EXECUTION COPY
Dated 25 September, 2001
between
RANDGOLD RESOURCES LIMITED
as the Chargor
-and-
N M ROTHSCHILD & SONS LIMITED
as the Security Trustee
______________________________________
DEBENTURE
______________________________________
▇▇▇▇▇
▇▇▇▇▇
& ▇▇▇▇▇
Bucklersbury House
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Telephone: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Facsimile: 020 7329 4465
Ref: 01863914
TABLE OF CONTENTS
PAGE
1. INTERPRETATION ............................................................. 1
1.1 In this Deed, unless the context otherwise requires, the following
expressions have the following meanings:.............................. 1
1.2 In this Deed: ........................................................ 3
2. COVENANT TO PAY ............................................................ 3
3. FIXED AND FLOATING CHARGES, ASSIGNMENTS .................................... 3
3.1 Fixed Charges ........................................................ 3
3.2 Assignment by way of Security ........................................ 3
3.3 Floating Charge ...................................................... 4
3.4 Ranking of Charges ................................................... 4
4. CONTINUING SECURITY, NO LIABILITY .......................................... 5
4.1 Continuing Nature .................................................... 5
4.2 Additional Security .................................................. 5
4.3 No Liability ......................................................... 5
5. FURTHER ASSURANCE .......................................................... 5
5.1 General .............................................................. 5
6. CRYSTALLISATION OF FLOATING CHARGE ......................................... 6
6.1 Crystallisation by Notice ............................................ 6
6.2 Automatic Crystallisation ............................................ 6
7. NEGATIVE PLEDGE AND DISPOSAL RESTRICTIONS .................................. 6
8. REPRESENTATIONS AND WARRANTIES ............................................. 7
8.1 Matters Represented .................................................. 7
8.2 General .............................................................. 7
9. UNDERTAKINGS ............................................................... 8
9.1 Duration of Undertakings ............................................. 8
9.2 General Undertakings ................................................. 8
9.3 Assigned Agreements and the Operating Account ........................ 8
9.4 Deposit of Documents ................................................. 8
9.5 Retention of Documents ............................................... 8
9.6 Power to Remedy ...................................................... 8
9.7 Indemnity ............................................................ 9
10. CHARGED SHARES ............................................................. 9
10.1 Charged Shares ....................................................... 9
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11. ATTORNEY ...................................................................11
12. ENFORCEMENT AND POWERS OF THE SECURITY TRUSTEE .............................12
12.1 Consolidation ........................................................12
12.2 Exclusion of Certain Provisions ......................................12
12.3 Statutory Powers .....................................................12
12.4 Power of Sale ........................................................12
12.5 Appointment of Receiver ..............................................12
12.6 Leasing and Surrenders ...............................................12
12.7 Power of Mortgagees ..................................................12
12.8 Jersey Security Interest .............................................13
13. STATUS, POWERS, REMOVAL AND REMUNERATION OF RECEIVER .......................13
13.1 Receiver as Agent of Chargor .........................................13
13.2 Powers of Receiver ...................................................13
13.3 Removal ..............................................................15
13.4 Remuneration .........................................................15
13.5 Multiple Receivers ...................................................15
14. APPLICATION OF MONEYS ......................................................15
14.1 Order of Application .................................................15
14.2 Exclusion of Certain Provisions ......................................16
14.3 Suspense Account .....................................................16
15. PROTECTION OF THIRD PARTIES ................................................16
15.1 No Duty to Enquire ...................................................16
15.2 Receipt on Absolute Discharge ........................................16
15.3 Purchaser ............................................................16
16. PROTECTION OF LENDER PARTIES AND RECEIVER ..................................16
16.1 No Liability for Exercise of Powers ..................................16
16.2 Possession of Charged Property .......................................17
17. COSTS AND EXPENSES .........................................................17
17.1 Indemnity ............................................................17
17.2 Default Interest .....................................................17
18. OTHER SECURITY, CUMULATIVE POWERS AND AVOIDANCE OF PAYMENTS ................17
18.1 Security Non-Exclusive ...............................................17
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18.2 Powers Cumulative, etc ...............................................18
18.3 Amounts Deemed not Paid ..............................................18
18.4 Settlement and Discharge .............................................18
19. NOTICE OF SUBSEQUENT CHARGE ................................................18
20. DELEGATION .................................................................18
21. REDEMPTION OF PRIOR CHARGES ................................................19
22. NOTICE .....................................................................19
23. NO IMPLIED WAIVERS .........................................................19
23.1 Failure or Delay in Acting ...........................................19
23.2 Rights and Remedies Cumulative .......................................19
23.3 Limited Effect .......................................................19
24. INVALIDITY OF ANY PROVISION ................................................19
25. ASSIGNMENT .................................................................20
26. COUNTERPARTS ...............................................................20
27. PERPETUITY PERIOD ..........................................................20
28. CERTIFICATES CONCLUSIVE ....................................................20
29. BENEFIT OF UNDERTAKINGS ....................................................20
30. GOVERNING LAW AND SUBMISSION TO JURISDICTION ...............................20
SCHEDULES
SCHEDULE 1 CHARGED SHARES
SCHEDULE 2 FORM OF NOTICE OF ASSIGNMENT AND FORM OF ACKNOWLEDGEMENT
SCHEDULE 3 FORM OF NOTICE OF ASSIGNMENT AND FORM OF ACKNOWLEDGEMENT IN
RESPECT OF THE OPERATING ACCOUNT
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THIS DEBENTURE is made on 25 September, 2001, between:
(1) RANDGOLD RESOURCES LIMITED, a company organised and existing under the
laws of Jersey (the "CHARGOR"); and
(2) N M ROTHSCHILD & SONS LIMITED whose registered office is situated at ▇▇▇
▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ in its capacity as the Agent
and the Security Trustee for the Lenders (in such capacity, the
"SECURITY TRUSTEE", which expression shall include any person for the
time being appointed as trustee or as an additional trustee for the
purpose of, and in accordance with, this Deed).
