Dated June 26, 2002
THE LAW DEBENTURE TRUST CORPORATION p.l.c.
and
WASFORD HOLDINGS
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AGREEMENT FOR THE SALE AND PURCHASE OF
90% OF THE ISSUED CAPITAL OF WEXFORD GOLDFIELDS LIMITED
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND INTERPRETATION...................................................1
2. SALE AND PURCHASE................................................................4
3. CONDITIONS.......................................................................4
4. COMPLETION.......................................................................5
5. EXCLUSION OF WARRANTIES..........................................................6
6. CONFIDENTIALITY AND ANNOUNCEMENTS................................................7
7. ASSIGNMENT.......................................................................8
8. COSTS............................................................................8
9. EFFECT OF COMPLETION.............................................................8
10. FURTHER ASSURANCES...............................................................8
11. ENTIRE AGREEMENT.................................................................9
12. WAIVER...........................................................................9
13. INVALIDITY.......................................................................9
14. NOTICES..........................................................................9
15. THIRD PARTY RIGHTS..............................................................11
16. COUNTERPARTS....................................................................11
17. GOVERNING LAW AND JURISDICTION..................................................11
SCHEDULE 1 PARTICULARS RELATING TO THE COMPANY.........................................
SCHEDULE 2 EXCLUSIONS..................................................................
THIS AGREEMENT is made on June 26, 2002
BETWEEN:
(1) 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 Satellite Goldfields
Limited, Standard Bank London Limited and the Mortgagee; and
(2) WASFORD HOLDINGS, a company incorporated with limited liability pursuant
to the laws of the Cayman Islands (the "BUYER").
WHEREAS
(A) The Mortgagee has the power pursuant to the Security to sell the Shares.
(B) The Mortgagee has agreed to sell and the Buyer has agreed to purchase
whatever right, title and interest the Mortgagee may have in the Shares.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement, the following words and expressions and abbreviations
have the following meanings, unless the context otherwise requires:
"ASSETS" shall have the meaning specified in the Asset Sale Agreements;
"ASSET SALE AGREEMENTS" means each of the agreements between (a) the
Mortgagee, the Receiver and the Company dated 15 March 2002 and (b) the
Initial Asset Sale Agreement;
"BANK OF GHANA" means the Central Bank of Ghana, as established or
continued in existence under section 1 of the Bank of Ghana Law 1992
(PNDCL 291);
"BUSINESS DAY" means a day (other than a Saturday, Sunday or a public
holiday) on which banks generally are open in Colorado, London, England
and Ghana for the transaction of normal banking business;
"COMPANY" means Wexford Goldfields Limited whose registered office is at
c/ Bentsi-Enchill & Letsa, 1st Floor Teachers' Hall Annex, Education
Loop (Off Xxxxxx Road), Accra, X.X. Xxx 0000, Xxxxx, Xxxxx;
"COMPLETION" means the completion of the sale and purchase of the Shares
in accordance with the terms of this Agreement;
"CONDITIONS" means each of the conditions to Completion as provided for
in Clause 3.1;
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"CONFIDENTIAL INFORMATION" means all information relating to the
Company's business, financial or other affairs which is not publicly
known;
"DISPUTE" has the meaning given in Clause 17.2;
"ENCUMBRANCE" means all security interests, any option, equity, claim,
charge mortgage, lien, restriction, power of sale or hypothecation or
other third Party rights including rights of pre-emption of any nature
whatsoever;
"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;
"INITIAL ASSET SALE AGREEMENT" means the agreement entered into on 1
March 2002 between the Mortgagee and the Company for the transfer and
sale of certain immovable assets of SGL to the Company;
"LEASE" shall have the meaning specified in the Asset Sale Agreements;
"LOAN NOTE" shall have the meaning specified in the Asset Sale
Agreements;
