Dated March 15, 2002
SATELLITE GOLDFIELDS LIMITED (IN RECEIVERSHIP)
acting by its Receiver and Manager XXX XXXXXX XXXXX
(as the Company)
(1)
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
(as Mortgagee)
(2)
WEXFORD GOLDFIELDS LIMITED
(as Buyer)
(3)
----------------------------------------
AGREEMENT
FOR THE SALE AND PURCHASE OF
CERTAIN OF THE ASSETS OF
SATELLITE GOLDFIELDS LIMITED
----------------------------------------
THIS AGREEMENT (this "AGREEMENT") is made on the 15th day of March 2002
(1) SATELLITE GOLDFIELDS LIMITED whose registered office is at 000 Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxxxxx Xxxxxxx, Roman Ridge, Airport Residential
Area, Accra, Ghana (the "COMPANY") acting by its receiver and manager
Xxx Xxxxxx Xxxxx of KPMG Accra, 0xx Xxxxx, Xxxxx Xxxxx, Xxxxxxx Xxxx,
Xxxxx, Xxxxx (the "RECEIVER");
(2) THE LAW DEBENTURE TRUST CORPORATION P.L.C. of 0xx Xxxxx, 000 Xxxx
Xxxxxx, Xxxxxx XX0X 0XX (the "MORTGAGEE") as mortgagee pursuant to a
Debenture dated 28 May 1998 (the "SECURITY") among the Company, Standard
Bank London Limited and the Mortgagee (and each of the Company and the
Mortgagee being a "SELLER"); and
(3) WEXFORD GOLDFIELDS LIMITED whose registered office is at 000 Xxxxxx
Xxxxxx Xxxx, Xxxxxxxxxxxxx Xxxxxxx, Roman Ridge, Airport Residential
Area, Accra, Ghana (the "BUYER").
RECITALS
(A) The Receiver was appointed as receiver and manager of the Secured
Property (Receiver) on 30 November 2001 pursuant to the terms of the
Security.
(B) The Mortgagee has the power pursuant to the Security and by virtue of an
order of the High Court of Ghana made on 4 February 2002 to sell the
Secured Property (Mortgagee).
(C) Each Seller has agreed to sell and the Buyer has agreed to purchase
whatever right, title and interest such Seller may have in the Assets.
(D) The Buyer is entering into this Agreement having made such inspection
and investigation of the Assets as it thinks fit, on the basis of a
purchase by the Buyer of the Assets "as is" and in full knowledge and
acceptance of the terms and conditions of this Agreement and the Buyer
acknowledges that, in particular (but without limitation), the price to
be paid for the Assets has been calculated on the acknowledged basis of
the terms and conditions of this Agreement and that since the Buyer is
contracting with an insolvent company the terms and conditions of this
Agreement are reasonable.
1. INTERPRETATION
1.1 In this Agreement the following words and expressions and abbreviations
have the following meanings, unless the context otherwise requires:
"APPROVAL" means the granting by the Bank of Ghana of an exchange
control approval in respect of each of the matters specified in Schedule
4;
"ASSET COMPLETION" means completion of the purchase of the Non-Regulated
Assets by the Buyer;
"ASSET COMPLETION DATE" means the date of this Agreement;
"ASSETS" means:
(a) in respect of the Company, the Secured Property (Receiver); and
(b) in respect of the Mortgagee, the Secured Property (Mortgagee),
except to the extent such assets have not been on or prior to the date
of this Agreement been sold to the Buyer but shall not, in each case,
include the Excluded Assets (and so that the expression "ASSET" shall
mean any of the Assets);
"BUSINESS" means the operation of the Wassa gold mine carried on by the
Company as of the date of cessation of operations at the Mine subject to
the Lease;
"BUSINESS DAY" means any day which in Colorado, England and Ghana is
neither a Saturday nor a Sunday nor a bank or other public holiday;
"CASH ASSETS" means the Debts, all accepted bills or notes, cash in hand
or at the bank, the benefit of all outstanding hedging contracts, gold
boxed for shipment, in shipment, on hand and in the process of
refinement;
"CIL" means carbon in xxxxx;
"CIL DATE" means the earlier of:
(a) the closing of funding (meaning receipt of first disbursement of
funds) for the construction of the CIL Development;
(b) the recommencement of Commercial Mining at the Mine;
"CIL DEVELOPMENT" means the development of a CIL project at the Mine for
the future processing of the ore produced at the Mine;
"COMMERCIAL MINING" means production of gold at an annualised rate in
excess of 30,000 ounces per annum for more than one month;
"CONFIDENTIAL INFORMATION" means any information relating to the
Business that is not publicly known;
"COMPANY" is defined in the preamble;
"COMPANY'S GROUP" means each of the Company, its holding companies,
subsidiary undertakings and associated companies and any other
subsidiary undertakings of any such holding companies, all of them and
each of them as the context admits;
"CONTRACTS" means the contracts entered into by the Company for the sale
of goods and the provision of services by or to the Company in
connection with the Business which at the Asset Completion Date remain
to be performed in whole or in part by the Company (excluding for the
avoidance of doubt, the Lease);
"DEBTS" means the book and other debts owing to the Company at the Asset
Completion Date in connection with the Business and all sums due or
which with only the passing of time and the submission of invoices will
become due to the Company under the Contracts whether invoiced or not up
to and including the Asset Completion Date;
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"DEFERRED CONSIDERATION" means the sum of $5 million;
"EMPLOYEES" means all those employees of the Company as at the Asset
Completion Date;