NOW THIS DEED WITNESSES as follows:-
1. INTERPRETATION
1.1 In this Deed, unless the context otherwise requires, the following
expressions have the following meanings:
"ASSIGNED AGREEMENT(S)" means such contracts to which the Chargor is a
party as may be agreed to from time to time between the Security Trustee
and the Chargor.
"CHARGED PROPERTY" means all the assets, property, goodwill and
undertaking of the CHARGOR from time to time charged or assigned to the
Security Trustee pursuant to Clause 3.1, 3.2 and 3.3.
"CHARGED SHARE ISSUERS" means MIJL and Somilo.
"CHARGED SHARES" means:
(a) the shares of each Charged Share Issuer identified in Schedule
1; and
(b) all shares of each Charged Share Issuer which are held by, or
to the order or on behalf of, the Chargor at any time and which
are delivered by the Chargor to the Security Trustee as Charged
Property under this Deed.
"CHARGOR" has the meaning given to it in the preamble.
"COUNTERPARTY NOTICE" means each notice in the form set out in Schedule
2 and 3 or in such other form as is required by, or acceptable to, the
Security Trustee.
"DEED" means this debenture as amended, supplemented or substituted from
time to time.
"DEFAULT RATE" means the rate of interest, provided for under Clause
3.2.2 of the Loan Agreement for payment on overdue and unpaid sums
thereunder.
"DISPOSAL" shall be construed as any sale, lease, transfer, conveyance,
assignment, licence, sublicence or other disposal (including any other
transaction or arrangement pursuant to which the economic or other
commercial benefit of the existing and/or remaining assets of the
relevant person is lost or materially diluted) and "Dispose" shall be
construed accordingly.
"DISTRIBUTION" means all stock dividends, liquidating dividends, shares
of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends,
mergers, consolidations and all other distributions (whether similar or
dissimilar to the foregoing) on or with respect to any Charged Shares or
other shares constituting Charged Property, but shall not include
Dividends.
"DIVIDEND" means cash dividends and cash distributions with respect to
any Charged Shares made in the ordinary course of business and not a
liquidating dividend.
"LIABILITIES" means all Obligations of the Chargor 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, future, actual or
contingent, whether incurred solely or jointly with any other person and
whether as principal or surety in each case under the Loan 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 17 September, 2001, as
amended, modified or supplemented from time to time, among the Chargor,
as Borrower, various banks and financial institutions referred to (and
defined) therein as the Lenders and the Arrangers and N M Rothschild &
Sons Limited, as the Agent for the Lenders.
"MIJL" means Mining Investments (Jersey) Limited, a company organised
and existing under the laws of Jersey.
"OPERATING ACCOUNT BANK" means Citibank N.A. located at ▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
"PERMITTED LIEN" means any lien that the Chargor is entitled to incur
under Clause 8.2.3 of the Loan Agreement entered into in connection with
the Morila Project Financing.
"PROCEEDS" means any proceeds from any Disposal of the Charged Property.
"RECEIVER" means any one or more administrative receivers, receivers and
managers, administrator, 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 the Chargor or over all or
any of the Charged Property.
"SECURITY TRUSTEE" has the meaning given to it in the preamble.
"S.I. LAW" means the Security Interests (Jersey) Law, 1983
"SOMILO" means Randgold Resources (Somilo) Limited, a company organised
and existing under the laws of Jersey.
1.2 In this Deed:
(a) the terms of the documents under which the Liabilities arise
and of any side letters between the Chargor and the Agent (or
any of them) relating thereto are
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incorporated herein to the extent required for any purported
disposition of the Charged Property contained in this Deed to
be a valid disposition in accordance with Section 2(1) of the
Law of Property (Miscellaneous Provisions) ▇▇▇ ▇▇▇▇;
(b) the parties intend that this document shall take effect as a
deed;
(c) capitalised terms used but not defined in this Deed (including
the preamble and recitals hereto) have the same meanings as in
the Loan Agreement;
(d) this Deed is a Loan Document and shall be interpreted and
construed in accordance with the terms and provisions of the
Loan Agreement (including Clauses 1.2 to 1.5 thereof which are
hereby incorporated into this Deed with all necessary
consequential changes); and
(e) any reference to any statute or statutory provision shall,
unless the context otherwise requires, be construed as a
reference to such statute or statutory provision as the same
may have been or may be amended, modified, extended,
consolidated, re-enacted or replaced from time to time.
2. COVENANT TO PAY
The Chargor covenants with the Security Trustee that it will pay to each
Lender Party the Liabilities as and when the same fall due for payment
to such Lender Party.
3. FIXED AND FLOATING CHARGES, ASSIGNMENTS
3.1 FIXED CHARGES
As a continuing security for the discharge of the Liabilities, the
Chargor hereby agrees that the Security Trustee or such nominee as the
Security Trustee may from time to time specify shall have possession of
the certificates of title to the Charged Shares.
In addition, as a continuing security for the payment of the
Liabilities, the Chargor hereby charges with full title guarantee in
favour of the Security Trustee on trust for the Lender Parties (to the
extent not effectively assigned by way of security pursuant to Clause
3.2) all rights and interests of the Chargor in and claims and benefits
under the Assigned Agreements and all proceeds thereof, both present and
future, and in which the Chargor is from time to time interested by way
of first fixed charge.
3.2 ASSIGNMENT BY WAY OF SECURITY
As further continuing security for the payment of the Liabilities, the
Chargor assigns by way of security 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 all monies from time to time standing to the credit
of the Operating Account and the Assigned Agreements. The foregoing
assignment of rights, title and interest in and benefits under the
Assigned Agreements shall include:
(a) all claims for damages or other remedies in respect of any
breach of any Assigned Agreement;
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(b) all moneys whatsoever which are now or may at any time
hereafter be or become due or owing to the Chargor under or
arising out of the Assigned Agreements or in connection with
the rights of the Chargor evidenced thereby; and
(c) all rights and remedies for enforcing the Assigned Agreements
in the name of the Chargor 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 the Chargor 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.
