EXHIBIT 4.29
CONFORMED COPY
Dated 8 May 2007
(1) MINING INVESTMENTS (JERSEY) LIMITED as Chargor
(2) N M ROTHSCHILD & SONS LIMITED as Security Trustee for the Finance
Parties
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CHARGE OVER SHARES
in MORILA LIMITED
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[XXXXX XXXXX XXXX & MAW LOGO]
LONDON
CONTENTS
CLAUSE PAGE
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1. Definitions and interpretation...................................... 1
2. Covenant to pay..................................................... 4
3. Creation of Security Interests...................................... 4
4. Covenants........................................................... 5
5. Events of Default................................................... 5
6. Enforcement by the Security Trustee................................. 5
7. Continuing security................................................. 5
8. Third party protection.............................................. 6
9. Costs and expenses.................................................. 6
10. Currency............................................................ 7
11. Payments; No deductions............................................. 7
12. Severability........................................................ 8
13. Amendments, waivers and rights...................................... 8
14. Assignment.......................................................... 9
15. Facilities Agreement provisions..................................... 9
16. Law................................................................. 9
THIS AGREEMENT is dated 8 May 2007 and made between:
(1) MINING INVESTMENTS (JERSEY) LIMITED a company incorporated in Jersey
(registered number 68417) whose registered office is at La Motte Xxxxxxxx,
La Xxxxx Xxxxxx, Xx. Xxxxxx, XX0 0XX (the "CHARGOR"); and
(2) N M ROTHSCHILD & SONS LIMITED a company incorporated in England and Wales
(registered number 00925279) whose registered office is at Xxx Xxxxx, Xx
Xxxxxxx'x Xxxx, Xxxxxx XX0X 0XX in its capacity as security trustee for the
Finance Parties pursuant to the Facilities Agreement (as defined below)
(the "SECURITY TRUSTEE").
BACKGROUND:
(A) By a revolving credit facility agreement (the "FACILITIES AGREEMENT") dated
on or about the date of this Agreement and made between (1) Randgold
Resources (Somilo) Limited as borrower (2) Randgold Resources Limited as a
guarantor (3) various banks and other financial institutions as lenders (4)
N M Rothschild & Sons Limited as the mandated lead arranger and (5) N M
Rothschild & Sons Limited, in its capacity as agent and security trustee
for the Finance Parties, the Lenders have made available a loan facility of
U.S.$60,000,000 to the Borrower on the terms and conditions set out
therein.
(B) As a condition of the facilities referred to in Background (A), the Chargor
is required to enter into this Agreement creating security over the Shares
in favour of the Security Trustee on behalf of the Finance Parties.
THIS DEED WITNESSES THAT:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS
In this Agreement (including the Background Statements):
"BORROWER" has the meaning given to that term in the Facilities Agreement.
"CHARGED COMPANY" means Morila Limited, a company incorporated under the
laws of Jersey with registered number 74837.
"COLLATERAL" means the Shares and the Derivative Rights.
"DEFAULT RATE" shall have the same meaning and be calculated in accordance
with Clause 3.4 (Post-Maturity Rate) of the Facilities Agreement.
"DEMAND" means has the meaning given to that term in Clause 2.1 (Payment on
Demand)
"DERIVATIVE RIGHTS" means all rights of the Chargor derived from or
connected to the Shares including, without limitation, any rights to
receive additional shares, assets or rights or any offers in respect
thereof (whether by way of bonus issue, option rights,
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exchange, substitution, conversion or otherwise) or to receive monies
(whether by way of redemption, return of capital, distribution, income or
otherwise).
"EVENTS OF DEFAULT" means any of the events or circumstances specified in
Clause 5 (Events of Default).
"FACILITIES AGREEMENT" means the facilities agreement referred to in
Background (A).
"FINANCE DOCUMENTS" has the meaning given to it in the Facilities
Agreement.
"LAW" means the Security Interests (Jersey) Law 1983.
"OBLIGORS" means collectively the Borrower and the Guarantors.
"RRL GROUP COMPANIES" has the meaning given to it in the Facilities
Agreement and includes the Chargor and "RRL GROUP COMPANY" means any of
them.
"RRL GROUP COMPANY LIABILITIES" has the meaning set out in Clause 2.2
(Meaning of RRL Group Company Liabilities).
