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CRI ACCOUNTS ASSIGNMENT
between
CHAPARRAL RESOURCES, INC.
as the Company
and
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
as Security Trustee
7 February 2000
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WHITE & CASE
0-00 XXXXXXXX
XXXXXX XX0X 0XX
THIS ACCOUNTS ASSIGNMENT dated 7 February 2000 is made as a deed (this
"Deed") between:
(1) CHAPARRAL RESOURCES, INC., a company organised and existing under the
laws of the state of Delaware (the "COMPANY"); and
(2) THE LAW DEBENTURE TRUST CORPORATION P.L.C., a company organised and
existing under the laws of England, acting as security trustee for the
Finance Parties (as defined in the Loan Agreement) (the "SECURITY
TRUSTEE").
W H E R E A S:
A. Pursuant to a loan agreement dated 1 November, 1999 (the "LOAN
AGREEMENT") between the Company, the Co-Obligors, Shell Capital
Services Limited, Shell Capital Limited and the Lenders (as such terms
are defined in the Loan Agreement), the Lenders have agreed, subject
to the terms and conditions of the Loan Agreement, to make available
to the Company a secured loan in an aggregate amount not exceeding US$
24,000,000 (the "LOAN").
B. At the request of the Facility Agent, the Security Trustee has agreed
to act as trustee under the Security Trust Deed and to hold the
benefit of the security constituted by or pursuant to the Security
Documents and the covenants and obligations of the Obligors under the
Security Documents on trust for the Finance Parties.
C. It is a condition precedent to the Lenders making the Loan available
to the Company that the Company shall have executed and delivered this
Deed to the Security Trustee.
NOW IT IS AGREED:
1. INTERPRETATION
1.1 DEFINITIONS
Unless the context requires otherwise or a word or phrase is
differently defined in this Deed, words and phrases used in the Loan
Agreement shall have, when used in this Deed, the same meanings herein as
therein and, in addition, in this Deed the following terms have the meaning
given to them in this Clause 1.1:
"ACT" means the Law of Property Xxx 0000.
"ADMINISTRATION" means administration under Part II of the Insolvency
Xxx 0000;
"ASSIGNED ACCOUNTS" means the CRI Debt Service Reserve Account, the
CRI Disbursement Account and the CRI Receipts Account;
"ASSIGNED ASSETS" means the Assigned Accounts and the Assigned Moneys;
"ASSIGNED MONEYS" means the aggregate of all sums from time to time
standing to the credit of any of the Assigned Accounts and all investments
(including Authorised Investments), interest, income, investment proceeds
and other Rights from time to time accruing to or arising in connection
with such sums;
"ASSIGNMENT" means all or any of the security created, or which may at
any time be created, by or pursuant to this Deed;
"ATTORNEY" means any person appointed as such by the Company pursuant
to Clause 17.1 (Appointment);
"AUTHORISED INVESTMENTS" means (i) cash deposits at a bank in London
having at the time of the deposit capital and surplus of at least
$1,000,000,000 (or the equivalent in any other currency) and having a long-
term debt rating of A or better by Standard & Poor's Rating Group or A2 or
better by Xxxxx'x Investors Service Limited, or A by Duff & Xxxxxx Credit
Rating Co., provided that such deposit is in Dollars and is callable on not
more than one months' notice without penalty or otherwise matures on the
last Business Day of the succeeding calendar month and (ii) shares or units
in a money market investment fund company approved by the Facility Agent
with total assets under management of at least $500,000,000 (or the
equivalent in any other currency) and having a money market fund rating of
AAAm by Standard & Poor's Ratings Services or Aaa/MR1+ by Xxxxx'x Investor
Services Inc., provided that such shares are held in the Dollar fund of the
investment company and are redeemable within one Business Day;
"DISSOLUTION" means any of the bankruptcy, insolvency, liquidation,
amalgamation, reconstruction, reorganisation, Administration,
administrative or other receivership, or dissolution of a person, any
equivalent or analogous proceeding by whatever name known and in whatever
jurisdiction or the presentation of a petition for the making of an
administration order (or any equivalent or analogous order) or the passing
of a resolution for or with a view to any of the foregoing;
"INSOLVENCY ACT" means the Insolvency Xxx 0000;
"RECEIVER" means a receiver and manager or other receiver appointed in
respect of the Assigned Assets under this Deed or the Act;
"RELEVANT TRANSACTION" has the meaning given to it in Clause 16.2
(Retention of Deed);
"RIGHTS" means rights, benefits, powers, privileges, authorities,
discretions, remedies, easements, quasi-easements and appurtenances (in
each case, of any nature whatsoever);
"SECURED LIABILITIES" means all moneys and liabilities (whether actual
or contingent) which are now or may at any time hereafter be due, owing or
payable to any of the Finance Parties from or by the Obligors under or in
connection with (i) the Loan Agreement; (ii) this Deed; or (iii) any other
Finance Document, together with all legal and other costs, charges and
expenses which any of the Finance Parties may incur in enforcing or
obtaining, or attempting to enforce or obtain, payment of any such moneys
and liabilities; and
"TAX" includes any present or future tax (including value added tax),
levy, impost, duty, charge, fee, deduction or withholding of any nature,
and any interest or penalty in respect thereof.
1.2 RULES OF INTERPRETATION
In this Deed, unless the context requires otherwise:
(a) headings are for convenience only and do not affect the
interpretation of this Deed;
(b) words importing the singular include the plural and vice versa;
(c) a reference to a Clause, Sub-Clause, party or Schedule is a
reference to that Clause, Sub-Clause, or that party or Schedule to, this
Deed;
(d) a reference to a document includes an amendment or supplement to,
or replacement or novation of, that document but disregarding any
amendment, supplement, replacement or novation made in breach of this Deed;
and
(e) a reference to a party to any document includes that party's
successors and permitted assigns.
2. COVENANT TO DISCHARGE OBLIGATIONS
2.1 COVENANT TO PAY
The Company covenants with the Security Trustee that it will on demand
pay and discharge all the Secured Liabilities at the time or times when
due.
2.2 VALIDITY OF DEMANDS
Any person dealing with the Security Trustee or any Receiver shall not
be concerned to see or enquire as to the validity of any demand made by the
Security Trustee or any Receiver under this Deed.
3. SECURITY
3.1 ASSIGNMENT
The Company, with full title guarantee and as continuing security for
the payment and discharge of the Secured Liabilities, assigns absolutely to
the Security Trustee for the benefit of the Finance Parties, the Assigned
Account and the Assigned Moneys.
3.2 NO OBLIGATIONS
Notwithstanding this Deed or any contrary or inconsistent provision of
any Finance Document:
(a) the Company shall remain liable to perform all of its obligations
under or in respect of the Assigned Assets and the Security Trustee shall
be under no obligation of any kind whatsoever if the Company fails to
perform any of those obligations;
(b) the exercise by the Security Trustee of any of the rights,
benefits, interests or claims assigned by this Deed shall not release the
Company from any of its obligation towards the Security Trustee (except for
the application of funds in the discharge of any of the Secured Liabilities
and then only to the extent of such application); and
(c) except to the extent expressly provided in this Deed the Security
Trustee shall not, by reason of or arising out of this Deed or anything
done under or in connection with it, have any obligation or liability
whatsoever to any person (including the Company) to:
(i) perform (whether as a result of the non-performance, or
mis-performance, of the Company or otherwise) any of the obligations
of the Company under or in respect of any of the Assigned Assets; or
(ii) enforce payment or performance of any obligations of
any person party to any agreement forming part of the Assigned Assets;
or
(iii) make any enquiry as to the nature or sufficiency of any
payment received by it under or in respect of this Deed or any of the
Assigned Assets, or to make any claim or take any other action to
collect any moneys or to enforce any rights and benefits assigned to
the Security Trustee or to which the Security Trustee may at any time
be entitled under this Deed.
