Exhibit 10-4
THE COMPANIES HEREIN SPECIFIED
AND
ANVIL MINING NL
AND
GOLDEN STAR RESOURCES LTD.
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AGREEMENT FOR THE SALE AND PURCHASE OF
debt And 90% of the shares of BOGOSO GOLD
LIMITED
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CONTENTS
Clause Page
1. Interpretation.......................................................1
2. Sale And Purchase And Assignment.....................................4
3. Conditions And Pre-Completion Matters................................5
4. Completion...........................................................7
5. Payments.............................................................9
6. Warranties..........................................................10
7. Limitations On The Sellers' Liability...............................11
8. Covenants...........................................................12
9. Confidential Information............................................13
10. Announcements.......................................................14
11. Costs...............................................................14
12. General.............................................................14
13. Assignment..........................................................15
14. The Representative..................................................15
15. Notices.............................................................15
16. Governing Law And Jurisdiction......................................15
17. Counterparts........................................................16
18. Several Liability...................................................16
19. Further Assurance...................................................16
20. Limitation Period...................................................16
Schedule 1 Items For Delivery By The Sellers At Completion.........17
Schedule 2 Warranties..............................................18
Schedule 3 Action Pending Completion...............................20
Schedule 4 List Of Shareholders And Number Of Shares To Be Sold....22
Schedule 5 Form Of Letter Of Resignation...........................27
Schedule 6 Bank Security...........................................28
Schedule 7 Loan Documentation......................................30
Schedule 8 Prospecting Licences And Mining Leases..................32
Schedule 9 Form Of Assignment Of Debt..........................33
Schedule 10 Form Of Letter Of Credit............................36
Schedule 11 Approved Capital Expenditure Plan...................39
THIS AGREEMENT is made as of June 1, 1999
BETWEEN:
EACH OF THE COMPANIES whose names are set out in schedule 4 (together the
"Sellers" and each of them a "Seller"); and
ANVIL MINING NL ("ANVIL"), a company organised and existing under the laws of
Australia having its registered office at Ground Floor, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ with company number
A. C. N. 060478962 and GOLDEN STAR RESOURCES LTD ("GSR"), a company
amalgamated under the laws of Canada and having its registered office in
Vancouver, Canada and its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. (together the "Buyers" and each of
them a "Buyer").
WHEREAS
1. The Sellers are a group of financial institutions who are secured creditors
of the Company. The Sellers acquired the Shares with the intention of
selling them shortly thereafter.
2. The Sellers have agreed to sell the Shares to the Buyers as a means of
compensating the Sellers for the outstanding indebtedness owed to the
Sellers by the Company. The Sellers are selling the Shares and are assigning
the debts owed to the Sellers by the Company, to the Buyers.
THE PARTIES AGREE as follows:
1. INTERPRETATION
1.1 In this Agreement:
"Adjustment Period" means the meaning given to it in clause 5.1.7;
"Bank Security" means the security created in favour of the Secured Lenders
(as that term is defined in the relevant Security Documents) by the Security
Documents;
"Business Day" means a day other than a Saturday or Sunday or public holiday
in England, Ghana and New York City;
"Company" means Bogoso Gold Limited, a company organised and existing under
the laws of the Republic of Ghana, whose registered office is at Accra,
Ghana (registered in Ghana with company number 262794);
"Company's Bank Accounts" means all accounts of whatever nature held by the
Company with banks or other financial institutions whether or not held in
Ghana;
"Completion" means completion of the sale and purchase of the Shares, the
IFC Debt and the DEG Debt in accordance with this Agreement;
"Confidential Information" means all information existing at the date of
Completion not publicly known used in or otherwise relating to the Company's
business or financial or other affairs, including, without limitation,
information relating to:
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(a) the marketing of goods or services including, without
limitation, forecast production, production statistics, market
share statistics, geological data, prices, market research
reports and surveys, and advertising or other promotional
materials; or
(b) future projects, business development or planning, commercial
relationships and negotiations;
"Concessions" means the concessions granted by or pursuant to the Mining
Leases;
"DEG" means DEG-Deutsche Investitions-und Entwicklungsgesellschaft mbH, a
development finance institution organised and existing under the laws of the
Federal Republic of Germany;
"DEG Debt" means the indebtedness of the Company to DEG pursuant to the
agreements listed in Part 1 of schedule 7 together with all accrued
interest, expenses and other monies owed by the Company to DEG pursuant to
such agreements which, as of close of business on April 28, 1999, in
aggregate amounted to DEM12,367,609.76;
"Encumbrance" means a mortgage, charge, pledge, lien, option, restriction,
claim, equity, right of first refusal, right of pre-emption, third-party
right or interest, other encumbrance or security interest of any kind, or
another type of preferential arrangement (including, without limitation, a
title transfer or retention arrangement) having similar effect;
"Environmental Consultant" means such firm of internationally recognised
environmental consultants from time to time appointed by the Company and
approved by the Representative, such approval not to be unreasonably
withheld;
"Force Majeure Event" means an act of God, epidemic, landslide, lightning,
earthquake, flood, storm, fire, adverse weather conditions, war or civil war
or any event similar to the foregoing which is not within the control of the
Company or the Buyers and which effectively prevents the operation of the
Mine by the Company;
"Government Consents" means the consents and approvals more particularly set
out in clause 3.1;
"IFC" means the International Finance Corporation, an international
organisation established by articles of agreement among its member
countries;
"IFC Debt" means the indebtedness of the Company to IFC pursuant to those
agreements listed in Part 2 of schedule 7 together with all accrued
interest, expenses and other monies owed by the Company to IFC pursuant to
such agreements and the IFC Shareholder Advances which, as of close of
business on April 28, 1999, in aggregate amounted to US$27,057,831.78;
"IFC Shareholders Advances" means the advances made to the Company by IFC
pursuant to the Shareholder Advances Documentation together with all
interest,
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expenses and other monies owed by the Company to IFC pursuant to
such agreements which, as of close of business on April 28, 1999, in
aggregate amounted to US$5,354,603.00;
"Initial Purchase Price" has the meaning given to it in clause 2.4;
"Letter of Credit Bank" means the bank issuing the US$2m L/C;
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"LIBOR" means, in relation to the amount of US$5,000,000 payable under
clause 5.1.7 on which interest for the Adjustment Period is to accrue, the
percentage rate per annum equal to the offered quotation which appears on
the page of the Telerate Screen which displays an average British Bankers
Association Interest Settlement Rate for United States Dollars (being
currently "3740" or, as the case may be, "3750") for such period at or about
11.00 a.m. (London time) on the relevant interest determination date (as
selected by the Representative) or, if such page or such service shall cease
to be available, such other page or such other service for the purpose of
displaying an average British Bankers Association Interest Settlement Rate
for United States Dollars as the Representative may select;
"Long Stop Date" means the date falling 90 days after the date of this
Agreement or, as the context requires, such date to which it is deferred in
accordance with the provisions of clause 3.8;
"Mine" means the concession area which is the subject of the Concessions and
the related mine workings, processing facilities and plants located thereon
as currently operated by the Company;
"Mining Leases" means the prospecting licences and mining leases as more
particularly set out in schedule 8;
"Redundancy Payment" means the aggregate payment to be made by the Company
pursuant to the Redundancy Programme;
"Redundancy Programme" means the programme pursuant to which the Sellers
shall procure that the Company terminates the contracts of employment of all
of its employees and makes such redundancy payments and other payments
consequent thereon as shall be required (including payments in respect of
accrued holiday entitlements);
"Rehabilitation Amount" means the sum of US$6,000,000;
"Rehabilitation Reserve Account" means the Company's account to be opened
with Barclays Bank plc, or another first class international bank with a
long term debt rating accorded by Standard & Poor's of not less than AA,
which at Completion will have standing to its credit an amount at least
equal to the Rehabilitation Amount;
"Relevant Claim" means a claim by the Buyers involving or relating to breach
of clause 6.1;
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"Relevant Shares" has the meaning given to it in paragraph 2 of schedule 2;
"Representative" means IFC in its capacity as representative of the Sellers
pursuant to the terms hereunder for the purposes specified herein;
"Security Documents" means those agreements listed in schedule 6;
"Shareholders Advances Documentation" means those agreements listed in Part
3 of schedule 7;
"Shares" means all those issued shares of the Company owned by the Sellers,
being the 704,639"A" shares of no par value of the Company comprising 90% of
the issued share capital of the Company;
"Sulphide Ore" means ore other than (i) oxide ore and/or (ii) transition ore
that can be processed through the processing plant at the Mine as currently
designed and configured and subject to minor changes thereto made in the
ordinary course of business of processing oxide ores and transition ores;
"US$2m L/C" means, the US$2,000,000 letter of credit furnished or to be
furnished by the Buyers under clause 5.1.1; and
"Warranty" means a statement contained in schedule 2 and "Warranties" means
all those statements.
