, the Security
Trustee, any Receiver or any Delegate.
16. CONTINUING SECURITY INTERESTS AND OTHER MATTERS
16.1 CONTINUING AND INDEPENDENT SECURITY INTERESTS
The Security Interests constituted by this Deed shall be continuing
and independent Security Interests for the Secured Liabilities and shall
not be satisfied, discharged or affected by any intermediate payment or
settlement of account (whether or not any Secured Liabilities remain
outstanding thereafter) or any other matter or thing whatsoever.
16.2 PRIMARY OBLIGATIONS
This Deed and the Security Interests constituted by this Deed
constitute original, independent and absolute securities (and not secondary
or collateral securities) for the Secured Liabilities.
17. OTHER SECURITY INTERESTS
The Security Interests constituted by this Deed shall be in addition
to, and shall not be prejudiced by, any other Security Interests or any
guarantee or indemnity or other document which any Finance Party may, at
any time, hold for the payment and discharge of the Secured Liabilities.
18. SECURITY INTERESTS NOT TO BE AFFECTED
Without prejudice to Clause 16 (Continuing Security Interests and
other Matters) and Clause 17 (Other Security Interests), neither the
Security Interests constituted by this Deed nor the liability of the
Assignor for the Secured Liabilities shall be prejudiced or affected by:
(a) any variation or amendment of, or waiver or release granted
under, or in connection with, any other Security Interests or any
guarantee or indemnity or other document;
(b) time being given, or any other indulgence or concession being
granted, by the Security Trustee to an Obligor or any other person;
(c) the taking, holding, failure to take or hold, varying,
realisation, non-enforcement, non-perfection or release by the
Security Trustee or any other person of any other Security Interests,
or any guarantee or indemnity or other person or document;
(d) the Dissolution of any Obligor or any other person;
(e) any change in the constitution of any Obligor;
(f) any amalgamation, merger or reconstruction that may be effected
by any Obligor with any other person or any sale or transfer of the
whole or any part of the assets of any Obligor to any other person;
(g) the existence of any claim, set-off or other right which any
Obligor may have at any time against the Finance Parties or any other
person;
(h) the making or absence of any demand for payment of any Secured
Liabilities on any Obligor or any other person, whether by the
Security Trustee, any other Finance Party or any other person; or
(i) any other thing done or omitted or neglected to be done by the
Security Trustee, any other Finance Party or any other person or any
other dealing, fact, matter or thing which, but for this provision,
might operate to prejudice or affect the liability of an Obligor for
the Secured Liabilities.
19. POWER OF ATTORNEY
19.1 APPOINTMENT
The Assignor appoints, irrevocably and by way of security, the
Security Trustee, every Receiver and every Delegate severally to be the
Attorney of the Assignor (with full powers of substitution and delegation),
on its behalf and in its name or otherwise, at such time and in such manner
as the Attorney may think fit:
(a) to do anything which the Assignor is obliged to do (but has not
done) under this Deed including, but without limitation, to complete
and execute any transfer of, or security over, the Assigned Assets;
and
(b) generally to exercise the Rights conferred on the Security
Trustee, every Receiver or every Delegate in relation to the Assigned
Assets or under, or in connection with, this Deed, the Act or the
Insolvency Act.
19.2 RATIFICATION
The Assignor covenants to ratify and confirm whatever any Attorney
shall do or purport to do in the exercise or purported exercise of the
Power of Attorney in Clause 19.1 (Appointment).
20. CURRENCY INDEMNITY
If the Security Trustee receives an amount in respect of the
Assignor's liability under this Deed or if that liability is converted into
a claim, proof, judgment or order in a currency other than Dollars:
(a) the Assignor shall as an independent obligation indemnify the
Security Trustee against any loss or liability arising out of or as a
result of the conversion;
(b) if the amount received by the Security Trustee, when converted
into Dollars at a market rate in the usual course of its business is
less than the amount owed by the Assignor to the Security Trustee in
Dollars, the Assignor shall forthwith on demand pay to the Security
Trustee an amount in Dollars equal to the deficit; and
(c) the Assignor shall pay to the Security Trustee on demand any
exchange costs and taxes payable in connection with any such
conversion.