4. RESTRICTIONS ON DEALING WITH ASSIGNED ASSETS
4.1 NO DEALING
The Company shall not deal with the Assigned Moneys or operate the
Assigned Accounts except with the prior written consent of the Security
Trustee or otherwise than is permitted by the Accounts Agreement.
4.2 NEGATIVE PLEDGE
The Company shall not, without the prior written consent of the
Security Trustee, create or permit to subsist any Security Interest on,
over, or with respect to, the Assigned Assets except for the Permitted
Security Interests.
4.3 ACKNOWLEDGEMENT
Without prejudice to Clause 4.1 (No Dealing), if the withdrawal of any
amount from an Assigned Account is permitted pursuant to the Accounts
Agreement then (other than in respect of transfers between accounts) on the
payment of the relevant amount to the permitted recipient, the relevant
amount shall be automatically released from the Assignment. When an amount
is transferred from one Assigned Account to another Assigned Account
pursuant to the Loan Agreement or the Accounts Agreement, the amount
transferred shall, upon deposit in the other Assigned Account, become
automatically subject to the Assignment over that other Assigned Account.
5. INSTRUCTIONS TO ACCOUNTS BANK
The Company irrevocably authorises the Security Trustee to give the
Accounts Banks all instructions and notices which the Security Trustee may
from time to time and in the Security Trustee's absolute discretion
consider necessary or appropriate in relation to any of the matters
contemplated by this Deed including, but without limitation, the
enforcement of the Assignment.
6. GENERAL COVENANTS
The Company undertakes:
(a) to take whatever actions the Security Trustee may require at the
Company's expense, for establishing or maintaining the Assignment and
facilitating the exercise of any right, power or discretion exercisable by
the Security Trustee in respect of this Deed including, without limitation,
to execute and deliver any and all such further instruments and documents
as the Security Trustee may deem desirable to obtain the full benefit of
this Deed and of the rights and powers granted under it;
(b) to provide the Security Trustee with such information as the
Security Trustee may from time to time reasonably request with respect to
any of the Assigned Assets;
(c) to permit the Security Trustee, or its officers and agents, to
have access to and examine at all reasonable times minute books and other
corporate records, and books of account and financial records of the
Company in relation to the Assigned Assets;
(d) to defend the Assigned Assets against all claims and demands of
all persons at any time claiming the same or interest in them;
(e) except for the Assignment, not to grant directly or indirectly,
any other Security Interest in respect of, or otherwise dispose of, all or
any part of the Assigned Assets for as long as any of the Secured
Liabilities remains outstanding;
(f) to at all times maintain the balance of the Assigned Accounts in
accordance with the Accounts Agreement;
(g) to neither release, grant time or indulgence or compound with any
third party or suffer to arise any set-off or other adverse rights against
the Assigned Assets nor do or omit to do anything which may delay or
prejudice the right of the Security Trustee to receive payment from the
Assigned Accounts once it is entitled to such payment under the terms of
this Agreement;
(h) to deposit with the Security Trustee, or otherwise as the
Security Trustee may direct, all certificates of deposit, deposit receipts,
or other instruments or securities relating to the Assigned Assets
together, where appropriate, with such forms of transfer or other
instructions duly executed as the Security Trustee may from time to time
reasonably require;
(i) to forthwith inform the Security Trustee of any claim or notice
relating to the Assigned Assets received from any other party and of all
other matters relevant to that claim;
(j) to immediately, following execution of this Deed, give to the
Accounts Bank a notice in the form of Schedule 1 and procure that the
Accounts Bank promptly (and in any event within 7 days of receipt of the
notice) execute and deliver to the Security Trustee (with a copy thereof to
the Company) an acknowledgement substantially in the form of Schedule 2;
(k) on the date an Authorised Investment is made, give a notice
substantially in the form of Schedule 3 to the person with whom the
Authorised Investment is made and procure that such person executes and
delivers to the Security Trustee an acknowledgement of that notice as soon
as possible (and in any event within 3 days of receipt of the notice)
substantially in the form of Schedule 4; and
(l) at the request of the Security Trustee and at the Company's cost
and expense, to execute in favour of the Security Trustee, or as it may
reasonably direct, such further or other legal assignments, transfers,
mortgages, charges, applications, notices or other documents as in any such
case the Security Trustee shall reasonably stipulate over the Company's
estate or interest in any of the Assigned Assets:
(i) for perfecting, preserving, maintaining, establishing or
protecting any security intended to be created by or pursuant to this
Deed over the Assigned Assets; or
(ii) upon the occurrence and during the continuance of an Event
of Default when the Security Trustee has taken any step to enforce the
security created by this Deed, for facilitating the realisation of any
Assigned Asset or the exercise by the Security Trustee or any of its
delegates of any right, power or discretion granted by this Deed or by
law.
Without prejudice to the generality of this Sub-Clause (l), such
assignments, transfers, mortgages, charges, applications, notices or other
documents shall be in such form as shall be prepared on behalf of the
Security Trustee and may contain provisions such as are contained in this
Deed or provisions to the like effect and such other provisions of
whatsoever kind as the Security Trustee shall reasonably require for the
perfection of the security constituted by or pursuant to this Deed. The
obligations of the Company under this Sub-Clause (l) shall be in addition
to and not in substitution of the covenants or further assurances deemed to
be included in this Deed by applicable law.
7. REPRESENTATIONS AND WARRANTIES
7.1 The Company represents and warrants to the Security Trustee, as
at the date of this Deed, that:
(a) it is and will be the sole legal and beneficial owner and holder
of the Assigned Accounts and Assigned Moneys;
(b) it has the corporate power to enter into, execute and deliver
this Deed and to perform its obligations under this Deed;
(c) all actions, conditions and things required to be taken,
fulfilled and done (including, without limitation, the obtaining of
necessary Consents) in order to (i) enable the Company lawfully to enter
into, perform and comply with its obligations under this Deed, (ii) ensure
that those obligations are valid and legally binding, (iii) permit the
creation of the Assignment and ensure that (subject to all necessary
registrations thereof being made) the Assignment is valid, legally binding
and enforceable and has and will have the priority and ranking it is
expressed to have and (iv) make this Deed admissible in evidence in the
courts of England, have been taken, fulfilled and done;
(d) the Assigned Accounts are not the subject of a pledge or any
Security Interest to the benefit of persons other than the Finance Parties
and no demands or claims or any other encumbrances whatsoever have been
made by anyone with respect to all or any part of the Assigned Accounts;
(e) the obligations of the Company under this Deed and the Assignment
are, and will be, until fully discharged, valid, legally binding and
enforceable and, in the case of the Assignment, has the ranking and
priority it is expressed to have;
(f) the execution and delivery and the performance of this Deed will
not violate any law or regulation, or any order or decree of any court, or
any provision of the charter of the Company, constitute a default under any
agreement or other instrument to which the Company is a party or by which
it is bound and will not result in the creation or imposition of any
Security Interest, upon any property of the Company;
(g) it has not performed any acts which might prevent the Security
Trustee from enforcing any of the terms of this Deed or which would limit
the Security Trustee in any such enforcement; and
(h) upon the signing of this Deed by all the parties, and delivery of
the notice in the form of Schedule 1 to the Accounts Bank, and receipt of
the acknowledgement in the form of Schedule 2, this Deed shall constitute
valid and perfected Security Interests in the Assigned Assets, enforceable
against third parties, and the rights of the Security Trustee in such
Assigned Assets will be prior to all other Security Interests and rights of
others in such Assigned Assets.
7.2 REPETITION
The representations and warranties contained in Clause 7.1 shall be
made on the date of this Deed and shall be repeated thereafter on each
other day on which the representations and warranties set out in the Loan
Agreement are to be repeated and on each day on which an Advance is made by
reference to the facts and circumstances then existing.
7.3 SECURITY TRUSTEE'S RELIANCE
(a) The Company acknowledges that it makes the representations in
Clause 7.1 with the intention of inducing the Security Trustee to enter
into this Deed and the other Finance Documents and that the Security
Trustee enters into this Deed and the other Finance Documents on the basis
of, and in full reliance on, each of such representations.