1.2 In this Agreement, a reference to:
1.2.1 a statutory provision includes a reference to the statutory provision
as modified or re-enacted or both from time to time before the date
of this Agreement and any subordinate legislation made under the
statutory provision before the date of this Agreement;
1.2.2 a person includes a reference to a body corporate, association or
partnership;
1.2.3 a person includes a reference to that person's legal personal
representatives and successors; and
1.2.4 a clause, paragraph or schedule, unless the context otherwise
requires, is a reference to a clause or paragraph of or schedule to
this Agreement.
1.3 The headings in this Agreement do not affect its interpretation.
2. SALE AND PURCHASE and assignment
2.1 Each Seller agrees to sell and the Buyers agree to buy those number of
Shares appearing against the respective names of the Sellers in schedule 4
and each right attaching to such Shares at or after the date of this
Agreement, free and clear of any Encumbrance other than the Government of
Ghana's right to its carried interest. The purchase of the Shares shall be
together with the right to all dividends and other
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distributions declared, made and/or paid in respect
of the Shares on or after April 1, 1999.
2.2 IFC agrees to sell and the Buyers agree to buy by way of an assignment by
IFC in favour of the Buyers all rights, title and interest in and to the IFC
Debt free and clear of any Encumbrance. The purchase of the IFC Debt shall
be together with the right to all interest and other payments payable and/or
accruing in respect of the IFC Debt on or after 1 April 1999 (excluding, for
the avoidance of doubt, any principal paid on 1 April 1999 and any interest
accrued for the interest period ending on 31 March 1999 and paid on 1 April
1999).
2.3 DEG agrees to sell and the Buyers agree to buy by way of an assignment by
DEG in favour of the Buyers all rights, title and interest in and to the DEG
Debt free and clear of any Encumbrance. The purchase of the DEG Debt shall
be together with the right to all interest and other payments payable and/or
accruing in respect of the DEG Debt on or after 1 April 1999 (excluding, for
the avoidance of doubt, any principal paid on 1 April 1999 and any interest
accrued for the interest period ending on 31 March 1999 and paid on 1 April
1999).
2.4 The aggregate purchase price (the "Initial Purchase Price") of the Shares,
the IFC Debt and the DEG Debt is US$12,000,001, of which the first tranche
is US$2,000,000, the second tranche is US$10,000,000 and the third tranche
is US$1. The Initial Purchase Price, together with any subsequent payments
of consideration which may become due in accordance with clause 5, shall be
paid by the Buyers in accordance with clause 5 and allocated by the
Representative amongst the Sellers in the proportions set out against each
Seller's name in schedule 4. The first and second tranches of the Initial
Purchase Price of US$12,000,000 shall be allocated to and apportioned as the
purchase price for the IFC Debt and the DEG Debt and the third tranche of
US$1 shall be allocated to and apportioned as the purchase price for the
Shares. Any subsequent payments of consideration which may become due in
accordance with clause 5 shall be allocated to and apportioned as the
purchase price for the IFC Debt and the DEG Debt.
3. CONDITIONS and pre-completion matters
3.1 Completion is conditional on the Buyers having obtained, to the extent
required, the following approvals as soon as possible and in any event no
later than the Long Stop Date:
3.1.1 approval from the Minister of Mines and Energy of the Government of
Ghana pursuant to the Minerals and Mining Law 1986 (PNDCL 153) as
amended by Act 475 for the acquisition by the Buyers of the Shares
which constitute more than 50% of the Company's shares and the
consequential change in control of the Company;
3.1.2 approval from the Bank of Ghana pursuant to the Exchange Control ▇▇▇
▇▇▇▇ (Act 71) for the transfer of the Shares to the Buyers;
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3.1.3 approval from the Ghanaian Government of the sale of the IFC Debt
and the DEG Debt to the Buyers; and
3.1.4 each and all other Ghanaian governmental approvals required in
relation to the transaction hereby contemplated.
3.2 The Buyers shall use all reasonable endeavours to obtain the Government
Consents as soon as possible and in any event before the Long Stop Date.
3.3 If at any time any of the Sellers or the Buyers becomes aware of a fact or
circumstance that might prevent any of the conditions set out in clause 3.1
from being satisfied or permit the Buyers to terminate this Agreement in
accordance with clause 3.7, it shall promptly inform the other parties.
3.4 If a Government Consent has not been obtained by 6.00 p.m. (London time) on
the Long Stop Date, this Agreement shall terminate with immediate effect.
3.5 If this Agreement is terminated pursuant to clause 3.4 or 3.7, each party's
further rights and obligations cease immediately on termination, but
termination does not affect a party's accrued rights and obligations at the
date of termination, including any right to damages arising as a
consequence of any breach of this Agreement.
3.6 The Buyers shall give to the Sellers in a form reasonably satisfactory to
the Sellers (by way of certificate of the Buyers' Ghanaian legal advisors
or otherwise) evidence of receipt of the Government Consents as soon as
possible after such receipt.
3.7 If at any time between the date hereof and Completion:
3.7.1 any of the Warranties contained in this Agreement is not, or ceases
to be, true or accurate in any respect or becomes misleading in any
respect; or
3.7.2 there has been a material breach of any of the provisions of schedule
3 (which, if capable of remedy, has not been remedied within 30 days
of notice thereof to the Representative and the Sellers from the
Buyers); or
3.7.3 a Force Majeure Event occurs and continues up to the Long Stop Date,
then the Buyers may terminate this Agreement forthwith and shall have no
further obligations hereunder whatsoever and, upon receiving notice of such
termination, the Representative shall take such action as the Buyers may
reasonably request to facilitate the cancellation of the US$2m L/C.
