EXHIBIT D
SHELL LOAN PURCHASE
AND SALE AGREEMENT
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DATED 3 MAY 2002
Between
SHELL CAPITAL INC.
(the "SELLER")
and
CENTRAL ASIAN INDUSTRIAL HOLDINGS N.V.
(the "BUYER")
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SALE AND PURCHASE AGREEMENT
relating to debt in
Chaparral Resources, Inc.
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WHITE & CASE
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Tel No. ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax No. ▇▇▇ ▇▇▇▇ ▇▇▇▇
THIS SALE AND PURCHASE AGREEMENT is dated 3 May 2002 between:
(1) SHELL CAPITAL INC., (the "SELLER"); and
(2) CENTRAL ASIAN INDUSTRIAL HOLDINGS N.V., (the "BUYER").
WHEREAS the Seller wishes to sell the Transferred Assets and the Buyer wishes to
buy the Transferred Assets and assume the Transferred Obligations.
IT IS AGREED:
INTERPRETATION
Definitions
Terms defined in the Loan Agreement (as defined below) and not
otherwise defined in this Agreement shall have the same meanings when
used in this Agreement and the following expressions shall have the
following meanings:
"ACCRUED INTEREST" means the aggregate amount of outstanding interest
accrued and payable in respect of the Loans;
"AGENT'S EXPENSES" means any costs, liabilities, losses, claims,
damages and expenses incurred by the Facility Agent for which the
Facility Agent has recourse under the Finance Documents to the Seller
and/or the Buyer to the extent such recourse is attributable to the
Transferred Assets and/or Transferred Obligations;
"BORROWER" means Chaparral Resources, Inc.;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks in London and New York are open for a full range of banking
business;
"CAP(G)" means Central Asian Petroleum (Guernsey) Limited;
"CAP(G) PREFERENCE SHARE" means the "B" preference share with nominal
value of $1 in the capital of Central Asian Petroleum (Guernsey)
Limited;
"COMPLETION" shall have the meaning given to such item in Clause 3.1;
"COMPLETION DATE" means (i) 7 May 2002, or (ii) if either party so
elects, 10 May 2002 or (iii) such other date as the parties may agree,
but in any event no later than 31 May 2002, and in any case, provided
that on such date each of the conditions set out in Clause 2.4 have
been satisfied;
"CONSIDERATION" means the amount payable for the Transferred Assets set
out in the Pricing Letter;
"DISCLOSURE LETTER" means the letter dated 3 May 2002 from the Seller
to the Buyer;
"DISTRIBUTION(S)" means any payment(s) from the Borrower of principal,
interest, fees, commissions, dividends or other amounts or property
deriving from the Transferred Assets, excluding, however, the Partial
Repayment Amount;
"DOLLARS" means the lawful currency of the United States of America for
the time being;
"EQUITY TRANSACTION COMPLETION DATE" means the earlier of:
the date which is six (6) months after the date of this Agreement;
and
the date on which the Buyer has acquired and owns shares in the
Borrower comprising 50% or more of the voting shares of the
Borrower;
"FACILITY AGENT" means Shell Capital Services Limited or any successor
Facility Agent appointed in accordance with the Loan Agreement from
time to time;
"FINANCE DOCUMENTS" shall have the meaning given to such term under the
Loan Agreement;
"GOVERNMENTAL AUTHORITY" means any international, national, regional,
local or other governmental or quasi-governmental agency, authority,
administration or regulatory body, arbitrator, court or other tribunal;
"GUERNSEY LIQUIDATION" means the winding-up proceedings pending in the
Royal Court of Guernsey (Ordinary Division) between Shell Capital
Services Limited as applicant and Central Asian Petroleum (Guernsey)
Limited as debtor;
"INSOLVENCY PROCEEDINGS" means receivership, administrative
receivership, administration, liquidation (including provisional
liquidation), corporate voluntary arrangements, winding-up, dissolution
or any insolvency procedure or any other procedure under any law of any
jurisdiction of, or having, a similar or analogous nature or effect;
"INTEREST RATE" means, with regard to any unpaid sum, the one-month
rate (or, if shorter, the rate for the relevant default period)
appearing for the relevant currency and amount on the Telerate Service
page 3750 at or about 11.00 a.m. London time on the first day payment
is due;
"KAZKOMMERTSBANK" means OJSC Kazkommertsbank;
"KKM" means Closed Type JSC Karakudukmunay;
"KKM REGISTRAR" means the registrar which maintains the register of
shareholders of KKM;
"KKM SECURED SHARES" means the shares comprising 50% of the total