"SECURED LIABILITIES" means all present or future obligations and
liabilities (whether actual or contingent, joint or several or as
principal, surety or in any other capacity) of the Chargor to the Security
Trustee pursuant to Clause 2.1 (Payment on Demand).
"SHARES" means all shares registered in the name of the Chargor in the
Charged Company from time to time (being, as at the date of this Agreement,
one (1) ordinary share of U.S.$1 each, comprising fifty percent (50%) of
the issued shares in the Charged Company).
1.2 CONTENTS AND HEADINGS
The index and headings are included for convenience only and shall not
affect the interpretation or construction of this Agreement.
1.3 REFERENCES
In this Agreement, unless the context requires otherwise, any reference to:
(a) the SECURITY TRUSTEE, the CHARGOR, the CHARGED COMPANY, the BORROWER
or any FINANCE PARTY, respectively, includes its successors in title
and assigns and this Agreement shall be enforceable notwithstanding
any change in the constitution of the Security Trustee, its absorption
in or amalgamation with any other person or the acquisition of all or
part of its undertaking by any other person;
(b) a PARTY or the PARTIES is to a party or the parties (as the case may
be) to this Agreement;
(c) a RECITAL is to the relevant statement about the background to this
Agreement made above under the heading "Background"; any reference to
a CLAUSE or a SCHEDULE is to a clause of or schedule to this Agreement
(as the case may be)
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and references made in a Schedule to PARAGRAPHS are to paragraphs of
that Schedule;
(d) this AGREEMENT includes the Schedules, which form part of this
Agreement for all purposes;
(e) a STATUTE or STATUTORY PROVISIONS includes any consolidation,
re-enactment, modification or replacement of the same and any
subordinate legislation in force under the same from time to time;
(f) the masculine, feminine or neuter GENDER respectively includes the
other genders, references to the singular include the plural (and vice
versa) and references to persons include firms, corporations and
unincorporated associations;
(g) a DOCUMENT is to that document as varied, supplemented or replaced
from time to time;
(h) a RIGHT includes any estate, interest, claim or other right of any
kind, both present and future;
(i) the provision of CASH COVER is to the provision to the Security
Trustee of an amount in cash equal to the Security Trustee's
reasonable market determination of the maximum possible aggregate
amount which the Chargor or a RRL Group Company may at any time become
liable to pay to the Security Trustee in respect of the relevant
contingent liabilities; and
(j) THIS SECURITY is to this Agreement and includes each separate or
independent stipulation or agreement in this Agreement and the
security created by, pursuant to or supplemental to it.
1.4 FINANCE DOCUMENT
This Agreement is a Security Agreement for the purposes of Clause 11.1
(Appointment) of the Facilities Agreement. In addition both parties
acknowledge that this Agreement is a Finance Document.
1.5 SECURITY TRUSTEE
The Security Trustee shall be the "SECURED PARTY", the Chargor shall be the
"DEBTOR" and the Events of Default shall be the "EVENTS OF DEFAULT" for the
purposes of the Law.
1.6 TERMS DEFINED IN THE FACILITIES AGREEMENT
Words and expressions defined in the Facilities Agreement and not defined
in this Agreement shall have the same meaning in this Agreement as in the
Facilities Agreement.
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2. COVENANT TO PAY
2.1 PAYMENT ON DEMAND
The Chargor shall on the Security Trustee's demand following an Event of
Default (a "DEMAND") pay, discharge or (in the case of contingent
liabilities (including any contingent liability in connection with Risk
Management Agreements)) outstanding at any time when a Default has occurred
and is continuing), provide cash cover (in an amount equal to such amount
as the Security Trustee may demand but not more than the excess of (a) the
Security's Trustee's reasonable market determination of the amount of the
relevant contingent liability, less (b) any other cash cover for such
contingent liability then provided pursuant to any other Finance Document)
for the RRL Group Company Liabilities.