"LONDON STOCK EXCHANGE" means the London Stock Exchange p.l.c.;
"MINE" shall have the meaning specified in the Asset Sale Agreements;
"RECEIVER" means Xxx Xxxxxx Xxxxx, as receiver and manager of certain
assets of SGL;
"RELATED PERSON" means in relation to any Party its holding companies
and the subsidiary undertakings and associated companies from time to
time of such holding company, all of them and each of them as the
context admits;
"SGL" means Satellite Goldfields Limited (in receivership) whose
registered office is at 000 Xxxxxx Xxxxxx Xxxx, Xxxxxxxxxxxxx Xxxxxxx,
Xxxxx Xxxxx, Xxxxxxx Xxxxxxxxxxx Xxxx, Xxxxx, Xxxxx;
"SGL'S GROUP" means SGL, its holding companies and the subsidiary
undertakings and associated companies from time to time of such holding
companies, all of them and each of them as the context admits;
"SECURITY" shall have the meaning given to it in the preamble to this
Agreement;
"SENIOR LENDERS" means Standard Bank London Limited, Bayerische Hypo-und
Vereinsbank AG, Dresdner Bank AG and Fortis Bank (Nederland) NV;
"SHARE COMPLETION DATE" means the date falling three Business Days after
satisfaction or waiver of all of the Conditions;
"SHARES" means 90% of the issued capital of the Company; and
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"UK LISTING AUTHORITY" means the Financial Services Authority in its
capacity as the competent authority for the purposes of Part IV of the
Financial Services Xxx 0000.
1.2 INTERPRETATION
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 with another if that
person is connected with another within the meaning of Section
839 of the Income and Corporation Taxes 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;
(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;
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(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.
2. SALE AND PURCHASE
2.1 Upon the terms and subject to the conditions of this Agreement, the
Mortgagee shall sell and the Buyer shall purchase such right, title and
interest as the Mortgagee may have in the Shares and the Loan Note with
effect from Completion free from any Encumbrance together with all
accrued rights attached thereto.
2.2 The consideration for the sale of the Shares shall be the sum of $1 to
be satisfied in cash on Completion.
2.3 The consideration for the sale of the Loan Note shall be the sum of $1
to be satisfied in cash on Completion.
3. CONDITIONS
3.1 Completion shall be conditional upon the fulfilment of each of the
following conditions:
(a) the approval of the Government and the Bank of Ghana to the sale
of the Shares and change in control of the Company and to the
sale of the Loan Note under this Agreement;
(b) the final agreement, execution and delivery of the Finance
Agreement (as that term is defined in the Asset Sale Agreements)
by each of the relevant parties thereto and satisfaction of all
conditions precedent as are specified thereunder (save and except
for formal Completion of this Agreement); and
(c) the satisfaction of all such other conditions to Completion as
the Mortgagee and the Buyer may each require to be satisfied.
3.2 If either Party becomes aware of any fact, matter or circumstance which
in the opinion of that Party may prevent any of the Conditions from
being fulfilled on or before 31 July 2002, then that Party must notify
the other Party to this Agreement forthwith.
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3.3 If all of the Conditions have not been fulfilled on or before 31 July
2002 (or such later date as the parties may agree in writing), this
Agreement shall terminate.
3.4 If the Agreement is terminated or terminates in accordance with Clause
3.3 then the respective obligations of each Party shall automatically
terminate save that the rights and liabilities of the Parties which have
accrued prior to termination shall continue to subsist including without
limitation those rights and liabilities arising under Clauses 6 to 9 and
11 to 17 inclusive.
4. COMPLETION
4.1 DATE AND PLACE
Completion shall take place at the offices of Xxxxxx Xxxxxxx & Letsa on
the Share Completion Date.
4.2 MORTGAGEE'S OBLIGATIONS ON COMPLETION
On Completion the Mortgagee shall:
(a) procure that a board meeting of the Company is held at which:
(i) the directors (or an authorised committee of that board)
approve the registration of the transfer of the Shares
(subject only to stamping); and
(ii) approve the appointment of such nominees as the Buyer
may elect as directors of the Company subject only to
Completion.