number of voting shares of KKM which are owned by CAP(G) and pledged to
the Security Trustee under the KKM Pledge Agreement;
"LOAN AGREEMENT" means the loan agreement dated 1 November 1999 (as
amended by a supplemental agreement dated 10 February 2000 and as
amended further by an amendment agreement dated 31 May 2001) between
Chaparral Resources, Inc. as borrower, Central Asian Petroleum
(Guernsey) Limited, Closed Type JSC Karakudukmunay and Central Asian
Petroleum, Inc. as co-obligors, Shell Capital Services Limited as
arranger, facility agent and modeller and the Lenders named therein;
"LOANS" means all of the Loans made by the Seller under and as defined
in the Loan Agreement in the amount set out in Part 1 of Schedule 1;
"MAXIMUM LIABILITY AMOUNT" means US$ 2,450,000;
"MUTUAL RELEASE AGREEMENT" means the mutual release agreement to be
entered into on or around the date hereof between the Borrower, the
Co-Obligors, Shell Capital Inc., Shell Capital Services Limited and
Shell Capital Limited in the form set out in Schedule 2;
"OBLIGORS" shall have the meaning given to such term under the Loan
Agreement;
"OPERATIVE DOCUMENTS" means this Agreement, the Transfer Certificate
and the Pricing Letter;
"PARTIAL REPAYMENT AMOUNT" has the meaning set out in Clause 2.4;
"PRICING LETTER" means the letter from the Buyer to the Seller
expressed to be the Pricing Letter setting out the Consideration;
"REFINANCING LOAN" has the meaning set out in Clause 2.4;
"RIGHTS" means all present or future rights, titles, interests, claims
and entitlements;
"SECURITY INTEREST" shall have the meaning given to such term under the
Loan Agreement;
"THIRD PARTY RIGHTS" means any Rights the Seller may have against any
third party which are attributable to the Transferred Assets and/or the
Transferred Obligations and excluding therefrom the Transferred Assets
themselves;
"TRANSFER" means the transfer, sale and assignment set out in Clause
2.1;
"TRANSFER CERTIFICATE" means a transfer certificate substantially in
the form of Part 2 of Schedule 1;
"TRANSFER FEE" means the transfer fee provided for in Clause 27.8 of
the Loan Agreement;
"TRANSFERRED ASSETS" means the Loans and Accrued Interest, together
with all the Seller's Rights (a) against the Obligors, (b) under any
security or collateral arrangement (in either case to the extent such
Rights are attributable to the Loans), (c) to the benefit of the
Finance Documents and (d) in any Insolvency Proceedings of the Borrower
or any other Obligor;
"TRANSFERRED OBLIGATIONS" means all present and future obligations
expressed to be assumed by the Seller under the Loan Agreement and
which are attributable to the Transferred Assets;
"UK LAWSUIT" means the proceedings in the High Court of Justice,
Queen's Bench Division, Commercial Court, designated Claim No. 2002
Folio 39, between Shell Capital Services Limited as claimant and the
Borrower as defendant;
"WARRANT AGREEMENT" means the warrant agreement dated 8 February 2000
(as amended and restated on 18 April 2001) between the Borrower as
issuer and Shell Capital Limited, pursuant to which the Borrower
granted to Shell Capital Limited the Warrants; and
"WARRANTS" means the warrants to purchase 1,785,455 shares of common
stock, par value $0.0001 per share of Chaparral Resources, Inc. granted
to Shell Capital Limited under the Warrant Agreement.
IN THIS AGREEMENT, SAVE AS OTHERWISE EXPRESSLY PROVIDED:
this Agreement shall be construed as including each separate or independent
stipulation or agreement herein contained;
references to this Agreement or any other document, statute or regulation shall
be references to the same as amended, varied, supplemented, replaced and
restated in any manner from time to time;
references to persons shall include bodies corporate and unincorporated
associations, partnerships and individuals, and references to the singular shall
include the plural and vice versa;
references to Clauses or the Schedule are to clauses of, and the schedule to
this Agreement. References to this Agreement shall, unless otherwise expressly
stated, include references to Schedule 2 and the Pricing Letter;
the words "including" and "in particular" shall not be construed as limiting the
generality of any foregoing words;
headings are inserted for convenience only and shall not affect the
interpretation of any of the provisions of this Agreement; and
where the context admits, "Seller" and "Buyer" shall include their respective
successors in title and permitted assigns and transferees; and reference to the
"parties" shall be a reference to the Seller and the Buyer and "party" shall
mean either of them.
