EXECUTION COPY
DATED 25 SEPTEMBER, 2001
MINING INVESTMENTS (JERSEY) LIMITED
AS THE CHARGOR
AND
N M ROTHSCHILD & SONS LIMITED
AS THE SECURITY TRUSTEE
_____________________________
DEED OF CHARGE
_____________________________
XXXXX
XXXXX
& XXXXX
BUCKLERSBURY HOUSE
0 XXXXX XXXXXXXX XXXXXX
XXXXXX, XX0X 0XX
TELEPHONE: 000 0000 0000
FAX: 000 0000 0000
REF: 01863914
TABLE OF CONTENTS
PAGE
1. DEFINED TERMS; INTERPRETATION........................................1
2. COVENANT TO PAY......................................................2
3. CHARGING PROVISIONS..................................................3
4. REPRESENTATIONS AND WARRANTIES.......................................4
5. NEGATIVE PLEDGE AND DISPOSAL RESTRICTIONS............................5
6. OTHER UNDERTAKINGS...................................................6
7. FURTHER ASSURANCES; POWER OF ATTORNEY................................9
8. ENFORCEMENT.........................................................10
9. PROTECTION OF THIRD PARTIES.........................................12
10. NOTICES.............................................................12
11. WAIVERS, ETC........................................................12
12. SEVERABILITY........................................................13
13. ASSIGNMENT..........................................................13
14. NOTICE OF SUBSEQUENT CHARGE.........................................13
15. NO WAIVER...........................................................13
16. COUNTERPARTS.........................................................14
17. NATURE OF UNDERTAKINGS...............................................14
18. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITY........14
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THIS DEED OF CHARGE is made on 25 September, 2001 between
(1) MINING INVESTMENTS (JERSEY) LIMITED, a company registered under the laws
of Jersey (the "Chargor"); and
(2) N M ROTHSCHILD & SONS LIMITED, a bank organised and existing under the
laws of England, in its capacity as the Security Trustee (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).
1. DEFINED TERMS; INTERPRETATION
1.1 DEFINED TERMS
In this Deed, unless the context otherwise requires, the following
expressions shall have the following meanings:
"CHARGED PROPERTY" means all the assets, property and rights charged to
the Security Trustee by the Chargor pursuant to Clause 3 of this Deed.
"CHARGED SHARE ISSUER" means Morila Limited, a company organised and
existing under the laws of Jersey.
"CHARGED SHARES" means:
(a) the shares of the 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" is defined in the preamble.
"DEED" means this Deed of Charge, 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 and under the other Loan Documents.
"LOAN AGREEMENT" means the Loan Agreement, dated 17 September, 2001, as
amended, modified or supplemented from time to time between Randgold
Resources Limited, as the Borrower, the various banks and other
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/MORILA DEED OF CHARGE" means the Deed of Charge, dated 25
September, 2001, between the Chargor and the Security Trustee, in its
capacity as agent and security trustee for the Morila Lender Parties.
"MORILA LENDER PARTIES" means Lenders under (and as defined in) the
Morila Loan Agreement.
"MORILA LOAN AGREEMENT" means the Loan Agreement, dated 21 December
1999 (as amended, modified or supplemented from time to time), among
Societe des Mines de Morila S.A., Randgold Resources Limited, Randgold &
Exploration Company Limited, Randgold Resources (Morila) Limited and the
Morila Lender Parties.
"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 the Chargor or
over all or any of the Charged Property.
"SECURITY TRUSTEE" is defined in the preamble.
"S.I. LAW" means the Security Interests (Jersey) Law, 1983.
1.2 INTERPRETATION
In this Deed:
(a) capitalised terms used but not defined in this Deed (including
the preamble hereto) have the same meanings as in the Loan
Agreement;
(b) this Deed is a Loan Document and shall be interpreted and
construed in accordance with the terms and provisions of the
Loan Agreement (including Clause 1.2 to Clause 1.5 thereof
which are hereby incorporated into this Deed with all
necessary consequential changes);
(c) the Security Trustee on trust for the Lender Parties shall be the
"SECURED PARTY" and the Chargor shall be the "DEBTOR" for the
purposes of the S.I. Law; and
(d) 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 the
Obligations of the Borrower as and when the same fall due for payment;
PROVIDED, HOWEVER, that recourse to the Chargor in connection with such
undertaking shall be limited to the property charged to the Security
Trustee pursuant to Clause 3 and shall be subject to the terms and
conditions of the Deed of Priorities.