(b) deliver to or, if the Buyer shall so agree, make available to the
Buyer:
(i) a true copy of the Lease;
(ii) a true copy of the Loan Note (the original being held
pursuant to the Financing Agreement by Standard Bank
London Limited);
(iii) a duly executed transfer of the Shares in favour of the
Buyer or as it may direct together with the relative
share certificates together with any power of attorney
under which any transfer is executed;
(iv) an irrevocable power of attorney in the agreed form duly
executed by the Mortgagee in favour of the Buyer to
enable the Buyer (pending registration of the transfer
of Shares) to exercise all voting rights and other
rights attaching to the Shares and to appoint proxies
for such purpose;
(v) written resignations in the agreed terms and duly
executed as deeds of each of the directors of the
Company to take effect on the Asset Completion Date
whereby such directors relinquish any rights which they
may have against the Company for compensation for loss
of office or otherwise such resignations to be tendered
at the board meeting referred to in Clause 4.2(a) above;
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(vi) the statutory books (which shall be written up to but
not including the Share Completion), the certificates of
incorporation, corporate seals (if any) and cheque books
of the Company;
(vii) bank statements of all bank accounts of the Company as
at a date not later than three Business Days prior to
the Share Completion Date;
(viii) a confirmation in the agreed terms from the Mortgagee to
the effect that there is no indebtedness owing from the
Company to the Mortgagee;
(ix) the written resignations of the auditors (if any) of the
Company containing an acknowledgement that they have no
claim against the Company for compensation for loss of
office, professional fees or otherwise.
4.3 BUYER'S OBLIGATIONS ON COMPLETION
On Completion the Buyer shall pay to the Mortgagee the Consideration
specified in Clauses 2.3 and 2.4 in cash.
5. EXCLUSION OF WARRANTIES
5.1 All 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 Shares,
freedom from encumbrances, quiet possession, further assurance,
satisfactory quality, fitness or purchase and description) in relation
to the sale of the Shares 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 Shares forming part of the assets of an insolvent company
and particularly having regard to the following matters, namely:
(a) that the Mortgagee, the Receiver, the Company and SGL 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 Shares;
(b) that the Buyer has, and has informed SGL, the Mortgagee, the
Receiver and the Company that it has, skilled professional advice
available to it concerning the Business and the Assets and the
matters referred to in sub-Clause 5.1(a) above, that it is on the
basis of this advice that the Buyer has agreed to purchase the
Shares for a consideration calculated to take into account (inter
alia) the risk to the Buyer represented by this Agreement, the
Mortgagee making it clear that on any other basis it would not
have agreed to sell the same except for a much higher
consideration;
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(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;
(d) that SGL 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.
5.2 The Buyer acknowledges, for the avoidance of doubt, that if it shall be
found that the Mortgagee or SGL does not have title or unencumbered
title to the Shares 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.
5.3 The exclusion of liability set out in this Clause shall operate in
favour of each of SGL, 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 the Mortgagee
and/or the Receiver.
5.4 For the avoidance of doubt the exclusions and limitations in Schedule 2
shall apply to this Agreement.
6. CONFIDENTIALITY AND ANNOUNCEMENTS
6.1 Subject to Clause 6.2, following Completion the Mortgagee shall not use
or disclose to any person any Confidential Information.
6.2 Clause 6.1 does not apply to:
(a) disclosure of Confidential Information to or at the written
request of the Buyer;
(b) disclosure of Confidential Information by the Mortgagee to the
Finance Parties under the Definitions and Common Terms Agreement
dated May 8, 1998 as amended among, inter alia, Satellite
Goldfields Limited, Glencar Mining plc, the Senior Lenders party
thereto, CDC Group plc (formerly Commonwealth Development
Corporation) and The Law Debenture Trust Corporation p.l.c;
(c) use or disclosure of Confidential Information required to be
disclosed by law or the rules and standards of any stock exchange
or securities regulator for which the Mortgagee is a reporting
issuer or the rules and requirements of any other regulatory
body;
(d) disclosure of Confidential Information to professional advisers
for the purpose of advising the Mortgagee; or
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(e) Confidential Information which becomes generally known other than
by a breach of Clause 6.1.