A person who is not a party to this Agreement has no right under the Contracts
(Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Agreement.
SALE AND PURCHASE
Subject to the terms and conditions of this Agreement:
THE SELLER AGREES:
to novate in favour of the Buyer on the Completion Date the Loans, together with
such other Transferred Assets, Transferred Obligations and Third Party Rights as
shall be capable of being novated pursuant to the Transfer Certificate;
to the extent that any of the Transferred Assets, Transferred Obligations and
Third Party Rights are not effectively novated pursuant to Clause 2.1(a), to
assign them to the Buyer with effect from the Completion Date;
to the extent that any prior consents are required to be obtained by the Seller
under the terms of the Finance Documents to effect the transactions contemplated
by the Transfer, the Seller agrees to provide reasonable co-operation with the
Buyer and to use its reasonable endeavours to obtain any such consents;
as soon as is reasonably practicable following Completion to:
file at the Royal Court of Guernsey with the consent
of Counsel for CAP(G) a notice withdrawing the
winding-up proceedings commenced in Guernsey; and
file at the High Court of Justice in London and serve
on the Borrower a notice of discontinuance pursuant
to Part 38 of the Civil Procedure Rules 1998,
discontinuing the UK Lawsuit,
in each case, on the basis that neither party to such proceedings will
seek an order for costs; and
that the Partial Repayment Amount (as defined below) actually received by the
Seller shall be applied by it in or towards discharge of the Borrower's
obligations under the Loan Agreement in the following order:
the first $27,150,000, in or towards discharge of the
principal of the Loans; and
(ii) the remainder, in or towards discharge of any
interest accruing on the Loans (including default
interest).
THE BUYER:
accepts the transfer of the Transferred Assets, the Transferred Obligations and
the Third Party Rights on the Completion Date; and
agrees to pay the Consideration to the Seller on the Completion Date in Dollars
in immediately available funds.
The parties acknowledge and agree that no Transfer Fee shall be payable to the
Facility Agent in connection with the transactions contemplated by this
Agreement.
The Seller's obligations under Clause 2.1 and the Buyer's obligations under
Clause 2.2 shall be conditional upon:
the Buyer confirming to the Seller that the documents and other evidence set out
in section 1 of Part 3 of Schedule 1 are in form and substance satisfactory to
the Buyer; and
the Buyer confirming to the Seller that arrangements satisfactory to the Buyer
have been entered into between KKM and Kazkommertsbank whereby:
Kazkommertsbank will by way of a loan (the
"REFINANCING LOAN") refinance US$28,000,000 of KKM's
existing indebtedness to CAP(G), to be used by CAP(G)
to refinance the same amount of CAP(G)'s existing
indebtedness to the Borrower, such that on or before
Completion, the Borrower will, with the proceeds of
the Refinancing Loan, be able to discharge (by
payment to the Seller) US$28,000,000 (the "PARTIAL
REPAYMENT AMOUNT") of Loans owing to the Seller under
the Loan Agreement;
all conditions precedent relating to the provision of
the Refinancing Loan are satisfied or waived;
all necessary waivers, consents and releases by all
relevant parties in connection therewith are granted;
the Refinancing Loan is made; and
an amount of the Loans owing by the Borrower under
the Loan Agreement equal to the Partial Repayment
Amount having been or being discharged on or prior to
the Completion Date; and
(c) the Seller applying an amount of $28,000,000 received from the
Borrower towards satisfaction of amounts owing to it under the
Loan Agreement.
The Seller notifies the Buyer and the Buyer acknowledges that, following
Completion:
the Seller shall have no obligation to repurchase the Transferred Assets, the
Transferred Obligations and/or the Third Party Rights from the Buyer;
save to the extent that the Seller is liable for any loss, liability or expense
as a result of its breach of any agreement, undertaking, representation or
warranty in this Agreement, the Seller shall not be responsible for or required
to reimburse the Buyer for any loss, liability or expense it may suffer in
connection with the Transferred Assets, the Transferred Obligations and/or the
Third Party Rights; and
any rescheduling or renegotiation of the Transferred Assets, the Transferred
Obligations and/or the Third Party Rights shall be for the account of the Buyer.