3.8 Without prejudice to the rights of the Buyers pursuant to clause 3.7.3, if
at any time between the date hereof and Completion a Force Majeure Event
occurs and is continuing, the Buyers may, by notice in writing to the
Representative, elect that the original Long Stop Date be deferred to a
date (the "Deferred Long Stop Date") falling no later than 90 days after
the Long Stop Date and that this Agreement should thereafter be construed
as if references to the Long Stop Date were references to the Deferred Long
Stop Date, mutatis mutandis, provided that any such notice shall be
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accompanied by confirmation of the Letter of Credit Bank of the extension of
the expiry date of the US$2m L/C to a date falling at least ten Business
Days after the Deferred Long Stop Date. In the event the Force Majeure Event
is continuing as at the Deferred Long Stop Date, the Representative shall,
at the request of the Buyers, exchange views and consult in good faith with
the Buyers with a view to further deferring the Deferred Long Stop Date.
4. COMPLETION
4.1 Completion shall take place in accordance with this clause 4 at the offices
of ▇▇▇▇▇▇▇▇ Chance, London on the tenth Business Day following the
satisfaction of all the conditions set out in clause 3.1 (or such other day
as the parties may agree) provided that such conditions are satisfied prior
to the Long Stop Date.
4.2 At Completion the Sellers shall give to the Buyers each item specified in
schedule 1.
4.3 The Sellers shall procure that at Completion:
4.3.1 the Company's directors hold a meeting of the board of directors of
the Company at which the directors:
(a) vote in favour of the registration of the Buyers or their
respective nominee(s) as member(s) of the Company in respect of
the Shares (subject to the production of properly stamped
transfers);
(b) do all such acts and things, if any, as may be necessary to give
effect to the transfer of the IFC Debt and the DEG Debt on
behalf of the Company;
(c) if required by the Buyers (such requirement to be notified by
the Buyers to the Representative at least 21 days before
Completion), change the Company's registered office to a place
nominated by the Buyers;
(d) change the Company's accounting reference date to December 31;
(e) if required by the Buyers (such requirement to be notified by
the Buyers to the Representative at least 21 days before
Completion), accept the resignation of the Company's existing
directors, auditors and secretary with effect from the end of
the meeting;
(f) appoint persons nominated by the Buyers as directors, secretary
and auditors of the Company with effect from the end of the
meeting;
(g) with effect from the end of the meeting, authorise the secretary
to notify the specimen signatures of the new officers of the
Company in connection with each existing mandate given by the
Company for the operation of the Company's Bank Accounts; and
(h) terminate with effect from the date of Completion the contracts
of employment of all the Company's employees (except those of
the
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Company's expatriate staff agreed between the Sellers and the
Buyers prior to the execution of this Agreement), give effect
to the Redundancy Programme and the making of the Redundancy
Payment.
4.3.2 the Rehabilitation Amount is standing to the credit of the
Rehabilitation Reserve Account; and
4.3.3 all Redundancy Payments will be made to the employees terminated
(as referred to in clause 4.3.2(h)).
4.4 At Completion the Sellers shall be paid:
4.4.1 the first tranche of the Initial Purchase Price for the IFC Debt
and the DEG Debt of US$2,000,000 by drawing on the US$2m L/C in
accordance with clause 5.1.2 below;
4.4.2 the second tranche of the Initial Purchase Price for the IFC Debt
and the DEG Debt of US$10,000,000 in accordance with clause 5.1.5
below; and
4.4.3 the third tranche of the Initial Purchase Price for the Shares of
US$1 in accordance with clause 5.1.6 below.
4.5 If the Sellers shall fail or be unable to comply with any of their
obligations under the preceding provisions of clause 4.3 on the date of
Completion, the Buyers may:
(a) by notice in writing to the Representative, defer Completion to a
date not more than 28 days after that date (in which case the
provisions of this clause 4.5 shall apply to Completion as so
deferred) provided that any such notice shall be accompanied by
confirmation of the Letter of Credit Bank of the extension of the
expiry date of the US$2m L/C to a date falling at least ten
Business Days after the date to which Completion is deferred; or
(b) proceed to Completion so far as practicable but without prejudice
to the Buyers' rights (whether under this Agreement generally or
under this clause, in damages or otherwise) to the extent that
the Sellers shall not have complied with their obligations
thereunder; or
(c) treat such failure or inability to comply as a repudiatory breach
of this Agreement, acceptance of which shall discharge the Buyers
from their undischarged obligations under this Agreement (without
prejudice to any other remedy which the Buyers may have, whether
in damages or otherwise).
4.6 Each of the Sellers hereby waives any and all rights of pre-emption,
rights of first refusal, options and other similar rights to which each
of them respectively may be entitled with respect to the transfers to the
Buyers or their respective order of the Shares, the IFC Debt and the DEG
Debt provided for in this Agreement, and for all purposes enabling each
of them respectively in that behalf, hereby consents to such transfers.
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4.7 Each of the Sellers hereby agrees to release, with effect from Completion,
the Company from all claims, liabilities demands and rights of action
whatsoever which they have had, have or may have against the Company
arising from their dealings with the Company. Provided that such release
shall not apply in respect of the IFC Debt and the DEG Debt and the
security interests relating thereto to the extent that the same are
assigned to the Buyers in accordance with this Agreement.
5. PAYMENTS
5.1 The Buyers shall pay or procure the payment to the Sellers or as the
Sellers direct in writing the purchase price of the Shares, the IFC Debt
and the DEG Debt in the following instalments on the occurrence of the
specified dates or events:
5.1.1 1st tranche of the Initial Purchase Price
if they have not already done so, the Buyers shall forthwith upon
signing this Agreement deliver to the Representative by courier (i)
the Agreement signed by them and (ii) an irrevocable letter of
credit in the form set out in schedule 10 and issued by the Letter
of Credit Bank, for the sum of US$2,000,000 (the "US$2m L/C").
5.1.2 The Sellers may draw on the US$2m L/C if:
(a) Completion occurs whereupon such drawing shall be applied
towards payment of the first tranche of the Initial Purchase
Price.
(b) Completion fails to occur for any reason other than:
(i) failure by the Buyers to obtain the Government Consents
by the Long Stop Date; or
(ii) failure by the Sellers to comply with any of their
obligations under this Agreement by the Long Stop Date;
or
(iii) the occurrence of any event giving rise to a right on the
part of the Buyers not to effect Completion.
5.1.3 Any amount rightfully drawn on the US$2m L/C hereunder shall not be
refundable to the Buyers.
5.1.4 If any of the events contemplated by clause 5.1.2 (b) (i), (ii) or
(iii) occurs the Representative will promptly give notice to the
Letter of Credit Bank confirming the termination of the Sellers
rights pursuant to the US$2m L/C.
5.1.5 2nd tranche of the Initial Purchase Price at Completion, payment of
the sum of US$10,000,000.
5.1.6 3rd tranche of Initial Purchase Price
at Completion, the cash sum of US$1.
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5.1.7 Additional Purchase Price
subject to the provisions of clause 5.1.8, Buyers shall pay to
the Sellers the additional sum of US$5,000,000 on the first
anniversary of the commencement of commercial mining of Sulphide
Ore from the Concessions. Such additional payment will be
adjusted by an amount equal to interest at 6-month LIBOR over the
period commencing from Completion to the date such additional
payment is made (the "Adjustment Period").
5.1.8 The obligations of the Buyers pursuant to clause 5.1.7 shall
terminate upon the surrender by the Company of its right title
and interest in the Mining Leases to the Government of Ghana.