(b) The Company warrants to the Security Trustee that each of such
representations is true and correct in all material respects as of the date
of this Deed and that none of the omits any matter the omission of which
makes any of such representations misleading.
7.4 Notwithstanding anything contained herein:
(a) the Security Trustee shall be under no obligation or liability
under or in respect of any of the Assigned Assets or liable to make any
payment under or in respect of them;
(b) the Security Trustee shall not be obliged to take any steps
necessary to preserve the Assigned Assets, or to make any enquiries as to
the nature or sufficiency of any payment received by it; and
(c) the Company shall remain solely and fully liable under or in
respect of each Assigned Account to pay all losses, costs, expenses, taxes
and damages to or in connection with any of the Assigned Accounts.
8. FURTHER ASSURANCES
8.1 GENERAL
The Company shall, at its own cost, promptly execute and do all such
assurances, acts and things in such form as the Security Trustee may from
time to time require:
(a) to ensure that the Assignment will be a legally valid and binding
assignment of the Assigned Assets;
(b) for perfecting, preserving or protecting the Assignment or the
priority of the Assignment; and
(c) for facilitating the appropriation of the Assigned Moneys in
accordance with Clause 9.2 (Appropriation of Assigned Moneys) or the
exercise of any Rights vested in the Security Trustee.
9. ENFORCEMENT
9.1 SECURITY TO BECOME ENFORCEABLE
The Security Interests constituted by this Deed shall become
enforceable at any time after the occurrence and during the continuance of
an Event of Default or if the Company shall fail to comply with any of the
obligations assumed by it in this Deed, and immediately thereafter the
powers conferred upon the Security Trustee by section 101 of the Act as
varied and extended by this Deed shall be exercisable without the
restrictions imposed by section 103 of the Act as to the giving of notice
or otherwise.
9.2 APPROPRIATION OF ASSIGNED MONEYS
Upon the occurrence of an Event of Default, the Security Trustee shall
be entitled, on the instructions of the Facility Agent, and is hereby
irrevocably and unconditionally authorised, without giving any other prior
notice to the Company or obtaining the consent of the Company but at the
cost of the Company, to require payment by the Accounts Bank to the
Security Trustee or as it may direct of the whole or any part of the
Assigned Moneys for application in the following order of priority (but
without prejudice to the right of the Security Trustee to recover any
shortfall from the Company):
(a) firstly, in or towards payment of all costs, charges, losses,
liabilities and expenses of, and incidental to, the appointment of any
Receiver and the exercise of its Rights including its remuneration and all
outgoings paid by it;
(b) secondly, in or towards the payment and discharge of such of the
Secured Liabilities in such order as the Security Trustee in its absolute
discretion may from time to time determine; and
(c) thirdly, after all the Secured Liabilities have been paid or
discharged in full, in payment of any surplus to the Company.
9.3 FIXED PERIOD
Clause 9.2 (Appropriation of Assigned Moneys) shall apply
notwithstanding that the Assigned Money or any part of it may have been
made or deposited for a fixed period and that such period may not have
expired.
9.4 SECTION 101 OF THE ACT
The powers conferred by section 101 of the Act, as varied and extended
by this Deed, shall be deemed to have arisen immediately on the execution
of this Deed.
9.5 SECTIONS 93 AND 103 OF THE ACT
Sections 93 and 103 of the Act shall not apply to this Deed.
10. APPOINTMENT OF RECEIVERS
10.1 APPOINTMENT
At any time after the security constituted by this Deed has become
enforceable (whether or not the Security Trustee shall have taken
possession of the Assigned Assets), at the request of the Company, or
following the Dissolution of the Company, without any or further notice,
the Security Trustee may, by deed or writing signed by any officer or
manager of the Security Trustee or any person authorised for this purpose
by the Security Trustee, appoint any person to be Receiver, and may
similarly remove any Receiver whether or not it appoints any person in its
place. If the Security Trustee appoints more than one person as Receiver,
the Security Trustee may give the relevant persons power to act either
jointly or severally.
10.2 SCOPE OF APPOINTMENT
Any Receiver may be appointed either Receiver of all the Assigned
Assets or Receiver of such part of the Assigned Assets as may be specified
in the appointment. In the latter case, the Rights conferred on a Receiver
by Clause 11 (Receivers) shall have effect as though every reference in
that Clause to the "Assigned Assets" were a reference to the part of the
Assigned Assets so specified or any part thereof.
11. RECEIVERS
11.1 POWERS
Any Receiver appointed under this Deed shall (subject to any contrary
provision specified in his appointment) have the powers granted to a
receiver under section 109 of the Act (as in force at the date of this
Deed) and the powers which are granted to an administrative receiver as
listed in Schedule 1 to the Insolvency Act (as in force at the date of this
Deed) and, in addition shall have the right, either in its own name or in
the name of the Company or otherwise and in such manner and upon such terms
and conditions as the Receiver thinks fit:
(a) in connection with any sale or disposition of the Assigned
Assets, to receive the consideration therefor in a lump sum or in
instalments and to receive shares by way of consideration;
(b) to grant options, licences or any other interest whatsoever in
relation to the Assigned Assets;
(c) to do all other acts and things which the Receiver may consider
desirable or necessary for realising the Assigned Assets or incidental or
conducive to any of the rights, powers or discretions conferred on a
Receiver under, or by virtue of, this Deed; and
(d) to exercise in relation to the Assigned Assets all the powers,
authorities and things which the Receiver would be capable of exercising if
the Receiver were the absolute beneficial owner of the same.
11.2 CONFLICT
If there is any ambiguity or conflict between the powers conferred on
the Receiver by the Act or by Schedule 1 of the Insolvency Act and the
powers conferred by Clause 11.1 (Powers), the powers conferred by Clause
11.1 (Powers) shall prevail.
11.3 AGENT OF COMPANY
Any Receiver shall be the agent of the Company for all purposes and
the Company shall be solely responsible for such Receiver's contracts,
engagements, acts, omissions, defaults and losses and for all liabilities
incurred by him.
11.4 REMUNERATION
Subject to section 36 of the Insolvency Act, the Security Trustee may,
from time to time, determine the remuneration of any Receiver (without
being limited to the maximum rate specified in section 109(6) of the Act)
and may direct payment of such remuneration out of moneys accruing to him
as Receiver but the Company alone shall be liable for the payment of such
remuneration and for all other costs, charges and expenses of the Receiver.
12. RIGHTS OF THE SECURITY TRUSTEE, RECEIVER AND DELEGATES
12.1 RIGHTS OF RECEIVER
Any Rights conferred by this Deed upon a Receiver may be exercised by
the Security Trustee after the security constituted by this Deed has become
enforceable, irrespective of whether the Security Trustee shall have taken
possession of the Assigned Assets or appointed a Receiver.
12.2 SUSPENSE ACCOUNT
For as long as any of the Secured Liabilities have not been paid or
discharged in full, the Security Trustee, acting upon the instructions of
the Facility Agent, may place and retain on an interest bearing suspense
account on deposit, for as long as it considers fit, any moneys received,
recovered or realised under or in connection with this Deed to the extent
of such Secured Liabilities without any obligation to apply the same in or
towards the discharge of such Secured Liabilities.
12.3 REDEMPTION OF PRIOR SECURITY
The Security Trustee may, at any time, redeem any Security Interest
over the Assigned Assets having priority to the Assignment or procure the
transfer thereof to the Security Trustee and may settle the accounts of
encumbrancers. Any accounts so settled shall, in the absence of manifest
error, be conclusive and binding on the Company. The Company shall, on
demand, pay to the Security Trustee all principal moneys, interest, costs,
charges, losses, liabilities and expenses of, and incidental to, any such
redemption or transfer.