2.2 MEANING OF RRL GROUP COMPANY LIABILITIES
In this security, the "RRL GROUP COMPANY LIABILITIES" means all moneys or
liabilities due or owing by any RRL Group Company:
(a) under the Finance Documents or any current or other account or in any
such manner;
(b) in respect of liabilities incurred under or in respect of foreign
exchange transactions, interest rate swap agreements, other agreements
or arrangements entered into by the Lenders or the Security Trustee
for the purpose of limiting any RRL Group Company's currency or
interest rate exposure or under any Risk Management Agreements;
(c) in respect of money or liabilities due or owing or incurred in
sterling or any other currency, alone or jointly with others as
principal or surety; and
(d) in respect of moneys or liabilities originally owing or incurred to
the Finance Parties and those purchased or otherwise acquired by the
Finance Parties,
together with, in each such case, interest, commission and bank fees and
charges applicable thereto. Such interest shall be calculated to the date
of payment (as well after as before any Demand or judgment) at the Interest
Rate and to be compounded at such intervals as the Security Trustee shall
determine, acting reasonably.
2.3 CERTIFICATION CONCLUSIVE
Any certification or determination by the Security Trustee of any amount
payable or rate applicable under this Agreement shall be conclusive
evidence as against the Chargor of the matter(s) to which it relates.
3. CREATION OF SECURITY INTERESTS
(a) As a continuing security for the payment, performance and discharge of
the Secured Liabilities, so that the Security Trustee shall have a
first priority security interest in the Collateral pursuant to the
Law, the Chargor hereby:
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(i) assigns, transfers and otherwise makes over to the Security
Trustee or its nominee title to the Shares and the Derivative
Rights; and
(ii) agrees that, to the extent that the Chargor shall not have
assigned, transferred or otherwise made over to the Security
Trustee or its nominee or perfected in favour of the Security
Trustee or its nominee, title to any Shares, the Security Trustee
or its nominee shall have possession of the certificates of title
thereto/
(b) The Chargor hereby agrees that the security interests created by
Clause 3(a) may exist concurrently.
4. COVENANTS
The Chargor covenants with the Security Trustee as set out in Schedule 1
(Covenants) and warrants and represents to the Security Trustee as set out
in Schedule 2 (Warranties).
5. EVENTS OF DEFAULT
There shall be an Event of Default if an "EVENT OF DEFAULT" as defined in
the Facilities Agreement occurs, as if each such "EVENT OF DEFAULT" were
set out in full herein.
6. ENFORCEMENT BY THE SECURITY TRUSTEE
(a) If an Event of Default has occurred, the power of sale under the Law
shall be exercisable in respect of the Collateral without any
requirement to obtain any order of the Courts of Jersey immediately
upon the Security Trustee serving on the Chargor a notice specifying
the particular Event of Default complained of provided that, if the
Event of Default complained of is capable of remedy, such power of
sale shall only be exercisable if the Chargor has failed to remedy
such Event of Default within 14 days following receipt of such notice
by the Chargor.
(b) 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 Collateral subject
hereto.
7. CONTINUING SECURITY
7.1 CONTINUING SECURITY
This Agreement is a continuing security and shall secure the ultimate
balance of the Secured Liabilities notwithstanding intermediate payment or
discharge of the whole or part of the Secured Liabilities to the Security
Trustee and also notwithstanding liquidation or other incapacity of the
Chargor, or any change in the constitution or name of the Chargor or any
other matter or thing.
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7.2 SECURITY ADDITIONAL TO OTHER RIGHTS
This Agreement is in addition to (and shall not merge with, otherwise
prejudice or affect or be prejudiced or affected by) any other right,
remedy, guarantee, indemnity or Security Interest which may be or have been
created in favour of the Security Trustee in respect of the Secured
Liabilities. Accordingly, this Agreement may be enforced notwithstanding
the existence or invalidity of all or any of the same and also
notwithstanding the Security Trustee at any time exchanging, releasing,
varying, abstaining from perfecting or enforcing or otherwise dealing or
omitting to deal with all or any of the same.
7.3 CHARGOR'S LIABILITY NOT DISCHARGED
The liability of the Chargor under this Agreement shall not be discharged,
reduced, impaired or affected by:
(a) any present or future xxxx, note, right, remedy, guarantee, indemnity
or Security Interest held by or available to the Security Trustee or
the Finance Parties being or becoming wholly or in part void, voidable
or unenforceable on any ground whatsoever or by the Security Trustee
or the Finance Parties from time to time exchanging, releasing,
varying, abstaining from perfecting or enforcing or otherwise dealing
or omitting to deal with all or any of the same;
(b) the Security Trustee or the Finance Parties compounding with,
discharging, releasing or varying the liability of or granting any
time, indulgence or concession to the Borrower, any other RRL Group
Company or any other person or renewing, determining, varying or
increasing any xxxx, promissory note or other negotiable instrument,
accommodation, facility or transaction in any manner whatsoever or
concurring in, accepting or varying any payment from the Borrower, any
other RRL Group Company or any other person; or
(c) any act or omission which would not have discharged, impaired or
affected the liability of the Chargor had it been primary obligor or
by anything done or omitted which but for this provision might operate
to discharge, reduce, impair or affect that liability.
