EXECUTION VERSION
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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
0-00 Xxxxxxxx
Xxxxxx XX0X 0XX
Tel No. 000 0000 0000
Fax No. 000 0000 0000
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:
1. INTERPRETATION
1.1 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;
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"Dollars" means the lawful currency of the United States of America for the
time being;
"Equity Transaction Completion Date" means the earlier of:
(i) the date which is six (6) months after the date of this Agreement; and
(ii) 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;
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"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;
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"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.
1.2 In this Agreement, save as otherwise expressly provided:
(a) this Agreement shall be construed as including each separate or
independent stipulation or agreement herein contained;
(b) 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;
(c) 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;
(d) 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;
(e) the words "including" and "in particular" shall not be construed as
limiting the generality of any foregoing words;
(f) headings are inserted for convenience only and shall not affect the
interpretation of any of the provisions of this Agreement; and
(g) 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.
1.3 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement.
2. SALE AND PURCHASE
Subject to the terms and conditions of this Agreement:
2.1 The Seller agrees:
(a) to novate in favour of the Buyer on the Completion Date the Loans,
together with such other Transferred Assets, Transferred Obligations
and Third Party
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Rights as shall be capable of being novated pursuant to the Transfer
Certificate;
(b) 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;
(c) 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;
(d) as soon as is reasonably practicable following Completion to:
(i) 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
(ii) 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
(e) 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:
(i) 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).
2.2 The Buyer:
(a) accepts the transfer of the Transferred Assets, the Transferred
Obligations and the Third Party Rights on the Completion Date; and
(b) agrees to pay the Consideration to the Seller on the Completion Date
in Dollars in immediately available funds.
2.3 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.
2.4 The Seller's obligations under Clause 2.1 and the Buyer's obligations under
Clause 2.2 shall be conditional upon:
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(a) 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
(b) the Buyer confirming to the Seller that arrangements satisfactory to
the Buyer have been entered into between KKM and Kazkommertsbank
whereby:
(i) 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;
(ii) all conditions precedent relating to the provision of the
Refinancing Loan are satisfied or waived;
(iii)all necessary waivers, consents and releases by all relevant
parties in connection therewith are granted;
(iv) the Refinancing Loan is made; and
(v) 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.
2.5 The Seller notifies the Buyer and the Buyer acknowledges that, following
Completion:
(a) the Seller shall have no obligation to repurchase the Transferred
Assets, the Transferred Obligations and/or the Third Party Rights from
the Buyer;
(b) 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
(c) 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.
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3. COMPLETION
3.1 Consummation of the transactions contemplated in this Agreement
("Completion") shall take place at 5.00 p.m. (London time) at the offices
of Xxxxx & XxXxxxxx in London on the Completion Date.
3.2 Subject to the terms and conditions of this Agreement, at Completion:
(a) the Seller shall:
(i) 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;
(ii) 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
(iii)execute and deliver to the Buyer three copies of the Transfer
Certificate;
(b) the Buyer shall:
(i) deliver to the Seller originals or duly certified copies of the
documents set out in section 2 of Part 3 of Schedule 1;
(ii) promptly upon receipt, itself execute each Transfer Certificate
delivered to it by the Seller and deliver the same to the
Facility Agent; and
(iii)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:
(a) 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
(b) terminate and cancel this Agreement.
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4. APPORTIONMENT
4.1 The Seller shall be entitled to receive and retain for its own account the
amount of any Partial Repayment Amount paid by the Borrower.
4.2 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:
(a) if Completion occurs, by payment to the Buyer on the Completion Date;
and
(b) if Completion does not occur, by payment to the Seller.
4.3 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:
(a) 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
(b) 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.
4.4 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.
5. INDEPENDENT INVESTIGATION
5.1 The Buyer acknowledges that:
(a) 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
(b) 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.
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5.2 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.
5.3 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.
6. REPRESENTATIONS AND WARRANTIES
6.1 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.
6.2 The Seller as of the date of this Agreement and the Completion Date
represents and warrants to the Buyer that:
(a) 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;
(b) 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;
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(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) 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;
(h) 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
(i) 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.
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6.3 The Buyer as of the date of this Agreement and the Completion Date hereby
represents and warrants to the Seller that:
(a) 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;
(b) 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;
(c) 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
(d) 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.
7. INDEMNITIES
7.1 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.
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7.2 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.
7.3 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:
(a) 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
(b) claim or seek any judgment for or award of exemplary or punitive
damages.
8. EXPENSES
The parties agree that each shall bear its own expenses in connection with
this Agreement and the transactions contemplated by it.
9. NOTICES AND COPY DOCUMENTS
9.1 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.