6.3 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 terms) and each Party shall
procure that each of its Related Persons shall not make any such
disclosure without the prior consent of the other Party unless
disclosure is:
(a) to its professional advisers; or
(b) required by law; or
(c) the rules or standards of any stock exchange or securities
regulator for which a Party is a reporting issuer or the rules
and requirements of any other regulatory body having jurisdiction
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 Party before making such
announcement and provided that any such announcement
shall be made only after notice to the other
Party/Parties; and
(ii) to the person or persons and in the manner required by
law or the rules and standards or regulations of such
stock exchange, securities regulator or other regulatory
body having jurisdiction or as otherwise agreed between
the Parties.
6.4 The restrictions contained in Clauses 6.1 and 6.3 shall apply without
limit of time.
7. ASSIGNMENT
This Agreement is personal to the Parties and accordingly the Buyer may
not without the prior written consent of the Mortgagee 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.
8. COSTS
Unless expressly otherwise provided in this Agreement each of the
Parties shall bear its own legal, accountancy and other costs, charges
and expenses connected with the sale and purchase of the Shares.
9. EFFECT OF COMPLETION
The terms of this Agreement (insofar as not performed at Completion and
subject as specifically otherwise provided in this Agreement) shall
continue in force after and notwithstanding Completion.
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10. FURTHER ASSURANCES
Following Completion, the Mortgagee 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 necessary for
the purpose of transferring to the Buyer all of the Mortgagee's right,
title and interest in and to the Shares provided that this shall not
oblige the Mortgagee 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
the Mortgagee. The obligations of the Mortgagee under this Clause shall
cease six months from the Completion Date.
11. 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.
12. WAIVER
12.1 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 consenting Party and then only in the instance
and for the purpose for which it is given.
12.2 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.
13. 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.
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14. NOTICES
14.1 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 (air mail if posted to or from a place outside the
United Kingdom):
In the case of the Buyer to: Wasford Holdings
Such address and facsimile number
as is notified in writing by the
Buyer to the Mortgagee from time to
time provided always that delivery
of notice to Golden Star Resources
Ltd at the address specified below
shall constitute valid service and
delivery of any notice required to
be delivered to the Buyer.
Fax: As above
Attention: Corporate Secretary
With a copy to: Golden Star Resources Ltd
00000 Xxxxxxxx Xxxx,
Xxxxx 000,
Xxxxxxxxx,
Xxxxxxxx 00000-0000,
X.X.X.
Fax: 000-000-0000
Attention: Corporate Secretary
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 air mail, five Business Days after the date of
posting; and
(c) if sent by fax, when despatched;
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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.
14.2 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 14.1 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.
15. 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 Parties) Xxx 0000 or otherwise save and
except for those granted to the Company, SGL or the Receiver.
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.
16. COUNTERPARTS
This Agreement may be executed in any number of counterparts which
together shall constitute one 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.
17. GOVERNING LAW AND JURISDICTION
17.1 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.
17.2 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
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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.
17.3 Without prejudice to any other mode of service allowed under any
relevant law, the Buyer:
(a) irrevocably appoints Moriah Limited (No. 03991620) a company
incorporated in England and Wales and having its registered
office at 00X Xxxxxxxxx Xxxx, Xxxxxx XX00 0XX, as its agent for
service of process in relation to any proceedings before the
English courts in connection with this Agreement PROVIDED THAT
the Buyer may at any time upon the giving of one month's notice
to the Mortgagee substitute an alternative company (which must be
duly incorporated in England and Wales and have its registered
office at an address within England and Wales) in substitution
for Moriah Limited such substitution to be documented in form and
substance satisfactory to the Mortgagee; and
(b) each agrees that failure by a process agent to notify the
Mortgagee as the case may be of the process will not invalidate
the proceedings concerned.