(d) Notwithstanding the foregoing, as long as no Event of Default
has occurred and is continuing, the Chargor may, subject to the
terms and conditions of the Loan Agreement 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.
3.3 FLOATING CHARGE
The Chargor with full title guarantee and as a continuing security for
the payment and discharge of the Liabilities charges in favour of the
Security Trustee on trust for the Lender Parties by way of floating
charge the whole of the undertaking and all the assets, rights and
income of the Chargor both present and future, subject always to any
mortgage, charge or assignment under this Deed and subject always to any
Permitted Liens.
3.4 RANKING OF CHARGES
The charge created by Clause 3.3 shall be a first floating charge unless
and until it is converted into a fixed charge pursuant to Clause 6 or by
operation of law.
For the purposes of the S.I. Law, this Debenture is additionally to
constitute a security agreement in respect of the Charged Shares and the
Operating Account held by or assigned to the Security Trustee. The
Chargor, to give security to the Security Trustee for the payment and
discharge of the Liabilities (and to the intent that the Security
Trustee shall have a security interest extending to all the Chargor's
rights, title and interest in and to the Charged Shares and the
Operating Account), agrees that the Security Trustee shall (i) have
possession of the certificates of title to the Charged Shares pursuant
to Clause 3.1 of this Debenture and (ii) be assigned the Operating
Account pursuant to Clause 3.2 of this Debenture.
4. CONTINUING SECURITY, NO LIABILITY
4.1 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
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intermediate satisfaction by the Chargor or any other person of the
whole or any part of the Liabilities.
4.2 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 Liabilities or any part
thereof and this security may be enforced against the Chargor without
first having recourse to any other rights of the Security Trustee or any
other Lender Party.
4.3 NO LIABILITY
Notwithstanding anything herein to the contrary:
(a) the Chargor shall remain liable under the Assigned Agreements
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 the Chargor from any of its duties
or obligations under the Assigned Agreements; and
(c) the Security Trustee shall have no obligation or liability
under any of the Assigned Agreements by reason of this Deed nor
shall the Security Trustee be obligated to perform any of the
obligations or duties of the Chargor thereunder or to take any
action to collect or enforce any claim for payment assigned
hereunder.
5. FURTHER ASSURANCE
5.1 GENERAL
(a) The Chargor will at its 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 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. In particular, but
without limitation, the Chargor will:
(i) execute a legal assignment in such form as the
Security Trustee may reasonably require over all or
any of the debts, rights, claims and contracts hereby
charged; and
(ii) otherwise execute all charges, mortgages, transfers,
conveyances, assignments and assurances whatsoever
with respect to the Charged Property and give all
notices, orders, instructions and directions
whatsoever which the Security Trustee may reasonably
consider necessary to more fully give effect to the
security and other rights created and granted in
favour of the Security Trustee pursuant to this Deed.
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(b) Any security document required to be executed by the Chargor
pursuant to this Clause will be prepared at the cost of the
Chargor and will contain provisions substantially corresponding
to the provisions set out in this Deed.
6. CRYSTALLISATION OF FLOATING CHARGE
6.1 CRYSTALLISATION BY NOTICE
The Security Trustee may at any time by notice in writing to the Chargor
convert the floating charge referred to in Clause 3.3 into a fixed
charge with immediate effect as regards any Charged Property specified
in the notice which the Security Trustee shall consider to be in danger
of seizure, distress, diligence or other legal process or otherwise for
any reason whatsoever in jeopardy.
6.2 AUTOMATIC CRYSTALLISATION
Notwithstanding Clause 6.1 and without prejudice to any rule of law
having a similar effect, the floating charge shall automatically be
converted into a fixed charge with immediate effect as regards all
assets subject to the floating charge created by Clause 3.3 on:
(a) any Charged Property becoming subject to a lien, other than
pursuant to this Debenture, or being disposed of contrary to
the provisions of Clause 7 or otherwise being in jeopardy; or
(b) any person levying or notifying the Chargor that it intends to
levy any distress, execution, sequestration or other process
against any Charged Property; or
(c) the Chargor ceasing to carry on business or to be a going
concern; or
(d) the occurrence of an Event of Default.
7. NEGATIVE PLEDGE AND DISPOSAL RESTRICTIONS
Except to the extent permitted by the terms of the Loan Agreement,
during the continuance of the security constituted by this Deed the
Chargor will not without the prior consent in writing of the Security
Trustee (acting on the instructions of such of the Lender Parties as may
be required pursuant to Clauses 9.3 and 10.1 of the Loan Agreement):
(a) create, incur, assume or suffer to exist any lien upon the
whole or any part of the Charged Property; or
(b) sell, transfer, lease or otherwise dispose of any of, or grant
options, warrants or other rights with respect to, any part of
the Charged Property, or agree or attempt to do so.
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8. REPRESENTATIONS AND WARRANTIES
8.1 MATTERS REPRESENTED
In order to induce the Security Trustee to enter into this Deed and, in
the case of the Lenders, to make and continue to make Loans under the
Loan Agreement, the Chargor represents and warrants unto each Lender
Party as set forth in this Clause. The representations and warranties
set forth in this Clause 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).
8.2 GENERAL
(a) POWER AND AUTHORITY: Its memorandum and articles of association
or other constitutional documents 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 and
Jersey.
(b) NO CONTRAVENTION: Neither the execution and delivery of this
Deed nor the performance of any of its obligations hereunder do
or will:
(i) conflict with its memorandum or articles of
association or other Organic Documents; or
(ii) cause any borrowing, negative pledge or other
limitation on the Chargor or the powers of the
directors or other officers of the Chargor to be
exceeded.