8. THIRD PARTY PROTECTION
No purchaser, mortgagee or other person dealing with the Security Trustee
shall be concerned:
(a) to enquire whether any of the Secured Liabilities have become due or
payable or remain unpaid or undischarged or whether the power which
the Security Trustee is purporting to exercise has become exercisable;
or
(b) to see to the application of any money paid to the Security Trustee.
9. COSTS AND EXPENSES
The Chargor covenants with the Security Trustee to indemnify the Security
Trustee fully (and in the case of legal costs and expenses on a solicitor
and own client basis) on demand against all reasonable costs, expenses,
liabilities, claims, demands, actions
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or proceedings of any kind properly incurred by (or made or brought
against) the Security Trustee (or any manager or agent appointed by the
Security Trustee):
(a) as a result of any failure by the Chargor to perform any of its
obligations under this Agreement;
(b) in the exercise (or purported exercise) of any of the powers or rights
conferred by this Agreement or by any other lien granted (whether by
the Chargor, the Borrower or any third party) in respect of all or
part of the Secured Liabilities; or
(c) in respect of any other matter or thing done or omitted relating to
the Shares or the assets secured by any such other lien,
together in each case with interest calculated on a daily basis from the
date the same is incurred or becomes payable by the Security Trustee (as
the case may be) at the Default Rate, such interest being compounded
quarterly.
10. CURRENCY
Any payment by the Chargor under this Agreement shall be made in the
currency (in this Clause 10, the "CONTRACTUAL CURRENCY") in which the
relevant Secured Liabilities were denominated or incurred and shall be made
to the Security Trustee in London. If in respect of any of the Secured
Liabilities the Security Trustee receives payment or that Secured Liability
is converted into a claim, proof, judgment or order, in either case in a
currency other than the Contractual Currency, then:
(a) the Chargor shall indemnify the Security Trustee against any loss or
liability resulting from the conversion;
(b) if the amount received by the Security Trustee, when converted into
the Contractual Currency by the Security Trustee, is less than the
amount of the relevant Secured Liability in the Contractual Currency,
then the Chargor shall on demand pay to the Security Trustee an amount
in the Contractual Currency equal to the difference; and
(c) the Chargor shall on demand pay to the Security Trustee any exchange
costs and taxes payable in connection with any conversion referred to
in this Clause 10.
11. PAYMENTS; NO DEDUCTIONS
11.1 MAKING OF PAYMENTS
All payments to be made by the Chargor under this Agreement shall be made
in accordance with Clause 12.1 (Payments) of the Facilities Agreement as if
the reference to a "Borrower" were to the Chargor.
11.2 PAYMENTS DUE ON NON-BUSINESS DAYS
If any payment by the Chargor is due on a non-Business Day, the due date
for payment shall instead be the next Business Day unless that is in the
next calendar
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month, in which case, it shall be the preceding Business Day. During any
extension of the due date of payment, interest shall be payable on the
amount due at the rate payable on that amount on the original due date.
11.3 PAYMENTS TO BE MADE IN FULL
All payments made or to be made by the Chargor under this Agreement shall
be made in full, without any deduction, withholding, set-off or
counterclaim on account of any taxes or of any claim the Chargor may have
against the Security Trustee.
11.4 DEDUCTIONS REQUIRED BY LAW
If the Chargor is compelled by law to make payment subject to any deduction
or withholding in respect of tax, then it shall account for the same to the
relevant authority as and when required by law, and shall pay to the
Security Trustee all necessary additional amounts to ensure receipt and
retention (free from any liability) by the Security Trustee of the full
amount which it would have received had the payment not been subject to the
deduction or withholding and shall promptly provide to the Security Trustee
a certificate of deduction and such tax receipts and other documents as the
Security Trustee may require.