12.4 NEW ASSIGNED ACCOUNT
At any time following (i) the Security Trustee's having received
notice (either actual or constructive) of any subsequent security affecting
the Assigned Assets (other than a Permitted Security Interest) or (ii) the
Dissolution of the Company, the Security Trustee may open a new account in
the name of the Company (whether or not it permits any existing account to
continue). If the Security Trustee does not open such a new account, it
shall nevertheless be treated as if it had done so at the time when the
notice was received or was deemed to have been received or, as the case may
be, the Dissolution commenced. Thereafter, all payments made by the Company
to the Security Trustee or received by the Security Trustee for the account
of the Company shall be credited or treated as having been credited to the
new account and shall not operate to reduce the amount secured by this Deed
at the time when the Security Trustee received or was deemed to have
received such notice or, as the case may be, the Dissolution commenced.
12.5 DELEGATION
The Security Trustee may delegate in any manner to any person any of
the Rights which is for the time being exercisable by the Security Trustee
under this Deed. Any such delegation may be made upon such terms and
conditions (including power to sub-delegate) as the Security Trustee may
think fit.
12.6 RIGHT OF SET-OFF
The Security Trustee may, without notice to the Company and without
prejudice to any of the Security Trustee's other Rights, set off any
Secured Liabilities which are due and unpaid against any obligation
(whether or not matured) owed by the Security Trustee to the Company,
regardless of the place of payment or booking branch, and for that purpose
the Security Trustee may convert one currency into another at the market
rate of exchange which may be obtained by the Security Trustee at the date
of set-off.
12.7 SECURITY TRUSTEE'S LIABILITY
The Security Trustee shall not, in any circumstances (whether by
reason of taking possession of the Assigned Assets or for any other reason
whatsoever and whether as mortgagee in possession or on any other basis
whatsoever), be liable:
(a) to account to the Company or any other person for anything except
the Security Trustee's own actual receipts; or
(b) to the Company or any other person for any costs, charges,
losses, damages, liabilities or expenses arising from, or connected with,
any realisation of the Assigned Assets or from any act, default, omission
or misconduct of the Security Trustee, its officers, employees or agents in
relation to the Assigned Assets except to the extent that they shall be
caused by the Security Trustee's own fraud, gross negligence or wilful
misconduct or that of its officers, employees or agents.
12.8 RECEIVER'S LIABILITY
All the provisions of Clause 12.7 (Security Trustee's Liability) shall
apply, mutatis mutandis, in respect of the liability of any Receiver or
Delegate or any officer, employee or agent of the Security Trustee, any
Receiver or any Delegate.
12.9 INDEMNITY
The Security Trustee and every delegate, Receiver, attorney, manager,
agent or other person appointed by the Security Trustee hereunder shall be
entitled to be indemnified out of the Assigned Assets in respect of all
liabilities and expenses incurred by any of them in the execution or
reasonable purported execution of any of their respective Rights and
against all actions, proceedings, costs, claims and demands in respect of
any matter or thing done or omitted in any way relating to the Assigned
Assets, and the Security Trustee and any such delegate, attorney, manager,
agent or other person appointed by the Security Trustee hereunder may
retain and pay all sums in respect of the same out of any moneys received
unless such liabilities and expenses were incurred as a result of the gross
negligence or wilful default of the Security Trustee, delegate, attorney,
manager, agent or other person appointed by the Security Trustee.
13. CONTINUING SECURITY AND OTHER MATTERS
13.1 CONTINUING AND INDEPENDENT SECURITY
The Assignment shall be continuing and independent security for the
Secured Liabilities and shall not be satisfied, discharged or affected by
any intermediate payment or settlement of account (whether or not any
Secured Liabilities remain outstanding thereafter) or any other matter or
thing whatsoever.
13.2 PRIMARY OBLIGATIONS
This Deed and the Assignment constitute original, independent and
absolute securities (and not secondary or collateral securities) for the
Secured Liabilities.
14. OTHER SECURITY
The Assignment shall be in addition to, and shall not be prejudiced
by, any other security or any guarantee or indemnity or other document
which the Security Trustee or any of the other Finance Parties may at any
time hold for the payment of the Secured Liabilities.
15. ASSIGNMENT NOT TO BE AFFECTED
Without prejudice to Clauses 13 (Continuing Security and Other
Matters) and 14 (Other Security), neither the Assignment nor the liability
of the Company for the Secured Liabilities shall be prejudiced or affected
by:
(a) any variation or amendment of, or waiver or release granted under
or in connection with, any other security or any guarantee or indemnity or
other document;
(b) time being given, or any other indulgence or concession being
granted, by the Security Trustee or any other Finance Party to the Company
or any other person;
(c) the taking, holding, failure to take or hold, varying,
realisation, non-enforcement, non-perfection or release by the Security
Trustee or any other Finance Party or any other person of any other
security, or any guarantee or indemnity or document;
(d) the Dissolution of any Obligor or any other person;
(e) any arrangement or compromise entered into by the Security
Trustee or any other Finance Party with any Obligor or any other person;
(f) any change in the constitution of any Obligor;
(g) any amalgamation, merger or reconstruction that may be effected
by any Obligor with any other person or any sale or transfer of the whole
or any part of the assets of any Obligor to any other person;
(h) the existence of any claim, set-off or other right which any
Obligor may have at any time against the Finance Parties or any other
person;
(i) the making or absence of any demand for payment of any Secured
Liabilities on any Obligor or any other person, whether by the Security
Trustee or any other Finance Party or any other person; or
(j) any other thing done or omitted or neglected to be done by the
Security Trustee or any other Finance Party or any other person or any
other dealing, fact, matter or thing which, but for this provision, might
operate to prejudice or affect the liability of the any Obligor for the
Secured Liabilities.
16. RELEASE OF ASSIGNED ASSETS
16.1 RELEASE OF ASSIGNED ASSETS
If the Security Trustee, acting upon the instructions of the Facility
Agent, is satisfied that all the Secured Liabilities have been irrevocably
paid or discharged in full and the Security Trustee is satisfied that the
time period within which the payment or discharge of such Secured
Liabilities or such substitute security can be avoided, reduced or
invalidated by virtue of applicable law or for any other reason whatsoever
has expired, or that the payment, discharge or substitute security will not
be avoided, reduced or invalidated then, subject to Clause 16.2 (Retention
of Deed), the Security Trustee shall at the request and cost of the Company
execute such deeds and do all such acts and things as may be necessary to
release the Assigned Assets from the Assignment.
16.2 RETENTION OF DEED
If the Company requests the Security Trustee to release the Assigned
Assets from the Assignment following any payment or discharge of the
Secured Liabilities by a person other than the Company (a "RELEVANT
TRANSACTION"), the Security Trustee shall at the cost of the Company
execute such documents and deeds and do all such acts and things as may be
necessary to release the Assigned Assets from the Assignment provided the
Security Trustee is satisfied that the payment or discharge will not be
avoided, reduced or invalidated. If the Security Trustee is not so
satisfied, the Security Trustee shall be entitled to retain this Deed and
shall not be obliged to release the Assigned Assets from the Assignment
until the expiry of the Retention Period (being the period which commences
on the date when that Relevant Transaction was made or given, and ends on
the date falling one month after the expiration of the maximum period
within which that Relevant Transaction can be avoided, reduced or
invalidated by virtue of any applicable law or for any other reason
whatsoever in relation to that Relevant Transaction). If at any time before
the expiry of that Retention Period the Dissolution of such other person
has commenced, the Security Trustee may continue to retain this Deed and
shall not be obliged to release the Assigned Assets from the Assignment for
such further period as the Security Trustee may determine.
17. POWER OF ATTORNEY
17.1 APPOINTMENT
The Company appoints, irrevocably and by way of security, the Security
Trustee, every Receiver and every delegate severally to be the Attorney of
the Company (with full powers of substitution and delegation), on its
behalf and in its name or otherwise, at such time and in such manner as the
Attorney may think fit:
(a) to do anything which the Company is obliged to do (but has not
done) under this Deed including, but without limitation, to complete and
execute any transfer of, or security over, the Assigned Assets;
(b) generally to exercise all or any of the Rights conferred on the
Security Trustee, every Receiver or every delegate in relation to the
Assigned Assets or under, or in connection with, this Deed, the Act or the
Insolvency Act.