"ESCROW ACCOUNT" means the account in the name of the Buyer opened for
the purpose of securing all cash forming part of the Assets and the
benefit of all subsequent sums received by the Buyer or the Company in
its capacity as the Buyer's Agent following the Asset Completion;
"EXCLUDED ASSETS" means the Shares, the Contracts and the lease of the
Company's office in Accra;
"FINANCE AGREEMENT" means the loan agreement and security documentation
between the Senior Lenders (or any other lenders agreed by the Mortgagee
and the Receiver) and the Company in the agreed form;
"GOLD INVENTORY" means all gold held by the Company on the Asset
Completion Date as gold lock up in ore stockpiles and heap xxxxx pads,
gold in solution ponds, gold on carbon, gold on cathodes and any other
gold on the property not smelted and boxed ready for shipment to the
refiner;
"GOLD PRODUCTION" means the quantity of fine gold in xxxx ounces
originating from the Mine that has been verified and reported on a
refining statement for any period;
"GOODWILL" means the goodwill of the Company in relation to the
Business;
"GOVERNMENT" means the duly constituted government of the Republic of
Ghana or any political subdivision thereof, whether central, regional,
district or local, or any judicial body, agency or instrumentality of
any such government or political subdivision (and is deemed to include,
for the purposes of any required approval to be obtained hereunder, the
Bank of Ghana);
"INITIAL ASSET SALE AGREEMENT" means the agreement entered into on March
1st, 2002 between each of the parties hereto for the transfer and sale
of certain assets of the Company to the Buyer;
"INITIAL CONSIDERATION" means the sum of $4 million less the
Consideration as defined and payable under the Initial Asset Sale
Agreement;
"INTELLECTUAL PROPERTY RIGHTS" means the rights owned by the Company's
Group and used exclusively in connection with the Business and to
patents, trade marks, copyrights, designs, know-how and other similar
rights (whether or not registered) and any applications for the
protection or registration of such rights as at Asset Completion Date;
"INTERIM ACTIVITIES" means the care and maintenance of the Assets
(including for the avoidance of doubt the irrigation of the xxxxx pads
at the Mine, the processing and sale of any resultant gold) during the
term of the Company's agency under clause 6.6;
"INVENTORY" means all inventory owned by the Company at the Asset
Completion Date;
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"LEASE" means the lease dated 17 September 1992 between the Government
of Ghana and the Company and with the registration number 2033/1994,
particulars of which are set out in Schedule 2;
"LEASE ASSIGNMENT" means the formal instrument of assignment of the
Lease in the agreed form between the Buyer and the Mortgagee;
"LEASE COMPLETION" means completion of the transfer of the Lease by the
Mortgagee to the Buyer;
"LEASE COMPLETION DATE" means the date falling three Business Days after
the date upon which:
(a) the Buyer has served notice in writing confirming that all
necessary Government consents have been obtained or procured; and
(b) the Mortgagee has served notice in writing confirming that all
necessary court orders, in each case, required for the transfer
of the Lease have been granted or obtained;
"LOAN NOTE" means the non-interest bearing $15,000,000 loan note due
2999 to be issued by the Buyer;
"MINE" means the Wassa gold mine, located in South West Ghana on the
Wassa shear zone, particulars of which are set out in Schedule 2;
"MORTGAGEE CONSIDERATION" means the sum of the Initial Consideration and
the Deferred Consideration less the Receiver Consideration to be paid to
the Mortgagee by the Buyer in respect of the Secured Property
(Mortgagee);
"NON-REGULATED ASSETS" means all of the Assets other than the Leases;
"PARTIES" means each of the Sellers and the Buyer and "PARTY" shall mean
any one of them;
"RECEIVER CONSIDERATION" means the fair market value of the Secured
Property (Receiver) as determined by the Valuer in accordance with
Clause 6 and to be paid to the Receiver by the Buyer in respect of the
Secured Property (Receiver);
"RELATED PERSONS" means in relation to any party its holding companies
and the subsidiary undertakings from time to time of any such holding
companies, all of them and each of them as the context admits;
"ROYALTY AGREEMENT" means the agreement in the agreed form providing for
the payment of royalties by the Buyer to the Mortgagee with regards to
all Gold Production at the Mine from the Asset Completion Date;
"SECURED PROPERTY (MORTGAGEE)" means the property and rights specified
in Part B of Schedule 3;
"SECURED PROPERTY (RECEIVER)" means each of the property and rights
specified in Part A of Schedule 3;
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"SELLERS" means the Company and the Mortgagee and each shall be a
"SELLER";
"SENIOR LENDERS" means Standard Bank, Bayerische Hypo-und Vereinsbank
AG, Dresdner Bank AG and Fortis Bank NV/SA;
"SHARES" means 90% of the issued capital of the Buyer;
"STANDARD BANK" means Standard Bank London Limited;
"TERMINATION DATE" means the date of termination of the Company's agency
specified in a notice served by the Buyer under Clause 7.5(a); and
"TRANSFERRED CASH" means the sum of $1 to be transferred by the Company
to the Buyer as part of the Assets.
"VALUER" means Ronan Stack of ATS Real Watheralls, 00 Xxxxxxxx Xxxx,
Xxxxxx XX0X 0XX.