Any right which at any time the Chargor has under the existing or
future laws of Jersey whether by virtue of the "droit de discussion" or
otherwise to require that
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recourse be had to the assets of the Borrower before any claim is
enforced against the Chargor in respect of the obligations hereby
assumed by the Chargor is hereby abandoned and waived and the Chargor
undertakes that if at any time the Security Trustee sues the Chargor in
respect of any such obligations and the Borrower is not sued also the
Chargor shall not claim that the Borrower be made a party to the
proceedings and the Chargor agrees to be bound by this Deed whether or
not the Chargor is made a party to legal proceedings for the recovery
of the amount due or owing to the Security Trustee as aforesaid by the
Borrower and whether the formalities required by the law of Jersey
whether existing or future in regard to the rights or obligations of
sureties shall or shall not have been observed.
Any right which the Chargor may have under the existing or future laws
of Jersey whether by virtue of the "droit de division" or otherwise to
require that any liability under this Deed be divided or apportioned
with any other person or reduced in any manner whatsoever is hereby
abandoned and waived.
3. CHARGING PROVISIONS
As a continuing security for the payment of all Obligations of the
Chargor under this Deed and of the Borrower under the Loan Agreement
and the other Loan Documents the Chargor hereby agrees, to the intent
that the Security Trustee shall have a security interest in the Charged
Property, that the Security Trustee or such nominee as the Security
Trustee may from time to time specify, other than the Chargor or some
person on behalf of the Chargor, shall have possession of the
certificates of title to the Charged Shares (subject to the terms and
conditions of the Deed of Priorities).
The security interest in respect of such Charged Shares shall be by way
of a first charge with full title guarantee, in favour of the Security
Trustee, for the ratable benefit of the Lender Parties, together with
all Distributions and Dividends from time to time accruing thereon,
both present and future, from time to time owned by the Chargor or in
which the Chargor is from time to time interested (subject to the terms
and conditions of the Deed of Priorities).
So long as the security constituted by the MIJL/Morila Deed of Charge
is subsisting and has not been discharged, the security constituted by
this Deed shall be postponed to and rank after and in all respects
subject to the security constituted by the MIJL/Morila Deed of Charge.
The parties hereby acknowledge and agree that all deeds, documents and
certificates of title relating to the Charged Shares shall be held by X
X Xxxxxxxxxx & Sons Limited, acting in its capacity as security
trustee, for the benefit of both the Morila Lender Parties (pursuant to
the MIJL/Morila Deed of Charge) and the Lenders (pursuant to this Deed)
in accordance with the priorities set out in the Deed of Priorities and
the immediately preceding sentence.
4. REPRESENTATIONS AND WARRANTIES
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.
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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):
(a) The Chargor is a company validly organised and existing and in
good standing under the laws of Jersey. It is duly qualified
to do business and is in good standing as a foreign company in
each jurisdiction where the nature of its business makes such
qualification necessary and where the failure to so qualify
would have a Materially Adverse Effect. The Chargor has full
power and authority, and holds all requisite Approvals, to own
and hold under lease its property, to xxx and to be sued in
its own name and to conduct its business substantially as
currently conducted by it. The Chargor has full power and
authority to enter into and perform its obligations under this
Deed and the other Loan Documents executed or to be executed by
it.
(b) The execution and delivery by the Chargor of this Deed and each
other Loan Document executed or to be executed by it and the
performance by it of its obligations hereunder and thereunder:
(i) have been duly authorised by all necessary corporate
action on its part;
(ii) do not require any Approval (other than those Approvals
which have already been obtained);
(iii) do not and will not conflict with, result in any
violation of, or constitute any default under, any
provision of any requirement of law or Approval binding
on it; and
(iv) will not result in or require the creation or imposition
of any lien on any of its properties pursuant to the
provisions of any contractual obligation (other than
pursuant to this Deed).