17.2 RATIFICATION
The Company covenants to ratify and confirm whatever any Attorney
shall do or purport to do in the exercise or purported exercise of the
Power of Attorney in Clause 17.1.
18. DEFAULT INTEREST
If the Company fails to pay any Secured Liabilities on the due date
for payment, the Company shall pay to the Security Trustee on demand
interest at the "default rate" (as such term is defined in the Clause 19.2
(Default Interest) of the Loan Agreement) from:
(a) in the case of costs, charges, losses, liabilities, expenses and
other sums referred to in Clause 21 (Costs and Expenses), the date on which
the relevant cost, charge, loss, liability, expense or sum was expended,
paid or debited on account by the Security Trustee without the necessity of
any demand being made for payment thereof; or
(b) in any other case, the date on which the relevant Secured
Liabilities became due,
until full payment and discharge of the relevant Secured Liabilities
(both before and after any judgment).
19. CURRENCY INDEMNITY
If the Security Trustee receives an amount in respect of the Company's
liability under this Deed or if that liability is converted into a claim,
proof, judgment or order in a currency other than Dollars:
(a) the Company shall indemnify the Security Trustee as an
independent obligation against any loss or liability arising out of or as a
result of the conversion;
(b) if the amount received by the Security Trustee, when converted
into Dollars at a market rate in the usual course of its business and after
expenses and commissions is less than the amount owed in Dollars, the
Company shall forthwith on demand pay to the Security Trustee an amount in
Dollars equal to the deficit; and
(c) the Company shall pay to the Security Trustee on demand any
exchange costs and taxes payable in connection with any such conversion.
The Company waives any right it may have in any jurisdiction to pay
any amount under this Deed in a currency other than that in which it is
expressed to be payable.
20. CERTIFICATE TO BE CONCLUSIVE EVIDENCE
For all purposes, including any Proceedings, a copy of a certificate
of the Security Trustee as to the amount of any indebtedness comprised in
the Secured Liabilities or as to any applicable rate of interest shall, in
the absence of manifest error, be conclusive evidence against the Company
as to that amount or rate.
21. COSTS AND EXPENSES
21.1 TRANSACTION COSTS
The Company shall, on written demand (accompanied by copies of the
invoices therefor), pay to the Security Trustee all legal and other fees on
a full indemnity basis (including, without limitation, all printing,
translation, communication, advertising, travel and other out-of-pocket
expenses) properly incurred by it in connection with the negotiation,
preparation and execution of this Deed, the completion of the transactions
contemplated in this Deed, any amendment of this Deed and any calculation,
approval, consent or waiver to be made or given by the Security Trustee
pursuant to, or in respect of any provision of, this Deed.
21.2 PRESERVATION AND ENFORCEMENT COSTS
The Company shall, from time to time on demand pay to the Security
Trustee all costs and expenses (including without limitation legal and
other fees on a full indemnity basis and printing, translation,
communication, advertisement, travel and all other out-of-pocket expenses)
incurred in or in connection with the preservation and/or enforcement (or
attempted preservation and/or enforcement) of any right of the Security
Trustee under this Deed.
21.3 STAMP TAXES
The Company shall pay all stamp, registration and other taxes and
duties, and all notarial, registration, recording and other like fees to
which this Deed or any judgment given in connection with this Deed is, or
at any time may be, subject and shall on demand indemnify the Security
Trustee against any liabilities, costs, claims and expenses resulting from
any failure to pay or any delay in paying any such tax or duty or fees.
21.4 SECURITY TRUSTEE'S ADDITIONAL COSTS
The Company shall, from time to time on demand of the Security Trustee
(and without prejudice to the provisions of Clause 21.1 (Transaction Costs)
and 21.2 (Preservation and Enforcement Costs) compensate the Security
Trustee at such daily and/or hourly rates as the Security Trustee shall
from time to time determine and on demand indemnify the Security Trustee
against all costs and expenses (including without limitation telephone,
fax, copying, travel and personnel costs) properly incurred by the Security
Trustee in connection with its taking such action as it may deem
appropriate or in complying with any instructions from the Security Trustee
or the other Finance Parties or any request by the Company in connection
with:
(a) the granting or proposed granting of any waiver or consent
requested by the Company under this Deed;
(b) any actual, potential or suspected breach by the Company of its
obligations under this Deed;
(c) the occurrence of an Event of Default or a Potential Event of
Default; or
(d) any amendment or proposed amendment to this Deed requested by the
Company.
21.5 TAX
Any fee, cost or expense referred to in this Clause 21 (Costs and
Expenses) is exclusive of any Tax chargeable in connection with that cost
or expense. The Company shall pay any Tax so chargeable at the same time as
it pays the relevant fee, cost or expense.
22. NOTICES
22.1 GIVING OF NOTICES
All notices or other communications shall be in writing addressed to
the relevant party. A written notice includes a facsimile transmission. Any
such notice shall be deemed to be given as follows:
(a) if by personal delivery or letter, when delivered; and
(b) if by facsimile, when the answerback is received.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt shall only
be deemed to be given on the next working day in that place.
22.2 ADDRESSES FOR NOTICES
(a) The address and facsimile number of the Security Trustee are:
The Law Debenture Trust Corporation p.l.c.
Xxxxxxx Xxxxx, 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: The Manager, Trust Management
Facsimile: 00 (0)00 0000 0000/0000 0000
or such other as the Security Trustee may notify to the Company by not
less than five (5) Business Days' notice.
(b) The address and facsimile number of the Company are:
Chaparral Resources, Inc.
00000 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000, XXX
Attention: President
Facsimile: (000) 000 0000
or such other as the Company may notify to the Security Trustee by not
less than five (5) Business Days' notice.
22.3 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to
another pursuant to this Deed shall be in the English language or
accompanied by a translation thereof into English certified (by an officer
of the person making or delivering the same) as being a true and accurate
translation thereof.
23. RIGHTS AND WAIVERS, PARTIAL INVALIDITY
23.1 REMEDIES AND WAIVERS
Time is of the essence of the Company's obligations under this Deed
but no failure to exercise, nor any delay in exercising, on the part of the
Security Trustee, any right or remedy under this Deed shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of any
other right or remedy. The rights and remedies contained in this Deed are
cumulative and not exclusive of any rights or remedies provided by law.
The Security Trustee may agree to any waiver of any of its rights or
remedies under this Deed on such terms as it sees fit.
23.2 PARTIAL INVALIDITY
If, at any time, any provision of this Deed is or becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction,
neither the legality, validity or enforceability of the remaining
provisions of this Deed under the law of that jurisdiction nor the
legality, validity or enforceability of that or any other provision of this
Deed under the law of any other jurisdiction shall in any way be affected
or impaired thereby unless the effect of the foregoing would be
substantially to alter the rights and obligations of the parties originally
agreed.
24. ASSIGNMENT OF RIGHTS
The Security Trustee may at any time, without the consent of the
Company, assign or transfer the whole or, as the case may be, any part of
the Security Trustee's Rights under this Deed to any person. The Company
may not assign its rights under this Deed.
25. LAW AND JURISDICTION
25.1 ENGLISH LAW
THIS DEED SHALL BE GOVERNED BY ENGLISH LAW.
25.2 JURISDICTION
(A) FOR THE EXCLUSIVE BENEFIT OF THE SECURITY TRUSTEE AND THE
FACILITY AGENT, THE COMPANY IRREVOCABLY AGREES THAT THE COURTS OF ENGLAND
ARE TO HAVE JURISDICTION TO SETTLE ANY DISPUTES WHICH MAY ARISE OUT OF OR
IN CONNECTION WITH THIS DEED AND THAT ACCORDINGLY ANY SUIT, ACTION OR
PROCEEDINGS (TOGETHER IN THIS CLAUSE 25 (LAW AND JURISDICTION) REFERRED TO
AS "PROCEEDINGS") ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY
BE BROUGHT IN SUCH COURTS, SUBJECT TO THE OPTION REFERRED TO IN CLAUSE 25.6
(ARBITRATION).