The Assignor waives any right it may have in any jurisdiction to pay
any amount under this Deed in a currency other than that in which such
amount is expressed to be payable.
21. DEFAULT INTEREST
If the Assignor fails to pay any Secured Liability on the due date for
payment, the Assignor shall pay to the Security Trustee on demand interest
at the Default Rate from:
(a) in the case of costs, charges, losses, liabilities, expenses and
other sums referred to in Clause 23 (Costs and Expenses), the date on
which the relevant cost, charge, loss, liability, expense or sum was
expended, paid or debited on account by the Security Trustee without
the necessity of any demand being made for payment thereof; or
(b) in any other case, the date on which the relevant Secured
Liability became due,
until full payment and discharge of the relevant Secured Liability (both
before and after any judgment).
22. CERTIFICATES TO BE CONCLUSIVE EVIDENCE
For all purposes, including any Proceedings, a copy of a certificate
signed by an officer of the Security Trustee as to the amount of any
indebtedness comprised in the Secured Liabilities or as to any applicable
rate of interest shall, in the absence of manifest error, be conclusive
evidence against the Assignor as to the amount or rate of such indebtedness
or rate of interest.
23. COSTS AND EXPENSES
23.1 TRANSACTION COSTS
The Assignor shall, on written demand (accompanied by copies of the
invoices therefor), pay to the Security Trustee all legal and other fees on
a full indemnity basis (including without limitation, all printing,
translation, communication, advertising, travel and other out-of-pocket
expenses) properly incurred by it in connection with the negotiation,
preparation and execution of this Deed, the completion of the transactions
contemplated in this Deed, any amendment of this Deed and any calculation,
approval, consent or waiver to be made or given by the Security Trustee
pursuant to, or in respect of any provision of, this Deed.
23.2 PRESERVATION AND ENFORCEMENT COSTS
The Assignor shall, from time to time on demand pay to the Security
Trustee all costs and expenses (including legal and other fees on a full
indemnity basis and printing, translation, communication, advertisement,
travel and all other out-of-pocket expenses) incurred in or in connection
with the preservation and/or enforcement (or attempted preservation and/or
enforcement) of any right of the Security Trustee under this Deed.
23.3 STAMP TAXES
The Assignor shall pay all stamp, registration and other taxes and
duties, and all notarial, registration, recording and other like fees to
which this Deed or any judgment given in connection with this Deed is, or
at any time may be, subject and shall on demand indemnify the Security
Trustee against any liabilities, costs, claims and expenses resulting from
any failure to pay or any delay in paying any such tax or duty or fees.
23.4 SECURITY TRUSTEE'S ADDITIONAL COSTS
The Assignor shall, from time to time on demand of the Security
Trustee (and without prejudice to the provisions of Clause 23.1
(Transaction Costs) and 23.2 (Preservation and Enforcement Costs)
compensate the Security Trustee at such daily and/or hourly rates as the
Security Trustee shall from time to time determine and on demand indemnify
the Security Trustee against all costs and expenses (including telephone,
fax, copying, travel and personnel costs) properly incurred by the Security
Trustee in connection with its taking such action as it may deem
appropriate or in complying with any instructions from the Finance Parties
or any request by the Assignor in connection with:
(a) the granting or proposed granting of any waiver or consent
requested by the Assignor under this Deed;
(b) any actual, potential or suspected breach by the Assignor of its
obligations under this Deed;
(c) the occurrence of an Event of Default or Potential Event of
Default; or
(d) any amendment or proposed amendment to this Deed requested by the
Assignor.
23.5 TAX
Any cost or expense referred to in this Clause 23 (Costs and Expenses)
is exclusive of any Tax chargeable in connection with that cost or expense.
The Assignor shall pay any Tax so chargeable at the same time as it pays
the relevant cost or expense.