5.2 All payments to be made by the Buyers to the Sellers under this Agreement
(other than pursuant to clauses 5.1.1 and 5.1.2) shall be made to the
Representative on behalf of the Sellers and in immediately available United
States dollar funds, by electronic funds transfer to such accounts as shall
have been notified, by no later than 3.30 p.m. London time on the second
Business Day before the relevant due date, to the Buyers by the
Representative, and in default of such notification, shall be by bankers'
drafts (drawn on a first class international bank with a long term debt
rating accorded by Standard & Poor's of not less than AA in favour of the
Representative) which shall be handed to the Representative on the relevant
due date. The transfer of funds or, as the case may be, the handing over of
the bankers' drafts shall be effected by no later than noon (London time)
on the relevant due date. The Buyers shall obtain a good discharge for any
payment due under this Agreement by making unconditional payment to the
Representative without any set-off or counterclaim and the Representative
shall distribute such payment to the Sellers in accordance with
arrangements made or to be made amongst them and the Buyers shall have no
obligation as to such allocation among the Sellers.
5.3 The provisions of clause 5.2 shall apply mutatis mutandis to all payments
to be made by the Representative, on behalf of the Sellers, to the Buyers
under this Agreement.
6. WARRANTIES
6.1 Each Seller severally, for itself (but not in relation to any other of the
Sellers) and, as regards the Shares, in respect only of those Shares
attributed to it in schedule 4 and, as regards the IFC Debt and the DEG
Debt, only to the extent of its interest in the IFC Debt and/or the DEG
Debt, warrants to the Buyers that, each Warranty is true and not misleading
at the date of this Agreement. Immediately before the time of Completion,
each Seller severally, for itself (but not in relation to any other of the
Sellers) and, as regards the Shares, in respect only of those Shares
attributed to it in schedule 4 and, as regards the IFC Debt and the DEG
Debt, only to the extent of its interest in the IFC Debt and/or the DEG
Debt, is deemed to warrant to the Buyers that each Warranty is true and not
misleading at the date of Completion. For this purpose only, where in a
Warranty there is an express or implied reference to the "date of this
Agreement", that
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reference is to be construed as a reference to the "date of Completion".
The Warranties shall not in any respect be extinguished or affected by
Completion.
6.2 The Buyers acknowledge that the Sellers have specifically told the Buyers
that the Buyers must rely absolutely on the Buyers' own opinion and/or
professional advice concerning the assets of the Company, including, without
limitation, all rights, title and interest in real and moveable property
owned by the Company, including the rights to receive payments connected to
any of the foregoing. The Buyers acknowledge that each of them has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the condition, affairs,
financial position, prospects, business and operations of the Company.
6.3 Each Warranty is to be construed independently and (except where this
Agreement provides otherwise) is not limited by a provision of this
Agreement or another Warranty. For the avoidance of doubt, save for the
Warranties expressly provided in schedule 2, no other warranty, express or
implied, statutory or otherwise, is or will be given by any of the Sellers
in respect of the Shares, or the IFC Debt or the DEG Debt.
6.4 Between the execution of this Agreement and Completion, each Seller shall:
6.4.1 procure that the Company complies with schedule 3; and
6.4.2 notify the Buyers immediately if it becomes aware of a fact or
circumstance which constitutes a breach of clause 6.1 or has caused,
or will or might cause, a Warranty to become untrue or misleading in
any respect at any time before Completion or might permit the Buyers
to terminate this Agreement in accordance with clause 3.7.
7. LIMITATIONS ON THE SELLERS' LIABILITY
7.1 The Sellers are not liable in respect of a Relevant Claim unless and until
the amount that would otherwise be recoverable from all the Sellers (but for
this clause 7.1) in respect of that Relevant Claim, when aggregated with any
other amount or amounts recoverable in respect of other Relevant Claims,
exceeds US$100,000 Provided That each Seller's liability in respect of a
Relevant Claim shall be several and limited to:
7.1.1 where such Relevant Claim relates to the Shares, the percentage of
such Relevant Claim that appears against its name under the column
titled "Percentage of Price allocated to Shares" in schedule 4; and
7.1.2 where such Relevant Claim relates to the IFC Debt and/or the DEG
Debt, the percentage of such Relevant Claim that appears against its
name under the column titled "Percentage of Price allocated to Debt"
in schedule 4.
7.2 The Sellers' total liability in respect of all Relevant Claims is limited to
the aggregate purchase price paid by the Buyers pursuant to clause 5 and
severally received or receivable by the Sellers pursuant to this Agreement.
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7.3 The Buyers shall have no claim whatsoever against any director, shadow
director, officer, employee, or agent of the Sellers (or any of them) in
respect of any claim for a breach of the Warranties.
8. Covenants
8.1 The Sellers agree that, between the date of this Agreement up to
Completion:
8.1.1 the Buyers may monitor the operations of the Company (at the Buyers'
expense) by having up to six of their representatives on the
premises of the Company at any time provided that such
representatives shall not interfere with the Company's operations;
and
8.1.2 the Buyers may negotiate with any of the Company's existing
employees with a view to determining which employees they wish to
re-employ on or after Completion and the terms and conditions of
such re-employment and/or liaise as appropriate with the Company's
directors on the termination of the Company's employees on
Completion.
8.2 Each of the Buyers undertakes with each Seller for its own benefit:
8.2.1 after Completion, to procure that the Company carries out the
continuous rehabilitation (including physical reclamation, socio-
economic community development and closure) of (a) the Mine and (b)
the existing oxide mining operations thereat ("environmental
rehabilitation work"), as an integral part of the normal mining
operation subject to the sterilisation drilling of any old mining
areas and it being operationally prudent in accordance with
applicable Ghanaian legislation and regulatory requirements and
World Bank Policies and Guidelines; and
8.2.2 to procure that the Company establishes within three months of
Completion a bond for US$5,000,000 from a first class international
bank with a long term debt rating accorded by Standard & Poor's of
not less than AA, pursuant to which the Company may, after the
Environmental Consultant has certified that the Company has, after
Completion, incurred expenditure in respect of environmental
rehabilitation work on the Mine of not less than US$1,000,000, draw
down from time to time amounts in reimbursement of expenditure in
respect of environmental rehabilitation work in excess of the first
US$1,000,000 expended to the extent certified by the Environmental
Consultant as having been incurred by the Company in respect
thereof, provided that the minimum amount of each drawdown shall be
US$100,000 and the maximum amount of each drawdown shall be
US$1,000,000. Upon the certifiable completion of all environmental
rehabilitation work, the remaining Rehabilitation Amount, if any,
will be allocated for the purposes contemplated by clause 8.2.3;
8.2.3 to procure that the Company:
-12-
(a) transfers not less than US$1,000,000 into an appropriate
vehicle (which would facilitate the mobilisation of bilateral
funding for the local community as a whole); or, if
notwithstanding the reasonable efforts of the Company, to which
the Representative shall endeavour to render such assistance as
the Company may reasonably request in this regard, no
appropriat e vehicle is available,
(b) otherwise expends not less than US$1,000,000,
for, or as the case may be, in, carrying out socio-economic
community development of the community affected by the Mine and
adjacent areas; for the avoidance of doubt such US$1,000,000 shall
not be funded out of the monies standing to the credit of the
Rehabilitation Reserve Account;
8.2.4 within 28 days of Completion, to register with the Ghanaian
Registrar of Companies a duly completed notification in the
prescribed form of the change of the Company's directors and
secretary and specifying the date of the change. The Buyers shall
indemnify the outgoing directors and secretary for any loss or
damage caused by their failure to so notify the Ghanaian Registrar
of Companies;
8.2.5 from time to time, up to the commencement of commercial mining of
Sulphide Ore on the Concessions, on the request of any Seller
through the Representative, to permit representatives of the
Representative or any Seller (at their expense) to have reasonable
access to the Mine site, on not less than 48 hours notice and during
normal business hours, for the purpose of determining the status of
sulphide mining operations carried on by the Company and quarterly
reports on mining activities of the Company and to furnish the
Representative or such Seller with a copy of any such report
inspected;
8.2.6 promptly to give notice to the Representative and each Seller of the
occurrence of any event which will trigger an obligation upon the
Buyers to make any payment pursuant to clause 5; and
8.2.7 promptly to notify the Representative upon commencement of
commercial mining of Sulphide Ore from the Concessions.