(c) DEBTS: It is not unable to pay its debts within the meaning of
Section 123 of the Insolvency ▇▇▇ ▇▇▇▇ or within the meaning of
any equivalent legislation in Jersey.
(d) NO LIENS: The Chargor has good and marketable title to all its
assets and none of the assets of the Chargor is affected by any
lien other than a Permitted Lien and the Chargor is not a party
to, nor is it or any of its assets bound or affected by, any
order, licence, permit, consent, agreement or instrument under
which the Chargor is, or in certain events may be, required to
create, assume or permit to arise any lien other than a
Permitted Lien or a lien expressly permitted by this Deed.
(e) CHARGED SHARES: All of the Charged Shares are duly authorised
and validly issued, fully paid and non-assessable and
constitute the entire issued and outstanding shares of each
Charged Share Issuer.
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9. UNDERTAKINGS
9.1 DURATION OF UNDERTAKINGS
The Chargor undertakes to the Security Trustee in the terms of the
following provisions of this Clause 9, such undertakings to commence on
the date of this Deed and to continue for so long as the security
constituted by this Deed (or any part thereof) remains in force.
9.2 GENERAL UNDERTAKINGS
(a) NOT JEOPARDISE SECURITY: It will not do or cause or permit to
be done anything which may in any way materially depreciate,
jeopardise or otherwise prejudice the value to the Security
Trustee of the security constituted by this Deed.
(b) OBSERVE COVENANTS: It will observe and perform all covenants
and stipulations from time to time affecting the Charged
Property (including any lease) and all terms and conditions of
the Loan Agreement and the other Loan Documents as the same
relate to any of the Charged Property.
9.3 ASSIGNED AGREEMENTS AND THE OPERATING ACCOUNT
In addition to its undertakings contained in the other Loan Documents,
the Chargor will immediately, upon execution of this Deed, give notice
to the other parties to the Assigned Agreements and the Operating
Account Bank that it has assigned its rights in respect of the Assigned
Agreements and the Operating Account, respectively, to the Security
Trustee by way of assignment pursuant to this Deed, such notice to be
substantially in the form of the Counterparty Notice for such other
party.
9.4 DEPOSIT OF DOCUMENTS
The Chargor will promptly on request deposit with the Security Trustee
(or as it shall direct) all such documents relating to the Charged
Property as the Security Trustee may from time to time reasonably
require.
9.5 RETENTION OF DOCUMENTS
The Security Trustee may retain any document delivered to it pursuant to
Clause 9.4 or otherwise until the security created by this Deed is
released and if, for any reason it delivers any such document before
such time to the Chargor it may by notice to the Chargor require that
the relevant document be redelivered to it and the Chargor shall
immediately comply (or procure compliance) with such notice.
9.6 POWER TO REMEDY
If the Chargor fails to comply with any of the covenants set out in
Clauses 9.2 to 9.5, the Chargor will allow (and hereby irrevocably
authorises) the Security Trustee and/or such persons as it shall
nominate to take such action on behalf of the Chargor as shall be
necessary to ensure that such convenants are complied with.
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9.7 INDEMNITY
The Chargor will indemnify the Security Trustee and will keep the
Security Trustee indemnified against all losses, costs, charges and
expenses incurred by the Security Trustee as a result of a breach by the
Chargor of its obligations under this Clause and in connection with the
exercise by the Security Trustee of its rights contained in Clause 9.6.
All sums the subject of this indemnity will be payable by the Chargor to
the Security Trustee on demand and if not so paid will bear interest at
the Default Rate. Any unpaid interest will be compounded at such
intervals as the Security Trustee may select from time to time.
10. CHARGED SHARES
10.1 CHARGED SHARES
(a) The Chargor shall:
(i) CALLS: duly and promptly pay all calls, instalments or
other monies which may from time to time become due in
respect of any of the Charged Shares, it being
acknowledged by the Chargor that none of the Lender
Parties shall in any circumstances incur any liability
whatsoever in respect of any such calls, instalments
or other monies;
(ii) SHARE CERTIFICATES: deliver to the Security Trustee
all certificates or instruments representing or
evidencing any Charged Shares in suitable form for
transfer by delivery and accompanied by all necessary
instruments of transfer, duly executed in blank;
(iii) ADDITIONAL CERTIFICATES: if the Chargor shall become
entitled to receive or shall receive any stock or
other certificate (including any certificate
representing a Dividend or a Distribution in
connection with any reclassification, increase or
reduction of capital or any certificate issued in
connection with any reorganisation), option or rights,
whether in addition to, in substitution of, as a
conversion of, or in exchange for any portion of the
Charged Shares (or otherwise in respect thereof),
accept the same as the agent of the Security Trustee,
hold the same in trust (but without being obliged to
create any registerable lien) for the Security
Trustee, in the exact form received, duly endorsed (in
blank) by the Chargor to the Security Trustee, and if
required by the Security Trustee, together with a duly
executed undated blank stock transfer form or other
equivalent instrument of transfer acceptable to the
Security Trustee, to be held by the Security Trustee,
subject to the terms of this Deed, as additional
security for the Liabilities;
(iv) ADDITIONAL SHARES IN THE CHARGED SHARE ISSUER: except
as permitted to the contrary by any Loan Document, at
all times, keep charged to the Security Trustee
pursuant hereto all Charged Shares, all Dividends and
Distributions with respect thereto, all interest,
principal and other proceeds received by the Security
Trustee and all other Charged Shares, instruments,
proceeds, and rights from time to time received by or
distributable to the Chargor in respect of any Charged
Shares and
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will not permit any Charged Share Issuer to issue any
shares which shall not have been immediately duly
charged hereunder on a first priority perfected basis;
(v) PAYMENT OF DIVIDENDS, ETC TO THE SECURITY TRUSTEE:
after any Event of Default shall have occurred and be
subsisting, promptly upon receipt of notice thereof by
the Chargor and without any request therefore by the
Security Trustee, to deliver (properly endorsed where
required hereby or requested by the Security Trustee)
to the Security Trustee all Dividends, Distributions,
all interest, all principal, all other cash payments,
and all proceed of any Charged Shares which form part
of the Charged Property, all of which shall be held by
the Security Trustee for the benefit of the Secured
Parties as additional Charged Property for use in
accordance with Clause 14; and
(vi) CHARGED PROPERTY HELD ON TRUST: hold separate and
apart from its other property in trust for the
Security Trustee all Dividends, Distributions,
interest, principal, cash payments, and proceeds which
may at any time and from time to time be held by the
Chargor, but which the Chargor is obliged to deliver
to the Security Trustee, pursuant to the terms of this
Deed, until delivery to the Security Trustee.