(c) This Deed constitutes, and each other Loan Document executed or
to be executed by the Chargor constitutes, or on the due
execution and delivery thereof by the Chargor will constitute,
the legal, valid, and binding obligation of the Chargor
enforceable against it in accordance with its terms (subject,
as to enforcement, to bankruptcy and insolvency laws and other
similar laws of applicability to creditors generally and to
general equitable principles).
(d) Neither the Chargor nor any of its properties or revenues enjoys
any right of immunity from suit, set-off, attachment,
execution or judgment in respect of the Chargor's obligations
under this Deed.
(e) The payment Obligations of the Chargor hereunder rank at least
pari passu in right of payment with all of the Chargor's other
unsecured indebtedness, other than any such indebtedness which
is preferred by mandatory provisions of Applicable Law and
other than as stated in the Deed of Priorities.
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(f) The Chargor is (or at the time of any future delivery, charge,
assignment or transfer will be) the owner of the Charged
Property with full title guarantee thereto, free and clear of
all liens, other than the security created hereunder and other
than as stated in the Deed of Priorities.
(g) The charges and assignments constituted by this Deed create a
valid first ranking (subject to mandatory liens imposed by
Applicable Law and other than as stated in the Deed of
Priorities) security interest in respect of the Charged
Property in favour of the Security Trustee for the ratable
benefit of the Lender Parties.
(h) All the Charged Shares are (and all Charged Shares which in the
future become subject to charge hereunder will be) duly
authorised, validly issued, fully paid, non-assessable and not
subject to any lien or restriction on transfer imposed under
the constitutional documents of the Charged Share Issuer or
otherwise other than as stated in the Deed of Priorities.
(i) The information contained in Schedule 1 hereto in connection with
the Charged Shares owned by the Chargor is true and accurate in
all respects.
(j) Any distress or execution or other legal process is levied or
enforced upon any property of the Chargor or the Chargor takes
any action or any legal proceedings are started or other steps
are taken for the Chargor or its property to be adjudicated or
found en desastre, or the Chargor becomes "BANKRUPT" within
the meaning of Article 13 of the Interpretation (Jersey) Law
1954.
For the avoidance of doubt, any representation or warranty made
pursuant to this Clause shall be made with respect to the facts and
circumstances existing on the date such representation or warranty is
made.
5. NEGATIVE PLEDGE AND DISPOSAL RESTRICTIONS
During the continuance of the security constituted by this Deed the
Chargor will not, without the prior consent in writing of the Security
Trustee (subject, in each case, to the terms and conditions of the Deed
of Priorities):
(a) create or agree or attempt to create or permit to subsist (in
favour of any person other than the Security Trustee) any lien
over the whole or any part of the Charged Property or agree to
do so; or
(b) (whether by a single transaction or a number of related or
unrelated transactions and whether at the same time or over a
period of time) sell, transfer, lease out, lend or otherwise
dispose of or cease to exercise direct control over all or any
part of the Charged Property or any interest therein or the
right to receive or to be paid the proceeds arising on the
disposal of the same, or agree or attempt to do so; or
(c) dispose of the equity of redemption in respect of all or any part
of the Charged Property.
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6. OTHER UNDERTAKINGS
6.1 INFORMATION
The Chargor will furnish the Security Trustee with such information
concerning the Charged Property as the Security Trustee may from time
to time reasonably request, and will permit the Security Trustee from
time to time during business hours and on reasonable notice (or at any
time without notice during the existence of a Default), to inspect and
make copies of and extracts from all records and all other papers in
the possession of the Chargor which pertain to the Charged Property.
6.2 NOT JEOPARDISE SECURITY
The Chargor will not (subject to the terms and conditions of the Deed
of Priorities) do or cause or permit to be done anything (including by
way of any exercise of its rights under Clause 6.5(d)) 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.
6.3 NATURE OF SECURITY
The Chargor hereby declares and agrees that:
(a) this Deed shall be held by the Security Trustee as a continuing
security and shall not be satisfied by any intermediate
payment or satisfaction of any part of the Obligations and
shall remain in full force and effect until all Obligations
have been unconditionally and irrevocably paid and discharged
in full to the satisfaction of the Security Trustee;
(b) 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; and
(c) this Deed shall be in addition to, and not in substitution for,
any other rights which any Lender Party may now or hereafter
have under or by virtue of any guarantee or security or
agreement or any lien or by operation of law or under any
collateral or other security now or hereafter held by any
Lender Party or to which any Lender Party may be entitled.