9.2 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.
10. PAYMENTS
10.1 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.
10.2 All payments hereunder shall be made in Dollars.
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10.3 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.
11. AMENDMENT
This Agreement may not be modified or amended except by written instrument
executed by each of the parties.
12. 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.
13. 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.
14. ASSIGNMENT
14.1 This Agreement shall be binding upon, and inure to the benefit of, the
Seller and the Buyer and their respective successors and permitted assigns.
14.2 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.
15. ENTIRE AGREEMENT
15.1 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.
15.2 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.
16. ENGLISH LAW AND JURISDICTION
16.1 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.
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16.2 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.
16.3 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 Xxxxx & XxXxxxxx (marked for the
attention of the Dispute Resolution Partner/Service of Process) of 000 Xxx
Xxxxxx Xxxxxx, Xxxxxx, XX0X 0XX (Telephone: x00 00 0000 0000; Facsimile:
x00 00 0000 0000). 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.
16.4 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 Xxxxxxxxx Xxx., Xxxxx Xxxxxx, Xxxxxx XX0 0XX.
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.
17. 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:
(a) to their respective affiliates, respective auditors, advisers, agents
or other duly authorised representatives;
(b) as may be required by applicable law, legal process or duly authorised
regulatory authorities;
(c) 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
(d) 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.
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SCHEDULE 1
Part 1
Transferred Assets and Transferred Obligations
Balance Outstanding as at 3 May 2002:
------------------------------------
Senior Subordinated Bridge Agency Fee Total
(US$) (US$) (US$) (US$) (US$)
------------------- ------------------- ------------------- ----------------- ----------------- ------------------
Principal 18,000,000.00 6,000,000.00 3,150,000.00 - 27,150,000.00
Overdue Fee 24,000.00 24,000.00
Capitalised - 7,562,653.00 134,991.85 - 7,697,644.85
Interest
Overdue and 2,377,657.71 1,790,272.24 384,169.07 1,803.79 4,553,902.81
Default Interest
------------------- ------------------- ----------------- ----------------- ------------------
TOTAL 20,377,657.71 15,352,925.24 3,669,160.93 25,803.79 39,425,547.66
------------------- ------------------- ----------------- ----------------- ------------------
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Part 2
Form of Transfer Certificate
Loan Agreement
This Transfer Certificate (the "Transfer Certificate") relates to the Loan
Agreement (the "Loan Agreement") dated 1 November 1999, as amended by a
supplemental agreement dated 10 February 2000 and as further amended by an
amending agreement dated 31 May 2001 among Chaparral Resources, Inc. (the
"Borrower"), the Co-Obligors (as defined therein), the Arranger (as defined
therein), the Modeller (as defined therein), the Lenders (as defined therein)
and Shell Capital Services Limited as the Facility Agent. Terms defined in the
Loan Agreement are used herein as so defined.
1. We, Shell Capital Inc. (the "Existing Lender") and Central Asian Industrial
Holdings N.V. (the "New Lender"), agree to the Existing Lender and the New
Lender novating the Existing Lender's entire outstanding Commitment and the Loan
and the rights and obligations referred to in the Schedule in accordance with
Clause 27.9 (Procedure for Novations) of the Loan Agreement.
2. The Facility Office and address for notices of the New Lender for the
purposes of Clause 29.2 (Addresses for Notices) of the Loan Agreement are set
out in the Schedule to this Transfer Certificate.
3. The New Lender undertakes to pay the fee required by Clause 27.8 (Payment by
New Lender) of the Loan Agreement.
4. This Transfer Certificate is governed by English law.
IN WITNESS WHEREOF, the Existing Lender, the New Lender and the Facility Agent
have executed this Transfer Certificate.
Central Asian Industrial Holdings N.V., as New Lender
By:
------------------------------------------------
Name:
Title:
Shell Capital Inc., as Existing Lender
By:
------------------------------------------------
Name:
Title:
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Shell Capital Services Limited as Facility Agent, on behalf of itself and the
other parties to the Loan Agreement other than the Existing Lender
By:
-----------------------------
(Authorised Signatory)
Name:
Title:
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SCHEDULE TO TRANSFER CERTIFICATE
--------------------------------
1. Existing Lender's Commitment: nil
2. Existing Lender's Loans: $[ ]
3. Portion of Commitment Transferred: nil
4. Loans Transferred: $[ ]
5. Date of Transfer: [_] 2002
6. Amount, if any, payable to Existing Lender by New Lender:
$[_] for value ___________ by transfer to account no.___________ at
___________
Shell Capital Inc. Central Asian Industrial Holdings N.V.
as Existing Lender as New Lender
By: By:
------------------------------- ---------------------------------
Name: Name:
Title: Title:
Date: Date:
----------------------------- -------------------------------
New Lender's Facility Office New Lender's notice details:
details: Address:
Address: Telephone:
Telephone: Fax:
Fax: Attention:
Attention:
-19-
Part 3
Conditions Precedent to the Completion Date
Section 1
---------
The Seller shall provide the following documents and evidence to the Buyer at
Completion:
1. In relation to the Seller:
(a) a certified copy of its constitutional documents; and
(b) evidence of its authority to enter into and perform its obligations
under the Operative Documents.