24. NOTICES
24.1 GIVING OF NOTICES
All notices or other communications shall be in writing addressed to
the relevant party. A written notice includes a facsimile transmission.
Any such notice shall be deemed to be given as follows:
(a) if by personal delivery or letter, when delivered; and
(b) if by facsimile, when the answerback is received.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt shall only
be deemed to be given on the next working day in that place.
24.2 ADDRESSES FOR NOTICES
(a) The address and facsimile number of of the Security Trustee are:
The Law Debenture Trust Corporation p.l.c.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: The Manager, Trust Management
Facsimile: ▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇/▇▇▇▇ ▇▇▇▇
or such other as the Security Trustee may notify to the Assignor by
not less than five Business Days' notice.
(b) The address and facsimile number of the Assignor are:
Karakuduk-Munay Inc.
Microdistrict ▇, ▇▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of Kazakhstan
Attention: Financial Director
Facsimile: (7-3292) 518 336
or such other as the Assignor may notify to the Security Trustee by
not less than five Business Days' notice.
24.3 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to
another pursuant to this Deed shall be in the English language or
accompanied by a translation thereof into English certified (by an officer
of the person making or delivering the same) as being a true and accurate
translation thereof.
25. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
25.1 REMEDIES AND WAIVERS
Time is of the essence of the Assignor's obligations under this Deed
but no failure to exercise, nor any delay in exercising, on the part of the
Security Trustee, any right or remedy under this Deed shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies contained in this Deed are
cumulative and not exclusive of any rights or remedies provided by law.
The Security Trustee may agree to any waiver of any of its rights or
remedies under this Deed on such terms as it sees fit.
25.2 PARTIAL INVALIDITY
If, at any time, any provision of this Deed is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction,
neither the legality, validity or enforceability of the remaining
provisions of this Deed under the law of that jurisdiction nor the
legality, validity or enforceability of that or any other provision of this
Deed under the law of any other jurisdiction shall in any way be affected
or impaired thereby unless the effect of the foregoing would be
substantially to alter the rights and obligations of the parties originally
agreed.
26. ASSIGNMENT
The Security Trustee may at any time, without the consent of the
Assignor, assign or transfer the whole or, as the case may be, any part of
the Security Trustee's Rights under this Deed to any person. The Assignor
may not assign, transfer, novate or dispose of or any interest in, its
rights under this Deed.
27. LAW AND JURISDICTION
27.1 ENGLISH LAW
This Deed shall be governed by English law.
27.2 JURISDICTION
(a) For the exclusive benefit of the Security Trustee and the
Facility Agent, the Assignor irrevocably agrees that the courts of
England are to have jurisdiction to settle any disputes which may
arise out of or in connection with this Deed and that accordingly any
suit, action or proceedings (together in this Clause 27 (Law and
Jurisdiction) referred to as "proceedings") arising out of or in
connection with this Agreement may be brought in such courts, subject
to the option referred to in Clause 27.6 (Arbitration).
(b) The Assignor irrevocably waives and agrees not to raise any
objection which it may have now or hereafter to the laying of the
venue of any proceedings in any such court as is referred to in this
Clause 27.2 and any claim that any such proceedings have been brought
in an inconvenient or inappropriate forum and further irrevocably
agrees that a judgment in any proceedings brought in the English
courts shall be conclusive and binding upon the Assignor and may be
enforced in the courts of any other jurisdiction.
(c) Nothing contained in this Clause 27.2 shall limit the right of
the Security Trustee to take proceedings against the Assignor in any
other court of competent jurisdiction, nor shall the taking of
proceedings in one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not.
27.3 PROCESS AGENT
The Assignor hereby irrevocably and unconditionally:
(a) appoints Law Debenture Corporate Services Limited, whose address
is at Princes House, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ as
its process agent to receive, for and on its behalf, service of
process in England in any proceedings with respect to this Deed;
(b) agrees that failure by any such process agent to give notice of
such process to it shall not impair the validity of such service or of
any judgment based thereon; and
(c) agrees that nothing in this Deed shall affect the right to serve
process in any other manner permitted by law.