(b) DIVIDENDS: In the event that any Dividend or other payment is
to be paid on any Charged Share at a time when no Event of
Default has occurred and is subsisting or would result
therefrom, such Dividend or payment shall be paid directly to
the Chargor and the Security Trustee hereby releases any such
Dividend or payment from the security created by this
Debenture. If any such Event of Default has occurred and is
subsisting, then any such Dividend or payment shall be paid
directly to the Security Trustee and any such Dividend or
payment shall form part of the Charged Property.
(c) STOCK TRANSFERS: The Chargor agrees that all Charged Shares
delivered by the Chargor pursuant to this Deed will be
accompanied by duly executed undated blank stock transfer
forms, or other equivalent instruments of transfer acceptable
to the Security Trustee. The Chargor will, from time to time
upon the request of the Security Trustee, promptly deliver to
the Security Trustee such stock transfer forms, instruments,
and similar documents, satisfactory in form and substance to
the Security Trustee, with respect to the Charged Property as
the Security Trustee may reasonably request and will, from time
to time upon the request of the Security Trustee after the
occurrence of any Event of Default, promptly transfer any
Charged Shares or other shares constituting Charged Property
into the name of any nominee designated by the Security
Trustee.
(d) VOTING: The Security Trustee agrees that unless an Event of
Default shall have occurred and be subsisting, the Chargor
shall have the exclusive voting power with respect to the
Charged Shares; provided, however, that no vote shall be cast,
or consent, waiver, or ratification given, or action taken by
the Chargor that would impair any Charged Property or be
inconsistent with or
-10-
violate any provision of the Loan Agreement or any other Loan
Document (including this Deed).
(e) VOTING AFTER DEFAULT: After any Event of Default shall have
occurred and be subsisting and the Security Trustee has
notified the Chargor of the Security Trustee's intention to
exercise its voting power under this Clause 10.1(e):
(i) the Security Trustee may exercise (to the exclusion of
the Chargor) the voting power and all other incidental
rights of ownership with respect to any Charged Shares
and the Chargor hereby grants the Security Trustee an
irrevocable proxy, exercisable under such
circumstances, to vote the Charged Shares; and
(ii) promptly to deliver to the Security Trustee such
additional proxies and other documents as may be
necessary to allow the Security Trustee to exercise
such voting power.
(f) LIQUIDATION OF CHARGED SHARE ISSUER: In addition, any sums paid
upon or in respect of the Charged Shares upon the liquidation
or dissolution of any Charged Share Issuer shall be held by the
Security Trustee as additional security for the Secured
Liabilities. If any sums of money or property so paid or
distributed in respect of any Charged Shares shall be received
by the Chargor, then the Chargor shall, until such money or
property is paid or delivered to the Security Trustee, hold
such money or property in trust for the Security Trustee,
segregated from other funds of the Chargor, as additional
collateral securing the Liabilities.
11. ATTORNEY
The Chargor hereby irrevocably and by way of security appoints the
Security Trustee and every Receiver of the Charged Property 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 and the
Chargor hereby convenants 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 the Chargor 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 ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
-11-
12. ENFORCEMENT AND POWERS OF THE SECURITY TRUSTEE
12.1 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.
12.2 EXCLUSION OF CERTAIN PROVISIONS
Section 103 of the Law of Property ▇▇▇ ▇▇▇▇ shall not apply to the
charges 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.
12.3 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.
12.4 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.
12.5 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 the Chargor, 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 Charged Property.
12.6 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.
12.7 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 Chargor at any time after this security
-12-
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 Charged Property.
12.8 JERSEY SECURITY INTEREST
For the purposes of the security created pursuant to Clauses 3.1 and 3.2
over the Charged Shares and Operating Account, upon the occurrence of
any Event of Default, which shall also be an "event of default" under
the S.I. Law, the Security Trustee may, having given notice thereof to
the Chargor, exercise the powers of sale and appropriation conferred
upon it by the S.I. Law and the parties hereby waive the requirement of
an order of the Courts of Jersey to exercise such powers.
13. STATUS, POWERS, REMOVAL AND REMUNERATION OF RECEIVER
13.1 RECEIVER AS AGENT OF CHARGOR
Any Receiver appointed hereunder shall be the agent of the Chargor and
the Chargor 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.
13.2 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 Chargor:
(a) to take possession of, collect and get in all or any part of
the Charged Property and for that purpose to take any
proceedings in the name of the Chargor or otherwise as he
thinks fit;
(b) generally to manage the Charged Property and to manage or
carry on, reconstruct, amalgamate, diversify or concur in
carrying on the business or any part thereof of the Chargor 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
-13-
deal with, all or any part of the Charged Property 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 Charged Property 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 Charged Property 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 Charged Property 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 the
Charged Shares and stocks, shares and other securities owned by
the Chargor and comprised in the Charged Property in such
manner as he may think fit;
(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 the Chargor 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 Charged Property upon such terms as to
remuneration or otherwise as he may think fit and to dismiss
the same or discharge any persons appointed by the Chargor;
(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 the
Chargor or relating in any way to the Charged Property 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
the Chargor in relation to the Charged Property 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
Charged Property 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;
-14-
(o) to make calls conditionally or unconditionally on the members
of the Chargor 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 conducive to any of the matters or
powers aforesaid or otherwise incidental or conducive to the
preservation, improvement or realisation of the Charged
Property and to use the name of the Chargor for all the
purposes aforesaid.