2. INTERPRETATION
2.1 In this Agreement:
(a) any reference to any statute or statutory provision shall include
any statute or statutory provision which amends or replaces, or
has amended or replaced, it, and vice versa, and shall include
any rules, regulations or subordinate legislation made under the
relevant statute provided however that, as between the Parties,
no such amendment or replacement shall apply for the purposes of
this Agreement to the extent that it would impose any new or
extended obligation, liability or restriction on, or otherwise
adversely affect the rights of any Party;
(b) a person shall be deemed to be connected or associated with
another if that person is an associate of the other within the
meaning of Section 435 of the Insolvency Xxx 0000;
(c) a document specified to be in the "AGREED FORM" is a reference to
that document in the form approved and signed by or on behalf of
each Party for the purpose of identification;
(d) the expressions "ACCOUNTING REFERENCE DATE", "ALLOTMENT", "BODY
CORPORATE", "DEBENTURES", "HOLDING COMPANY", "SUBSIDIARY",
"SUBSIDIARY UNDERTAKING" and "WHOLLY OWNED SUBSIDIARY" shall have
the meaning giving in the Companies Xxx 0000;
(e) reference to a "COMPANY" shall be construed so as to include any
company, corporation or other body corporate, wherever and
however incorporated or established;
(f) references to this Agreement shall include any Recitals and
Schedules to it and references to Clauses and Schedules are to
Clauses of and Schedules to this Agreement;
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(g) use of any gender includes the other genders;
(h) references to a "PERSON" shall be construed so as to include any
individual, firm, company or other body corporate, government,
state or agency of a state, local or municipal authority or
government body or any joint venture, association or partnership
(whether or not having separate legal personality);
(i) any reference to a "DAY" (including within the phrase "BUSINESS
DAY") shall mean a period of 24 hours running from midnight to
midnight;
(j) a reference to any other document referred to in this Agreement
is a reference to that other document as amended, varied, novated
or supplemented (other than in breach of the provisions of this
Agreement) at any time;
(k) headings and titles are for convenience only and do not affect
the interpretation of this Agreement;
(l) a reference to any statute statutory instrument, regulation,
bylaw or other requirement of English law or any English legal
term for any action, remedy, method of judicial proceeding, legal
document, legal status, court, official or any legal concept or
thing shall in respect of any jurisdiction other than England be
treated as a reference to that which most nearly approximates in
that jurisdiction to the relevant requirement of English law or
English legal term;
(m) general words shall not be given a restrictive meaning by reason
of the fact that they are followed by particular examples
intended to be embraced by the general words; and
(n) a reference to "$" or "DOLLARS" shall be a reference to the
lawful currency of the United States of America.
3. SALE AND PURCHASE OF THE ASSETS
3.1 The Company shall sell and the Buyer shall purchase such right, title
and interest as the Company may have in and to the Secured Property
(Receiver) with effect from the Asset Completion Date.
3.2 The Mortgagee shall sell and the Buyer shall purchase such right, title
and interest as the Mortgagee may have in the Secured Property
(Mortgagee) with effect from the Lease Completion Date.
3.3 Subject to the terms of Clause 7.5, as and from the Asset Completion
Date, the Buyer shall be responsible for the Interim Activities and the
Sellers shall have no liability in respect thereof other than such
liability as may arise pursuant to the terms of Clause 7.5 and, save as
expressly provided in this Agreement, the Buyer shall pay all monies,
taxes, rent, expenses and outgoings accruing or incurred in connection
with the Interim Activities. For the avoidance of doubt nothing in this
Agreement shall impose any liability upon the Buyer for any liability of
either Seller existing prior to the Asset Completion Date.
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4. CONSIDERATION PAYABLE BY THE BUYER
4.1 The consideration for the Assets shall be the sum of:
(a) the Initial Consideration payable in accordance with Clause 4.2,
which shall be satisfied in cash;
(b) the Deferred Consideration payable on the CIL Date, which shall
be satisfied in cash;
(c) the issue by the Buyer to the Company of the Loan Note, which
shall be issued on the date specified under Clause 4.2; and
(d) the obligations of the Buyer under the Royalty Agreement, which
shall be entered into on the date hereof.
4.2 Subject to Clause 6, the Initial Consideration shall be paid and the
Buyer shall issue the Loan Note to the Mortgagee on:
(a) that day falling three calendar months after the date of
this Agreement; or
(b) such earlier date as the Buyer may in its absolute
discretion determine;
PROVIDED THAT such date shall not in any case be on or before the day on
which the Approval has been granted.
4.3 All sums payable by cash to the Mortgagee shall be paid by CHAPS
transfer to such account of the Mortgagee as the Mortgagee has notified
in writing is to be used for the purpose of such payment and shall be
paid without deduction, withholding, set-off or counterclaim whatsoever.
4.4 All sums payable by cash to the Company shall be paid by CHAPS transfer
to such account of the Company as the Receiver has notified in writing
is to be used for the purpose of such payment and shall be paid without
deduction, withholding, set-off or counterclaim whatsoever.
4.5 If any payment falls due on a day which is not a Business Day, payment
shall be made on the following Business Day.
4.6 All sums payable under this Agreement shall be paid without deduction,
withholding, set-off or counterclaim whatsoever.
4.7 The Mortgagee undertakes that it shall enter into such subordination
arrangements with respect to the Loan Note and this Agreement as the
lenders party to the Finance Agreement may at any time require.
5. COMPLETION
5.1 The Asset Completion shall take place on the Asset Completion Date at
the offices of Xxxxxx Xxxxxxx & Letsa.
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5.2 At the Asset Completion the Buyer shall deliver to the Mortgagee:
(a) the Loan Note;
(b) evidence in a form satisfactory to the Sellers that the
Government of the Republic of Ghana holds not less than a 10%
shareholding in the equity of the Buyer;
(c) an executed copy of the Royalty Agreement; and
(d) an executed copy of the Finance Agreement.
5.3 On the Asset Completion Date and upon receipt of each of the documents
referred to under Clause 5.2, the Company and the Receiver shall deliver
or give possession of the Secured Property(Receiver) to the Buyer,
together with a certified copy of the instrument of appointment of the
Receiver.
6. VALUATION OF THE CONSIDERATION
6.1 The Receiver and the Buyer shall procure that the Valuer shall prepare
and deliver to the Receiver and the Buyer for review a draft valuation
of the fair market value of the Secured Property (Receiver) as at the
date hereof as soon as practicable following execution of this Agreement
and in any case within the period of 30 business days thereafter (the
"DRAFT VALUATION CERTIFICATE");
6.2 The Receiver and the Buyer shall be entitled to examine all the working
papers and other data and records relating to the preparation of the
Draft Valuation Certificate with a view to satisfying themselves that it
has been duly prepared in accordance with this Agreement. Each of the
Receiver and the Buyer shall then within ten Business Days following the
Draft Valuation Certificate either:-
6.2.1 confirm in writing to the other parties to this Agreement that it
agrees that the Draft Valuation Certificate has been duly
prepared and determined in accordance with this Agreement; or
6.2.2 give notice in writing to the other parties to this Agreement why
it is unable so to confirm.