COMPLETION
Consummation of the transactions contemplated in this Agreement ("Completion")
shall take place at 5.00 p.m. (London time) at the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
in London on the Completion Date.
Subject to the terms and conditions of this Agreement, at Completion:
the Seller shall:
deliver to the Buyer originals or duly certified
copies (as the case may be) of the documents and
other evidence set out in section 1 of Part 3 of
Schedule 1, all in form and substance satisfactory to
the Buyer;
procure that Shell Capital Services Limited shall
notify the KKM Registrar of the termination of the
KKM Pledge Agreement and instruct the KKM Registrar
(with a copy of such instruction to the Buyer) to
release the KKM Secured Shares forthwith; and
execute and deliver to the Buyer three copies of the
Transfer Certificate;
the Buyer shall:
deliver to the Seller originals or duly certified
copies of the documents set out in section 2 of Part
3 of Schedule 1;
promptly upon receipt, itself execute each Transfer
Certificate delivered to it by the Seller and deliver
the same to the Facility Agent; and
pay the Consideration to the Seller on the Completion
Date in Dollars in immediately available funds, such
payment to be increased (if necessary) to the amount
which, after any deduction or withholding for or on
account of any tax, is equal to the full amount of
the Consideration which the Seller would have
received had no such deduction or withholding been
required from or in respect of such payment.
3.3 If any of the provisions of Clause 3.2 have not been complied with
or satisfied on the Completion Date, the parties may agree to:
(c) defer Completion and to extend the Completion Date to such other date
as may be agreed (and so that the provisions of Clauses 3.2 and 3.3
shall apply to Completion as so deferred); or
(d) terminate and cancel this Agreement.
APPORTIONMENT
The Seller shall be entitled to receive and retain for its own account the
amount of any Partial Repayment Amount paid by the Borrower.
Subject to Clause 4.1, any Distribution received by the Seller on or after the
date of this Agreement shall be held by the Seller (for itself and for the
Buyer) to be applied as follows:
if Completion occurs, by payment to the Buyer on the Completion Date; and
if Completion does not occur, by payment to the Seller.
If either party (the "Payer") receives payment of any amount which, pursuant to
Clauses 4.1 or 4.2, is for the account of the other (the "Payee"), it shall:
where such payment is in cash, promptly pay an equal amount to the Payee. In any
event, payment by the Payer shall be made within two Business Days of the date
on which it receives the relevant amount. Overdue payments shall bear interest
at the Interest Rate for the period from (and including) the date of receipt by
the Payer to (but excluding) the date of payment to the Payee; or
where such payment is not in cash, hold it as nominee for the Payee and, as soon
as possible at the Payee's expense, have it registered in the name of the Payee
(or such other name or names as the Payee may reasonably and lawfully direct)
and until it does so, account to the Payee for the full economic benefit of such
amount.
The parties hereby agree and acknowledge that (a) any Agent's Expenses payable
prior to the Completion Date shall be for the account of and be borne by the
Seller and (b) any Agent's Expenses payable at any time after the Completion
Date shall be for the account of and be borne by the Buyer.
INDEPENDENT INVESTIGATION
The Buyer acknowledges that:
it has made its own independent investigation as to all matters relevant to the
Transfer, including (without limitation) (i) the creditworthiness of the
Obligors and any other party to the Finance Documents and (ii) the terms of the
Finance Documents and the rights, obligations and transactions contemplated by
the Finance Documents; and
save as set out in Clause 6, the Seller assumes no responsibility with respect
to any matter relevant to the Transfer including (i) the performance by any
party to any Finance Documents of its obligations thereunder, (ii) the financial
condition or creditworthiness of any party to the Finance Documents, (iii) the
effectiveness, validity, legality, due execution or enforceability of any
Finance Documents or (iv) the need for or validity of any consent under the
Finance Documents in relation to the Transfer.
Each of the parties acknowledges that the other may possess material information
not known to it including, without limitation, (a) information received from or
on behalf of the Obligors, or (b) information received from advisers. Each
agrees that the other shall have no liability with respect to the non-disclosure
of any such information except to the extent that such information renders
inaccurate an express representation or warranty hereunder made by the person
possessing such information.