(B) THE COMPANY IRREVOCABLY WAIVES AND AGREES NOT TO RAISE ANY
OBJECTION WHICH IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE OF
ANY PROCEEDINGS IN ANY SUCH COURT AS IS REFERRED TO IN THIS CLAUSE 25.2 AND
ANY CLAIM THAT ANY SUCH PROCEEDINGS HAVE BEEN BROUGHT IN AN INCONVENIENT OR
INAPPROPRIATE FORUM AND FURTHER IRREVOCABLY AGREES THAT A JUDGMENT IN ANY
PROCEEDINGS BROUGHT IN THE ENGLISH COURTS SHALL BE CONCLUSIVE AND BINDING
UPON THE COMPANY AND MAY BE ENFORCED IN THE COURTS OF ANY OTHER
JURISDICTION.
(C) NOTHING CONTAINED IN THIS CLAUSE 25.2 SHALL LIMIT THE RIGHT OF
THE SECURITY TRUSTEE TO TAKE PROCEEDINGS AGAINST THE COMPANY IN ANY OTHER
COURT OF COMPETENT JURISDICTION, NOR SHALL THE TAKING OF PROCEEDINGS IN ONE
OR MORE JURISDICTIONS PRECLUDE THE TAKING OF PROCEEDINGS IN ANY OTHER
JURISDICTION, WHETHER CONCURRENTLY OR NOT.
25.3 PROCESS AGENT
THE COMPANY HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) APPOINTS LAW DEBENTURE CORPORATE SERVICES LIMITED, WHOSE ADDRESS
IS AT PRINCES HOUSE, 00 XXXXXXX XXXXXX, XXXXXX XX0X 0XX, XXXXXXX AS ITS
PROCESS AGENT TO RECEIVE, FOR AND ON ITS BEHALF, SERVICE OF PROCESS IN
ENGLAND IN ANY PROCEEDINGS WITH RESPECT TO THIS DEED;
(B) AGREES THAT FAILURE BY ANY SUCH PROCESS AGENT TO GIVE NOTICE OF
SUCH PROCESS TO IT SHALL NOT IMPAIR THE VALIDITY OF SUCH SERVICE OR OF ANY
JUDGMENT BASED THEREON; AND
(C) AGREES THAT NOTHING IN THIS DEED SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
25.4 WAIVER OF IMMUNITY
TO THE EXTENT THAT THE COMPANY MAY NOW OR HEREAFTER BE ENTITLED, IN
ANY JURISDICTION IN WHICH PROCEEDINGS MAY AT ANY TIME BE COMMENCED WITH
RESPECT TO THIS DEED, TO CLAIM FOR ITSELF OR ANY OF ITS UNDERTAKINGS,
PROPERTIES, ASSETS OR REVENUES PRESENT OR FUTURE ANY IMMUNITY (SOVEREIGN OR
OTHERWISE) FROM SUIT, JURISDICTION OF ANY COURT, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OF A JUDGMENT, EXECUTION OF A
JUDGMENT OR FROM SET-OFF, BANKER'S LIEN, COUNTERCLAIM OR ANY OTHER LEGAL
PROCESS OR REMEDY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS DEED AND/OR TO
THE EXTENT THAT IN ANY SUCH JURISDICTION THERE MAY BE ATTRIBUTED TO THE
COMPANY, ANY SUCH IMMUNITY (WHETHER OR NOT CLAIMED), THE COMPANY HEREBY TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW IRREVOCABLY AGREES NOT TO
CLAIM, AND HEREBY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW WAIVES,
ANY SUCH IMMUNITY.
25.5 CONSENT TO ENFORCEMENT
THE COMPANY CONSENTS GENERALLY IN RESPECT OF ANY PROCEEDINGS TO THE
GIVING OF ANY RELIEF OR THE ISSUE OF ANY PROCESS IN CONNECTION WITH SUCH
PROCEEDINGS INCLUDING THE MAKING, ENFORCEMENT OR EXECUTION AGAINST ANY
PROPERTY WHATSOEVER (IRRESPECTIVE OF ITS USE OR INTENDED USE) OF ANY ORDER
OR JUDGMENT WHICH MAY BE MADE OR GIVEN IN SUCH PROCEEDINGS.
25.6 ARBITRATION
IF ANY DISPUTE ARISES IN RELATION TO THIS DEED, INCLUDING ANY QUESTION
AS TO EXISTENCE, VALIDITY OR TERMINATION, SUCH DISPUTE SHALL, AT THE OPTION
ONLY OF THE SECURITY TRUSTEE, BE REFERRED TO AND FINALLY RESOLVED BY
ARBITRATION UNDER THE RULES OF THE LONDON COURT OF INTERNATIONAL
ARBITRATION WHICH ARE APPLICABLE AT THE TIME OF REFERENCE TO THE
ARBITRATION AND ARE DEEMED TO BE INCORPORATED BY REFERENCE INTO THIS CLAUSE
25.6. SUCH ARBITRATION SHALL TAKE PLACE IN LONDON, ENGLAND AND SHALL BE
CONDUCTED BY THREE ARBITRATORS, ONE OF WHOM SHALL BE NOMINATED BY THE
COMPANY, ONE BY THE RELEVANT SECURITY TRUSTEE AND THE THIRD TO BE AGREED
BETWEEN THE TWO ARBITRATORS SO NOMINATED AND IN DEFAULT THE ARBITRATOR
SHALL BE NOMINATED BY THE PRESIDENT OF THE LONDON COURT OF INTERNATIONAL
ARBITRATION. THE LANGUAGE IN WHICH SUCH ARBITRATION SHALL BE CONDUCTED
SHALL BE ENGLISH. ANY AWARD RENDERED SHALL BE FINAL AND BINDING ON THE
PARTIES THERETO AND MAY BE ENTERED INTO ANY COURT HAVING JURISDICTION OR
APPLICATION MAY BE MADE TO SUCH COURT FOR AN ORDER OF ENFORCEMENT AS THE
CASE MAY REQUIRE. NO PARTY MAY APPEAL TO ANY COURT FROM ANY AWARD OR
DECISION OF THE ARBITRAL TRIBUNAL AND, IN PARTICULAR, BUT WITHOUT
LIMITATION, NO APPLICATIONS MAY BE MADE UNDER SECTION 45 OF THE ARBITRATION
XXX 0000 AND NO APPEAL MAY BE MADE UNDER SECTION 69 OF THE SAID ACT.
26. COUNTERPARTS
This Deed may be executed in any number of counterparts and by the
different parties on separate counterparts which when taken together shall
constitute one instrument.
IN WITNESS WHEREOF this Deed has been executed as a deed by the
parties hereto and is delivered on the date at the beginning of this Deed.
EXECUTED as a deed and delivered by
CHAPARRAL RESOURCES, INC. acting
by /S/ XXXXXXX X. XXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
In the presence of:
/S/ XXXX X. XXXXX
-----------------------------
Witness
Name: Xxxx X. Xxxxx
The COMMON SEAL of
THE LAW DEBENTURE TRUST
CORPORATION p.l.c.
was hereunto affixed in the presence of:
/S/ XXXXXX XXXXX-XXXX
-----------------------------
Name: Xxxxxx Xxxxx-Xxxx
Title: Director
/S/ XXXXX XXXXXXXXX
-----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Authorised Signatory
SCHEDULE 1
Form of Notice of Assignment over Accounts
To: [The Account Bank]
From: Chaparral Resources, Inc.
Copy to: The Law Debenture Trust Corporation p.l.c. as Security Trustee.
2000
Dear Sirs,
Re: [Accounts] (the "Assigned Accounts")
We refer to [insert details of Assigned Accounts]. We enclose a copy
of an Accounts Assignment (the "Assignment") dated 7 February 2000 between
us and the Security Trustee. Terms defined in the Assignment have the same
respective meaning in this Notice.