27.4 WAIVER OF IMMUNITY
To the extent that the Assignor may now or hereafter be entitled, in
any jurisdiction in which proceedings may at any time be commenced with
respect to this Deed, to claim for itself or its undertaking, property,
assets or revenue present or future any immunity (sovereign or otherwise)
from suit, jurisdiction of any court, attachment prior to judgment,
attachment in aid of execution of a judgment, execution of a judgment or
from set-off, banker's lien, counterclaim or any other legal process or
remedy with respect to its obligations under this Deed and/or to the extent
that in any such jurisdiction there may be attributed to the Assignor, any
such immunity (whether or not claimed), the Assignor hereby to the fullest
extent permitted by applicable law irrevocably agrees not to claim, and
hereby to the fullest extent permitted by applicable law waives, any such
immunity.
27.5 CONSENT TO ENFORCEMENT
The Assignor consents generally in respect of any proceedings to the
giving of any relief or the issue of any process in connection with such
proceedings including the making, enforcement or execution against any
property whatsoever (irrespective of its use or intended use) of any order
or judgment which may be made or given in such proceedings.
27.6 ARBITRATION
If any dispute arises in relation to this Deed, including any question
as to existence, validity or termination, such dispute shall, at the option
only of the Security Trustee, be referred to and finally resolved by
arbitration under the rules of the London Court of International
Arbitration which are applicable at the time of reference to the
arbitration and are deemed to be incorporated by reference into this Clause
27.6. Such arbitration shall take place in London, England and shall be
conducted by three arbitrators, one of whom shall be nominated by the
Assignor, one by the relevant Security Trustee and the third to be agreed
between the two arbitrators so nominated and in default the arbitrator
shall be nominated by the President of the London Court of International
Arbitration. The language in which such arbitration shall be conducted
shall be English. Any award rendered shall be final and binding on the
parties thereto and may be entered into any court having jurisdiction or
application may be made to such court for an order of enforcement as the
case may require. No party may appeal to any court from any award or
decision of the arbitral tribunal and, in particular, but without
limitation, no applications may be made under section 45 of the Arbitration
▇▇▇ ▇▇▇▇ and no appeal may be made under section 69 of the said Act.
28. COUNTERPARTS
This Deed may be executed in any number of counterparts and by
different parties on separate counterparts which when taken together shall
constitute one instrument.
IN WITNESS WHEREOF this Deed has been executed as a deed by the parties
hereto and is delivered on the date stated at the beginning of this Deed.
EXECUTED as a deed and delivered by
CLOSED TYPE JSC KARAKUDUKMUNAY acting
by /S/ ▇▇▇▇▇▇▇ ▇. KLINCHEV
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. Klinchev
Title: General Director
by /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Finance Director
The COMMON SEAL of
THE LAW DEBENTURE TRUST CORPORATION
p.l.c.
was hereunto affixed in the presence of:
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Title: Director
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorised Signatory
SCHEDULE 1
FORM OF NOTICE OF ASSIGNMENT
[HEADED NOTEPAPER OF THE ASSIGNOR]
_______ 2000
TO: [Name and Address of Counterparty]
For the Attention of: _____________
Copy to: The Law Debenture Trust Corporation p.l.c. as Security Trustee
Dear Sirs,
(1) We refer to a deed of assignment dated 7 February 2000 (the
"Deed") and entered into by (1) ourselves and (2) the Security Trustee for
the other Finance Parties. Terms defined in the Deed shall have, when used
in this notice, the same meaning herein as therein unless the context
otherwise requires.