6.3 If the Receiver or the Buyer fail to so confirm or to give such notice
in accordance with Clause 6.2, the Draft Valuation Certificate shall be
conclusively deemed to have been accepted and agreed by the relevant
party.
6.4 If the Receiver or the Buyer gives notice in accordance with Clause
6.2.2, the Valuer shall give consideration to the reasons which have
been submitted in any such notice, (the "SUBMISSIONS") and shall
determine the Draft Valuation Certificate finally within the period of
14 Business Days of the expiry of the period specified under Clause 6.2.
In making such determination the Valuer shall act as an expert and not
as an arbitrator and his decision shall (in the absence of manifest
error) be final and binding on the parties. The parties shall procure
that the Valuer is allowed access to such working
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papers and other data and records as he may reasonably request for the
purposes of making such determination.
7. THE MINE
7.1 The Buyer shall be responsible for procuring all necessary third party,
Government or other regulatory consents required by the Buyer for the
formal assignment of the Lease and in order to be permitted to operate
the Mine following the Lease Completion Date. The Company shall use its
reasonable endeavours to assist the Buyer in procuring the assignment of
the Lease including taking all reasonable steps necessary to procure any
order of the High Court of Ghana that is required to permit the transfer
of the Assets and the Lease as contemplated by the terms of this
Agreement.
7.2 Upon obtaining all necessary consents for the assignment of the Lease,
the Buyer shall serve notice in writing of this fact upon the Sellers.
7.3 The Lease Completion shall occur on the Lease Completion Date at the
offices of Xxxxxx Xxxxxxx & Letsa. At the Lease Completion the Buyer
shall:
(a) deliver evidence satisfactory to the Sellers of the procurement
of each of the Government consents required for the transfer of
the Lease;
(b) pay the Initial Consideration in the manner prescribed by Clause
4.3; and
(c) deliver an executed copy of the Lease Assignment.
7.4 On the Lease Completion Date, and upon receipt of the documents referred
to under Clause 7.3, the Mortgagee shall deliver an executed copy of the
Lease Assignment and deliver or give possession of the Secured Property
(Mortgagee) owned by it to the Buyer, together with a certified copy of
the order of the High Court of Ghana made on 4 February 2002 authorising
sale of the Secured Property (Mortgage).
7.5 As and from the Asset Completion Date:
(a) the Parties agree that the Company shall continue to carry out
the Interim Activities on behalf of the Buyer as the agent of the
Buyer. The Buyer shall be entitled to terminate the agency of the
Company at any time by delivery of notice in writing. The Buyer
shall indemnify the Company with respect to the costs, expenses
and outgoings incurred by the Company in respect of the carrying
out of the Interim Activities during the term of the Company's
agency under this Clause 7.5(a) and
(b) the Buyer shall deposit all cash sums forming part of the Assets
and all further cash sums received by the Buyer, or by the
Company as agent for the Buyer, in connection with the Cash
Assets or the carrying out the Interim Activities in the Escrow
Account. The Buyer shall be entitled to draw from the Escrow
Account and pay to the Company any sum necessary to meet its
obligation to indemnify the Company pursuant to Clause 7.5(a).
7.6 All necessary apportionments in relation to the costs, expenses and
outgoings incurred by either Seller in respect of the operation of the
Business and the Mine prior to the
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Asset Completion Date will be made with effect as from the Asset
Completion Date on a normal accounting basis and any sums due by one
Party to any other in respect of any such apportionment shall be paid
immediately as and when the same shall be ascertained.
7.7 In consideration of the Company acting as the Buyer's agent as specified
under Clause 7.5, on the Termination Date the Buyer shall pay a fee to
the Company equal to the value of the Cash Assets held by the Buyer on
the Termination Date, less the sum total of all liability for interest,
expenses and other indemnities of the Buyer under the Finance Agreement
(or any loan agreement entered into pursuant thereto or in connection
therewith) on that date (provided that such fee shall not, for the
avoidance of doubt, be less than zero), by the release of all monies
held by the Buyer in the Escrow Account, or in the case of any Cash
Asset not constituted by cash causing that Asset to be delivered or
formally assigned to the Mortgagee.
7.8 The Company shall be entitled to attempt to sell the Excess Inventory
during the period between the Asset Completion Date and the Termination
Date. During such period the Company and the Buyer agree that the Buyer
shall have a right of first refusal in respect of any of the Excess
Inventory for which the Company has identified a third party purchaser
and a sale price. To the extent that the Company continues to
beneficially own any of the Excess Inventory on the Termination Date,
the Company agrees to transfer such Excess Inventory to the Buyer in
consideration of the payment in cash of the sum of $1.
8. THIRD PARTY ITEMS AND RETENTION OF TITLE
8.1 The Buyer hereby acknowledges that it may be given possession of certain
assets pursuant to the terms of this Agreement which are subsequently
found by the Buyer not to be beneficially owned by either Seller. In
respect of such assets, the Buyer undertakes that it will not hold
itself out following discovery of such fact as the owner of such assets
nor sell, offer for sale, assign, discharge, pledge, create or permit
the creation of a lien on or otherwise deal with such assets and that it
will keep such assets in its possession and in as good repair and
condition they were in when such claim or fact came to its notice. The
Buyer further undertakes that it will deliver possession of such assets
to the Company (acting by the Receiver) or the owners of such assets
forthwith on demand and the Buyer agrees to indemnify and keep each
Seller and the Receiver fully and effectively indemnified against all
claims, costs, demands, liabilities, actions and expenses of whatsoever
nature and howsoever arising in connection with any breach by the Buyer
of its obligations under this Clause.