9. CONFIDENTIAL INFORMATION
9.1 Before Completion the Buyers shall:
9.1.1 not use or disclose to a person Confidential Information they have
or acquire; and
9.1.2 make every effort to prevent the use or disclosure of Confidential
Information.
-13-
9.2 After Completion, none of the Buyers or the Sellers shall disclose to any
person the detailed terms of the transactions effected pursuant to this
Agreement.
9.3 Clause 9.1 and clause 9.2 do not apply to:
9.3.1 disclosure of information to a director, officer or employee or any
other agent or representative of the Buyers whose function requires
him to have such information or disclosure by him in accordance
with his function;
9.3.2 use or disclosure of information required to be used or disclosed
by law or which is customarily provided to any third parties;
9.3.3 disclosure to an adviser for the purpose of advising the relevant
party but only on terms that clause 9.1 or, as the case may be,
clause 9.2 applies to use or disclosure by the adviser; or
9.3.4 information which becomes publicly known otherwise than by a breach
of clause 9.1 or, as the case may be, clause 9.2.
10. ANNOUNCEMENTS
10.1 Subject to clause 10.2, none of the parties may, before or for the period
of one year after Completion, make or send a public announcement,
communication or circular concerning the transactions referred to in this
Agreement unless it has first obtained the other parties' written consent,
which may not be unreasonably withheld or delayed.
10.2 Clause 10.1 does not apply to a public announcement, communication or
circular required by law or the rules and regulations of a stock exchange.
11. COSTS
Except where this Agreement provides otherwise, each party shall pay its
own costs relating to the negotiation, preparation, execution and
performance by it of this Agreement and of each document referred to in
it. The Buyers shall be responsible for all stamp and other similar taxes,
duties and imposts payable by reference to the transfers of the Shares
hereby contemplated.
12. GENERAL
12.1 A variation of this Agreement is valid only if it is in writing and signed
by or on behalf of each party.
12.2 The failure to exercise or delay in exercising a right or remedy provided
by this Agreement or by law does not constitute a waiver of the right or
remedy or a waiver of other rights or remedies. No single or partial
exercise of a right or remedy provided by this Agreement or by law
prevents further exercise of the right or remedy or the exercise of
another right or remedy.
-14-
12.3 Except to the extent that they have been performed and except where this
Agreement provides otherwise, the obligations contained in this Agreement
remain in force after Completion.
12.4 Each of the parties to this Agreement agree that their obligations shall
enjoy the benefit of specific performance.
12.5 If at any time any of the provisions of this Agreement becomes illegal or
unenforceable in any respect such provision shall be ineffective to the
extent necessary without affecting or impairing the legality and
enforceablity of the remaining provisions of this Agreement.
13. ASSIGNMENT
A party may not assign or transfer or purport to assign or transfer any of
its rights or obligations under this Agreement (or any interest in any
thereof), provided that each Seller may assign, without any consent, (in
whole or in part) its rights hereunder to its affiliate which holds the
interest hereby agreed to be sold in the related Shares or, IFC Debt or
DEG Debt, as the case may be.
14. THE REPRESENTATIVE
The Representative has only those duties which are expressly specified in
this Agreement, and those duties are solely of a mechanical and
administrative nature in connection with the co-ordination of the sale of
the Shares, the IFC Debt and the DEG Debt by the Sellers to the Buyers.
Nothing in this Agreement constitutes the Representative as agent, trustee
or fiduciary for any other Seller or any other person. Without limitation
to the generality of the foregoing, the Representative shall not be liable
to account for interest on any moneys paid to it for the account of any
Seller.
15. NOTICES
15.1 A notice or other communication under or in connection with this Agreement
shall be in writing and shall be delivered personally or sent by courier
or by fax to the party due to receive the notice or communication, at its
address set out in this Agreement or another address specified by that
party by written notice to the other.
15.2 In the absence of evidence of earlier receipt, a notice or other
communication is deemed given:
15.2.1 if delivered personally, when left at the address referred to in
clause 15.1;
15.2.2 if sent by courier, when left at the address referred to in clause
15.1; and
15.2.3 if sent by fax, on completion of its transmission.
16. GOVERNING LAW AND JURISDICTION
16.1 This Agreement is governed by and shall be construed in accordance with,
English law. The courts of England shall have jurisdiction to hear and
decide any suit, action
-15-
or proceedings, and to settle any dispute, which may arise out of or in
connection with this Agreement (respectively, "Proceedings" and
"Disputes") and, for these purposes, each party irrevocably submits to the
jurisdiction of the courts of England.
16.2 Each party irrevocably waives any objection which it might at any time
have to the courts of England being nominated as the forum to hear and
decide any Proceedings and to settle any Disputes and agrees not to claim
that the courts of England are not a convenient or appropriate forum.
16.3 Each of the parties hereto acknowledge and agree that that the submission
by IFC to the jurisdiction of the courts of England does not constitute a
waiver by IFC of the immunities and privileges granted to it by English
law or the law.
16.4 Process by which any Proceedings are begun in England may be served on:
16.4.1 the Sellers by being delivered to ▇▇▇▇▇▇▇▇ Chance Secretaries
Limited, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇; and
16.4.2 the Buyers by being delivered to [ ].
Nothing contained in clause 16.4 affects the right to serve process in
another manner permitted by law.
17. COUNTERPARTS
This Agreement may be executed in any number of counterparts each of which
when executed and delivered is an original, but all the counterparts
together constitute the same document.
18. SEVERAL LIABILITY
18.1 The obligations of the Sellers hereunder shall be several, and not joint
or joint and several.
18.2 The obligations of the Buyers to pay the second tranche of the Initial
Purchase Price shall be joint and several.
18.3 Save as provided pursuant to clause 18.2, the obligations of the Buyers
hereunder to pay the purchase price of the Shares, the IFC Debt and the
DEG Debt shall be several, and not joint or joint and several and shall be
apportioned as between Anvil and GSR in the proportions of 22.2% and 77.8%
respectively.
19. FURTHER ASSURANCE
Each party shall do and execute, or arrange for the doing and executing
of, each necessary act, document and thing reasonably within its power to
implement this Agreement and the transactions hereby contemplated.
20. LIMITATION PERIOD
The limitation period for the purposes of this Agreement will be 80 years.
-16-
SCHEDULE 1
Items For Delivery By The Sellers At Completion
1. Executed transfer(s) in respect of the Shares to the Buyers or their
respective nominee(s) and the share certificate(s) for the Shares.
2. The common seal (if any) of the Company and each register, minute book and
other book required to be kept by the Company made up to the date of
Completion and each certificate of incorporation and certificate of
incorporation on change of name for the Company.
3. A copy of a letter to the Company from its auditors resigning their office
with effect from Completion, the original of the letter having been
deposited at the registered office of the Company.
4. A copy of each bank mandate to the Company, including in relation to the
Rehabilitation Reserve Account, and copies of statements of each Company's
Bank Account including, without limitation, the Rehabilitation Reserve
Account (with credit balance equal to US$6,000,000), made up to a date not
earlier that two Business Days before the date of Completion.
5. A signed letter in the form attached as schedule 5 from each present
director (other than the director who is the representative of the
Government of Ghana) and secretary of the Company in each case resigning
their respective office (with effect from the end of the meeting held
pursuant to clause 4.3.1) and acknowledging that the writer has no claim
against the Company for compensation for loss of office or otherwise.
6. Executed releases in respect of the Bank Security if required by the Buyers
(such requirement to be notified to the Representative no later than 21 days
before Completion).
7. Deed of assignment in respect of the assignment of the IFC Debt to the
Buyers or the Buyers' nominee(s) substantially in the form set out in
schedule 8 executed by IFC.
8. Deed of assignment in respect of the assignment of the DEG Debt to the
Buyers or the Buyers' nominee substantially in the form set out in schedule
8 executed by DEG.
9. Such documentation as the Buyers may reasonably require (such requirement to
be notified to the Representative no later than 14 days before Completion)
to assign the Sellers' interest in the Bank Security to the Buyers.
-17-
SCHEDULE 2
Warranties
1 CAPACITY AND AUTHORITY
1.1 Right, power, authority and action
The Seller has the right, power and authority and has taken all action
necessary to execute and deliver, and to exercise its rights and perform
its obligations under, this Agreement and the transactions contemplated
hereby and each document to be executed at or before Completion.
2 SHARES
2.1 Immediately prior to Completion the Seller will be the only legal and
beneficial owner of that number of Shares appearing against its name in
schedule 4 (the "Relevant Shares").
2.2 The Relevant Shares comprise such percentage of the Company's allotted and
issued share capital appearing against its name under the column titled
"Percentage Shareholding" in schedule 4.
2.3 The authorised, issued and outstanding Shares consist of [ ] Class A
Shares and [ ] Class B Shares, 704,639 and 78,293 respectively of which
are issued and outstanding. The Relevant Shares are duly authorised,
validly issued and fully paid. There is no Encumbrance, and there is no
agreement, arrangement or obligation to create or give an Encumbrance, in
relation to any of the Relevant Shares or unissued shares in the capital of
the Company. No person has claimed to be entitled to an Encumbrance in
relation to any of the Relevant Shares.
2.4 Except with respect to the rights of the Republic of Ghana to its carried
interest, no options or warrants or other rights to acquire any of the
Shares are outstanding which are not released or waived by clause 4.6 of
this Agreement.
3 DEBT
3.1 Immediately prior to Completion, IFC and DEG will be the only legal owner
of the IFC Debt and the DEG Debt, respectively.
3.2 Immediately prior to Completion:
(a) DEG will be the only legal and beneficial owner of the DEG Debt; and
(b) IFC and the other Sellers (apart from DEG) will together be the only
persons legally and/or beneficially interested in the IFC Debt and/or
the rights (whether arising in contract or otherwise) relating
thereto,
in each case free from Encumbrances.
-18-
3.3 Immediately prior to Completion, the Sellers will together be all of the
persons together entitled to transfer the full legal and beneficial
ownership of the IFC Debt and the DEG Debt to the Buyers.
3.4 Immediately prior to Completion, except for the IFC Debt and the DEG Debt,
the Company owes no other amounts to the Sellers on any account
whatsoever.
-19-
SCHEDULE 3
Action Pending Completion
The Sellers shall ensure that the Company will:
1. not create, allot, issue, acquire, repay or redeem any share or loan capital
or agree, arrange or undertake to do any of those things or acquire or agree
to acquire, an interest in a corporate body;
2. operate its business in the usual way with the objective of maintaining the
business as a going concern;
3. not formally approve the acquisition or disposal of, or agree to acquire or
dispose of, any major asset except in the usual course of its business or
assume or incur, or agree to assume or incur, a liability, obligation or
expense (actual or contingent) except in the usual course of its business
and (where such liability is greater than US$50,000), except with the
approval of the Buyers;
4. adopt the capital expenditure plan already approved by the board of the
Company and set out in schedule 11 and not make, or agree to make, capital
expenditure outside schedule 11 without the written approval of the Buyers;
5. not declare, pay or make a dividend or distribution or make any other
disbursements of any kind (including debt and interest repayment) to the
Sellers or their representatives in any capacity;
6. not create, or agree to create, an Encumbrance over the Shares or another
asset or redeem, or agree to redeem, an existing Encumbrance over the Shares
or another asset, including the Mining Leases;
7. not enter into a material long-term, onerous or unusual agreement,
arrangement or obligation;
8. except in the usual course of its business, not compromise, settle, release,
discharge or compound litigation or arbitration proceedings or a liability,
claim, action, demand or dispute, or waive a right in relation to litigation
or arbitration proceedings;
9. conduct its business in all material respects in accordance with all
applicable legal and administrative requirements in any relevant
jurisdiction;
10. not enter into an agreement, arrangement or obligation (legally enforceable
or not) in which the Sellers, a director or former director of the Company
or a person connected with any of them is interested;
11. not make a payment out of a Company's Bank Account except where the payment
is in the usual course of its business;
12. not without prior agreement of the Buyers renew any contract for employment
of the Company's expatriate staff;
-20-
13. not make any payment (whether of principal, interest, penalty or on any
other account whatsoever) with respect to the IFC Debt or the DEG Debt;
14. maintains in good standing its rights and interest in the Concessions;
15. not take any action which could result in a material change in the
business, operations, earnings, assets or financial condition of the
Company; and
16. maintains in full force material insurances against risks normally insured
against by a company operating the types of business operated by the
Company.
-21-
SCHEDULE 4
List Of Shareholders And Number Of Shares To Be Sold
Name and Address of Shareholders Shares to Percentage of Percentage of Percentage of IFC
be Sold Price Price allocated Loan
allocated to to Debt/1/ /2/
Shares
------------------------------------------------------------------------------------------------------------------------------
International Finance Corporation 216,270 25.007 24.23 32.51
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇
Attention: Manager, Special Operations
Unit
Fax: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
CLIFAP 6,897 11.808 0 0
▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
CREDIT LYONNAIS 0 0 11.71 15.71
▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------
/1/ "Debt" comprises IFC Debt less IFC Shareholders Advances plus DEG Debt.
/2/ This figure is based on the DM:US$ exchange rate as at 28.4.99. It
will have to be adjusted at completion to reflect DM:US$ exchange rate
prevailing at the time of completion.