Notwithstanding the foregoing, should the Buyer require any further information
or documents for the purposes of any enforcement proceedings arising in
connection with the Loan Agreement in the United States of America, the United
Kingdom or in Guernsey, the Seller shall and shall procure that Shell Capital
Services Limited shall cooperate with the Seller in providing to the Buyer such
further information and documents as the Buyer may reasonably request and as may
be in Shell Capital Services Limited's possession (and the disclosure of which
is not unlawful, in breach of any confidentiality undertaking or otherwise
actionable at the instance of any person), provided that the Seller and Shell
Capital Services Limited shall be under no obligation under this Clause 5.3
unless and until it has received such security or indemnification as it may
reasonably require (whether by payment in advance or otherwise) for all
reasonable costs, claims, losses, expenses (including reasonable legal fees,
travel expenses and compensation for management time) and liabilities together
with any VAT thereon which it will or may expend or incur in complying with any
such request.
REPRESENTATIONS AND WARRANTIES
Each of the parties acknowledges that, except as provided in Clauses 6.2 and
6.3, no representation and warranty has been made to it by the other. Liability
for any breach of any representation and warranty by any party in this Clause 6
shall survive the occurrence of the Transfer, provided that the Buyer
acknowledges that the Seller shall have no liability whatsoever for any claim in
respect of the representation and warranty in Clause 6.2(b) that is brought by
the Buyer after the Equity Transaction Completion Date.
The Seller as of the date of this Agreement and the Completion Date represents
and warrants to the Buyer that:
it is the sole legal and beneficial owner of the Transferred Assets and
Transferred Obligations, free and clear of any Security Interest, other than in
respect of any Security Interest under or pursuant to the Security Documents
held by and in the name of the Security Trustee in respect of which it is the
beneficial owner;
the Loan Agreement is valid and enforceable in accordance with its terms, and at
the time it was entered into, each Obligor had due capacity, power and authority
to enter into and exercise and perform its rights and obligations thereunder,
subject as to enforceability, to applicable bankruptcy, insolvency,
reorganisation or similar laws affecting the rights of creditors generally, to
general equitable principles, to claims becoming barred under the Limitation
Act, and to judicial discretions with respect to the exercise of jurisdiction,
the enforcement of costs or currency indemnities, the awarding of post-judgment
interest and the giving of judgment in a foreign currency;
no Events of Default have been declared under the Loan Agreement other than the
Events of Default described in the notices sent by the Facility Agent to the
Borrower and CAP-G on 30 October 2001, on 14 January 2002 and on 23 April 2002;
no additional amounts (other than the Loans) have been advanced or agreed to be
advanced to the Borrower or any Co-Obligor under the Facilities;
no security or guarantees have been granted to the Finance Parties other than
the Security Interests and guarantees as set forth in the Security Documents and
the Loan Agreement and as may be constituted by the CAP(G) Preference Share and
the Warrants;
it is a sophisticated institution with respect to the Transferred Assets and the
Transferred Obligations and has adequate information (including information that
is available for public inspection) concerning the business and financial
condition of the Obligors to make an informed decision regarding the Transfer
and has independently and (except for the Buyer's representations and warranties
as set out in Clause 6.3, on which it has relied in entering into this
Agreement) without reliance on the Buyer, based on such information as it deems
appropriate, made its own decision to enter into this Agreement;
the Operative Documents are its legal, valid and binding obligations,
enforceable against it in accordance with their terms subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganisation or similar
laws affecting the rights of creditors generally, to general equitable
principles, to claims becoming barred under the Limitation Acts and to claims
becoming subject to the defences of set-off or counterclaim;
it is a corporation duly organised or incorporated under the laws of the State
of Delaware and has full power and authority to take, has fully authorised to be
taken, and has taken, all action necessary to execute and deliver the Operative
Documents and to fulfil its obligations thereunder, and has obtained all
corporate consents and approvals necessary to its execution, delivery and
performance of the Operative Documents. None of the execution, delivery and
performance of the Operative Documents nor the sale, assignment and transfer of
the Transferred Assets and the Transferred Obligations to the Buyer, has
resulted, or will result, in a breach of any provision of, or constitute a
default (or an event which with or without notice and/or lapse of time would
constitute a default) under, the Seller's constitutional documents or by-laws,
or any material agreement or material instrument to which the Seller is a party
or by which it is bound, or any statute, order, rule or regulation of any
Governmental Authority. No registration with, or consent or approval of, or any
other action by, any Governmental Authority is required in connection with the
execution, delivery and performance of the Operative Documents by the Seller or
its sale and transfer of the Transferred Assets and the Transferred Obligations;
and
true and accurate copies of the Finance Documents have been made available to
the Buyer together with all amendments, restatements and/or supplements thereto
to which the Seller is a party.