6.4 AVOIDANCE OF SETTLEMENT
Any settlement or discharge under this Deed between the Security
Trustee and the Chargor shall be conditional upon no security or
payment to any Lender Party 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,
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 security created by this
Deed shall remain and/or shall be reinstated in full force and
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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 Obligations at the time of such demand) of the
security or payment so avoided, set-aside, refunded or reduced.
6.5 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: subject to the terms and conditions
of the Deed of Priorities, 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), subject to the terms and conditions of the
Deed of Priorities, accept the same as the agent of
the Security Trustee, hold the same in trust (but
without being obliged to create any registerable
security interest) 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 and
subject to the terms and conditions of the Deed of
Priorities, 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
will not permit the Charged Share Issuer to issue
any shares which
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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, deliver (properly endorsed
where required hereby or requested by the Security
Trustee) to the Security Trustee, subject to the
terms and conditions of the Deed of Priorities, all
Dividends, Distributions, all interest, all
principal, all other cash payments, and all proceeds
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 Lender Parties as
additional Charged Property for use in accordance
with Clause 8.5; 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 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, subject to the terms and
conditions of the Deed of Priorities, directly to the Chargor
and the Security Trustee hereby releases any such Dividend or
payment from the security created by this Deed. 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: Subject to the terms and conditions of the Deed
of Priorities, 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
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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 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 6.5(e), subject to
the terms of the Deed of Priorities:
(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 winding up
or dissolution of the Charged Share Issuer shall be held by
the Security Trustee as additional security for the
Liabilities, subject to the terms of the Deed of Priorities.
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.
7. FURTHER ASSURANCES; POWER OF ATTORNEY
7.1 FURTHER ASSURANCES
The Chargor hereby undertakes with the Security Trustee to take such
further acts, enter into such other instruments or documents and
otherwise perform such action as may be necessary or as the Security
Trustee may otherwise reasonably request to more fully give effect to
the security granted hereunder and any other provision of this Deed.
7.2 POWER OF ATTORNEY
In accordance with Article 5(2)(a) of the Powers of Attorney (Jersey)
Law, 1995 (the "POWERS OF ATTORNEY LAW") the Chargor hereby irrevocably
and by way of security appoints the Security Trustee and its delegates
severally as its attorney (with full power of substitution in
accordance with Article 8 of the Powers of Attorney Law) in its name
and on its behalf and as its act and deed to execute, seal and deliver
and otherwise perfect and complete and do any deed, agreement,
instrument, Transfer
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Form or other act or thing which the Chargor ought to execute and do
under the terms of this Deed or which may otherwise be required or
deemed proper by the Security Trustee for the purposes of this Deed and
the Chargor hereby covenants to ratify and confirm all acts and things
done by such attorney. The power of attorney hereby granted is as
regards the Security Trustee and its delegates (and as the Chargor
hereby acknowledges) granted irrevocably and as part of the security
constituted by this Deed and for the purpose of facilitating the
exercise of the powers of the Security Trustee under the S.I. Law and
the powers given pursuant to this Deed.
8. ENFORCEMENT
8.1 POWER OF SALE
At any time following the occurrence of an Event of Default and
provided that the Security Trustee has served on the Chargor a notice
specifying the particular Event of Default complained of and, if the
Event of Default complained of is capable of remedy, the Chargor has
failed to remedy such Event of Default within fourteen (14) days
following receipt of such notice:
(a) the power of sale under the S.I. Law shall become exercisable
over the Charged Property without any order of the Jersey courts;
and
(b) the power of sale may be exercised in such manner and for such
consideration (whether payable immediately, by instalments or
otherwise deferred) as the Security Trustee shall in its
absolute discretion determine, and by way of sale to an
associate or nominee of the Security Trustee;
(c) for the purposes of this Deed, references to the exercise of the
"POWER OF SALE" shall include any method or process by which
value is given, allowed or credited by the Security Trustee
for the Charged Property against the Obligations;
(d) the Security Trustee may exercise and be entitled to any and all
rights of an owner of the Charged Property subject to this
Deed and the Deed of Priorities; and
(e) the Security Trustee may collect, receive or compromise and give
a good discharge for any and all monies and claims for monies
due and to become due for the time being comprised in the
Charged Property subject hereto.