If the appointment of the Person mentioned in this Clause 17.3 ceases to
be effective, the Buyer 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 Buyer fails to do so (and such failure continues for a period of
not less than 15 Business Days), the Mortgagee shall be entitled to
appoint such a Person by notice to the Buyer.
IN WITNESS whereof this Agreement has been executed on the date first above
written.
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SCHEDULE 1
PARTICULARS RELATING TO THE COMPANY
Authorised share capital: 10 million ordinary shares of no par
value divided into 9 million Class
"A" ordinary shares of no par value
and 1 million Class "B" ordinary
shares of no par value
Issued share capital: 108 Class "A" ordinary shares of no
par value and 12 Class "B" ordinary
shares of no par value
Directors: Xxxxx Xxxxxxx-Xxxxx
Xxxxxx Xxxxx
Secretary: Trustee Services Limited
Registered Office: X/ Xxxxxx Xxxxxxx & Xxxxx
0xx Xxxxx, Teachers' Hall Annex
Education Loop (Off Xxxxxx Xxxx)
X.X. Xxx 0000 Xxxxx
Xxxxx
XX-0
SCHEDULE 2
EXCLUSIONS
1. The interest in the Shares which the Mortgagee sells and the Buyer buys
is such right, title and interest as such Mortgagee 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
Shares are acquired by the Buyer on the basis that it is deemed to be
aware for all purposes with respect to the Mine and the Assets 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 6.1 of the Agreement on any statement, or silence,
of the Mortgagee, the Receiver, the Senior Lenders, SGL or of their
employees, solicitors, advisers, valuers, agents, partners,
Representatives or, save and except in the case of SGL, any of their
directors or officers.
4. Any claim of the Buyer, or of any person claiming through it, against
the Mortgagee 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 SGL 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 the Mortgagee and/or Receiver. They
shall continue as well after as before completion of this Agreement in
whole or in part.
6. The Buyer acknowledges the terms of the Asset Sale Agreements.
7. Except as expressly provided in this Agreement, neither the Mortgagee
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 the Mortgagee or the Receiver whose
services may be made available to the Buyer on a sub-contract basis from
time to time.
SS-2
8. Save as expressly provided in this Agreement nothing in this Agreement
is to require either Mortgagee or the Receiver to discharge in whole or
in part any liability of the Mortgagee outstanding at the Share
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 the Mortgagee 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.
SS-2
Signed by )
a duly authorised representative of )
and for and on behalf of WASFORD )
HOLDINGS:
S-1
Signed by )
for and on behalf of THE LAW )
DEBENTURE TRUST )
CORPORATION P.L.C.:
S-2
WASFORD HOLDINGS LETTERHEAD
Law Debenture Trust Corporation p.l.c.
0xx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxx Xxxxxxxxx-Xxxxx
September 13, 2002
Dear Sirs
AGREEMENT FOR THE SALE AND PURCHASE OF 90% OF THE ISSUED CAPITAL OF WEXFORD
GODLFIELDS LIMITED (THE "SHARE SALE AGREEMENT") DATED 26 JUNE, 2002.
We refer to the Share Sale Agreement. Terms used but not defined in this letter
are used as defined in the Share Sale Agreement.
The parties hereto agree that the reference in Clause 3.3 of the Share Sale
Agreement to "on or before 31 July 2002" shall be deleted and replaced with "on
or before August 31, 2002".
Please countersign and return to us the attached copy of this letter to signify
your acceptance of its terms.
This letter may be executed by the parties hereto in several counterparts, each
of which shall, when executed, be deemed to be an original and all of which
shall constitute together but one and the same agreement.
Yours faithfully
---------------------------------------
For and on behalf of WASFORD HOLDINGS
By:
Accepted
---------------------------------------
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
By:
