EXECUTION COPY
DEED OF SUBORDINATION AND PLEDGE
Dated March 29, 2000
among
SOCIETE DES MINES DE MORILA S.A.
and
RANDGOLD RESOURCES LIMITED,
as
the Companies,
RANDGOLD RESOURCES LIMITED
RANDGOLD & EXPLORATION COMPANY LIMITED
RANDGOLD RESOURCES (MORILA) LIMITED.
as
the Subordinated Creditors,
and
N M ROTHSCHILD & SONS LIMITED,
as
the Security Trustee
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& ▇▇▇▇▇
Bucklersbury House
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Telephone ▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile 0171 329 4465
Ref 99514374
CONTENTS
PAGE
SECTION
1. DEFINED TERMS AND INTERPRETATION.........................................4
2. STANDSTILL...............................................................7
3. SUBORDINATION AND PERMITTED PAYMENTS.....................................7
4. COVENANT TO PAY..........................................................8
5. ASSIGNMENT BY WAY OF SECURITY AND PLEDGE.................................9
6. REPRESENTATIONS AND WARRANTIES OF THE SUBORDINATED CREDITORS
AND THE COMPANY.........................................................11
7. COVENANTS OF THE SUBORDINATED CREDITORS............................... .12
8. EXPENSES................................................................12
9. PROTECTION OF SUBORDINATION AND SECURITY................................12
10. STATUS OF THE COMPANIES.................................................13
11. SUBROGATION.............................................................14
12. FURTHER ASSURANCES; POWER OF ATTORNEY...................................14
13. ENFORCEMENT AND POWERS OF THE SECURITY TRUSTEE..........................15
14. STATUS, POWERS, REMOVAL AND REMUNERATION OF RECEIVER....................16
15. APPLICATION OF MONEYS...................................................19
16. PROTECTION OF THIRD PARTIES.............................................20
17. PROTECTION OF LENDER PARTIES AND RECEIVER...............................20
18. COSTS AND EXPENSES......................................................20
19. OTHER SECURITY, CUMULATIVE POWERS AND AVOIDANCE OF PAYMENTS.............21
20. DELEGATION..............................................................22
21. REDEMPTION OF PRIOR CHARGES.............................................22
22. NOTICES.................................................................22
23. WAIVERS, ETC............................................................22
24. SEVERABILITY............................................................23
25. ASSIGNMENT..............................................................23
26. COUNTERPARTS............................................................23
27. PERPETUITY PERIOD.......................................................23
28. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITY...........23
SCHEDULE 1 Subordinated Creditors
SCHEDULE 2 Initial Promissory Notes
THIS DEED is made on March 29, 2000
_________
BETWEEN-
(1) SOCIETE DES MINES DE MORILA S.A., a company (societe anonyme)
organised and existing under the laws of the Republic of Mali (the
"Borrower") and RANDGOLD RESOURCES LIMITED (in its capacity as a debtor
of one or more Subordinated Creditor) as company incorporated under the
laws of Jersey (each a "Company" and collectively, the "Companies").
(2) Each person set out in Schedule 1 hereto (each a "Subordinated
Creditor" and collectively, the "Subordinated Creditors"); and
(3) N M ROTHSCHILD & SONS LIMITED, in its capacity as the Agent and the
Security Trustee for the Lender Parties (the "Agent" or the "Security
Trustee", which expressions shall respectively include any person for
the time being appointed as agent or trustee or as an additional agent or
trustee for the purpose of, and in accordance with, this Deed).
NOW THIS DEED WITNESSES as follows:
1. DEFINED TERMS AND INTERPRETATION
1.1 DEFINED TERMS: In this Deed, unless the context otherwise requires, the
following expressions have the following meanings:
"Assigned Agreements" means, in respect of each Subordinated Creditor,
all Instruments and all other agreements (whether in writing or
otherwise), including the Subordinated Finance Documents to which it is a
party and evidencing or otherwise relating to the Subordinated
Liabilities owed to it and all other liabilities from time to time owing
to such Subordinated Creditor.
"Borrower" is defined in the preamble.
"Companies" is defined in the preamble.
"Creditors" means the Senior Creditors and the Subordinated
Creditors.
"Finance Documents" means the Senior Finance Documents and the
Subordinated Finance Documents.
"Initial Promissory Notes" means all promissory notes, instruments and
chattel paper described in Schedule 2 hereto.
"Liabilities" means all Obligations now or hereafter due, owing or
incurred to the Lender Parties (or any of them) in whatsoever manner in
any currency or currencies whether present or future, actual or
contingent, whether incurred solely or jointly with any other person and
whether as principal or surety in each case under the Senior Finance
Documents (or any of them) together with all interest accruing thereon
and all costs, charges and expenses incurred in connection therewith.
"Loan Agreement" means the Loan Agreement, dated December 21, 1999, as
amended, modified or supplemented from time to time between (1) the
Borrower, (2) Randgold Resources Limited, Randgold & Exploration Company
Limited and Randgold Resources (Morila) Limited, as the Completion
Guarantors, (3) the banks and financial institutions party thereto, as
the Lenders, the Arrangers and as the Co-Arrangers and (4) N M Rothschild
& Sons Limited, as the Agent.
"Promissory Notes" means all Initial Promissory Notes and all and any
additional promissory notes, instruments and chattel paper of either
Company at any time and from time to time acquired or received by each
Subordinated Creditor, all substitutes therefor or additions thereto, and
any interest, products, proceeds or other property at any time and from
time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of the foregoing.
"Receiver" means any one or more administrative receivers, receivers
and managers, administrators, liquidators or other insolvency officers
appointed in any jurisdiction or (if the Security Trustee so specifies in
the relevant appointment) any such officers appointed by the Security
Trustee pursuant to this Deed in respect of either Company or any
Subordinated Creditor or over all or any of the security, charges and
pledges constituted by this Deed.
"Rights of Set Off" means from time to time, in relation to a Creditor,
every right (whether conferred by law or otherwise) which that Creditor
or any one or more of its subsidiaries has to combine or net credit
balances and debit balances, directly or indirectly, being balances which
belong to either Company, or are owing by either Company to, or are
deposits by either Company with, that Creditor or any one or more of its
subsidiaries.
"Security Trustee" is defined in the preamble.
"Senior Creditors" means each of the Lender Parties.
"Senior Default" means the occurrence of a Default.
"Senior Discharge Date" means the date on which all the Senior
Liabilities have been irrevocably and fully discharged and any Commitment
to advance monies on the part of any of the Senior Creditors under the
Loan Agreement has been cancelled or terminated.
"Senior Finance Documents" means the Loan Agreement and the other Loan
Documents and all other agreements from time to time evidencing,
constituting or securing the Senior Liabilities and, in each such case,
as the same may be amended, supplemented or otherwise modified in
accordance with the terms thereof.
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"Senior Liabilities" means all Liabilities due, owing or incurred to
the Senior Creditors under the Senior Finance Documents and all costs,
charges and expenses incurred by the Senior Creditors and any receiver or
other insolvency officer appointed by any of them in connection
therewith.
"Subordinated Creditors" is defined in the preamble.
"Subordinated Default" means an event of default (howsoever
denominated) under any of the Subordinated Finance Documents.
"Subordinated Finance Documents" means the following:-
(a) the "Agreement", dated December 21, 1999, among Morila, RRL and
Morila Holdings, relating to the making of loans by RRL to Morila,
together with a certificate of a director of RRL dated the date
hereof, given pursuant to section 5 of such agreement and
confirming the amount then owing by Morila to RRL (after giving
effect to the repayment referred to in clause (a) of the
definition of Approved Subordinated Indebtedness Permitted
Repayment (Tranche A Loan Proceeds) contained in Section 1.1 of
the Loan Agreement);
(b) the letter agreement, dated November 25, 1999, between RECL and
RRL, relating to the making of loans by RECL to RRL, together with
a certificate of a director of RECL dated the date hereof, given
pursuant to section 5 of such letter agreement and confirming the
amount then owing by RRL to RECL;
(c) all Promissory Notes; and
(d) any other Instrument or arrangement evidencing the terms on which
any of the Subordinated Creditors has provided funding or
financial support to either Company or subject to which any
Subordinated Creditor is owed any fee, royalty, settlement sum or
other amount by either Company (including the settlement of any
dispute relating thereto), and, in each case, as the same may be
amended, supplemented or otherwise modified in accordance with the
terms thereof and with the terms of this Deed (including clause
(c) of Section 7).
"Subordinated Liabilities" means all liabilities, obligations and
payments due, owing or incurred by either Company to each Subordinated
Creditor under the terms of the Subordinated Finance Documents to which
it is party or otherwise however arising, including in respect of any
loan, capital contribution, fee, royalty, settlement sum or other amount
payable or repayable to any Subordinated Creditor.
"Subordinated Obligations" means, in respect of each Subordinated
Creditor, such Subordinated Creditor's obligations, and if any reference
herein to "Subordinated Obligations" does not relate to any particular
Subordinated Creditor, then such reference to "Subordinated
Obligations" shall be a reference to each Subordinated Creditor's
obligations.
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1.2. INTERPRETATION: In this Deed:
(a) capitalised terms used but not defined in this Deed (including the
preamble and recitals hereto) have the same meanings as in the
Loan Agreement; and
(b) this Deed is a Loan Document intended by the parties hereto to
take effect as a deed and shall be interpreted and construed in
accordance with the terms and provisions of the Loan Agreement
(including Sections 1.2 to Section 1.5 thereof which are hereby
incorporated into this Deed with all necessary consequential
changes).
2. STANDSTILL
Until the Senior Discharge Date, each Subordinated Creditor hereby
jointly and severally covenants with the Security Trustee that it will
not (unless the Senior Creditors otherwise give their prior consent in
writing):
(a) declare a Subordinated Default or otherwise accelerate all or any
part of the Subordinated Liabilities due to it or (subject to
Section 3) demand repayment of all or any part of the Subordinated
Liabilities due or owing to it; or
(b) take any action to enforce any of the Subordinated Finance
Documents to which it is party or to recover the Subordinated
Liabilities due or owing to it or exercise any Rights of Set Off
in relation thereto; or
(c) exercise any rights, pursue any remedy or take any legal
proceeding in any jurisdiction in respect of any breach of
covenant, misrepresentation or non-observance or default in
respect of the terms or conditions of any Subordinated Finance
Document to which it is a party; or
(d) petition for (or take any other step or action which may lead to)
the liquidation, administration, dissolution, winding-up or
appointment of an insolvency officer in respect of either Company
in any jurisdiction or any of its assets or instigate any other
insolvency proceeding in relation thereto; provided, however,
(without prejudice to the other provisions of this Deed (including
clause (c) of Section 3)), that each Subordinated Creditor shall
be entitled to take any action necessary to preserve its claims in
respect of the Subordinated Liabilities owing to it in any such
liquidation, administration, dissolution, winding up or
appointment.
3. SUBORDINATION AND PERMITTED PAYMENTS
Each of the Subordinated Creditors (in respect of the Subordinated
Liabilities owing to it) and each Company (in respect of the Subordinated
Liabilities owed by it) hereby covenants with the Security Trustee and
agree and declare that until the Senior Discharge Date:
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(a) RANKING: for all purpose, the Senior Liabilities will rank ahead
of the Subordinated Liabilities and the Subordinated Liabilities
will be subordinated in right of payment to the Senior
Liabilities, and such priorities shall be applicable regardless of
the time of creation of any of the Senior Liabilities or
Subordinated Liabilities;
(b) RESTRICTION ON PAYMENTS: neither Company will, directly or
indirectly, make any payment (whether in respect of principal,
interest or otherwise) on account of the Subordinated Liabilities
owed by it (whether in cash or in kind, by way of outright
payment, dividend, distribution, fee, royalty, loan or otherwise)
nor will any of the Subordinated Creditors be entitled to demand
or receive any such payment other than in respect of those
payments permitted to be made pursuant to the first proviso to
Section 8.2.7 of the Loan Agreement, which shall, subject to
compliance with the terms of the Loan Agreement be permitted to be
made by such Company, and received by the relevant Subordinated
Creditor, under the terms of this Deed when the terms and
conditions of such proviso so permit;
(c) BREACH OF RESTRICTIONS: in the event of payment being made to a
Subordinated Creditor (or to any other person on its behalf) in
breach of clause (b), such Subordinated Creditor undertakes
forthwith to pay to the Security Trustee an amount equal to any
sums or benefits which have been so received from the relevant
Company or, as the case may be, the liquidator or other insolvency
officer of such Company or from any other person and any such
amounts so paid to the Security Trustee shall be applied in such
manner as may be required pursuant to the Loan Agreement or as the
Security Trustee, acting on the instructions of the Required
Lenders, otherwise thinks fit in or towards discharge of the
Senior Liabilities and prior to such application may be held by
the Security Trustee in such manner, and for such period, as it
thinks fit without the Security Trustee having any obligation to
pay interest thereon;
(d) HOLD ON TRUST: all payments or benefits received by any
Subordinated Creditor in breach of Clause (b) will be held by such
Subordinated Creditor on trust for the Senior Creditors pending
the relevant amount being paid to the Security Trustee as required
by clause (c), and
(e) RIGHTS OF SET-OFF: if a Subordinated Creditor receives the benefit
of a Right of Set-off or counterclaim and, as a result, any of the
Subordinated Liabilities due to it are reduced at a time when such
Subordinated Creditor would not (by virtue of this Deed or any
other Loan Document) be entitled to receive payment in respect of
the Subordinated Liabilities, that Subordinated Creditor will
forthwith pay to the Security Trustee a sum equal to the amount by
which those Subordinated Liabilities have been so reduced (for
application or holding by the Security Trustee in accordance with
clause (c) and pending such payment will hold such sums on trust
for the Senior Creditors.
4. COVENANT TO PAY
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Each of the Subordinated Creditors covenants with the Security Trustee
that it will pay the Liabilities of such Subordinated Creditor as and
when the same fall due for payment.
5. ASSIGNMENT BY WAY OF SECURITY AND PLEDGE
5.1 ASSIGNMENT: As further continuing security each Subordinated Creditor
assigns by way of security for the payment of its Obligations under this
Deed with full title guarantee (to the fullest extent capable of
assignment) in favour of the Security Trustee on trust for the Lender
Parties all its rights, title and interest in and benefits under the
Assigned Agreements to which it is a party. The foregoing assignment
shall include:
(a) all claims for damages or other remedies in respect of any breach
of any Assigned Agreement;
(b) all moneys whatsoever which are now or may at any time hereafter
be or become due or owing to such Subordinated Creditor under or
arising out of the Assigned Agreements to which it is a party or
in connection with the rights of such Subordinated Creditor
evidenced thereby; and
(c) all rights and remedies for enforcing the Assigned Agreements to
which it is a party in the name of such Subordinated Creditor or
otherwise and all present and future right, title, benefit and
interest in all guarantees, insurances, indemnities, mortgages,
charges and other security of whatsoever nature (including all
rights and remedies of enforcement) now or hereafter held by such
Subordinated Creditor 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.
Notwithstanding the foregoing, as long as no Senior Default has occurred
and is continuing, the Company party to such Assigned Agreement may,
subject to the terms and conditions of this Deed, the Loan Agreement
(including Section 8.2.7 thereof) and the other Loan Documents, receive
and retain the proceeds of any such claims or any such moneys and may
exercise all such rights and remedies and receive and retain the proceeds
of their exercise.
5.2 PLEDGE: As further continuing security each Subordinated Creditor hereby
pledges by way of security for the repayment of the Obligations and the
obligations of the Subordinated Creditors pursuant to this Deed with full
title guarantee (to the fullest extent capable of assignment) in favour
of the Security Trustee on trust for the Lender Parties the Promissory
Notes.
5.3 TRUST: The parties hereto agree that the Security Trustee shall hold the
Security constituted by this Deed and all covenants, undertakings,
charges, representations, and other rights and securities given,
constituted or created under or pursuant to this Deed on trust for all
the Lender Parties on and subject to the terms of this Deed, and the
Lender Parties acknowledge such declaration.
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5.4 CONTINUING NATURE: The security constituted by this Deed is to be a
continuing security to the Security Trustee on trust for the Lender
Parties notwithstanding any intermediate payment or settlement of account
or other matter or thing whatsoever and in particular the intermediate
satisfaction by (a) the Borrower or any other person of the whole or any
part of the Senior Liabilities or (b) any Subordinated Creditor or any
other person of the whole or any part of such Subordinated Obligations.
5.5 ADDITIONAL SECURITY: The security constituted by this Deed is to be in
addition and without prejudice to any other security which the Security
Trustee or any other Lender Party may now or hereafter hold for the
Senior Liabilities or any part thereof or for any Subordinated
Obligations or any part thereof, and this security may be enforced
against any Subordinated Creditor without first having recourse to any
other rights of the Security Trustee or any other Lender Party.
5.6 NO DUTY TO ENFORCE: Each of the Subordinated Creditors and each Company
agrees that the Security Trustee shall not be bound to enforce any
guarantee or security or proceed to take any other steps against any
other person before enforcing this Deed.
5.7 NO LIABILITY: Notwithstanding anything herein to the contrary:
(a) each Subordinated Creditors and each Company shall remain liable
under the Assigned Agreements to which it is a party to the extent
set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Deed had not been
executed.
(b) the exercise by the Security Trustee of any of its rights
hereunder shall not release any Subordinated Creditor from any of
their duties or obligations under any Assigned Agreements to which
its is a party; and
(c) neither the Security Trustee nor any other Lender Party shall have
any obligation or liability under any of the Assigned Agreements
by reason of this Deed nor shall the Security Trustee nor any
other Lender Party be obligated to perform any of the obligations
or duties of any Subordinated Creditor thereunder or to take any
action to collect or enforce any claim for payment assigned
hereunder.
5.8 NOT JEOPARDISE SECURITY: None of the Subordinated Creditors will do or
cause or permit to be done anything which, in any way, is reasonably
likely to depreciate, jeopardise or otherwise prejudice the value to the
Security Trustee of the security constituted by this Deed.
5.9 FORMAL ACKNOWLEDGEMENT: Each Company hereby acknowledges the terms of
this Article.
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6. REPRESENTATIONS AND WARRANTIES OF THE SUBORDINATED CREDITORS AND THE
COMPANY
In order to induce the Security Trustee to enter into this Deed and, in
the case of the Lenders, to make and continue Loans hereunder, each
Subordinated Creditor and each Company represent and warrant unto each
Lender Party as set forth in this Article. The representations and
warranties set forth in this Article shall be made upon the delivery of
each Borrowing Request and each Continuation Notice, and shall be deemed
to have been made on each Borrowing Date (both immediately before and
immediately after the application of the proceeds of the relevant Loans),
the Mechanical Completion Date, the Economic Completion Date, the Release
Date and on any date on which any person grants further security to any
Lender Party pursuant to Section 8.1.16;
(a) No Subordinated Creditor and no Company nor any of their
respective properties or revenues enjoys any right of immunity
from suit, set-off, attachment, execution, or judgment in respect
of its obligations under this Deed;
(b) The payment obligations of each Subordinated Creditor and of each
Company under this Deed rank at least pari passu in right of
payment with all of such Subordinated Creditor's or such Company's
(as the case may be) other unsecured indebtedness, other than any
such indebtedness which is preferred by mandatory provisions of
Applicable Law;
(c) The assignments constituted by this Deed create a valid first
ranking assignment of the Assigned Agreements in favour of the
Security Trustee;
(d) The pledges constituted by this Deed create a valid first ranking
pledge of the Promissory Notes in favour of the Security Trustee;
(e) No Subordinated Creditor has taken or received any lien, indemnity
or guarantee of any kind whatsoever from either Company in respect
of the Subordinated Liabilities;
(f) The memorandum and articles of association or other constitutional
documents of each Subordinated Creditor and of each Company
incorporate provisions which respectively ensure, and all
necessary corporate, shareholder and other action has been taken
to ensure, that:
(i) it is authorised to sign or execute under seal or as a deed
(as appropriate) and deliver this Deed and perform the
transactions contemplated hereby and to create the security
in the terms contained in this Deed; and
(ii) this Deed is admissible in evidence in England, Jersey and
the Republic of South Africa.
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(g) Neither the execution and delivery of this Deed by each
Subordinated Creditor and by each Company nor the performance of
any of their respective obligations hereunder do or will:
(i) conflict with their respective memorandum or articles of
association or other constitutional documents; or
(ii) cause any borrowing, negative pledge or other limitation on
any Subordinated Creditor or either Company or the powers of
the directors or other officers of any Subordinated Creditor
or either Company to be exceeded.
(h) No Subordinated Creditor or Company is unable to pay its debts
within the meaning of Section 123 of the Insolvency ▇▇▇ ▇▇▇▇ or
within the meaning of any equivalent legislation in Jersey or the
Republic of South Africa.
7. COVENANTS OF THE SUBORDINATED CREDITORS
Each Subordinated Creditor covenants with the Security Trustee that,
until the Senior Discharge Date, it will not, without the prior written
consent of the Security Trustee (acting on the instructions of the Senior
Creditors):
(a) assign mortgage, charge, encumber, dispose of or otherwise deal
with the Subordinated Liabilities owed to it or any part thereof;
(b) take or receive any lien, indemnity or guarantee of any kind
whatsoever from either Company or any other person in respect of
the Subordinated Liabilities; or
(c) amend any provision of the Subordinated Finance Documents to which
it is a party.
8. EXPENSES
The Subordinated Creditors will, on demand and on a joint and several
basis, pay the Security Trustee all charges and expenses incurred by each
Senior Creditor in connection with the enforcement or preservation of the
rights of the Senior Creditors under this Deed.
9. PROTECTION OF SUBORDINATION AND SECURITY
9.1 CONTINUING SUBORDINATION: The subordination provisions in this Deed
constitute a continuing subordination and benefit the ultimate balance of
the Senior Liabilities and the Subordinated Obligations regardless of any
intermediate payment or discharge of the Senior Liabilities or
Subordinated Obligations (as the case may be) in whole or in part.
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9.2 WAIVER OF DEFENCE: The obligations of each Subordinated Creditor and each
Company under this Deed will not be affected by any act, omission or
circumstance which (save for this provision) may operate so as to release
or otherwise exonerate such Company or such Subordinated Creditor from
their respective obligations hereunder or otherwise affect such
subordination provisions including:
(a) any time, indulgence or waiver granted to or composition made with
either Company, any Subordinated Creditor or any other person;
(b) any variation of any Senior Finance Document;
(c) the taking, variation, compromise, renewal or release of or
failure to enforce any rights, remedies or security against or
granted by either Company, any Subordinated Creditor or any other
person;
(d) any legal limitation, disability, incapacity or other circumstance
relating to either Company, any Subordinated Creditor or any other
person or any variation of the terms of this Deed or any other
document (including the Senior Finance Documents); or
(e) any fluctuation in or partial repayment or pre-payment of the
Senior Liabilities or the Subordinated Obligations.
9.3 COVENANT: Each Company and each Subordinated Creditor each hereby jointly
and severally covenants with the Security Trustee that it will not at any
time do or fail to do anything which is reasonably likely to jeopardise
or render ineffective the subordination or security effected by this
Deed.
9.4 AVOIDANCE OF SETTLEMENT: Any settlement or discharge under this Deed
between either Company or any Subordinated Creditor, on the one hand, and
the Security Trustee on the other hand, shall be conditional upon no
security or payment to any Lender Party by any person in connection with
the Senior Liabilities or Subordinated Obligations (as the case may be)
being avoided or set-aside or ordered to be refunded or reduced by virtue
of any provision or enactment relating to bankruptcy, insolvency,
administration or liquidation for the time being in force, and if such
condition is not satisfied (but without limiting the other rights of the
Security Trustee hereunder or under Applicable Law) such settlement or
discharge shall be of no effect and the subordination and other
arrangements created by this Deed shall remain and/or shall be reinstated
in full force and effect as if such settlement or discharge had not
occurred and the Security Trustee shall, on behalf of the Senior
Creditors (and to the extent that any Subordinated Creditors shall have
recovered any amount in respect of the Subordinated Liabilities following
such settlement or discharge which would not otherwise have been
permitted to be recovered prior to the discharge of the Senior
Liabilities pursuant to this Deed had this Deed then been in full force
and effect), be entitled to recover from such Subordinated Creditors on
demand the value of the security or payment so avoided, set-aside,
refunded or reduced.
10. STATUS OF THE COMPANIES
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10.1. ROLE: Each Company is a party to this Deed in order to acknowledge the
rights and obligations set out herein and in order to undertake with the
Security Trustee to comply with its obligations hereunder.
10.2. NO RIGHTS: Neither Company will have any rights under this Deed and none
of the covenants contained herein on the part of any other party are
given (or shall be deemed to be given) to or for the benefit of either
Company.
11. SUBROGATION
Subject to the irrevocable and unconditional payment in full of all
Senior Liabilities, the Subordinated Creditors shall, to the extent set
forth in the immediately succeeding sentence, be subrogated to the rights
of the Senior Creditors to receive distribution of assets of each
Company, or payments by or on behalf of each Company, made in respect of
the Senior Liabilities until the Subordinated Liabilities and
Subordinated Obligations shall be paid in full. For purposes of such
subrogation, no payments over (including any payments or distributions to
the Senior Creditors of any cash, property or securities to which any
Subordinated Creditors would otherwise be entitled except for the
provisions of this Deed) to the Senior Creditors by any Subordinated
Creditor pursuant to the provisions hereof, shall, as among such Company,
its creditors (other than the Senior Creditors) and such Subordinated
Creditor, be deemed to be a payment or distribution by such Company on
account of the Senior Liabilities.
12. FURTHER ASSURANCES; POWER OF ATTORNEY
12.1 FURTHER ASSURANCES: Each Company and each Subordinated Creditor will,
from time to time:
(a) promptly notify the Security Trustee of the issuance of any
Promissory Note or other Instrument evidencing any of the
Subordinated Liabilities due by such Company to such Subordinated
Creditor;
(b) cause any and all Subordinated Liabilities to be evidenced by a
negotiable promissory note (in a form, and endorsed in a form,
acceptable to the Security Trustee) and (together with any such
documentation as may reasonably be requested by the Security
Trustee to be delivered in connection with the creation and
perfection of any lien) delivered to and deposited with the
Security Trustee for purposes of pledging pursuant to this Deed;
(c) in the case of each Subordinated Creditor, ▇▇▇▇ its books and
records and cause the relevant Company to ▇▇▇▇ its books and
records, so as to indicate clearly that the Subordinated
Liabilities owed to it are subordinated, and the Promissory Notes
in its favour are pledged, in accordance with the terms of this
Deed, and will cause to be clearly inserted in any Promissory Note
or other Instrument which at any time evidences any of the
Subordinated Liabilities
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owed to it a statement to the effect that the payment thereof is
subordinated in accordance with the terms of this Deed;
(d) to take such further acts, enter into such other instruments and
documents and otherwise perform such action as may be necessary or
advisable or as the Security Trustee may otherwise request to more
fully give effect to the subordination and security created or
intended to be created hereunder and any other provision of this
Deed; and
(e) in the case of each Subordinated Creditor, at their own expense
promptly execute such deeds, assurances, agreements, instruments
and otherwise do such acts and things as the Security Trustee may
require for perfecting and protecting the security and
subordination created (or intended to be created) by this Deed or
facilitating the realisation thereof or otherwise for enforcing
the same or exercising any of the Security Trustee's rights
hereunder.
12.2 POWER OF ATTORNEY: Each Company and each Subordinated Creditor hereby
irrevocably and by way of security appoints the Security Trustee and
every Receiver of the security constituted by this Deed or any part
thereof appointed hereunder and any person nominated for the purpose by
the Security Trustee or any Receiver (in writing under hand signed by an
officer of the Security Trustee or any Receiver) severally as its
attorney (with full power of substitution and delegation) in its name and
on its behalf and as its act and deed to execute, seal and deliver (using
the company seal where appropriate) and otherwise perfect and do any
deed, assurance, agreement, instrument, act or thing which it ought to
execute and do under the terms of this Deed or any other Loan Document or
which may be reasonably required in the exercise of any rights or powers
conferred on the Security Trustee or any Receiver hereunder or otherwise
for any of the purposes of this Deed. Each Company and each Subordinated
Creditor hereby covenants with the Security Trustee to ratify and confirm
all acts or things made, done or executed by such attorney as aforesaid.
The power of attorney hereby granted is as regards the Security Trustee
and its delegates (and as each Company and each Subordinated Creditor
hereby acknowledges) granted irrevocably and for value as part of the
security constituted by this Deed to secure proprietary interests in and
the performance of obligations owed to the respective donees within the
meaning of the Power of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
13. ENFORCEMENT AND POWERS OF THE SECURITY TRUSTEE
13.1 CONSOLIDATION: The restriction on the consolidation of mortgages imposed
by Section 93 of the Law of Property Act 1925 shall not apply to this
Deed or to any security given to the Security Trustee pursuant to this
Deed.
13.2 EXCLUSION OF CERTAIN PROVISIONS: Section 103 of the Law of Property ▇▇▇
▇▇▇▇ shall not apply to the security, charges and pledges created by this
Deed which shall immediately become enforceable and the power of sale
and other powers conferred by Section 101 of such Act (as varied or
extended by this security) shall be immediately exercisable at any time
after an Event of Default has occurred.
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13.3. STATUTORY POWERS: The powers conferred on mortgagees or receivers or
administrative receivers by the Law of Property ▇▇▇ ▇▇▇▇ and the
Insolvency ▇▇▇ ▇▇▇▇ (as the case may be) shall apply to the security
constituted by this Deed except insofar as they are expressly or
impliedly excluded and where there is ambiguity or conflict between the
powers contained in such Acts and those contained in this Deed, then this
Deed shall prevail.
13.4 POWER OF SALE: The statutory power of sale exercisable by the Security
Trustee under this Deed is hereby extended so as to authorise the
Security Trustee to sever any fixtures from the property to which they
are attached and sell them separately from such property.
13.5 APPOINTMENT OF RECEIVER: At any time after an Event of Default has
occurred and is continuing and has not been waived or if so requested by
either Company or any Subordinated Creditor, the Security Trustee may by
writing under hand signed by any officer or manager of the Security
Trustee appoint any person (or persons) to be a Receiver of all or any
part of the security, charges and pledges constituted by this Deed.
13.6 LEASING AND SURRENDERS: The statutory powers of leasing and accepting
surrenders conferred upon the Security Trustee by the Law of Property ▇▇▇
▇▇▇▇ shall be extended so as to authorise the Security Trustee to lease,
make agreements for leases at a premium or otherwise, accept surrenders
of leases and grant options or vary or reduce any sum payable under any
leases or tenancy agreements as the Security Trustee thinks fit without
the need to comply with any of the provisions of Sections 99 and 100 of
such Act.
13.7 POWER OF MORTGAGEES: All or any of the powers conferred upon mortgagees
by the Law of Property ▇▇▇ ▇▇▇▇ as hereby varied or extended and all or
any of the rights and powers conferred by this Deed on a Receiver
(whether expressly or impliedly) may be exercised by the Security Trustee
without further notice to the Company at any time after this security
shall have become enforceable and the Security Trustee may exercise such
rights and powers irrespective of whether the Security Trustee has taken
possession or has appointed a Receiver of the security, charges and
pledges constituted by this Deed.
14. STATUS, POWERS, REMOVAL AND REMUNERATION OF RECEIVER
14.1 RECEIVER AS AGENT OF COMPANY: Any Receiver appointed hereunder shall be
the agent of the relevant Company or Subordinated Creditor and such
Company or Subordinated Creditor shall be solely responsible for his acts
or defaults and for his remuneration and liable on any contracts or
engagements made or entered into by him and in no circumstances
whatsoever shall the Security Trustee or any Lender Party be in any way
responsible for any misconduct, negligence or default of the Receiver.
14.2 POWERS OF RECEIVER: Any Receiver appointed hereunder shall have power in
addition to the powers conferred by the Law of Property ▇▇▇ ▇▇▇▇ and
Schedule 1 of the Insolvency ▇▇▇ ▇▇▇▇ (which are hereby incorporated into
this Deed) and notwithstanding the liquidation of the Company.
-16-
(a) to take possession of, collect and get in all or any part of the
security, charges and pledges constituted by this Deed and for
that purpose to take any proceedings in the name of either Company
or any Subordinated Creditor or otherwise as he thinks fit;
(b) generally to manage the security, charges and pledges constituted
by this Deed and to manage or carry on, reconstruct, amalgamate,
diversify or concur in carrying on the business or any part
thereof of either Company or any Subordinated Creditor as he may
think fit;
(c) to make any arrangement or compromise or enter into or cancel any
contracts which he shall think expedient in the interests of the
Security Trustee and the Lender Parties;
(d) for the purpose of exercising any of the powers, authorities and
discretions conferred on him by this Deed and/or defraying any
costs or expenses which may be incurred by him in the exercise
thereof or for any other purpose to raise or borrow money or incur
any other liability on such terms whether secured or unsecured as
he may think fit and whether to rank for payment in priority to
this security or not;
(e) without restriction to sell, let or lease, or concur in selling,
letting or leasing, and to vary the terms of, determine, surrender
or accept surrenders of, leases or tenancies of, or grant options
and licences over or otherwise dispose of or deal with, all or any
part of the security, charges and pledges constituted by this Deed
without being responsible for loss or damage, and so that any such
sale, lease or disposition may be made for cash payable by
instalments, loan stock or other debt obligations or for shares or
securities of another company or other valuable consideration, and
the Receiver may form and promote, or concur in forming and
promoting, a company or companies to purchase, lease, licence or
otherwise acquire interests in all or any of the security, charges
and pledges constituted by this Deed or otherwise, arrange for
such companies to trade or cease to trade and to purchase, lease,
license or otherwise acquire all or any of the security, charges
and pledges constituted by this Deed on such terms and conditions
whether or not including payment by instalments secured or
unsecured as he may think fit;
(f) to make and effect all repairs, renewals and improvements to the
security, charges and pledges constituted by this Deed or any part
of it as he may think fit and maintain, renew, take out or
increase insurances;
(g) to exercise all voting and other rights attaching to any stocks,
shares and other securities owned by either Company or any
Subordinated Creditor and comprised in the security, charges and
pledges constituted by this Deed in such manner as he may think
fit;
-17-
(h) to redeem any prior encumbrance and settle and pass the accounts
of the person entitled to the prior encumbrance so that any
accounts so settled and passed shall (subject to any manifest
error) be conclusive and binding on either Company or any
Subordinated Creditor and the money so paid shall be deemed to be
an expense properly incurred by the Receiver;
(i) to appoint and discharge employees, officers, managers, agents,
professionals and others for any of the purposes hereof or to
guard or protect the security, charges and pledges constituted by
this Deed upon such terms as to remuneration or otherwise as he
may think fit and to dismiss the same or discharge any persons
appointed by either Company or any Subordinated Creditor;
(j) to settle, refer to arbitration, compromise and arrange any
claims, accounts, disputes, questions and demands with or by any
person or body who is or claims to be a creditor of either Company
or any Subordinated Creditor or relating in any way to the
security, charges and pledges constituted by this Deed or any part
thereof;
(k) to bring, prosecute, enforce, defend and discontinue all such
actions and proceedings or submit to arbitration in the name of
either Company or any Subordinated Creditor in relation to the
security, charges and pledges constituted by this Deed or any part
thereof as he shall think fit;
(l) to sever and sell plant, machinery or other fixtures sold
separately from the property to which they may be annexed;
(m) to implement or continue the development of (and obtain all
consents required in connection therewith) and/or complete any
buildings or structures on, any real property comprised in the
security, charges and pledges constituted by this Deed and do all
acts and things incidental thereto;
(n) to purchase or acquire any land and purchase, acquire or grant any
interest in or right over land;
(o) to make calls conditionally or unconditionally on the members of
either Company or any Subordinated Creditor in respect of uncalled
capital; and
(p) to do all such other acts and things (including signing and
executing all documents and deeds) as may be considered by the
Receiver to be incidental or conductive to any of the matters or
powers aforesaid or otherwise incidental or conductive to the
preservation, improvement or realisation of the security, charges
and pledges constituted by this Deed and to use the name of either
Company or any Subordinated Creditor for all the purposes
aforesaid.
14.3 REMOVAL: The Security Trustee may by written notice remove from time to
time any Receiver appointed by it (subject to the provisions of Section
45 of the Insolvency Act
-18-
1986 in the case of an administrative receivership) and, whenever it may
deem appropriate, appoint a new Receiver in the place of any Receiver
whose appointment has terminated, for whatever reason.
14.4 REMUNERATION: The Security Trustee may from time to time fix the
remuneration of any Receiver appointed by it.
14.5 MULTIPLE RECEIVERS: If at any time there is more than one Receiver of all
or any part of the security, charges and pledges constituted by this
Deed, each Receiver may exercise individually all of the powers conferred
on a Receiver under this Deed and to the exclusion of the other Receiver
or Receivers (unless the document appointing such Receiver states
otherwise).
15. APPLICATION OF MONEYS
15.1 ORDER OF APPLICATION: All moneys received by the Security Trustee or any
Receiver appointed hereunder shall be applied by it or him in the
following order:
(a) in payment of the costs, charges and expenses incurred, and
payments made, by the Security Trustee and/or any Receiver
(including the payment of preferential debts);
(b) in payment of remuneration to the Receiver at such rates as may be
agreed between him and the Security Trustee at or any time after
his appointment;
(c) in or towards satisfaction of the Liabilities (in such order as
the Security Trustee shall require on behalf of the Lender Parties
or as may be set forth in the Loan Agreement); and
(d) the surplus (if any) shall be paid to either Company or any
Subordinated Creditor or other persons lawfully entitled to
it.
15.2 INSURANCE PROCEEDS: All moneys received by virtue of any insurance
maintained or effected in respect of the security, charges and pledges
constituted by this Deed shall be applied as set forth in the Loan
Agreement (including Section 8.1.7 thereof)
15.3 EXCLUSION OF CERTAIN PROVISIONS: Sections 109(6) and (8) of the Law of
Property ▇▇▇ ▇▇▇▇ shall not apply to a Receiver appointed under this
Deed.
15.4 SUSPENSE ACCOUNT: The Security Trustee and any Receiver may place and
keep (for such time as it or he shall think prudent) any money received,
recovered or realised pursuant to this Deed in or at a separate suspense
account for so long and in such manner as the Security Trustee may from
time to time determine (to the credit of either a Company or a
Subordinated Creditor or the Security Trustee as the Security Trustee
shall think fit) and the Receiver may retain the same for such period as
he and the Security Trustee consider expedient without having any
obligation to apply the same or any part thereof in or towards discharge
of the Liabilities.
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16. PROTECTION OF THIRD PARTIES
16.1 NO DUTY TO ENQUIRE: No purchaser from, or other person dealing with, the
Security Trustee and/or any Receiver shall be obliged or concerned to
enquire whether the right of the Security Trustee or any Receiver to
exercise any of the powers conferred by this Deed has arisen or become
exercisable, or whether any of the Liabilities remains outstanding or be
concerned with notice to the contrary, or whether any event has happened
to authorise the Receiver to act or as to the propriety or validity of
the exercise or purported exercise of any such power and the title of
such a purchaser and the position of such a person shall not be
impeachable by reference to any of those matters.
16.2 RECEIPT ON ABSOLUTE DISCHARGE: The receipt of the Security Trustee or any
Receiver shall be an absolute and a conclusive discharge to a purchaser
and shall relieve him of any obligation to see to the application of any
moneys paid to or by the direction of the Security Trustee or any
Receiver.
16.3 PURCHASER: In Sections 16.1 and 16.2 the term "purchaser" includes any
person acquiring for money or money's worth, any lease of, or lien over,
or any other interest or right whatsoever in relation to, the Charged
Property.
17. PROTECTION OF LENDER PARTIES AND RECEIVER
17.1 NO LIABILITY FOR EXERCISE OF POWERS: By way of supplement to the Trustee
▇▇▇ ▇▇▇▇, neither the Security Trustee, any Lender Party nor any Receiver
shall be liable in respect of all or any part of the security, charges
and pledges constituted by this Deed or for any loss or damage which
arises out of the exercise or the attempted or purported exercise of, or
the failure to exercise any of their respective powers, unless such loss
or damage is caused by its or his gross negligence or wilful default.
17.2 POSSESSION OF CHARGED PROPERTY: Without prejudice to the generality of
Section 17.1, entry into possession of the security, charges and pledges
constituted by this Deed shall not render the Security Trustee, the
Lender Parties or the Receiver liable to account as mortgagee in
possession and if and whenever the Security Trustee enters into
possession of the security, charges and pledges constituted by this Deed,
it shall be entitled at any time at its discretion to go out of such
possession.
18. COSTS AND EXPENSES
18.1 INDEMNITY: Each Company and each Subordinated Creditor will fully
indemnify each of the Security Trustee, each Lender Party and any
Receiver appointed hereunder on demand from and against any expense
(including legal fees on a full indemnity basis), loss, damage or
liability which any of them may incur in connection with the negotiation,
preparation, execution, modification, amendment, release and/or
enforcement or attempted enforcement of, or preservation of the rights
under, this Deed or in relation to any of the security, charges and
pledges constituted by this Deed, including any present or future stamp
or other taxes or duties and any penalties or interest with respect
thereto
-20-
which may be imposed by any competent jurisdiction in connection with the
execution or enforcement of this Deed or in consequence of any payment
being made pursuant to this Deed (whether made by either Company or any
or a third person) being impeached or declared void for any reason
whatsoever.
18.2 DEFAULT INTEREST: The amounts payable under Section 18.1 above shall
carry default interest at the Default Rate as well after as before
judgment, from the dates on which they were paid, incurred or charged by
the Security Trustee, the relevant Lender Party or the Receiver (as the
case may be) and shall form part of the Liabilities and accordingly be
secured on the Subordinated Creditor under the charges contained in this
Deed. All such default interest shall be compounded at such intervals as
the Security Trustee may select from time to time.
19. OTHER SECURITY, CUMULATIVE POWERS AND AVOIDANCE OF PAYMENTS
19.1 SECURITY NON-EXCLUSIVE: This security is in addition to, and shall
neither be merged in, nor in any way exclude or prejudice or be affected
by any other lien, right of recourse or other right whatsoever, present
or future, (or the invalidity thereof) which the Security Trustee or any
Lender Party may now or at any time hereafter hold or have (or would
apart from this security hold or have) from either Company or any
Subordinated Creditor or any other person in respect of the
Liabilities.
19.2 POWERS CUMULATIVE, ETC.: The powers which this Deed confers on the
Security Trustee and any Receiver appointed hereunder are cumulative,
without prejudice to their respective powers under the general law, and
may be exercised as often as the Security Trustee or the Receiver thinks
appropriate. The Security Trustee or the Receiver may, in connection with
the exercise of their powers, join or concur with any person in any
transaction, scheme or arrangement whatsoever. Each Company and each
Subordinated Creditor acknowledges that the respective powers of the
Security Trustee and the Receiver will in no circumstances whatsoever be
suspended, waived or otherwise prejudiced by anything other than an
express waiver or variation in writing.
19.3 AMOUNTS DEEMED NOT PAID: If the Security Trustee reasonably considers
that any amount paid by either Company or any Subordinated Creditor in
respect of the Liabilities is capable of being avoided or set aside on
the liquidation or administration of either Company or any Subordinated
Creditor or otherwise, then for the purposes of this Deed (other than any
provision requiring the payment of interest at the Default Rate) such
amount shall not be considered to have been paid.
19.4 SETTLEMENT AND DISCHARGE: Any settlement or discharge between either
Company or any Subordinated Creditor and the Security Trustee shall be
conditional upon no security or payment to the Security Trustee by either
Company or any Subordinated Creditor or any other person being avoided or
set-aside or ordered to be refunded or reduced by virtue of any provision
or enactment relating to bankruptcy, insolvency or liquidation for the
time being in force and if such condition is not satisfied (but without
limiting the other rights of the Security Trustee hereunder or under
Applicable Law), such settlement
-21-
or discharge shall be of no effect and the security created by this Deed
shall remain and/or shall be reinstated in full force and effect as if
such settlement or discharge had not occurred and the Security Trustee
shall, on behalf of the Lender Parties, be entitled to recover from
either Company and each Subordinated Creditor on demand the value (to the
extent of the value of the outstanding Obligations at the time of such
demand) of the security or payment so avoided, set-aside, refunded or
reduced.
20. DELEGATION
By way of supplement to the Trustee ▇▇▇ ▇▇▇▇, the Security Trustee or any
Receiver may delegate by power of attorney or in any other manner all or
any of the powers, authorities and discretions which are for the time
being exercisable by it or him under this Deed to any person or persons
as it or he shall think fit. Any such delegation may be made upon such
terms and conditions (including the power to subdelegate) as the Security
Trustee or such Receiver may think fit. Neither the Security Trustee nor
the Receiver will, in the absence of their own gross negligence or wilful
default, be liable or responsible to either Company or any Subordinated
Creditor or any other person for any losses, liabilities or expenses
arising from any act, default, omission or misconduct on the part of any
such delegate.