8.2 NO WAIVER OF RELEASE
The exercise by the Security Trustee of any right or power of sale
under this Clause 8 shall not constitute a waiver of release of nor the
exercise of any other right or power of sale held by the Security
Trustee unless expressly stated.
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8.3 PARTIAL SALE
Without prejudice to the rights and powers of the Security Trustee
under Clauses 11 and 12 or otherwise in connection with the Charged
Property if the power of sale has become exercisable, the Security
Trustee (acting in consultation with the Lenders) shall consider in
good faith whether the sale of part only of the Charged Property will
be sufficient to repay in full all amounts owing by the Chargor under
this Deed and by the Borrower under the Loan Agreement and the other
Loan Documents. If, as a result thereof, the Security Trustee shall
determine that such partial sale will be sufficient for that purpose
and that a partial sale of the Charged Property is then reasonably
feasible (taking into account the commercial terms under which such
partial sale might be achievable, the timing of such partial sale and
such other circumstances as the Security Trustee shall deem
appropriate), the Security Trustee shall (subject to the terms and
conditions of the Deed of Priorities) proceed with such partial sale.
Any such partial sale of the Charged Property shall be without
prejudice to the right of the Security Trustee and the other Lender
Parties (whether granted pursuant to this Deed or otherwise) with
respect to the remaining Charged Property which shall, for the
avoidance of doubt, remain in full force and effect until the repayment
in full of all amounts owing by the Chargor under this Deed and by the
Borrower under the Loan Agreement and the other Loan Documents. If the
proceeds of any such partial sale of the Charged Property shall be
insufficient to discharge all amounts owing by the Chargor under this
Deed and by the Borrower under the Loan Agreement and the other Loan
Documents, then the Security Trustee shall not be under any obligation
to consider any further partial sale of the Charged Property in
accordance with the foregoing provisions of this Clause or otherwise.
In the event that the Security Trustee (acting in consultation with the
Lenders) shall reasonably determine that any partial sale of the
Charged Property pursuant to this Clause is likely to adversely affect
the ability of the Lender Parties to recover the full amount owing by
the Chargor under this Deed and the Borrower under the Loan Agreement
and the other Loan Documents from the proceeds of the Charged Property
then the foregoing provisions of this Clause shall not apply and the
Security Trustee and the other Lender Parties shall then be at liberty
to exercise any of the remedies available to it in connection with the
Charged Property whether pursuant to this Deed or otherwise.
8.4 SUSPENSE ACCOUNT
Any money recovered by the Security Trustee or any Receiver pursuant to
this Deed may be kept by them in a separate suspense account for so
long and in such manner as they may think fit prior to application in
accordance with the terms of this Deed.
8.5 APPLICATION OF MONIES
The Security Trustee shall be under no liability to the Chargor for any
failure to apply and distribute the proceeds of sale of the Charged
Property in accordance with the S.I. Law if the Security Trustee
applies and distributes such proceeds in good faith without further
enquiry and in accordance with the information expressly known to it
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at the time of the application and distribution. All monies received by
the Security Trustee 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 in connection with this
Deed and any enforcement of the security interest made
hereunder (including the payment of any preferential debts);
(b) in or towards satisfaction of the Obligations (subject to the
terms and conditions of the Loan Agreement, in such order as
the Security Trustee shall require); and
(c) the surplus (if any) shall be paid to the Chargor or other person
legally entitled to it.
9. PROTECTION OF THIRD PARTIES
No purchaser from, or other person dealing with, the Security Trustee
will be obliged or concerned to enquire whether the right of the
Security Trustee to exercise any of the powers conferred by the Deed
has arisen or become exercisable or whether any of the Obligations
remain outstanding and the receipt of the Security Trustee shall be an
absolute and complete discharge to any such purchaser and will relieve
such purchaser of any obligation to see to the application of any
monies paid to or by the direction of the Security Trustee.
10. NOTICES
All notices and other communications 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.
11. WAIVERS, ETC.
11.1 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.