-22-
Name and Address of Shares to Percentage of Percentage of Percentage of IFC to
Shareholders be Sold Price Price allocated Loan
allocated to to Debt
Shares
------------------------------------------------------------------------------------------------------------------------------
-23-
------------------------------------------------------------------------------------------------------------------------------
Name and Address of Shareholders Shares to Percentage Percentage of Percentage of IFC
be Sold of Price Price allocated to Loan
allocated to Debt
Shares
------------------------------------------------------------------------------------------------------------------------------
The Sumitomo Bank, Limited 31,331 4.811 4.77 6.40
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
Ecobank Transnational Incorporated 11,388 1.749 1.73 2.33
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇
Attention: Mr ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
Societe Generale 91,140 13.995 13.88 18.61
▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ La Defense
Cedex France
Attention: Mr ▇▇▇▇ ▇▇▇▇-▇▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ 97
------------------------------------------------------------------------------------------------------------------------------
-24-
Name and Address of Shareholders Shares to Percentage Percentage of Percentage of IFC
be Sold of Price Price allocated to Loan
allocated to Shares Debt
------------------------------------------------------------------------------------------------------------------------------
Bank Austria Cayman Islands Ltd. 45,566 6.997 0 0
P.O. Box 513
▇▇▇▇▇▇ Town
Cayman Islands
Grand Cayman
Attention: ▇. ▇. ▇'▇▇▇▇▇
Fax: [ ]
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
Bank Austria AG 0 0 6.94 9.31
Am ▇▇▇ ▇▇, ▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: Udo Szekulics
Fax: ▇▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------
Banque Internationale a Luxembourg 28,477 4.373 4.34 5.82
▇▇ ▇▇▇▇▇ ▇'▇▇▇▇
▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------
-25-
Name and Address of Shareholders Shares to Percentage Percentage of Percentage of IFC
be Sold of Price Price allocated to Loan
allocated to Debt
Shares
------------------------------------------------------------------------------------------------------------------------------
DEG-Deutsche Investitions und 158,004 24.263 25.46 0
Entwicklungsgesellschaft mbH
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇ (Mungersdorft)
Germany
Attention: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
DB (Belgium) Finance N.V./S.A. 45,566 6.997 6.94 9.31
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------
Total 704,639 100 100 100
------------------------------------------------------------------------------------------------------------------------------
-26-
SCHEDULE 5
Form of Letter of resignation
TO: Bogoso Gold Limited (the "Company")
DATE:
Dear Sirs
I, [ ] of [insert usual residential address]:
1. resign my office as [director/secretary/director and secretary] of the
Company with immediate effect and resign from my employment with the
Company with immediate effect;
2. acknowledge that:
2.1 I have no claims or rights of action whatsoever whether under
common law, statute or otherwise against the Company in connection
with or arising out of my holding or resigning office or out of my
employment or its termination; and
2.2 [there is no agreement or arrangement outstanding under which the
Company has or could have an obligation to me whether now or in
the future whether for the payment of money or otherwise, except
for payment in the usual course of my salary and expenses incurred
on behalf of the Company in each case up to and including [insert
date of letter or effective date of resignation] [amounting in
total to not more than US$[ ]]]; and]
3. waive, release and forever discharge the Company against all actions,
proceedings, claims, demands and costs which I may now have or would have
had but for the execution of this deed.
Signed as a deed by )
[insert name of individual]) ) _________________________________
in the presence of: )
________________________ Signature of the Witness
________________________ Name of the Witness
________________________ Address of the Witness
________________________
________________________
________________________ Occupation of the Witness
[TO BE FILED WITHIN 28 DAYS WITH GHANIAN REGISTER OF COMPANIES]
-27-
SCHEDULE 6
BANK SECURITY
1. The English Charge
A deed of charge dated 18 January, 1990 and made by the Company in favour
of The Law Debenture Trust Corporation p.l.c., IFC and DEG, pursuant to
which the Company created fixed and floating security on the Company's
assets for all moneys and liabilities owing by the Company to the Secured
Lenders (as defined therein) from time to time on the terms and subject to
the conditions stated therein as amended by the Supplemental English
charge dated 22 March 1994.
2. The Ghanaian Debenture
A debenture dated 18 January, 1990 registered at the Lands Title Registry
Accra as No. 1495/1990 and made by the Company in favour of The Law
Debenture Trust Corporation, IFC and DEG, whereby the Company gave fixed
and floating security over its assets in favour of the Trustee for all
moneys and liabilities owing by the Company to the Secured Lenders (as
defined therein) from time to time on the terms and subject to the
conditions stated therein as amended by the Supplemental Ghanaian
Debenture dated 22 March 1994.
3. The Assignment of Insurances
A deed of assignment dated 26 February, 1990 and made between the Company,
The Law Debenture Trust Corporation p.l.c., DEG and IFC, inter alia,
pursuant to which the Company assigned to The Law Debenture Trust
Corporation p.l.c. by way of mortgage all its right, title and interest in
and to all insurances required to be effected by the Company under which a
claim is to be payable in any freely convertible and transferable currency
other than Cedis and by way of floating charge to The Law Debenture Trust
Corporation p.l.c. all other insurances required to be effected by the
Company on the terms and subject to the conditions stated therein.
4. Foreign Exchange Retention Account Agreement
An agreement dated 18 January, 1990 made between the Company, Barclays
Bank PLC, The Law Debenture Trust Corporation p.l.c., the Republic of
Ghana, the Bank of Ghana, Ghana Commercial Bank, IFC and DEG whereby,
inter alia, there was established a mechanism for the collection,
investment and administration of the Company's funds in one or more
accounts maintained with Barclays Bank PLC and Ghana Commercial Bank as
amended by the Supplemental Foreign Exchange Retention Account Agreement
dated 22 March, 1994.
5. The Mining Lease Agreement
An agreement dated 18 January, 1990 entered into between the Republic of
Ghana, IFC, DEG and The Law Debenture Trust Corporation p.l.c., providing,
inter alia, for certain consents and assurances from the Republic of Ghana
in relation to the Mining Leases (as defined therein) and the transactions
-28-
contemplated by the Financing Documents and the Security Documents [(both as
defined therein)].
6. The Trust Deed
An agreement dated 18 January, 1990 entered into between the Company, The
Law Debenture Trust Corporation plc, the Republic of Ghana, Bank of Ghana,
DEG, IFC and the Representatives (as defined therein).
-29-
SCHEDULE 7
Loan Documentation
Part 1
DEG Loan Documentation
1. A loan agreement dated 8 January 1990 made between DEG and the Company (the
"DEG Loan Agreement") pursuant to which DEG agreed, on the terms and subject
to the conditions stated therein, to make available to the Company a loan of
up to DM 25,000,000 ("DEG Loan") to finance the Project (as defined therein).
2. A rescheduling agreement dated 4 March 1994 made between the Company and DEG
(the "Rescheduling Agreement"), pursuant to which DEG agreed, on the terms
and subject to the conditions therein, to amend the terms and conditions of
the DEG Loan under the DEG Loan Agreement.
Part 2
IFC Loan Documentation
1. A loan agreement dated 19 December 1989 made between the Company and IFC
("IFC Investment Agreement") pursuant to which IFC agreed, on the terms and
subject to the conditions stated therein, to lend to the Company the sum of
US$43,000,000 (the "IFC Loan") to finance the Project (as defined therein).
2. A rescheduling agreement dated 4 March 1994 (herein called the "IFC
Rescheduling and Amendatory Agreement") made between IFC and the Company
pursuant to which IFC agreed, on the terms and subject to the conditions
therein, to amend the terms and conditions of the IFC Loan and the IFC
Investment Agreement.