We hereby give you notice that, pursuant to, and in accordance with,
the Deed, and as continuing security for the payment and discharge of the
Secured Liabilities, we assigned to the Security Trustee absolutely with
full title guarantee:
(a) all our rights, titles, benefits and interests whatsoever
present and future whether proprietary, contractual or otherwise
under, or arising out of, the Offtake Agreement dated 1 November, 1999
between yourselves and ourselves as amended pursuant to an amendment
agreement dated 31 January 2000 (the "Offtake Agreement") with the
full benefit of all negotiable or non-negotiable instruments,
guarantees, indemnities, debentures and Security Interests in respect
of it including but not limited to all claims for damages or other
remedies in respect of any breach thereof; and
(b) all book and other debts, revenues and claims both present and
future (including things in action) which may give rise to a debt,
revenue or claim due or owing or which may become due or owing to us
under, or by virtue of, the Offtake Agreement or in connection with
our rights evidenced by the Offtake Agreement and our present and
future rights, titles, benefits and interests to, or in, the Offtake
Agreement together with all rights and remedies relating to, or for
enforcing, the Offtake Agreement including but not limited to all
reservation of proprietary rights, rights of tracing and all other
rights and remedies of whatsoever nature now or hereafter held by us
in respect of all or any of the foregoing and all moneys from time to
time becoming due or owing thereunder or in connection therewith (the
"Book Debts").
(2) The Deed declares in Clause 6.6 that we remain liable to you to
perform all the obligations assumed by us under the Offtake Agreement, and
the Security Trustee has assumed no obligation of any kind whatsoever in
respect of the Offtake Agreement.
(3) We hereby irrevocably authorise and instruct you to pay to
[ACCOUNT NUMBER/SORT CODE/ACCOUNT NAME/NAME AND ADDRESS OF THE BANK TO
WHICH PAYMENT IS TO BE MADE] (unless otherwise instructed by the Security
Trustee by written notice to you from time to time) all moneys whatsoever
now or at any time hereafter due or owing to us under, or by virtue of, the
Offtake Agreement (including, without limitation, the Book Debts) or in
connection with our rights evidenced thereby and to procure that the
Security Trustee receives all our rights, titles, benefits and interest
whatsoever present and future whether proprietary, contractual or otherwise
under, or arising out of, or evidenced by, the Offtake Agreement including
all claims against insurers in respect of the same and all moneys from time
to time becoming due or owing thereunder or in connection therewith.
(4) Except as provided in paragraph (3) above, you may continue to
deal with us for all purposes in relation to the Offtake Agreement until
such time as you receive written notice from the Security Trustee to the
contrary, after which the Security Trustee may exercise all our rights and
powers under the Offtake Agreement.
Upon receipt of such written notice from the Security Trustee, the
Security Trustee shall be entitled (but without accepting or assuming any
obligation to that effect) to perform, or procure through a third party the
performance of, our obligations in respect of the Offtake Agreement, the
costs and expenses so incurred by the Security Trustee or third party to be
for our account.
In addition, the Security Trustee may but shall not be obliged to:
(a) demand, ▇▇▇ for, collect or receive money or property at any time
due, payable or receivable in relation to the Offtake Agreement;
(b) compromise and settle with any person liable under the Offtake
Agreement; and
(c) extend the time for payment or otherwise change the terms of the
Offtake Agreement.
(5) This authority and instruction is declared to be irrevocable and
may not be varied or amended without the prior written consent of the
Security Trustee.
Please will you sign, date and return to the Security Trustee at
Princes House, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ (together with
a copy to us for our records) the attached Acknowledgement of Notice of
Assignment as your acknowledgement of the assignment effected by the Deed
as soon as practicable and in any event within three days after the date of
this notice. This notice shall be governed by the laws of England.
Yours faithfully
For and on behalf of
____________________
CLOSED TYPE JSC KARAKUDUKMUNAY
SCHEDULE 2
FORM OF ACKNOWLEDGMENT OF NOTICE OF ASSIGNMENT
_______ 2000
TO: The Law Debenture Trust Corporation p.l.c.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
For the Attention of: The Manager, Trust Management
CC: Closed Type JSC Karakudukmunay
Dear Sirs,
We hereby acknowledge receipt of a Notice of Assignment dated _______
2000 (of which this is a duplicate) and of the particulars of the assets
assigned pursuant to, and in accordance with, the Deed. Terms defined in
the Notice of Assignment shall have, when used in this acknowledgement, the
same meaning herein as therein, unless the context otherwise requires.