11.2 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.
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11.3 WAIVERS LIMITED
A waiver given or consent granted by the Security Trustee under this
Deed will be effective only if given in writing and then only in the
instance and for the purpose for which it is given.
12. SEVERABILITY
If any provision of this Deed is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions will not be affected or
impaired in any way.
13. 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. The Chargor may not at any
time assign or otherwise transfer any of its rights or obligations
under this Deed.
14. NOTICE OF SUBSEQUENT CHARGE
If the Security Trustee receives notice of any subsequent security
interest or lien affecting any part of the Charged Property, it may
open a new account for the Charged Share Issuer in its books and if it
does not do so then it will, as from the time of receipt of such
notice, automatically be treated as if all payments made to it by the
Chargor had been credited to a new account of the Chargor and not as
having been applied in reduction of the Obligations of the Chargor.
15. NO WAIVER
The obligations of the Chargor contained in 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 the
Chargor from its obligations hereunder or otherwise affect any such
obligation, including:
(a) any time, indulgence or waiver granted to or composition made
with any Obligor or any other person;
(b) the taking, variation, compromise, renewal or release of or
failure to enforce any rights, remedies or security against or
granted by any Obligor or any other person;
(c) any legal limitation, disability, incapacity or other
circumstance relating to any Obligor or any other person or
any variation of the terms of this Deed or any other document
(including the other Loan Documents); or
(d) any other act, omission or circumstance which might otherwise
adversely affect any of the obligations of the Chargor hereunder.
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16. COUNTERPARTS
This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall constitute one and the same
instrument.
17. NATURE 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 Lender Parties shall be those set out in Clause 9 of
the Loan Agreement.
18. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITY
18.1 GOVERNING LAW
This Deed and all matters and disputes relating hereto shall be
governed and construed in accordance with the law of Jersey.
18.2 JURISDICTION
Each of the parties hereto irrevocably agrees for the benefit of the
Security Trustee that the courts of Jersey 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.
18.3 WAIVER
The Chargor irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 18.2 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.
18.4 NON-EXCLUSIVE
The submission to the jurisdiction of the courts referred to in Clause
18.2 shall not (and shall not be construed so as to) limit the right of
the Security Trustee 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.
18.5 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
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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.
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IN WITNESS whereof the parties hereto have caused this Deed to be duly executed
and delivered as at the day and year first before written.
THE CHARGOR
Signed as a deed by MINING ) /s/ XXXXXX XXXX XXXXXXX
INVESTMENTS (JERSEY) LIMITED ) _________________________
acting by [name of director] and [name of ) Director XXXXXX XXXX XXXXXXX
director or secretary]
/s/ XXXXX XXXXXXXX
________________________
Director XXXXX XXXXXXXX
Address for Notices: x/x 0 Xxxxx Xxxxxx
Xxxxx
Xxxxxxxxxxxx
X.X. xxx 00000
Xxxxxxxxx 0000
Xxxxx Xxxxxx
Facsimile No.: x00-00-0000000
-and-
La Xxxxx Xxxxxxxx
Xx. Xxxxxx
Xxxxxx XX0 0XX
Channel Islands
Facsimile No.:x00-0000-00000
Attention: The Financial Director
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THE SECURITY TRUSTEE ) /s/ X. XXXXXXX
per pro N M ROTHSCHILD & SONS ) ____________________________
LIMITED, as the Security Trustee on ) Director
behalf of the Lenders acting by [name of
director] and [name of director or /s/ [ILLEGIBLE]
secretary] ____________________________
Assistant/Secretary
Address: Xxx Xxxxx
Xx. Xxxxxxx'x Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Fax: x00 (0) 00 0000 0000
Attention: Xxxxx Street/Xxxxxx Xxxxx
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SCHEDULE 1
CHARGED SHARES
CHARGED SHARES AS % TOTAL SHARES OF
SHARE OF CHARGED SHARE
CERTIFICATE NO. OF CHARGED TOTAL SHARES ISSUED ISSUER
CHARGED SHARE ISSUER REGISTERED OWNER NO. SHARES AND OUTSTANDING OUTSTANDING
1. Morila Limited Mining Investments (Jersey) Limited 6 1 50% 2
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