8.2 If any of the assets which are subject to the terms and conditions of
this Agreement are effected by any claim for a lien, charge or retention
of title arising by reason of the conditions of sale and purchase under
which the Company agreed or purported to purchase the same and such
claim(s) are advised to be valid by either Seller's solicitors, then,
upon such Seller or the Receiver communicating such advice to the Buyer,
the Buyer shall, at its option, either:
(a) discharge such claim forthwith by paying the relevant person
therefore; or
(b) deliver the assets (which are the subject of such claim)
forthwith to the relevant person,
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and shall, in any event, indemnify and keep each of the Sellers and the
Receiver fully and effectively indemnified against all claims, costs,
demands, liabilities, actions and expenses of whatsoever nature and
howsoever arising in connection with any breach by the Buyer of its
obligations under this Clause. It is agreed, for the avoidance of doubt,
that in no event shall the Buyer have any right to a refund in respect
of any item affected by this Clause nor any right of rescission.
9. EMPLOYEES
9.1 The Company and the Buyer hereby agree and acknowledge that the
contracts of employment of the Employees shall neither transfer to the
Buyer nor be terminated by the sale and purchase of the Assets hereunder
but shall continue until terminated by the Company at its sole
discretion.
9.2 The Company will indemnify and keep the Buyer fully and effectively
indemnified against all claims, costs, demands, liabilities, actions and
expenses of whatsoever nature and howsoever arising in connection with
any claim for or in respect of wrongful or unfair dismissal or
redundancy or otherwise in respect of the employment of the Employees by
the Company.
10. GOODWILL
Subject to Clause 7.5, the Buyer acknowledges that the name "WASSA" and
the rights therein (including without prejudice to the generality of the
foregoing the right to use the name "WASSA" in relation to the Business
and the Contracts) is not the property of either Seller and that
accordingly any use of the name "WASSA" by the Buyer shall be at the
Buyer's own risk. Notwithstanding the foregoing provisions of this
Clause 10 the Sellers shall not after the Termination Date use the name
"WASSA" in connection with the carrying on of any business.
11. EXCLUSION OF WARRANTIES
11.1 Save for the provisions of Clause 11.6, all other representations,
warranties and conditions, express or implied and whether statutory or
otherwise are expressly excluded (including without limitation,
warranties and covenants for or as to title of the Assets, freedom from
encumbrances, quiet possession, further assurance, satisfactory quality,
fitness or purchase and description) in relation to the sale of the
Assets hereunder. It is agreed by the Buyer that the provisions of this
Agreement are fair and reasonable in the context of a sale of the
business and assets of an insolvent company and particularly having
regard to the following matters, namely:
(a) that the Company, the Receiver and the Mortgagee have
specifically informed the Buyer that the Buyer must rely
absolutely on its own opinion and/or that of its professional
advisers concerning the Business, the Assets, the Mine and the
Lease and the quality, state and condition of the same, their
fitness and/or suitability for any purpose, the possibility that
some or all of them may have defects not apparent on inspection
and examination (which could render it inappropriate that they
should be described as they are in fact described in this
Agreement) or the reasons that the Buyer has or should have for
purchasing the Business, the Mine, the Lease and the Assets and
the use to which the Buyer intends or should intend to put them;
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(b) that the Buyer has, and has informed the Company, the Receiver
and the Mortgagee that they have, skilled professional advice
available to it concerning the Business and the Assets and the
matters referred to in sub-clause 11.1(a) above, that it is on
the basis of this advice that the Buyer has agreed to purchase
the Business, the Mine, the Lease and the Assets on an "as is"
basis for a consideration calculated to take into account (inter
alia) the risk to the Buyer represented by this Agreement, the
Company, the Mortgagee and the Receiver making it clear that on
any other basis they would not have agreed to sell the same
except for a much higher consideration;
(c) that the Buyer and its professional advisers have been given
every opportunity it or they may wish to examine and inspect the
Mine and all or any of the Assets and all or any books, records
and documents relating thereto; and
(d) that the Company is insolvent and faces the constraints of
selling necessarily imposed on it in those circumstances; and
(e) that the knowledge of the Assets available to:
(i) the Receiver and its partners, staff and advisers; and
(ii) the Mortgagee and its staff, agents and advisers, is in
each case, necessarily limited.
11.2 The Buyer acknowledges, for the avoidance of doubt, that if it shall be
found that the either Seller does not have title or unencumbered title
to any or all of the Assets this shall not be a ground for rescinding,
avoiding or varying any or all of the provisions hereof or for the
recovery of any or all of the consideration paid by the Buyer hereunder.
11.3 The exclusion of liability set out in this clause shall arise and
continue notwithstanding the termination of the agency of the Receiver
before or after the signing of this Agreement and shall operate in
favour of each of the Receiver and the Mortgagee as waivers of any
claims in tort as well as under the law of contract and such exclusions
shall be in addition to and not in substitution for and notwithstanding
any right of indemnity or relief otherwise available to either Seller
and/or the Receiver.
11.4 The Buyer accepts and agrees that it shall be its responsibility and at
its expense to apply for and obtain all necessary or appropriate
licences, protection orders, legally required consents, permits and
rights to use or have the benefit of the Assets and the Buyer undertakes
to indemnify and keep each Seller and the Receiver fully and effectively
indemnified against all claims, costs, demands, liabilities, actions and
expenses of whatsoever nature and howsoever arising by reason of any
infringement of any third party rights in the course of the use of the
Assets by the Buyer in breach of any duty or requirement of whatever
kind or howsoever and whenever arising.