The Buyer as of the date of this Agreement and the Completion Date hereby
represents and warrants to the Seller that:
it is a sophisticated institution with respect to the Transferred Assets and the
Transferred Obligations and has adequate information (including information that
is available for public inspection) concerning the business and financial
condition of the Obligors to make an informed decision regarding the Transfer
and has independently and (except for the Seller's representations and
warranties as set out in Clause 6.2, on which it has relied in entering into
this Agreement) without reliance on the Seller, based on such information as it
deems appropriate, made its own decision to enter into this Agreement;
the Operative Documents are its legal, valid and binding obligations,
enforceable against it in accordance with their terms, subject, as to
enforceability, to applicable bankruptcy, insolvency, reorganisation or similar
laws affecting the rights of creditors generally, to general equitable
principles, claims becoming barred under the Limitation Acts and to claims
becoming subject to the defences of set-off or counterclaim;
it is duly organised and existing under the laws of The Netherlands Antilles and
has full power and authority to take, has duly authorised to be taken, and has
taken, all corporate action necessary to execute and deliver, and to fulfil its
obligations under, the Operative Documents, and has obtained all corporate
consents and approvals necessary to its execution, delivery and performance of
the Operative Documents. None of the execution, delivery and performance of the
Operative Documents nor the purchase of the Transferred Assets and the
Transferred Obligations has resulted, or will result, in a breach of any
provision of, or constitute a default (or an event which with or without notice
and/or lapse of time would constitute a default) under the Buyer's
constitutional documents or by-laws, or any material agreement or material
instrument to which the Buyer is a party or by which it is bound, or any
statute, order, rule or regulation of any Governmental Authority. No
registration with, or consent or approval of, or any other action by, any
Governmental Authority is required in connection with the execution, delivery
and performance of the Operative Documents by the Buyer or its purchase of the
Transferred Assets and the Transferred Obligations; and
it has received a copy of the Disclosure Letter and hereby acknowledges and
agrees (i) that it is aware of the events and circumstances disclosed to it by
the Seller in the Disclosure Letter and (ii) that the Seller shall assume no
responsibility with respect to the matters disclosed in the Disclosure Letter.
INDEMNITIES
Subject to Clause 7.3, the Buyer agrees fully to indemnify and hold harmless the
Seller for and against any and all liabilities, losses, reasonable costs or
expenses of any kind arising at any time after the Completion Date and which may
be imposed on or incurred by the Seller as a result of any third party's Rights
which are attributable to the Transferred Assets and/or Transferred Obligations
except as a result of any act or omission of the Seller or any Finance Party
prior to the Completion Date.
Subject to Clause 7.3, the Seller agrees fully to indemnify and hold harmless
the Buyer for and against any and all losses and damages incurred by the Buyer
in the event that any of the representations and warranties set out in Clause
6.2 are or (as the case may be) prove to have been untrue or misleading in any
material respect when made, including all reasonable costs and expenses incurred
by the Buyer as a result, provided that the Seller's liability under or pursuant
to this Clause 7.2 in respect of any breach of or misrepresentation under Clause
6.2(b) shall at no time exceed in aggregate the Maximum Liability Amount.
Notwithstanding any other provision of this Clause 7 or of this Agreement,
neither the Seller nor the Buyer shall, with respect to the other party and
under or in connection with this Agreement:
have any liability for or in respect of any loss, damage, cost, expense or
financial harm of whatever kind or nature, however caused and whether or not
foreseeable at the date of this Agreement, that is of an indirect or
consequential nature and/or constitutes or arises from any loss of use of
machinery or property, loss of production or loss of profit; or
claim or seek any judgment for or award of exemplary or punitive damages.
EXPENSES
The parties agree that each shall bear its own expenses in connection
with this Agreement and the transactions contemplated by it.
NOTICES AND COPY DOCUMENTS
The Seller shall promptly forward to the Buyer any notice, documents or other
information relating to the Transferred Assets and/or the Transferred
Obligations which it receives after the date of this Agreement.