11.5 APPLICATION OF INSUFFICIENT PAYMENTS
If on any day the Security Trustee receive a payment insufficient to meet
all amounts then due and payable by the Chargor under this Agreement, then
the Security Trustee may apply such payment against those amounts in the
order it thinks fit (overriding any application specified by the Chargor).
12. SEVERABILITY
If any part of any provision of this Agreement shall be or become invalid
or unenforceable, then the remainder of such provision and all other
provisions of this Agreement shall remain valid and enforceable.
13. AMENDMENTS, WAIVERS AND RIGHTS
13.1 AMENDMENTS IN WRITING
No amendment or variation of the terms of this Agreement shall be effective
unless it is made or confirmed in a written document signed by the parties.
13.2 WAIVERS AND RELEASES
No delay in exercising or non-exercise by the Security Trustee of any of
its rights under or in connection with this Agreement shall operate as a
release or waiver of that right. Rather, any such waiver or release must be
specifically granted in writing signed by an authorised signatory of the
Security Trustee and shall:
(a) be confined to the specific circumstances in which it is given;
(b) not affect any other enforcement of the same or any other right; and
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(c) (unless it is expressed to be irrevocable) be revocable at any time in
writing.
13.3 SECURITY TRUSTEE RIGHTS CUMULATIVE
The rights and remedies of the Security Trustee under this Agreement are
cumulative and not exclusive of any rights or remedies of the Security
Trustee under the general law. The Security Trustee may exercise each of
its rights as often as it thinks necessary.
13.4 SECURITY TRUSTEE DUTIES UNDER THIS SECURITY
The Security Trustee shall be under no duty of any kind to the Chargor in
respect of the exercise or non-exercise of any of its rights under this
Agreement. The Chargor shall not rely on such exercise or non-exercise in
any way.
14. ASSIGNMENT
14.1 SECURITY TRUSTEE RIGHT TO ASSIGN
The Security Trustee may assign all or any of their rights under this
Agreement without any requirement to notify the Chargor or obtain its
further consent provided that it has complied with the requirements of
Clause 11.20(b) (Security Documents) of the Facilities Agreement. Any
assignee or successor in title of the Security Trustee shall be treated for
all purposes as if it had been an original party to this Agreement in
addition to the Security Trustee.
14.2 WAIVER OF CONFIDENTIALITY RIGHTS
Notwithstanding any confidentiality obligation imposed on the Security
Trustee by law, it may disclose to any assignee, proposed assignee or
person with whom from time to time it has or wishes to enter into an
agreement in connection with this Agreement such information about the
Chargor as it thinks fit. The Chargor irrevocably waives all rights of
confidentiality in respect of such disclosure.
15. FACILITIES AGREEMENT PROVISIONS
The Facilities Agreement contains various provisions which purport to apply
to the Finance Documents. Each of those provisions, including Clauses 11
(The Agent and the MLA) 12 (General payment provisions and set-off, 13.4
(Indemnification), 13.8 (Counterparts, Effectiveness, etc.), 13.12 (Other
Transactions), and 13.15 (Entire Agreement) shall apply to this Agreement
as if they were set out in full.
16. LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of Jersey and the parties hereby irrevocably agree for the exclusive
benefit of the Security Trustee that the courts of Jersey are to have
jurisdiction to settle any disputes which arise out of or in connection
with this Agreement and that accordingly any suit, action or proceeding
arising out of or in connection with this Agreement may be brought in such
court.
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EXECUTION:
The parties have duly executed this Agreement on the date set out at the
beginning of this Agreement.
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SCHEDULE 1
COVENANTS
1. NO DISPOSALS OR SECURITY INTERESTS
The Chargor shall not without the prior written consent of the Security
Trustee:
(a) sell, transfer or otherwise deal in any way with any of the Shares or
permit any person other than the Chargor to be registered as holder of
any of them; or
(b) create (or permit to continue or to be created) or suffer to subsist
any Security Interest over any of the Shares (whether ranking in
priority to, pari passu with or subsequent to this Agreement.