11.5 Nothing in this Agreement shall operate to restrict or affect in any way
any right of the Receiver to an indemnity or to a lien whether under
Section 44 or Section 234 of the Insolvency Xxx 0000 or otherwise
howsoever
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11.6 The Receiver is entering into and signing this Agreement as agent for
the Company and (subject only to the provisions of Clause 12 and any
breach thereof) shall incur no personal liability whatsoever in respect
of any matter referred to in this Agreement and, without prejudice to
the generality of the foregoing, in respect of any of the obligations
undertaken by either Seller or in respect of any failure on the part
either Seller to observe, perform or comply with any such obligations or
in relation to any associated arrangements or negotiations whether such
liability would arise under Section 44 of the Insolvency Xxx 0000 or
otherwise howsoever.
11.7 For the avoidance of doubt:
(a) the exclusions and limitations in Schedule 1 shall also apply to
this Agreement;
(b) the liability and obligations of each of the Sellers under this
Agreement shall be several only in their nature; and
(c) in no circumstances shall the liability of the Receiver or the
Mortgagee arising out of or in connection with this Agreement
exceed the consideration paid by the Buyer for the Secured
Property (Receiver) in the case of the Receiver and for the
Secured Property (Mortgagee) in the case of the Mortgagee.
12. BOOKS AND RECORDS
Title to the books, documents, files and records of either Seller is not
the subject of any sale or assignment to the Buyer hereunder. For a
period of 18 months from the Asset Completion Date or until such time as
the Company goes into liquidation or, if earlier, at all reasonable
times during usual business hours on prior reasonable written notice
having been given by the Buyer to the Company, the Receiver or any
subsequently appointed liquidator, the Buyer shall be given reasonable
access by the Company to such records and documents relating to the
Business as the Buyer may reasonably require for inspection and use by
the Buyer. During such period the Buyer shall be entitled to take and
retain such copies and compile such extracts from such records at its
own expense as it may reasonably require in order to properly carry on
the Business following the Asset Completion Date and subject to
honouring any applicable confidentiality obligations. The Company and
the Receiver undertake not to destroy any books, documents, files and
records of either Seller without first giving 30 days notice in writing
to the Buyer of their intention to do so.
13. CONFIDENTIAL INFORMATION
13.1 The Company shall not and shall procure that no other member of the
Company's Group shall use or disclose to any person any Confidential
Information.
13.2 Clause 13.1 does not apply to:
(a) disclosure of Confidential Information to or at the written
request of the Buyer;
(b) use or disclosure of Confidential Information required to be
disclosed by law, the Dublin Stock Exchange, the rules or
standards of the London Stock
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Exchange, the listing rules of the UK Listing Authority or any
other regulatory body;
(c) disclosure of Confidential Information to professional advisers
for the purpose of advising the Company or the Receiver; or
(d) Confidential Information which is in the public domain other than
by the Company's breach of Clause 13.1.
14. ANNOUNCEMENTS
14.1 No Party shall disclose the making of this Agreement nor its terms nor
any other agreement referred to in this Agreement (except those matters
set out in the press release in the agreed form) unless agreed in
writing by the other Parties (such agreement not to be unreasonably
withheld) and each Party shall procure that each of its Related Persons
shall not make any such disclosure without the prior consent of the
other Parties unless disclosure is:
(a) to its professional advisers; or
(b) required by law; or
(c) required by the rules or standards of the London Stock Exchange,
the Dublin Stock Exchange or the Listing Rules of the UK Listing
Authority or the rules and requirements of any other regulatory
body and disclosure shall then only be made by that Party:
(i) after it has taken all such steps as may be reasonable in
the circumstances to agree the contents of such
announcement with the other Parties before making such
announcement and provided that any such announcement shall
be made only after notice to the other Parties; and
(ii) to the person or persons and in the manner required by law
or the rules of the Dublin Stock Exchange, the London
Stock Exchange or the UK Listing Authority or such other
regulatory body or as otherwise agreed between the
Parties.
14.2 The restrictions contained in Clause 14.1 shall apply without limit of
time.
15. ASSIGNMENT
15.1 This Agreement is personal to the Parties and accordingly, subject to
Clauses 15.2 to 15.4, the Buyer may not without the prior written
consent of the Sellers assign, transfer or declare a trust of the
benefit of all or any of the Buyer's obligations nor any benefit arising
under this Agreement.
15.2 Following Completion, the Buyer shall be entitled to charge and/or
assign the benefit of all (but not part) of its rights under this
agreement (the "RIGHTS") (in each case by way of security) to a bank or
financial institution that provides facilities to the Buyer or acts as
facility agent and security trustee or security agent by way of security
for the indebtedness of the Buyer incurred in connection with the
acquisition of the
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Business and Assets (provided always that the Buyer shall procure that
the Rights may not be further charged or assigned to any third party
except pursuant to Clause 15.3 below).
15.3 The person to whom the Rights have been charged or assigned in
accordance with Clause 15.2 above or any administrative receiver
appointed by it or other person appointed to enforce any such security
may charge or assign all but not part of the Rights to any third party
for the purpose of or in connection with such enforcement.
15.4 The Company has charged and/or assigned the benefit of all of its rights
(but none of its obligations) under this Agreement, the Loan Note and
the Royalty Agreement to the Mortgagee and the Buyer hereby acknowledges
and consents such charge and assignment.
16. COSTS
Unless expressly otherwise provided in this Agreement each of the
Parties shall bear its own legal, accountancy and other costs, charges
and expenses in connection with the sale and purchase of the Assets.
17. EFFECT OF COMPLETION
The terms of this Agreement (insofar as not performed at the Asset
Completion Date and subject as specifically otherwise provided in this
Agreement) shall continue in force after and notwithstanding the Asset
Completion.