In consideration of the Security Trustee and the other Finance Parties
entering into the Finance Documents and the Lenders making funds available
to the Assignor thereunder, we confirm and agree that:
(a) we consent to the assignment by way of security effected by the
Deed referred to in the Notice of Assignment;
(b) we are not aware of any prior charge, deed, security, assignment
or disposition of any of the assets stated in the Deed to be assigned
to you;
(c) we will procure that payments are made in accordance with the
authority and instruction contained in the Notice of Assignment; and
(d) we will give you notice in writing forthwith of any change of our
address or any material default by Closed Type JSC Karakudukmunay in
performing its obligations, as appropriate, under the Offtake
Agreement assigned to you pursuant to, and in accordance with, the
Deed which would give us the right to terminate the Offtake Agreement
and of any dispute between us in relation to such obligations.
This acknowledgement is governed by the laws of England.
SIGNED by ____________________ )
duly authorised for and on behalf of [NAME OF COUNTERPARTY])
SCHEDULE 3
FORM OF REASSIGNMENT DEED
THIS DEED OF REASSIGNMENT (this "Deed") is made on _____ 2000.
BETWEEN:
(1) THE LAW DEBENTURE TRUST CORPORATION p.l.c., a company organised
and existing under the laws of England (the "Security Trustee") acting as
security trustee for the Finance Parties under the Loan Agreement (as such
terms are defined herein); and
(2) CLOSED TYPE JSC KARAKUDUKMUNAY (the "Assignor"), a company
organised and existing under the laws of the Republic of Kazakhstan.
1. DEFINITIONS
Terms and expressions defined in the Deed of Assignment (as defined
below) shall have, when used in this Deed, the same meaning herein as
therein unless the context otherwise requires.
2. REASSIGNMENT
The Security Trustee hereby assigns to the Assignor such right, title,
benefit and interest as it may have in, and to [insert name of assigned
document] which were assigned to the Security Trustee pursuant to Clause 3
of a deed of assignment by way of security entered into by the Security
Trustee and the Assignor and dated 7 February 2000 (the "Deed of
Assignment").
3. NO LIABILITY FOR THE SECURITY TRUSTEE
(a) The Security Trustee makes no representation, warranty,
undertaking or covenant whatsoever as to its title to the assets and
property referred to in Clause 2 of this Deed or to any other matter
relating to this Deed or the Deed of Assignment.
(b) Each of the Security Trustee and the Assignor agree that neither
the Security Trustee nor its managers, officers, agents or employees shall
be subject to any liability whatsoever whether arising under contract, tort
or otherwise in respect of the assets and property referred to in Clause 2
of this Deed or as to any other matter relating to this Deed other than in
respect of its or their fraud, gross negligence or wilful misconduct.
4. COSTS AND EXPENSES
(a) The Assignor hereby covenants with the Security Trustee on demand
to pay all costs, charges and expenses incurred by the Security Trustee in
connection with, or relating to, this Deed or the assignment effected or
purported to be effected pursuant to this Deed on a full indemnity basis
with interest at the rates and on terms agreed from time to time with the
Security Trustee or, in the absence of agreement, at 2 per cent per annum
over the base rate of National Westminster Bank p.l.c. from time to time.
(b) The Assignor agrees and acknowledges that, notwithstanding the
assignment pursuant to Clause 2 of this Deed, the covenants and indemnities
contained in Clauses 5 and 6 of the Deed of Assignment shall remain in full
force and effect for the benefit of the Security Trustee for so long as the
Security Trustee may require.
5. JURISDICTION
This Agreement shall be governed by English law.
IN WITNESS WHEREOF this Deed has been executed as a deed by the
parties hereto and is delivered on the date stated at the beginning of this
Deed.