2. DEPOSIT AND REGISTRATION
Without prejudice to Clause 3(a) (Creation of Security Interests), the
Chargor shall:
(a) transfer (or ensure that there are transferred) all or any of the
Shares into the name of the Security Trustee or its nominees or
Security Trustee as the Security Trustee may select. The Chargor
agrees that the Security Trustee may hold all or any of such Shares in
any nominees or other Security Trustee and that all of the Shares
shall be held at the expense, risk and responsibility of the Chargor;
(b) deposit (or ensure that there are deposited) with the Security Trustee
and permit the Security Trustee to hold and retain:
(i) all stock and share certificates and documents of title relating
to the Shares;
(ii) transfers of the Shares duly completed in favour of the Security
Trustee or otherwise as it may direct; and
(iii) such other documents as the Security Trustee may from time to
time require for perfecting its title to the Shares (duly
executed by or signed on behalf of the registered holder) or for
vesting or enabling it to vest the same in itself or its
nominees or in any purchaser,
to the intent that the Security Trustee may at any time without notice
present them for registration;
(c) hold to the order of the Security Trustee and deposit with it
forthwith (or ensure that there are so held and deposited) all
documents of title and related documents from time to time relating to
the Shares; and
(d) immediately upon written request from the Security Trustee execute and
deliver to the Charged Company a notice materially in the form set out
in Schedule 4 (Notice).
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3. ISSUE OF SHARES
The Chargor shall ensure that no Shares or other securities in the Charged
Company will be issued or allotted and no agreement, option or arrangement
to make or call for such issue or allotment will be made or granted without
the Security Trustee's prior written consent.
4. THE CHARGED COMPANY
The Chargor shall ensure that the Charged Company does not, unless the
prior written consent of the Security Trustee has been obtained:
(a) in any way modify the rights attached to any of the shares in its
issued share capital;
(b) increase, consolidate, sub-divide or reduce its share capital;
(c) alter its memorandum or articles of association;
(d) purchase its own shares or reduce its share capital; or
(e) take any step to place itself in liquidation or pass any resolution to
wind itself up.
5. CALLS AND NOTICES
The Chargor shall:
(a) duly and promptly pay (or ensure that there are paid) all calls,
instalments or other payments which may be made or become due in
respect of any of the Shares as and when the same become due from time
to time; and
(b) provide the Security Trustee with a copy of any report, accounts,
circular, notice or other item sent or provided to it (or to any
person on its behalf) in connection with its holding of the Shares or
any of them immediately on receipt them.
6. NO PREJUDICE
The Chargor shall not do or permit or suffer to be done anything (insofar
as it is within the power of the Chargor) which may in any way depreciate,
jeopardise or otherwise prejudice the value of the Shares and will
immediately inform the Security Trustee of any such matter.
7. FURTHER ASSURANCE
The Chargor shall at its own expense execute and do all such assurances,
acts and things the Security Trustee may require for perfecting or
protecting the security granted pursuant to this Agreement over the Shares
or any of them or for facilitating the realisation of the same and in the
proper exercise of all powers, authorities and discretions vested in the
Security Trustee. The Chargor shall in particular execute all transfers,
conveyances, assignments, assurances and legal mortgages of such Shares
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whether to the Security Trustee or to its nominees and any documents which
the Security Trustee may require in order to create a first fixed charge
over any moneys from time to time standing to the credit of the Suspense
Account (as defined in Paragraph 1.3 of Schedule 3 (Powers of the Security
Trustee)) and give all notices, orders and directions which the Security
Trustee may reasonably require.
8. WAIVERS OF PRE-EMPTION RIGHTS
The Chargor shall ensure that all other shareholders of the Charged Company
from time to time enter into waivers in a form satisfactory to the Security
Trustee of all pre-emption rights and restrictions in the Articles of
Association of the Charged Company from time to time or otherwise which may
in any respect vary, restrict or affect the exercise of any rights which
may arise in connection with the enforcement of this security or the
transfer of the Shares to the Security Trustee or such other person as the
Security Trustee may so direct.
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SCHEDULE 2
WARRANTIES
1. TITLE
1.1 INITIAL SHARES
The Chargor warrants and represents that with regard to the Shares:
(a) the Chargor is the sole beneficial legal owner free from any Security
Interest;
(b) they are fully paid;
(c) there are no moneys or liabilities outstanding or payable in respect
of them or any of them;
(d) the Chargor is lawfully entitled to create this security over them in
favour of the Security Trustee;
(e) together they constitute not less than fifty per cent (50%) of the
issued share capital of the Charged Company; and
(f) they are fully transferable to the Security Trustee or such other
person as the Security Trustee shall direct without restriction and
without prejudice to the generality of the foregoing in respect of the
pre-emption rights or restrictions in the Articles of Association of
the Charged Company all appropriate waivers have been obtained in
respect of these from all other shareholders of the Charged Company,
which are unconditional and irrevocable and legally binding and
enforceable.