18. FURTHER ASSURANCES
Following the Asset Completion Date, each Seller shall, at the sole
expense of the Buyer and subject to the provisions of this Agreement,
execute such further assurances and do such further acts and things
(insofar as it may be reasonably able and empowered so to do) as shall
be reasonably necessary for the purpose of transferring to the Buyer all
of such Seller's right, title and interest in and to the Assets provided
that this shall not oblige such Seller to become a party to any
litigation or arbitration proceedings and provided further that no
document executed pursuant to this Clause shall confer or have the
effect of conferring on the Buyer any additional right or rights not
conferred by this Agreement against such Seller. The obligations of each
Seller under this Clause shall cease six months from the Asset
Completion Date.
19. ENTIRE AGREEMENT
This Agreement (including all documents to be executed pursuant to this
Agreement) contain the whole agreement between the Parties relating to
the subject matter of this Agreement and no variation of this Agreement
shall be effective unless in writing and signed by or on behalf of each
of the Parties to this Agreement.
20. WAIVER
20.1 A waiver of any term, provision or condition of, or consent granted
under, this Agreement shall be effective only if given in writing and
signed by the waiving or
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consenting Party and then only in the instance and for the purpose for
which it is given.
20.2 No failure or delay on the part of any Party in exercising any right,
power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
21. INVALIDITY
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction:
(a) the validity, legality and enforceability under the law of that
jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any
other jurisdiction of that or any other provision,
shall not be affected or impaired in any way.
22. NOTICES
22.1 Any notice, demand or other communication given or made under or in
connection with the matters contemplated by this Agreement shall be in
writing and shall be delivered personally or sent by fax or prepaid
first class post:
In the case of the Buyer to: Wexford Goldfields Limited
c/ Bentsi-Enchill & Letsa
1st Floor Teachers' Hall Annex
Education Loop (Off Xxxxxx Road),
Accra
X.X. Xxx 0000, Xxxxx, Xxxxx
Fax: 00 233 21 226 129
Attention: Company Secretary
In the case of the Company to: Satellite Goldfields Limited
000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxxx Xxxxxxx
Xxxxx Xxxxx, Xxxxxxx Xxxxxxxxxxx
Xxxx
Xxxxx, Xxxxx
Tel: 00 233 21 762 305
Attention: Company Secretary
In the case of the Receiver to: KPMG Accra
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0xx Xxxxx, Xxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxx, Xxxxx
Fax: 00 592 2 278 824
Attention: Xxx Xxxxxx Xxxxx
In the case of the Mortgagee to: The Law Debenture Trust Corporation
p.l.c.
0xx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 00 00 (0)000 000 0000
Attention: Xxxxx Xxxxxxxxx-Xxxxx
and shall be deemed to have been duly given or made as follows:
(a) if personally delivered, upon delivery at the address of the
relevant Party;
(b) if sent by first class post to an address within Ghana, ten
Business Days after the date of posting;
(c) if sent by first class post to an address outside Ghana, two
Business Days after the date of posting;
(d) if sent by air mail, five Business Days after the date of
posting; and
(e) if sent by fax, when despatched;
provided that if, in accordance with the above provisions, any such
notice, demand or other communication would otherwise be deemed to be
given or made outside 9.00 a.m. - 5.00 p.m. on a Business Day such
notice, demand or other communication shall be deemed to be given or
made at 9.00 a.m. on the next Business Day.
22.2 A Party may notify the other Party to this Agreement of a change to its
name, relevant addressee, address or fax number for the purposes of
Clause 22.1 provided that such notification shall only be effective:
(a) on the date specified in the notification as the date on which
the change is to take place; or
(b) if no date is specified or the date specified is less than five
Business Days after the date on which notice is given, the date
falling five Business Days after notice of any such change has
been given.
23. THIRD PARTY RIGHTS
The terms of this Agreement may be enforced only by a Party to it and
shall not create any rights in favour of any third parties whether under
the Contracts (Rights of Third
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Parties) Xxx 0000 or otherwise save and except for those granted to the
Receiver, the Senior Lenders or the Mortgagee. Notwithstanding any
provision of this Agreement, the Parties do not require the consent of
any third party to rescind or vary this Agreement at any time.
24. COUNTERPARTS
This Agreement may be executed in any number of counterparts which
together shall constitute the Agreement. Any Party may enter into this
Agreement by executing a counterpart and this Agreement shall not take
effect until it has been executed by all Parties.
25. GOVERNING LAW AND JURISDICTION
25.1 This Agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this Agreement
or its formation) shall, except to the extent otherwise agreed by the
Parties in writing, be governed by and construed in accordance with
English law
25.2 Except to the extent otherwise agreed by the Parties in writing:
(a) the courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "DISPUTE");
(b) the Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary;
(c) each Party irrevocably waives any objection which it may have now
or hereafter to proceedings being brought in the courts of
England, and any claim that proceedings have been brought in an
inconvenient forum. Each Party further irrevocably agrees that a
judgment in any proceedings in the courts of England shall be
conclusive and binding upon each Party and may be enforced in the
courts of any other jurisdiction.
25.3 Without prejudice to any other mode of service allowed under any
relevant law, the Buyer and the Company:
(a) each irrevocably appoints Law Debenture Corporate Services
Limited of 0xx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX
respectively as its agent for service of process in relation to
any proceedings before the English courts in connection with this
Agreement; and
(b) each agrees that failure by a process agent to notify it of the
process will not invalidate the proceedings concerned.
If the appointment of a person mentioned in this Clause 25.3 ceases to
be effective, the relevant Party shall immediately appoint another
person in England as its agent for service of process in relation to any
proceeding before the English courts in connection with this Agreement.
If the relevant Party fails to do so (and such failure
- 18 -
continues for a period of not less than 15 Business Days), the other
Party shall be entitled to appoint such a person by notice to the
relevant Party.
IN WITNESS whereof this Agreement has been executed on the date first above
written.