EXECUTED as a deed and delivered by
CLOSED TYPE JSC KARAKUDUKMUNAY acting
by _________________________________
Name:
Title:
by _________________________________
Name:
Title:
The COMMON SEAL of
THE LAW DEBENTURE TRUST CORPORATION
P.L.C.
was hereunto affixed in the presence of:
_________________________________
Name:
Title: Director
_________________________________
Name:
Title: Authorised Signatory
TABLE OF CONTENTS
Page
1. DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Interpretation . . . . . . . . . . . . . . . . . . . . . . 3
2. COVENANT TO DISCHARGE OBLIGATIONS . . . . . . . . . . . . . . . . 3
2.1 Covenant to Pay. . . . . . . . . . . . . . . . . . . . . . 3
2.2 Validity of Demands. . . . . . . . . . . . . . . . . . . . 4
3. SECURITY INTERESTS AND ITS TERMINATION . . . . . . . . . . . . . . 4
3.1 Assignment . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Reassignment . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Retention of This Deed . . . . . . . . . . . . . . . . . . 4
4. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . 4
4.1 Representations and Warranties . . . . . . . . . . . . . . 4
4.2 Repetition . . . . . . . . . . . . . . . . . . . . . . . . 6
5. RESTRICTIONS ON DEALING WITH ASSIGNED ASSETS . . . . . . . . . . . 6
5.1 Negative Pledge. . . . . . . . . . . . . . . . . . . . . . 6
5.2 Disposal of Assigned Assets . . . . . . . . . . . . . . . 6
6. COVENANTS RELATING TO ASSIGNED ASSETS. . . . . . . . . . . . . . . 6
6.1 Duration . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.2 Notice of Assignment and Acknowledgement Thereof . . . . . 6
6.3 Deposit of Assigned Agreements . . . . . . . . . . . . . . 6
6.4 Holding in Trust . . . . . . . . . . . . . . . . . . . . . 6
6.5 Access to Accounts . . . . . . . . . . . . . . . . . . . . 7
6.6 Compliance with Approved Contract and Assigned Agreements 7
6.7 No Variation or Release of Assigned Assets . . . . . . . . 7
6.8 Payment of Monies Received in Respect of Assigned Assets . 7
6.9 Action to Protect Validity of Assigned Assets. . . . . . . 8
6.10 Action to Enforce Assigned Assets. . . . . . . . . . . . . 8
6.11 Provision of Information Relating to Assigned Assets . . . 8
6.12 No Action to Jeopardise Security Interests Constituted
Hereby . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.13 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . 8
7. SECURITY TRUSTEE'S DISCRETION. . . . . . . . . . . . . . . . . . 9
7.1 Security Trustee May Cure Breaches of Covenants . . . . . 9
7.2 Expenses so Incurred. . . . . . . . . . . . . . . . . . . 9
8. FURTHER ASSURANCES . . . . . . . . . . . . . . . . . . . . . . . 9
8.1 General Assurance . . . . . . . . . . . . . . . . . . . . 9
8.2 Additional Security Interests . . . . . . . . . . . . . . 9
9. ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.1 Security Interests to Become Enforceable . . . . . . . . . 9
9.3 Sections 93 and 103 of the Act . . . . . . . . . . . . . . 10
9.4 Step-in Rights . . . . . . . . . . . . . . . . . . . . . . 10
10. APPOINTMENT OF RECEIVERS. . . . . . . . . . . . . . . . . . . . . 10
10.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . 10
10.2 Scope of Appointment. . . . . . . . . . . . . . . . . . . 11
11. RECEIVERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11.1 Powers . . . . . . . . . . . . . . . . . . . . . . . . . 11
11.2 Conflict . . . . . . . . . . . . . . . . . . . . . . . . 11
11.3 Agent of Company . . . . . . . . . . . . . . . . . . . . 11
11.4 Remuneration . . . . . . . . . . . . . . . . . . . . . . 12