We hereby give you notice of the Assignment and, for the purposes of
the Assignment, we irrevocably and unconditionally instruct you
(notwithstanding any previous instructions which we may have given you to
the contrary):
(i) until you receive notice from the Security Trustee that the
security created by the Assignment has been released:
(A) not to accept from us any instruction or direction with
respect to the disposition or dealing with the Assigned
Accounts or the Assigned Moneys unless you receive an
instruction from the Facility Agent;
(B) to send to the Facility Agent, and to the Security Trustee
upon request, copies of every statement or correspondence
regarding the Assigned Accounts which you receive in respect
of the Assigned Accounts immediately upon receipt or issue
thereof;
(C) to disclose to the Security Agent and the Facility Agent,
without reference to or any further authority from us and
without any enquiry by you as to the justification for such
disclosure, such information relating to the Assigned
Accounts and the Assigned Moneys as the Security Trustee and
the Facility Agent may, at any time and from time to time
request you to disclose to them;
(D) to comply with the terms of any written notice, statement or
instructions in any way relating to or purporting to relate
to the Assignment and/or the Assigned Accounts and/or the
Assigned Moneys which you may receive at any time and from
time to time from the Facility Agent without any reference
to or further authority from us and without any enquiry by
you as to the justification for such notice, statement or
instructions or the validity thereof; and
(ii) at any time after you have received notice from the Security
Trustee that the security constituted by the Assignment has
become enforceable:
(A) to pay any Assigned Moneys to the Security Trustee or its
order at such place as the Security Trustee may from time to
time direct; and
(B) to hold to the order of the Security Trustee, certificates
of deposit, deposit receipts or other instruments or
securities relating to the Assigned Moneys and to forward
the same to the Security Trustee or as it may direct.
The instructions and authorisations which are contained in this letter
shall remain in full force and effect until the Security Trustee gives you
notice in writing revoking them. This letter shall be governed by and
construed in accordance with English law.
Would you please acknowledge receipt of this letter and your
acceptance of the instructions and authorisations contained in this letter
by sending a letter addressed to the Security Trustee and copied to us in
the form which is set out in Schedule 2 to the Assignment.
Yours faithfully,
Chaparral Resources, Inc.
SCHEDULE 2
Form of Acknowledgement
To: The Law Debenture Trust Corporation p.l.c.
Copy to: Chaparral Resources, Inc.
[Date] 2000
Dear Sirs,
We acknowledge receipt of the letter dated ______ 2000 and addressed
to us by Chaparral Resources, Inc. (the "Company") (a copy of which is
attached) and accept the instructions and authorisations contained in the
letter and undertake to act in accordance and comply with the terms
thereof.
We represent and undertake that we:
(a) consent to the Assignment referred to in the letter;
(b) have received no notice of, and have not ourselves received, any prior
charge, assignment or encumbrance of the Assigned Assets;
(c) will transfer, pay or deliver any Assigned Moneys or deal with or
permit any dealing with the Assigned Accounts only pursuant to the
Accounts Agreement;
(d) will not in any way prejudice your rights, titles and interests to or
under the Assigned Assets;
(e) will neither claim to set-off to your prejudice any Assigned Moneys
against any claim we may have against the Company howsoever arising
nor exercise or attempt to exercise any right of set off or
consolidation or combination of accounts or similar right in respect
of or in relation to the Assigned Accounts;
(f) will procure that payments are made to you or as you may direct in
accordance with the authority and instruction contained in the
attached letter, upon notice from you that the Assignment has become
enforceable; and
(g) will send to the Facility Agent, at the address specified in the
letter, copies of every statement or correspondence regarding the
Assigned Accounts which we receive from or send to the Company
immediately upon the receipt or issue thereof.
We have made the representations and given the undertakings set out in
this letter in the knowledge that they are required by you in connection
with the security which has been granted by the Company in your favour
pursuant to an Accounts Assignment dated 7 February 2000 between you and
the Company (the "Assignment"). The expressions defined in the Assignment
have the same respective meanings in this letter. This letter shall be
governed by and construed in accordance with English law.
Yours faithfully,
[Name of Accounts Bank]
SCHEDULE 3
Form of Notice of Assignment
To: []
From: Chaparral Resources, Inc. (the "Company")
Copy to: The Law Debenture Trust Corporation p.l.c. (the "Security
Trustee").
Re: [insert details of Authorised Investments] (the "Relevant Investment")
We refer to the Accounts Assignment (the "Assignment") dated 7
February 2000 between us and the Security Trustee. Terms defined in the
Assignment have the same respective meaning in this Notice.
We refer to the Relevant Investment to be made from funds standing to
the credit of the following Assigned Account[s]:
[insert account details] (the "Relevant Account[s]").
[ ]
We give you notice that, by the Assignment the Company has assigned by
way of security with full title guarantee in favour of the Security
Trustee, all of the right, title and interest of the Company in and to,
inter alia, all investments (including the Relevant Investment), interest,
income, investment proceeds and other Rights from time to time accruing to
or arising in connection with amounts standing to the credit of the
Assigned Accounts.
The Company hereby irrevocably and unconditionally instructs and authorises
you:-
(a) to disclose to the Security Trustee or the Facility Agent, the
contact details of which are detailed in the Appendix to this notice,
together with a copy to the Company but without any reference to or further
authority from the Company and without any inquiry by you as to the
justification for such disclosure, such information relating to the
Relevant Investment as the Security Trustee or the Facility Agent (as the
case may be) may, at any time and from time to time, request you to
disclose to it;
(b) unless and until the Security Trustee gives you notice to the
contrary, the proceeds of any Relevant Investment (including any interest
or income accruing to or arising in connection therewith) shall be
deposited into the Relevant Account;
(b) to release all or any part of the Relevant Investment (including any
interest or income accruing to or arising in connection therewith) in
accordance with any written instructions received from the Security Trustee
at any time or times notwithstanding any instruction to the contrary from
us;
(c) to hold all certificates or other evidence of ownership or documents
of title of the Relevant Investment subject to the security created by the
Assignment;
(d) to comply with the terms of any written notice that you receive from
the Security Trustee at any time in any way relating to or purporting to
relate to the Assignment or the Relevant Investment, with a notice to the
Company but without any reference to or further authority from the Company
and without any inquiry by you as to the justification for or validity of
such notice or instructions.
The Security Trustee has agreed that the Company may instruct you to
acquire, hold and realise the Relevant Investment without any reference to
or further authority from the Security Trustee except to the extent that
the Security Trustee gives you notice to the contrary. Upon and after the
giving of any such notice, the Company shall cease to be entitled to give
such instructions or make any such withdrawal to the extent specified in
the notice until the revocation of that notice.
The Company confirms that:-
(a) in the event of any conflict between communications received from
the Company 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 written consent.
The instructions and authorisations which are contained in this letter
shall remain in full force and effect until the Security Trustee gives you
notice in writing revoking them. This letter shall be governed by and
construed in accordance with English law.
Would you please acknowledge receipt of this letter and your
acceptance of the instructions and authorisations contained in this letter
by sending a letter addressed to the Security Trustee and copied to us in
the form which is set out in Schedule 4 to the Assignment.
Yours faithfully,
Chaparral Resources, Inc.
APPENDIX
CONTACT DETAILS
THE FACILITY AGENT
Xxxxx Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxxx XX0 0XX
Attention: The Financial Controller
Facsimile: 44 207 934 7058
THE SECURITY TRUSTEE
The Law Debenture Trust Corporation p.l.c.
Xxxxxxx Xxxxx, 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: The Manager, Trust Management
Facsimile: 00 (0)00 0000 0000/0000 0000
SCHEDULE 4
Form of Acknowledgement
From: []
To: The Law Debenture Trust Corporation p.l.c.
Copy to: Chaparral Resources, Inc.
[Date]
Dear Sirs,
We acknowledge receipt of the letter dated _____ 2000 and addressed to
us by Chaparral Resources, Inc. (the "Company") and accept the instructions
and authorisations contained in the letter and undertake to act in
accordance and comply with the terms thereof. The expressions defined in
the letter have the same respective meanings in this acknowledgement.