2. A duly executed copy of the Mutual Release Agreement.
3. Evidence that Shell Capital Services Limited has resigned as Facility Agent
and that the Buyer has been appointed as successor Facility Agent in
accordance with Clause 25.10 of the Loan Agreement.
4. Evidence that Shell Capital Services Limited has ceased to be the Modeller
under the Loan Agreement and that the Buyer has been appointed and agreed
to assume such role under the Loan Agreement.
5. Evidence that Shell Capital Services Limited has ceased to be the Arranger
under the Loan Agreement and that the Buyer has been appointed and agreed
to assume such role under the Loan Agreement.
6. A certificate or letter from the Borrower acknowledging and confirming the
accuracy of the Seller's calculations with respect to the amount of the
Borrower's indebtedness under the Loan Agreement.
7. A duly completed stock transfer form in relation to the CAP(G) Preference
Share executed by the Seller and naming the Buyer as transferee and the
original share certificate representing the CAP(G) Preference Share.
8. Evidence that Shell Capital Limited has executed such document or documents
as are necessary under the terms of the Warrant Agreement to effect a
transfer of the Warrants to the Buyer.
9. Evidence that the Offtake Agreement, the STASCO Service Agreement and the
Technical Service Agreements have been terminated, together with (other
than in relation to the Offtake Agreement) all present and future, actual
or contingent claims and liabilities thereunder, whether accrued or not.
10. Evidence that Shell Capital Services Limited and the Security Trustee have
consented to CAP(G) attending meetings of KKM's shareholders and voting in
favour of the Refinancing Loan and related transactions.
11. All irrevocable stock powers or stock transfer forms (as the case may be)
over CAP(D) and CAP(G) shares in favour of Shell Capital Services Limited,
together
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with all share certificates in respect of all shares in CAP(D) and CAP(G)
which are pledged or charged by way of security pursuant to the CRI-CAP(D)
Pledge Agreement, the CRI-CAP(G) Charge over Shares and the CAP(D)-CAP(G)
Charge over Shares and any other Security Document.
12. Evidence that the Seller has given notice of the Transfer to the insurer or
insurance broker (as applicable) pursuant to the Transport Risk Insurance
Policy.
Section 2
The Buyer shall provide the following documents and evidence to the Seller at
Completion:
In relation to the Buyer:
(a) a certified copy of its constitutional documents; and
(b) evidence of its authority to enter into and perform its obligations under
the Operative Documents.
-21-
Part 4
Addresses
Seller Buyer
Shell Capital Inc. Central Asian Industrial Holdings N.V.
One Shell Plaza c/o Kazkommertsbank Representative Office
910 Louisiana 3rd floor, Xxxxxxxxx Xxxxx
Xxxxx 0000 Xxxxxx X0
Xxxxxxx Xxxxxx Xxxxxxx
Xxxxx 00000
Xxxxxx Xxxxxx of America
Attn: Xx Xxxxxx Attn: Xxx Xxxxxx
Tel: 000 000 0000 Tel: x00 00 0000 0000
Fax: 000 000 0000 Fax: x00 00 0000 0000
-22-
Part 5
Account Details
Seller Buyer
Shell Capital Inc. Central Asian Industrial Holdings N.V.
Account Name: Shell Capital Inc. Account Name: Central Asian Industrial
Holdings N.V.
Account No: 323-129110 Account No: 00.00.00.000
Bank: JP MorganChase, New York Bank: ABN AMRO Bank,
Rotterdam Branch
ABA No: 000000000 SWIFT Address: XXXXXX0X through ABN
AMRO Bank, New York, N.Y.
Reference: Chaparral Fed Wire: ABA N 000000000
CHIPS ABA N 0958
SWIFT
ADDRESS:ABNAUS33
-23-
SCHEDULE 2
Form of Mutual Release Agreement
-24-
SIGNATURES
SHELL CAPITAL INC.
By:
CENTRAL ASIAN INDUSTRIALINDUSTRIAL HOLDINGS N.V.
By:
-25-