21. REDEMPTION OF PRIOR CHARGES
The Security Trustee may at any time following the security constituted
by this Deed becoming enforceable redeem any and all prior liens on or
relating to the security, charges and pledges constituted by this Deed or
any part thereof or procure the transfer of such liens to itself and may
settle and pass the accounts of the person or persons entitled to the
prior liens. The Security Trustee shall use its best efforts to give
prior notice to the relevant Company or Subordinated Creditor of any such
action but failure to give such notice shall not invalidate or otherwise
prejudice such action. Any account so settled and passed shall be
conclusive and binding on each Company and each Subordinated Creditor.
Each Company and each Subordinated Creditor will on demand pay to the
Security Trustee all principal monies, interest, costs, charges, losses,
liabilities and expenses of and incidental to any such redemption or
transfer.
22. NOTICES
All notices and other communications provided to any party hereto in
connection with this Deed shall be in writing and the provisions of
Section 11.2 of the Loan Agreement are hereby incorporated into this Deed
with all necessary consequential changes.
23. WAIVERS, ETC.
23.1. NO WAIVER: No failure or delay by the Security Trustee in exercising any
right, power or privilege under this Deed shall operate as a waiver
thereof nor shall any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
-22-
23.2 RIGHTS AND REMEDIES CUMULATIVE: The rights and remedies of the Security
Trustee provided in this Deed are cumulative and not exclusive of any
rights or remedies provided by law.
23.3 WAIVERS LIMITED: A waiver given or consent granted by the Security
Trustee under this Deed will be effective only if given in writing and
expressly in relation to this Deed and then only in the instance and
for the purpose for which it is given.
24. SEVERABILITY
If any provision of this Deed is or becomes invalid, illegal or
unenforceable in any respect under any law in any jurisdiction, the
validity, legality and enforceability of the remaining provisions will
not be affected or impaired in any way.
25. ASSIGNMENT
The Security Trustee may at any time assign or otherwise transfer all or
any part of its rights under this Deed in accordance with and subject to
the terms of the Loan Agreement. Neither Company nor any Subordinated
Creditor may at any time assign or otherwise transfer any of their rights
or obligations under this Deed.
26. COUNTERPARTS
This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the
same instrument.
27. PERPETUITY PERIOD
For purposes of the Perpetuities and Accumulations ▇▇▇ ▇▇▇▇ the duration
period of any trust established pursuant to this Deed shall be eighty
(80) years from the date of this Deed.
28. GOVERNING LAW: SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITY
28.1. GOVERNING LAW: This Deed and all matters and disputes relating hereto
shall be governed by, and construed in accordance with, English law.
28.2 JURISDICTION: Each of the parties hereto irrevocably agrees for the
benefit of the Security Trustee that the courts of England shall have
non-exclusive jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Deed and, for such purposes, irrevocably submits to
the non-exclusive jurisdiction of such courts.
28.3. WAIVER: Each Company and each Subordinated Creditor irrevocably waives
any objection which it might now or hereafter have to the courts referred
to in Section 28.2 being nominated as the forum to hear and determine any
suit, action or proceeding, and
-23-
to settle any disputes, which may arise out of or in connection with this
Deed and agrees not to claim that any such court is not a convenient or
appropriate forum.
28.4 PROCESS AGENT
(a) Each Company and each Subordinated Creditor agrees that the
process by which any suit, action or proceeding is begun may be
served on it by being delivered in connection with any suit,
action or proceeding in England, to it at:
Fleetside Legal Representative Services Limited
▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇.
or, if different, its principal place of business from time to
time.
28.5 NON-EXCLUSIVE: The submission to the jurisdiction of the courts referred
to in Section 28.2 shall not (and shall not be construed so as to) limit
the right of the Security Trustee or the Senior Creditors or any of them
to take proceedings against either Company or any Subordinated Creditor
in any other court of competent jurisdiction nor shall the taking of
proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not.
28.6 WAIVER OF IMMUNITY: To the extent that either Company or any of the
Subordinated Creditors may be entitled in any jurisdiction to claim for
itself or its assets immunity from suit, execution, attachment or other
legal process whatsoever, it hereby, irrevocably agrees not to claim and
hereby irrevocably waives such immunity to the fullest extent permitted
by the laws of such jurisdiction.
-24-
IN WITNESS whereof this Deed has been duly executed and delivered as a deed as
of the day and year first before written.
THE COMPANIES
EXECUTED AND DELIVERED as a deed,
by RANDGOLD RESOURCES (MORILA) LIMITED
By /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
EXECUTED AND DELIVERED as a deed.
by RANDGOLD RESOURCES LIMITED
By /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
-25-
THE SUBORDINATED CREDITORS
EXECUTED AND DELIVERED as a deed
by RANDGOLD RESOURCES LIMITED
By /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
EXECUTED AND DELIVERED as a deed,
by RANDGOLD & EXPLORATION COMPANY LIMITED
By /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
EXECUTED AND DELIVERED as a deed,
by RANDGOLD RESOURCES & (MORILA) LIMITED
By /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
-26-
EXECUTED AND DELIVERED as a deed
per pro N M ROTHSCHILD & SONS LIMITED,
as Security Trustee
Director /s/ [ILLEGIBLE]
______________________________
Name printed /s/ [ILLEGIBLE]
______________________________
Director /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
______________________________
▇▇▇▇▇▇ ▇▇▇▇▇
Name printed ______________________________
Assistant Company Secretary
-27-
SCHEDULE 1
TO
SUBORDINATION AGREEMENT
RANDGOLD RESOURCES LIMITED, a company incorporated under the laws of Jersey (in
its capacity as a creditor of the Borrower)
RANDGOLD & EXPLORATION COMPANY LIMITED, a company incorporated under laws of
South Africa
RANDGOLD RESOURCES (MORILA) LIMITED, as company incorporated under the laws of
Jersey.
-28-
SCHEDULE 2
TO
DEED OF SUBORDINATION
AND PLEDGE
INITIAL PROMISSORY NOTES
1. Promissory Note, dated February 22, 2000, issued by Morila in favour of
RRL or order in the principal amount of US$ 10,361,000.
2. Promissory Note, dated February 22, 2000, issued by RRL in favour of RECL
or order in the principal amount of R64,700,000.
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