We represent and undertake that:
(a) we consent to the Assignment referred to in the letter;
(b) we have received no notice of, and have not ourselves received, any
prior charge, assignment or encumbrance of the Relevant Investment;
(c) unless and until you give us notice to the contrary, the proceeds of
any Relevant Investment (including any interest or income accruing to
or arising in connection therewith) shall be deposited into the
Relevant Account;
(d) we will release all or any part of the Relevant Investment (including
any interest or income accruing to or arising in connection therewith)
in accordance with any written instructions received from you at any
time or times notwithstanding any instruction to the contrary from the
Company;
(e) we shall comply with the terms of any notice received by us from you
terminating the right of the Company to instruct us to acquire, hold
and realise the Relevant Investment to the extent specified in that
notice;
(f) we will not in any way prejudice your rights, titles and interests to
or under the Relevant Investment;
(g) will neither claim to set-off to your prejudice the Relevant
Investment against any claim we may have against the Company howsoever
arising nor exercise or attempt to exercise any right of set off or
consolidation or combination of accounts or similar right in respect
of or in relation to the Relevant Investment; and
(h) will send to you or the Facility Agent (as the case may be), at the
address specified in the letter, such information relating to the
Relevant Investment as you or the Facility Agent (as the case may be)
may, at any time and from time to time, request.
We have made the representations and given the undertakings set out in
this acknowledgement in the knowledge that they are required by you in
connection with the security which has been granted by the Company in your
favour pursuant to the Accounts Assignment dated 7 February 2000 between
you and the Company (the "Assignment"). This acknowledgement shall be
governed by and construed in accordance with English law.
Yours faithfully,
TABLE OF CONTENTS
Page
1. INTERPRETATION. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Rules of Interpretation . . . . . . . . . . . . . . . . 2
2. COVENANT TO DISCHARGE OBLIGATIONS . . . . . . . . . . . . . . . 3
2.1 Covenant to Pay . . . . . . . . . . . . . . . . . . . . 3
2.2 Validity of Demands . . . . . . . . . . . . . . . . . . 3
3. SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3.1 Assignment. . . . . . . . . . . . . . . . . . . . . . . 3
3.2 No Obligations. . . . . . . . . . . . . . . . . . . . . 3
4. RESTRICTIONS ON DEALING WITH ASSIGNED ASSETS. . . . . . . . . . 4
4.1 No Dealing. . . . . . . . . . . . . . . . . . . . . . . 4
4.2 Negative Pledge . . . . . . . . . . . . . . . . . . . . 4
4.3 Acknowledgement . . . . . . . . . . . . . . . . . . . . 4
5. INSTRUCTIONS TO ACCOUNTS BANK . . . . . . . . . . . . . . . . . 4
6. GENERAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 4
7. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . 6
7.2 Repetition. . . . . . . . . . . . . . . . . . . . . . . 7
7.3 Security Trustee's Reliance . . . . . . . . . . . . . . 7
8. FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . . . . . 8
8.1 General . . . . . . . . . . . . . . . . . . . . . . . . 8
9. ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9.1 Security to Become Enforceable. . . . . . . . . . . . . 8
9.2 Appropriation of Assigned Moneys. . . . . . . . . . . . 8
9.3 Fixed Period. . . . . . . . . . . . . . . . . . . . . . 9
9.4 Section 101 of the Act. . . . . . . . . . . . . . . . . 9
9.5 Sections 93 and 103 of the Act. . . . . . . . . . . . . 9
10. APPOINTMENT OF RECEIVERS. . . . . . . . . . . . . . . . . . . . 9
10.1 Appointment . . . . . . . . . . . . . . . . . . . . . . 9
10.2 Scope of Appointment. . . . . . . . . . . . . . . . . . 9
11. RECEIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11.1 Powers. . . . . . . . . . . . . . . . . . . . . . . . . 9
11.2 Conflict. . . . . . . . . . . . . . . . . . . . . . . . 10
11.3 Agent of Company. . . . . . . . . . . . . . . . . . . . 10
11.4 Remuneration. . . . . . . . . . . . . . . . . . . . . . 10
12. RIGHTS OF THE SECURITY TRUSTEE, RECEIVER AND DELEGATES. . . . . 10
12.1 Rights of Receiver. . . . . . . . . . . . . . . . . . . 10
12.2 Suspense Account. . . . . . . . . . . . . . . . . . . . 10
12.3 Redemption of Prior Security. . . . . . . . . . . . . . 11
12.4 New Assigned Account. . . . . . . . . . . . . . . . . . 11
12.5 Delegation. . . . . . . . . . . . . . . . . . . . . . . 11
12.6 Right of Set-off. . . . . . . . . . . . . . . . . . . . 11
12.7 Security Trustee's Liability. . . . . . . . . . . . . . 11
12.8 Receiver's Liability. . . . . . . . . . . . . . . . . . 12
12.9 Indemnity . . . . . . . . . . . . . . . . . . . . . . . 12
13. CONTINUING SECURITY AND OTHER MATTERS . . . . . . . . . . . . . 12
13.1 Continuing and Independent Security . . . . . . . . . . 12
13.2 Primary Obligations . . . . . . . . . . . . . . . . . . 12
14. OTHER SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . 12
15. ASSIGNMENT NOT TO BE AFFECTED . . . . . . . . . . . . . . . . . 12
16. RELEASE OF ASSIGNED ASSETS. . . . . . . . . . . . . . . . . . . 13
16.1 Release of Assigned Assets. . . . . . . . . . . . . . . 13
16.2 Retention of Deed . . . . . . . . . . . . . . . . . . . 13
17. POWER OF ATTORNEY . . . . . . . . . . . . . . . . . . . . . . . 14
17.1 Appointment . . . . . . . . . . . . . . . . . . . . . . 14
17.2 Ratification. . . . . . . . . . . . . . . . . . . . . . 14
18. DEFAULT INTEREST. . . . . . . . . . . . . . . . . . . . . . . . 14
19. CURRENCY INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . 14
20. CERTIFICATE TO BE CONCLUSIVE EVIDENCE . . . . . . . . . . . . . 15
21. COSTS AND EXPENSES. . . . . . . . . . . . . . . . . . . . . . . 15
21.1 Transaction Costs . . . . . . . . . . . . . . . . . . . 15
21.2 Preservation and Enforcement Costs. . . . . . . . . . . 15
21.3 Stamp Taxes . . . . . . . . . . . . . . . . . . . . . . 15
21.4 Security Trustee's Additional Costs . . . . . . . . . . 16
21.5 Tax . . . . . . . . . . . . . . . . . . . . . . . . . . 16
22. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
22.1 Giving of Notices . . . . . . . . . . . . . . . . . . . 16
22.2 Addresses for Notices . . . . . . . . . . . . . . . . . 16
22.3 English Language. . . . . . . . . . . . . . . . . . . . 17
23. RIGHTS AND WAIVERS, PARTIAL INVALIDITY. . . . . . . . . . . . . 17
23.1 Remedies and Waivers. . . . . . . . . . . . . . . . . . 17
23.2 Partial Invalidity. . . . . . . . . . . . . . . . . . . 17
24. ASSIGNMENT OF RIGHTS. . . . . . . . . . . . . . . . . . . . . . 18
25. LAW AND JURISDICTION. . . . . . . . . . . . . . . . . . . . . . 18
25.1 ENGLISH LAW . . . . . . . . . . . . . . . . . . . . . . 18
25.2 JURISDICTION. . . . . . . . . . . . . . . . . . . . . . 18
25.3 PROCESS AGENT . . . . . . . . . . . . . . . . . . . . . 18
25.4 WAIVER OF IMMUNITY. . . . . . . . . . . . . . . . . . . 19
25.5 CONSENT TO ENFORCEMENT. . . . . . . . . . . . . . . . . 19
25.6 ARBITRATION . . . . . . . . . . . . . . . . . . . . . . 19
26. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . 20
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