- 19 -
SCHEDULE 1
EXCLUSIONS
1. The interest in the Assets which either Seller sells and the Buyer buys
is such right, title and interest as such Seller may have at the
commencement of business on the date hereof.
2. Save as expressly provided in this Agreement the Assets are sold in
their present state and condition, and whereabouts, and subject to all
faults and to any extant lien, distraint, execution or detention, or
claims of third parties over them or in respect of their use the cost of
discharging or compromising any or all of which shall be for the account
of the Buyer. The Buyer accepts that it has had opportunity to inspect
the Mine and the Assets, as have its advisers, and the Buyer
acknowledges and agrees that it has satisfied itself as to the state and
condition, and whereabouts of the Assets and as to their fitness for
such purpose or purposes as the Buyer may intend to use them, and as to
their correspondence with any description given or to be implied. The
Mine and the Assets are acquired by the Buyer on the basis that it is
deemed to be aware for all purposes of the presence of any buildings or
structure thereon, and of the presence, position or absence of drains,
services, cables, sewers, tanks, tunnels, wayleaves, easements,
quasi-easements, rights of light and way and any obligation to give
vacant possession is modified accordingly.
3. It is accepted that no reliance has been placed in regard to the matters
referred to in Clause 10.1 of the Agreement on any statement, or
silence, of the Company, the Mortgagee, the Receiver or of any of their
respective employees, solicitors, advisers, valuers, agents, partners or
representatives.
4. Any claim of the Buyer, or of any person claiming through it, against
the Company shall not take effect otherwise than as an unsecured claim.
5. The exclusions of liability in this Schedule and this Agreement shall
arise and continue notwithstanding the entry into receivership,
administration or liquidation of either Seller before or after the
signing of this Agreement, and shall operate as waivers of any claims in
tort as well as under the law of contract. Such exclusions shall be in
addition to, and not in substitution for and notwithstanding any right
of indemnity or relief otherwise available to either Seller and/or
Receiver. They shall continue as well after as before completion of this
Agreement in whole or in part.
6. Save as expressly provided in this Agreement the Buyer accepts and
agrees that it shall be its responsibility and at its expense, to apply
for and obtain all necessary or appropriate licences and rights to use
the Lease and to operate the Mine, and undertakes to indemnify each
Seller and the Receiver against any claim by reason of the infringement
of any third party's rights in the course of use of the Lease and the
Mine by or on behalf of the Buyer.
7. Except as expressly provided in this Agreement, neither Seller nor the
Receiver shall not incur any liability to the Buyer by reason of any act
or omission, or negligence or default, of any officer or employee, that
expression including anyone under a contract for services, as well as of
service, of a Seller or the Receiver whose services may be made
available to the Buyer on a sub-contract basis from time to time.
8. Save as expressly provided in this Agreement nothing in this Agreement
is to require either Seller, the Receiver or the Buyer to discharge in
whole or in part any liability of the Company outstanding at the Asset
Completion Date.
9. If any of the provisions of this Agreement is held not to be valid but
would be valid if part of the wording were deleted or modified, then
such provision shall apply with such modification as may be necessary to
make it enforceable.
10. Nothing in this Agreement shall, in the absence of an express provision
to the contrary herein contained, require either Seller to carry out or
continue to carry out any arrangement or contract, whether single or of
continuing effect, with third parties and whether in relation to the
Mine or any of the Assets or otherwise.
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SCHEDULE 2
THE LEASE AND THE MINE
A certified copy of the Lease has been delivered to the Buyer including full
particulars of the Mine.
SCHEDULE 3
PART A
SECURED PROPERTY (RECEIVER)
Each of the moveable items of plant and equipment owned by the Company (but
excluding all cash on and/or at bank other than the Transferred Cash), the
Intellectual Property Rights, the Gold Inventory, the Cash Assets and each other
asset which is a moveable asset for the purposes of the law of Ghana (other than
the Excluded Assets) owned by the Company as at the Asset Completion Date.
SCHEDULE 3
PART B
SECURED PROPERTY (MORTGAGEE)
All right, title and interest of the Sellers in the Lease and the Mine together
with all immovable property for the purposes of the laws of Ghana contained in
the Asset Register forming Annexure 1 to this Agreement.
SCHEDULE 4
1. The purchase by Wexford Goldfields Limited of Satellite Goldfields
Limited's assets for US$ 9 Million under the terms of this Agreement;
2. The receipt by Wexford Goldfields Limited of disbursements under the
Finance Agreement;
3. The repayment by Wexford Goldfields Limited in foreign currency of the
principal, interest, fees, costs and charges arising thereunder;
4. The operation and maintenance by Wexford Goldfields Limited of an
offshore account to make payments referred to under paragraph 3;
5. The payment by Wexford Goldfields Limited of the royalty payments in US
Dollars to Satellite Goldfields Limited under the Royalty Agreement;
6. The general performance by Wexford Goldfields Limited of its obligations
under the terms of this Agreement, the Finance Agreement and the Royalty
Agreement;
7. The transfer by Satellite Goldfields Limited of its shareholding in
Wexford Goldfields Limited to Wasford Holdings Limited ("the Shares");
8. The purchase by Wasford Holdings Limited of the Loan Note; and
9. The deposit by Wasford Holdings Limited of the certificate in relation
to the Shares with Standard Bank London Limited and following an Event
of Default (as defined under the Finance Agreement) to transfer the
Shares to Standard Bank London Limited or its nominee.
- 2 -
)
SIGNED BY )
for and on behalf of SATELLITE )
GOLDFIELDS LIMITED in the presence of:- )
SIGNED BY )
)
under power of attorney for and on )
behalf of WEXFORD GOLDFIELDS LIMITED )
in the presence of:-
SIGNED BY )
for and on behalf of THE LAW DEBENTURE )
TRUST CORPORATION P.L.C. in the )
presence of:- )
ANNEXURE 1
ASSET REGISTER
- 2 -