2. NON-COMPETITION
The Chargor warrants and represents that it has not taken or received and
undertakes not to take or receive the benefit of any security (from the
Borrower or any other person) extending to its liabilities under this
Agreement.
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SCHEDULE 3
POWERS OF THE SECURITY TRUSTEE
1. DERIVATIVE RIGHTS
1.1 AFTER A DEMAND
Following a Demand and for the purposes of preserving the value of the
security granted pursuant to this Agreement, or of realising it, the
Security Trustee or its nominees may exercise in the name of the Chargor or
otherwise (without any further consent or authority on the part of the
Chargor) any Derivative Rights attached to the Shares and any powers or
rights which may be exercisable by the person in whose name the Shares are
registered or by the bearer or absolute owner of the Shares including the
receipt of dividends or other like payments.
1.2 PRIOR TO DEMAND
For the avoidance of doubt, (unless otherwise agreed in writing between the
Chargor and Security Trustee), the Security Trustee shall remain absolutely
entitled to the Derivative Rights. Notwithstanding the above, until the
Security Trustee has made a demand, the Chargor will be entitled to retain,
exercise and deal with the Derivative Rights as it, in its absolute
discretion, thinks fit (provided that it will not do or permit to suffer to
be done anything which in any way may depreciate, jeopardise or prejudice
the value of the security) and the Security Trustee shall:
(a) account to the Chargor for all such Derivative Rights received by it
and forward to the Chargor any communications relating to those
Derivative Rights which are received by it promptly on such receipt;
and
(b) make available to the Chargor such of the documents deposited with it
(or their nominees) pursuant to this Agreement and, at the Chargor's
cost and expense, execute such documents and take such other action as
the Chargor shall require in order to enable the Chargor to receive or
as the case may be exercise or deal with such Derivative Rights, save
that the Security Trustee shall be entitled to refuse to execute any
such documents or take such action if to do so would, in the Security
Trustee opinion, threaten the validity of this security, or otherwise
be in breach of the terms of this Agreement.
1.3 SUSPENSE ACCOUNT
Monies received, recovered or realised by the Security Trustee under this
Agreement may, at the discretion of the Security Trustee, be credited to a
separate or suspense account (a "SUSPENSE ACCOUNT") for so long as the
Security Trustee may think fit without any intermediate obligation on the
part of the Security Trustee to apply the same in or towards payment and
discharge of the Secured Obligations provided that, in the event that the
aggregate amount standing to the credit of such account is sufficient to
pay and discharge the Secured Obligations in full, in which case such
amounts shall be applied towards such payment and discharge.
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2. DELEGATION AND APPOINTMENT OF ATTORNEYS
2.1 SECURITY TRUSTEE MAY DELEGATE
The Security Trustee may at any time and from time to time delegate to any
person or persons all or any of the powers, authorities and discretions
which are exercisable by it under this Agreement. Any such delegation may
be made by power of attorney or in any other manner, on such terms
(including power to sub-delegate) and subject to such regulations as the
Security Trustee may think fit. The Security Trustee shall not in any way
be liable or responsible to the Chargor for any loss or damage arising from
any act, default, omission or misconduct on the part of any such delegate
or sub-delegate.
2.2 APPOINTMENT AS ATTORNEY
The Chargor, in accordance with Article 5(2)(a) of the Powers of Attorney
(Jersey) Law, 1995, hereby irrevocably appoints the Security Trustee and
every delegate or sub-delegate appointed pursuant to Paragraph 2.1
separately to be its attorney on its behalf, in its name and as its act or
deed:
(a) to execute and do all such assurances, acts and things as the Chargor
is required to execute and do under the Finance Documents (including
to execute in favour of the Security Trustee or its nominees any
document required by the Security Trustee under Schedule 1, Paragraph
7 (Further Assurance)); and
(b) to seal and deliver and otherwise perfect or do any deed, assurance,
agreement, instrument, act or thing which it or he may deem proper or
desirable in or for the purpose of exercising any of the powers,
authorities and discretions conferred by this Agreement or by law on
the Security Trustee and/or which the Security Trustee may deem
necessary or desirably for creating, maintaining or enforcing the
security contemplated hereunder, giving full effect to this Agreement
or for securing or protecting the rights of the Security Trustee
hereunder or under the Law.