12 RIGHTS OF SECURITY TRUSTEE . . . . . . . . . . . . . . . . . . . 12
12.1 Rights of Receiver . . . . . . . . . . . . . . . . . . . 12
12.2 Redemption of Prior Security Interests . . . . . . . . . 12
12.3 Suspense Account . . . . . . . . . . . . . . . . . . . . 12
12.4 New Account. . . . . . . . . . . . . . . . . . . . . . . 12
12.5 Delegation . . . . . . . . . . . . . . . . . . . . . . . 13
12.6 Set-Off. . . . . . . . . . . . . . . . . . . . . . . . . 13
13. APPLICATION OF MONEYS . . . . . . . . . . . . . . . . . . . . . 13
14. LIABILITY OF SECURITY TRUSTEE, RECEIVERS AND DELEGATES. . . . . 13
14.1 Possession. . . . . . . . . . . . . . . . . . . . . . . 13
14.2 Security Trustee's Liability. . . . . . . . . . . . . . 13
14.3 Receiver's Liability. . . . . . . . . . . . . . . . . . 14
14.4 Indemnity . . . . . . . . . . . . . . . . . . . . . . . 14
15. PROTECTION OF THIRD PARTIES. . . . . . . . . . . . . . . . . . 14
15.1 Contractual Protection . . . . . . . . . . . . . . . . . 14
15.2 Statutory Protection . . . . . . . . . . . . . . . . . 14
16. CONTINUING SECURITY INTERESTS AND OTHER MATTERS. . . . . . . . 15
16.1 Continuing and Independent Security Interests . . . . . 15
16.2 Primary Obligations . . . . . . . . . . . . . . . . . . 15
17. OTHER SECURITY INTERESTS. . . . . . . . . . . . . . . . . . . . 15
18. SECURITY INTERESTS NOT TO BE AFFECTED . . . . . . . . . . . . . 15
19. POWER OF ATTORNEY . . . . . . . . . . . . . . . . . . . . . . . 16
19.1 Appointment. . . . . . . . . . . . . . . . . . . . . . . 16
19.2 Ratification . . . . . . . . . . . . . . . . . . . . . . 16
20. CURRENCY INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . 16
21. DEFAULT INTEREST. . . . . . . . . . . . . . . . . . . . . . . . 17
22. CERTIFICATES TO BE CONCLUSIVE EVIDENCE. . . . . . . . . . . . . 17
23. COSTS AND EXPENSES. . . . . . . . . . . . . . . . . . . . . . . 17
23.1 Transaction Costs . . . . . . . . . . . . . . . . . . . 17
23.2 Preservation and Enforcement Costs. . . . . . . . . . . 17
23.3 Stamp Taxes . . . . . . . . . . . . . . . . . . . . . . 17
23.4 Security Trustee's Additional Costs . . . . . . . . . . 18
23.5 Tax . . . . . . . . . . . . . . . . . . . . . . . . . . 18
24. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
24.1 Giving of Notices . . . . . . . . . . . . . . . . . . . 18
24.2 Addresses for Notices . . . . . . . . . . . . . . . . . 19
24.3 English Language. . . . . . . . . . . . . . . . . . . . 19
25. REMEDIES AND WAIVERS, PARTIAL INVALIDITY. . . . . . . . . . . . 19
25.1 Remedies and Waivers. . . . . . . . . . . . . . . . . . 19
25.2 Partial Invalidity. . . . . . . . . . . . . . . . . . . 19
26. ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
27. LAW AND JURISDICTION. . . . . . . . . . . . . . . . . . . . . . 20
27.1 English Law. . . . . . . . . . . . . . . . . . . . . . . 20
27.2 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . 20
27.3 Process Agent. . . . . . . . . . . . . . . . . . . . . . 20
27.4 Waiver of Immunity . . . . . . . . . . . . . . . . . . . 21
27.5 Consent to Enforcement . . . . . . . . . . . . . . . . . 21
27.6 Arbitration. . . . . . . . . . . . . . . . . . . . . . . 21
28. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Form of Notice of Assignment . . . . . . . . . . . . . . . . . 23
SCHEDULE 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Form of Acknowledgment of Notice of Assignment. . . . . . . . 25
SCHEDULE 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Form of Reassignment Deed . . . . . . . . . . . . . . . . . . 26