All notices and other communications to be sent by one party to this Agreement
to the other shall be sent by mail, courier or facsimile to the address
specified for such party in Part 4 of Schedule 1, or to such other address as a
party may specify to the other by 10 Business Days' prior written notice. Notice
sent by mail shall be effective when received by the recipient. Notices sent by
facsimile shall be effective when the sending facsimile shall have confirmed
transmission. All other notices shall be effective on delivery.
PAYMENTS
All payments to be made hereunder shall be made without set-off, counterclaim,
deduction or withholding to the account described in Part 5 of Schedule 1 (or to
such other account as the recipient shall have notified the payer in writing),
provided that the payer shall be entitled to make such deductions or
withholdings as it shall be obliged to make by law or regulation.
All payments hereunder shall be made in Dollars.
Overdue payments shall bear interest (before as well as after judgment) at the
Interest Rate for the period from (and including) the due date to (but
excluding) the date of payment to the party entitled to receive such payment.
AMENDMENT
This Agreement may not be modified or amended except by written
instrument executed by each of the parties.
SEVERABILITY
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of the prohibition or unenforceability without either affecting
the validity or enforceability of the relevant provision in any other
jurisdiction or affecting in any way any other provision of this
Agreement.
COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be an original and all of which taken together shall
constitute one and the same instrument.
ASSIGNMENT
This Agreement shall be binding upon, and inure to the benefit of, the Seller
and the Buyer and their respective successors and permitted assigns.
Neither the Seller nor the Buyer may novate, sell, transfer, grant
participations in and/or assign all or any part of its rights under this
Agreement and the other Operative Documents without the consent of the other,
such consent not to be unreasonably withheld or delayed.
ENTIRE AGREEMENT
The Operative Documents constitute the entire agreement of the parties about its
subject matter and any previous agreements, understanding and negotiations on
that subject matter cease to have any effect.
No provision of the Transfer Certificate shall limit the rights or expand the
obligations of either party as against the other under this Agreement. As
between the Seller and the Buyer, if there is any conflict between this
Agreement and the Transfer Certificate, the provisions of this Agreement shall
prevail.
ENGLISH LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of
England. Each of the parties irrevocably agrees that the courts of England shall
have exclusive jurisdiction to settle any dispute which may arise out of or in
connection with this Agreement.
Each of the parties waives (i) any objection which it may at any time have to
the bringing of any proceedings in the English Courts and (ii) any claim that
any such proceedings have been brought in an inconvenient forum.
The Buyer agrees that the process by which any suit, action or proceeding is
begun may be served on it by being served on it in connection with any suit,
action or proceeding in England, on ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (marked for the attention
of the Dispute Resolution Partner/Service of Process) of ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇; Facsimile: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇). If
such person ceases to be appointed and no other person is appointed within
fifteen days, the Seller shall be entitled to appoint such a person by notice to
the Buyer. Nothing contained herein shall affect the right to serve process in
any other manner permitted by law.
The Seller agrees that the process by which any suit, action or proceeding is
begun may be served on it by being served on it in connection with any suit,
action or proceeding in England, on Shell International Ltd., for the attention
of Shell Corporate ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇. If such person
ceases to be appointed and no other person is appointed within fifteen days, the
Buyer shall be entitled to appoint such a person by notice to the Seller.
Nothing contained herein shall affect the right to serve process in any other
manner permitted by law.
CONFIDENTIALITY
The parties agree that they shall not disclose the terms and conditions
of this Agreement or the identity of the parties hereto to any person
other than:
to their respective affiliates, respective auditors, advisers, agents or other
duly authorised representatives;
as may be required by applicable law, legal process or duly authorised
regulatory authorities;
to the Facility Agent and/or the Security Trustee and/or the Accounts Bank
and/or the Registrar to the extent required under the Finance Documents and this
Agreement (including to the extent required to do so in order to exercise any of
the rights or remedies afforded to such party under the Finance Documents); and
with the consent of the Seller, such consent not to be unreasonably withheld or
delayed, to any prospective transferee, assignee or sub-participant of the
Transferred Assets and/or the Transferred Obligations,
and that they shall not disclose the amount of the Consideration or the
terms of the Pricing Letter to any person whatsoever except as
permitted under paragraph (a) and (b) above.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto on
the day and year first above written.
SIGNATURES
SHELL CAPITAL INC.
By: /s/ ▇.▇. ▇▇▇▇▇
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Vice President
CENTRAL ASIAN INDUSTRIAL HOLDINGS N.V.
By: /s/ Askar Alshynbaev
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Managing Director