13.3 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 ▇▇▇ ▇▇▇▇ 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.
13.4 REMUNERATION
The Security Trustee may from time to time fix the remuneration of any
Receiver appointed by it.
13.5 MULTIPLE RECEIVERS
If at any time there is more than one Receiver of all or any part of the
Charged Property, 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).
14. APPLICATION OF MONEYS
14.1 ORDER OF APPLICATION
Subject to the S.I. Law, 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 the Chargor or other
persons lawfully entitled to it.
-15-
14.2 EXCLUSION OF CERTAIN PROVISIONS
Sections 109(6) and (8) of the Law of Property ▇▇▇ ▇▇▇▇ shall not apply
to a Receiver appointed under this Deed.
14.3 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 the Chargor or the Lender Parties 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.
15. PROTECTION OF THIRD PARTIES
15.1 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.
15.2 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.
15.3 PURCHASER
In Clauses 15.1 and 15.2 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.
16. PROTECTION OF LENDER PARTIES AND RECEIVER
16.1 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 Charged Property 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
-16-
powers, unless such loss or damage is caused by its or his negligence or
wilful default.
16.2 POSSESSION OF CHARGED PROPERTY
Without prejudice to the generality of Clause 16.1, entry into
possession of the Charged Property 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 Charged Property, it shall be entitled at any
time at its discretion to go out of such possession.
17. COSTS AND EXPENSES
17.1 INDEMNITY
The Chargor 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 Charged
Property, including any present or future stamp or other taxes or duties
and any penalties or interest with respect thereto 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 the Chargor or a third person)
being impeached or declared void for any reason whatsoever.
17.2 DEFAULT INTEREST
The amounts payable under Clause 17.1 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 Charged
Property 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.
18. OTHER SECURITY, CUMULATIVE POWERS AND AVOIDANCE OF PAYMENTS
18.1 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 the Chargor or any other person in respect
of the Liabilities.
-17-
18.2 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. The Chargor 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.
18.3 AMOUNTS DEEMED NOT PAID
If the Security Trustee reasonably considers that any amount paid by the
Chargor in respect of the Liabilities is capable of being avoided or set
aside on the liquidation or administration of the Chargor 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.
18.4 SETTLEMENT AND DISCHARGE
Any settlement or discharge between the Chargor and the Security Trustee
shall be conditional upon no security or payment to the Security Trustee
by the Chargor 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 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 the Chargor on demand the value (to the extent of the
value of the outstanding Liabilities at the time of such demand) of the
security or payment so avoided, set-aside, refunded or reduced.
19. NOTICE OF SUBSEQUENT CHARGE
If the Security Trustee or any Lender Party receives notice of any
subsequent lien or other interest affecting all or any of the Charged
Property then it may open a new account or accounts for the Chargor in
its books and if it does not do so then (unless it gives express written
notice to the contrary to the Chargor) as from the time of receipt of
such notice by the Security Trustee or the relevant Lender Party, all
payments made by the Chargor to the Security Trustee or the relevant
Lender Party (in the absence of any express appropriation to the
contrary) shall be treated as having been credited to a new account of
the Chargor and not as having been applied in reduction of the
Liabilities.
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,
-18-
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 negligence or wilful default,
be liable or responsible to the Chargor 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 Charged Property 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 Chargor 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 the Chargor. The Chargor 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. NOTICE
All notices and other communication provided to any party hereto in
connection with this Deed shall be in writing and the provisions of
Clause 10.2 of the Loan Agreement are hereby incorporated into this Deed
with all necessary consequential changes.
23. NO IMPLIED WAIVERS
23.1 FAILURE OR DELAY IN ACTING
No failure or delay by any Lender Party 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.
23.2 RIGHTS AND REMEDIES CUMULATIVE
The rights and remedies of the Lender Parties provided in this Deed are
cumulative and not exclusive of any rights or remedies provided by law.
23.3 LIMITED EFFECT
A waiver given or consent granted by the Security Trustee under this
Deed will be effective only if given in writing and then only in the
instance and for the purpose for which it is given.
24. INVALIDITY OF ANY PROVISION
If any provision of this Deed is or becomes invalid, illegal or
unenforceable in any jurisdiction in any respect under any law, the
validity, legality and enforceability of the remaining provisions will
not be affected or impaired in any way.
-19-
25. ASSIGNMENT
(a) The Lender Parties may at any time assign or otherwise transfer
all or any part of their rights under this Deed in accordance
with and subject to the terms of the Loan Agreement. The
Chargor may not at any time assign or otherwise transfer any of
its 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 ▇▇▇ ▇▇▇▇ any trust
created under this Deed shall be deemed to have been created for a
period of eighty (80) years commencing on the date of this Deed.
28. CERTIFICATES CONCLUSIVE
A certificate, determination, notification or opinion of the Security
Trustee as to any amount payable under any Loan Document will be
conclusive and binding on the Chargor except in the case of manifest
error.
29. BENEFIT OF UNDERTAKINGS
The Security Trustee shall hold the benefit of the covenants, charges
and other undertakings given by the Chargor pursuant to this Deed upon
trust for the Lender Parties, provided that the Security Trustee's sole
obligations to the Lenders shall be those set out in Clause 9 of the
Loan Agreement.
30. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(a) GOVERNING LAW: This Deed and all matters and disputes relating
hereto shall be governed and construed in accordance with
English law, save for the creation of security pursuant to
Clauses 3.1 and 3.2 over the Charged Shares and Operating
Account and the enforcement thereof which shall be governed by
and construed in accordance with Jersey law.