The Chargor by this Agreement ratifies and confirms and agrees to ratify
and confirm anything which any such attorney may do in the proper and
lawful exercise or purported exercise of all or any of the powers,
authorities and discretions referred to in this Paragraph 2.2.
3. RELEASES CONDITIONAL
3.1 CONDITIONAL RELEASE
Any release, settlement, discharge, re-assignment or arrangement (in this
Paragraph 3 a "RELEASE") given or made by the Security Trustee on the faith
of any assurance, security or payment shall be conditional on that
assurance, security or payment not being avoided, reduced or ordered to be
repaid under any enactment relating to liquidation, bankruptcy or
insolvency. If such avoidance or reduction occurs or such order is made,
the release given by the Security Trustee shall not prejudice the right of
the Security Trustee to enforce the security granted pursuant to this
Agreement in respect of the Secured Liabilities and as between the Chargor
and the Security Trustee
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this security shall (notwithstanding the release) be deemed to have
remained at all times held by the Lenders as security for the Secured
Liabilities.
3.2 RETENTION OF SECURITY
The Security Trustee may in its absolute discretion retain all or part of
this Agreement as security for the Secured Liabilities for a period of 25
months after the Secured Liabilities shall have been paid and discharged in
full. If at any time within that period of 25 months a petition is
presented to a competent court for a winding-up or administration order to
be made in respect of the Chargor or steps are taken to wind up the Chargor
voluntarily, then the Security Trustee may continue to retain all or part
of this Agreement for such further period as the Security Trustee in its
absolute discretion shall determine.
4. REMEDYING DEFAULTS
If the Chargor fails to take any action required of it in this Schedule
then the Security Trustee may (without prejudice to any other right it may
have) take such action (including but not limited to the action so required
but not taken by the Chargor) on the Chargor's behalf as it thinks fit and
the Chargor shall indemnify the Security Trustee against any costs and
expenses incurred in doing so in accordance with Clause 8 (Costs and
Expenses).
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SCHEDULE 4
NOTICE
TO: [NAME OF COMPANY] (the "COMPANY")
[ADDRESS] [Ensure that this is the "proper address" as per Article 10
of the Law i.e. the registered or principal office.]
FROM: [NAME OF CHARGOR] (the "CHARGOR")
AND FROM: [NAME OF SECURITY TRUSTEE] (the "SECURITY TRUSTEE")
We hereby give you notice that, pursuant to a security interest agreement dated
[Date] made between the Chargor and the Security Trustee, the Chargor has
assigned to [the Security Trustee] [or specify name if assigned to Security
Trustee's nominee] title to [Number] [Class] shares [of [Value] each] in the
Company (being the entire issued share capital of the Company) (the "SHARES")
together with all rights of the Chargor derived from or connected to the Shares
(the "DERIVATIVE RIGHTS").
This notice may not be varied or revoked without the Security Trustee's prior
written consent.
This notice may be executed in any number of counterparts and by each party on a
separate counterpart each of which counterparts when so executed and delivered
shall be an original but all such counterparts shall together constitute one and
the same instrument.
This notice shall be governed by and construed in accordance with the laws of
Jersey.
Date: [Date]
For and on behalf of
[NAME OF CHARGOR]
For and on behalf of
[NAME OF SECURITY TRUSTEE]
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EXECUTION:
THE CHARGOR
SIGNED by Xxxxx Xxxxxxxx, Director duly ) Xxxxx Xxxxxxxx
authorised for and on behalf of MINING )
INVESTMENTS (JERSEY) LIMITED )
THE SECURITY TRUSTEE
SIGNED by Xxxxxxxxxxx Xxxxxxx and ) Xxxxxxxxxxx Xxxxxxx
Xxxx Xxxx, duly authorised for and on )
behalf of N M ROTHSCHILD & SONS LIMITED ) Xxxx Xxxx
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