(b) JURISDICTION: Each of the parties hereto irrevocably agrees for
the benefit of each of the Lender Parties 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.
(c) FORUM: The Chargor irrevocably waives any objection which it
might now or hereafter have to the courts referred to in clause
(b) being nominated as the forum 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 agrees not
to claim that any such court is not a convenient or appropriate
forum.
-20-
(d) PROCESS AGENT: The Chargor 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
▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
(e) NON-EXCLUSIVE: The submission to the jurisdiction of the courts
referred to in clause (b) shall not (and shall not be construed
so as to) limit the right of the Lender Parties or any of them
to take proceedings against the Chargor 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.
(f) WAIVER OF IMMUNITY: To the extent that the Chargor 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.
-21-
SCHEDULE 1
CHARGED SHARES
-----------------------------------------------------------------------------------------------------
SHARE
DESCRIPTION CERTIFICATE PERCENTAGE OF
ISSUED AND NUMBER OF NUMBER (S) OF ISSUED SHARE
CHARGED SHARE SHARE SHARES SHARES CAPITAL
ISSUER CAPITAL CHARGED CHARGED CHARGED
-----------------------------------------------------------------------------------------------------
Mining Investments 2 shares 2 ordinary No. 1 and No. 2 100%
(Jersey) Limited shares of U.S.$1
each
-----------------------------------------------------------------------------------------------------
Randgold Resources 200 shares 200 ordinary No. 4 and No. 5 100%
(Somilo) Limited shares of
U.S.$0.01 each
-----------------------------------------------------------------------------------------------------
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SCHEDULE 2
FORM OF NOTICE OF ASSIGNMENT AND FORM OF ACKNOWLEDGEMENT
PART I
FORM OF NOTICE OF ASSIGNMENT
To: [___]
From: Randgold Resources Limited (the "CHARGOR")
and
N M Rothschild & Sons Limited As Security Trustee
[Date]
[__], [__]
Dear Sirs,
NOTICE OF ASSIGNMENT
We refer to the [___] Agreement (the "AGREEMENT") between the CHARGOR and [___],
dated [___], [___].
We hereby notify you that Randgold Resources Limited (the "CHARGOR") has
assigned to N M Rothschild & Sons Limited, as Security Trustee (the "SECURITY
TRUSTEE") pursuant to a Debenture, dated [___], [___] (the "DEBENTURE"), between
the CHARGOR and the Security Trustee (in connection with the Loan Agreement,
dated [___], 2001, among, inter alia, the Chargor, the Lenders and Arrangers
referred to therein, and N M Rothschild & Sons Limited, as the Agent (the "LOAN
AGREEMENT")), all its present and future right, title and interest under, to
and in the Agreement as security for certain obligations owed by the Chargor to
the Lender Parties (as defined therein) and the Security Trustee.
Words and expressions defined in the Debenture shall, unless otherwise defined
herein, have the same meaning when used in this letter (the "NOTICE OF
ASSIGNMENT").
[A copy of the Debenture is enclosed for your attention and we request that you
take note of its provisions.]
Please note the following:
1. The Chargor shall at all times remain solely liable to you for the
performance of all of the obligations assumed by it under or in respect
of the Agreement.
2. The Chargor irrevocably and unconditionally instructs you to pay the
full amount of any sum which you are (or would, but for the Debenture,
be) at any time obliged to pay to it under or in respect of the
Agreement:
(a) unless and until the Security Trustee gives you notice of an
Event of Default, to the following bank account:
-23-
[Specify full details of the Operating Account as required by
the Loan Agreement (the "Operating Account")]; and
(b) at all times after the Security Trustee has given you notice of
an Event of Default as referred to in paragraph (i) above, to
such bank account as the Security Trustee may from time to time
specify to you.
1. The Security Trustee has agreed that the Chargor may exercise all of the
rights, powers, discretions and remedies which would (but for the
Debenture) be vested in the Chargor under and in respect of the
Agreement unless and except to the extent that the Security Trustee
gives you notice of an Event of Default. Upon and after the giving of
any such notice of an Event of Default, the Security Trustee shall be
entitled to exercise and give directions regarding the exercise of all
or any of those rights, powers, discretions and remedies (to the
exclusion of the Chargor and to the exclusion of any directions given at
any time by or on behalf of the Chargor) to the extent specified in the
notice of an Event of Default.
2. The Chargor has irrevocably and unconditionally appointed the Security
Trustee to be its attorney to do (among other things) all things which
the Chargor itself could do in relation to the Agreement.
3. The Chargor confirms that:
(a) in the event of any conflict between communications received
from the Chargor and from the Security Trustee, the
communication from the Security Trustee shall prevail; and
(b) none of the instructions, authorisations and confirmations in
this notice can be revoked or varied in any way except with the
Security Trustee's specific prior written consent.
Please acknowledge receipt of this notice, and confirm your agreement to it, by
executing and returning to the Security Trustee an original copy of the Form of
Acknowledgement attached to this notice of assignment.
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This notice is governed by English law.
Yours truly,
________________________________________________
Randgold Resources Limited
________________________________________________
per pro N M Rothschild & Sons Limited,
as Security Trustee
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SCHEDULE 2
PART II
FORM OF ACKNOWLEDGEMENT
To: N M Rothschild & Sons Limited
▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇-▇▇▇▇-▇▇▇▇
(as Security Trustee)
Attn: ▇▇▇▇▇ Street/▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs,
RE: [DESCRIBE ASSIGNED AGREEMENT] (THE "AGREEMENT")
We acknowledge receipt of the Notice of Assignment, dated [___], [___], (a copy
of which is attached to this letter) [and the copy of the Debenture enclosed
with that notice]. Words and expressions defined in the Debenture and the
attached Notice of Assignment shall, unless otherwise defined herein, have the
same meanings in this letter.
In consideration of the Lender Parties agreeing to provide finance and financial
support pursuant to the Loan Documents, we confirm that:
1. we consent to the assignment of the Agreement and have noted, and will
act in accordance with, the terms of the Notice of Assignment;
2. we have not previously received notice of any other assignment of the
Agreement and we are not aware of any interest of any third party in any
of the Chargor's rights, benefits, interests or claims under or in
respect of the Agreement;
3. we irrevocably and unconditionally agree to pay the full amount of any
sum which we are (or would but for the Debenture, be) at any time
obliged to pay under or in respect of the Agreement:
(a) unless and until the Security Trustee gives us notice of an
Event of Default, to the Operating Account;
(b) at all times, after the Security Trustee has given us notice of
an Event of Default, to such bank account as the Security
Trustee may from time to time specify;
4. we acknowledge that the Chargor shall at all times remain solely liable
to us for the performance of all of the obligations assumed by it under
the Agreement, and that neither the Security Trustee nor any other
Lender Party is or will be under any
-26-
liability or obligation whatever in the event of any failure by the
Chargor to perform its obligations under the Agreement.
This letter is governed by English law.
Yours truly,
[___]
by____________________________________________
[___]
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SCHEDULE 3
FORM OF NOTICE OF ASSIGNMENT AND FORM OF ACKNOWLEDGEMENT IN RESPECT OF THE
OPERATING ACCOUNT
PART I
FORM OF NOTICE TO OPERATING ACCOUNT BANK
To: Citibank N.A.
Jersey Branch
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Channel Islands
From: Randgold Resources Limited (the "CHARGOR")
and N M Rothschild & Sons Limited (as "SECURITY TRUSTEE")
[DATE]
Dear Sirs,
NOTICE OF ASSIGNMENT OF BANK ACCOUNT
We, the CHARGOR, hereby give you notice (the "NOTICE OF CHARGE") that pursuant
to a Debenture, dated [__], 2001, made between ourselves and the Security
Trustee (such Debenture, as it may from time to time be amended, assigned,
novated or supplemented, being called the "DEBENTURE"), we have assigned and
agreed to assign to the Security Trustee all our rights, title, benefits and
interests, present and future, under and in respect of the account detailed
below (the "OPERATING ACCOUNT"), including all moneys from time to time
standing to the credit of, all debts from time to time represented by, the
above account and all other rights from time to time accruing to or arising in
connection with any of the above assets:
Citibank N.A., Jersey branch
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Channel Islands
Branch Code: 201
Account number: 411848019
Swift Code: CITI JESX
Account Name: Randgold Resources USD Account
Words and expressions defined in the Debenture shall, unless otherwise defined
herein, have the same meaning in this Notice of Assignment.
-28-
[A copy of the Debenture is enclosed for your attention and we request that you
take note of its provisions.]
Please acknowledge receipt of this Notice of Assignment and confirm your
agreement to it, by executing and returning to the Security Trustee an original
copy of the Form of Acknowledgement attached to this Notice of Assignment.
This notice shall be governed by English law.
Yours truly,
______________________________________
Randgold Resources Limited
______________________________________
per pro N M Rothschild & Sons Limited,
as Security Trustee
-29-
SCHEDULE 3
PART II
FORM OF ACKNOWLEDGEMENT OF ASSIGNMENT OF BANK ACCOUNT
To: N M Rothschild & Sons Limited
▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: ▇▇▇-▇▇▇▇-▇▇▇▇
(as Security Trustee)
Attn: ▇▇▇▇▇ Street/▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs,
We acknowledge receipt of the Notice of Assignment, dated [__], 2001, (the
"NOTICE OF ASSIGNMENT") (a copy of which is attached to this letter). Words and
expressions defined in the Notice of Assignment and the Debenture shall, unless
otherwise defined herein, have the same meanings in this letter.
In consideration of the Lender Parties agreeing to provide finance and financial
support pursuant to the Loan Documents, we confirm that:
1. we consent to the assignment of the Operating Account and have noted,
and will act in accordance with, the terms of the Notice of Assignment;
2. there does not exist in our favour, and we undertake not to create,
assert, claim or exercise, any mortgage, fixed or floating charge,
encumbrance, assignment or other lien of any kind, or any agreement or
arrangement having substantially the same economic or financial effect
as any of the foregoing (including any rights of counter-claim, rights
of set-off or combination of accounts or any "hold back" or "flawed
asset" arrangement) over or with respect to the Operating Account (or
any part thereof) including any moneys standing to the credit of, or
received by us to be credited to, the Operating Account (or any part
thereof);
3. we have not, as at the date hereof, received any notice that any third
party has or will have any right or interest whatsoever in, or has made
or will be making any claim or demand or be taking any action whatsoever
against the CHARGOR'S rights, benefits, interests or claims under or in
respect of the Operating Account or any part thereof, and if, after the
date hereof, we receive any such notices we shall immediately give
written notice thereof to the Security Trustee.
This letter is governed by English law.
-30-
Yours truly,
--
CITIBANK N.A.
By___________________________________________
[___]
-31-
IN WITNESS whereof this Deed has been duly executed and delivered as of the day
and year first before written.
THE CHARGOR
EXECUTED and DELIVERED as a deed )
by RANDGOLD RESOURCES ) /s/ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
LIMITED acting by: ) ____________________________________
Director ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
____________________________________
Director ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇-▇
THE SECURITY TRUSTEE
EXECUTED and DELIVERED as a deed )
per pro N M ROTHSCHILD & SONS )
LIMITED )
/s/ ▇. ▇▇▇▇▇▇▇
____________________________________
Signature
▇. ▇▇▇▇▇▇▇
____________________________________
Name Printed
Title: Director
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
Signature
▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________
Name Printed
Title: Secretary
S-2