Part 3
Shareholder Advances Documentation
1. An agreement (the "Shareholders Financing Agreement") dated 27 November 1989
made between the Company, the Republic of Ghana, IFC, the Central Bank,
Billiton B.V. and Sikaman Gold Resources Limited as amended and supplemented
by a certain supplemental agreement (the "Supplemental Agreement") dated 18
January 1990 between the same parties, pursuant to which, inter alia, IFC
agreed to make available to the Company, and the Company agreed to borrow,
additional loans comprising Shareholder Advances (as defined therein) and,
if necessary, Shareholder Deficiency Advances (as defined therein).
2. An amendment agreement (the "Revised Shareholders Financing Agreement")
dated 22 March 1994 made between the Company, IFC, DEG, the Republic of
Ghana, the Bank of Ghana and Billiton B.V. pursuant to which Shareholders
(as defined therein) agreed on the terms and subject to the conditions
therein, to amend the terms and conditions applicable to the Shareholder
Advances and
-30-
Shareholder Deficiency Advances under the Shareholders Financing Agreement
(as amended and supplemented by the Supplemental Agreement).
-31-
SCHEDULE 8
Prospecting licences and mining leases
1. Gold Prospecting Licence No. PL 2/12 Commencing 12 May 1986. Comprising
57.69 square miles or 149.41 square kilometres.
2. Gold Mining Lease No. WR348A/87 Commencing 21 August 1987. Comprising 50
square kilometres.
3. Gold Mining Lease No. WR368/88 Commencing 16 August 1988. Comprising 45
square kilometres.
-32-
SCHEDULE 9
FORM OF ASSIGNMENT OF DEBT
THIS DEED OF ASSIGNMENT is made the [ ] day of [ ],1999
BETWEEN
[INTERNATIONAL FINANCE CORPORATION, an international organisation established by
articles of agreement among its member countries / DEG-DEUTSCHE INVESTITIONS
UND ENTWICKLUNGSGESELLSCHAFT mbH, a development finance institution
organised and existing under the laws of the Federal Republic of Germany]
(the "Assignor"); and
ANVIL MINING NL , a company organised and existing under the laws of Australia
and having its registered office at Ground Floor, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ with company number A.C.N.
060478962 and GOLDEN STAR RESOURCES LTD, a company amalgamated under the
laws of Canada and having its registered office at Vancouver and its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇.▇.▇. (together the "Assignees" and each of them an "Assignee").
WHEREAS
The parties hereto have agreed that the Assignor will assign to the Assignees
its rights, title and interest in and to the [IFC Debt / DEG Debt] pursuant to
the sale and purchase agreement dated [ ] made between the Assignor and
the other companies specified therein as sellers and the Assignees as buyers
(the "Sale and Purchase Agreement").
NOW THIS DEED WITNESSETH as follows:
10. Terms defined in the Sale and Purchase Agreement shall, unless otherwise
defined herein, have the same meaning herein and the principles of
construction set out in the Sale and Purchase Agreement shall have effect as
if set out in this Deed.
11. On and from the date thereof, the Assignor hereby assigns and transfers to
the Assignees all the Assignor's (i) rights, title and interests in, to and
under the [IFC Debt / DEG Debt], (ii) rights, title and interest in, to and
under the [IFC Loan Documentation and the Shareholder Advances Documentation
/ DEG Loan Documentation] in respect of the [IFC Debt / DEG Debt] and (iii)
rights arising under or in connection with the Bank Security relating to the
[IFC Debt / DEG Debt] and (in each case) the full benefit and advantage
thereof TO HOLD the same unto the Assignees absolutely.
12. The Assignor hereby covenants with the Assignees that the [IFC Debt / DEG
Debt] is still owing in full to the Assignor from the Company and that there
are
-33-
no other debts due or owing from the Company to the Assignor on any account
whatsoever.
13. The Company hereby acknowledges (i) the amount of the [IFC Debt / DEG Debt]
as set out in the Sale and Purchase Agreement and (ii) receipt of notice in
writing from the Assignees of the Assignment of the [IFC Debt / DEG Debt]
from the Assignor to the Assignees.
14. The Assignees acknowledge that the Assignor has given no warranty or
assurance to the Assignees with regard to the recovery of the [IFC Debt /
DEG Debt] in whole or in part from the Company.
15. Clause 16 (Governing Law and Jurisdiction) of the Sale and Purchase
Agreement shall be incorporated in this Deed, mutatis mutandis.
16. This Deed is delivered on the date written at the start of this Deed.
EXECUTED by the parties as a deed.
THE ASSIGNOR
------------
Executed as a deed by )
[insert name of attorney] )
as attorney for )
INTERNATIONAL FINANCE )
CORPORATION )
in the presence of: __________________________________
Signature of witness __________________________________
Name of witness __________________________________
Occupation of witness __________________________________
THE ASSIGNEES
-------------
Executed as a deed by )
ANVIL MINING NL )
acting by [insert name(s) of )
duly authorised signatory(ies)] )
__________________________________
__________________________________ [if second signatory required]
-34-
Executed as a deed by )
GOLDEN STAR RESOURCES LTD )
acting by [insert name(s) of )
duly authorised signatory(ies)] )
__________________________________
__________________________________ [if second signatory required]
THE COMPANY
-----------
Executed as a deed by )
BOGOSO GOLD LIMITED )
acting by [insert name(s) of )
duly authorised signatory(ies)] )
__________________________________
__________________________________ [if second signatory required]
-35-
SCHEDULE 10
FORM OF LETTER OF CREDIT
Beneficiary: International Finance Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇.▇.▇.
Applicant: Golden Star Resources Ltd. and Anvil Mining NL
(together, the Obligors)
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Amount: USD2,000,000.00
"We hereby issue our irrevocable Standby Letter of Credit number [ ] in your
favor for the benefit of yourself and the sellers set out in Annex 1 for an
aggregate amount not to exceed the amount indicated above, expiring at our
counters in New York with our close of business on September 30, 1999.
This Letter of Credit is available with the Chase Manhattan Bank, New York
against presentation of your draft at sight drawn on the Chase Manhattan Bank,
New York when accompanied by the documents indicated herein:
A letter of certification and demand signed by a purported authorized signatory
of the beneficiary reading as follows:
"The amount of this drawing USD ______________ under the Chase Manhattan Bank
Letter of Credit number _____ represents part of the price for the sale and
purchase due and payable by the Obligors under an agreement to be made between
the Obligor and the Sellers in respect of the purchase by the Obligor of shares
in Bogoso Gold Limited ("BGL") and senior debt and shareholders advances owing
by BGL to the Sellers which has become due and payable by the Obligor to the
Beneficiary and the Sellers under said Sale and Purchase Agreement but has not
been paid and that payment of such claimed amount is demanded herein."
Partial drawings are permitted provided that the aggregate of the sums paid does
not exceed USD2,000,000.00.
We hereby agree that payment to the Beneficiary will be made by us to the
Beneficiary under this credit (free and clear of and without deduction for or on
account of any set-off or counterclaim and without deduction for or on account
of any taxes) on the third business day from and inclusive of the date of our
receipt of the above mentioned document. For the purposes of this credit, a
"Business Day" means a day upon which banks are open for domestic and foreign
exchange business in New York City.
Without prejudice to our obligations in respect of any drawing delivered to us
in accordance with the terms of this credit and prior to the termination hereof,
this credit shall terminate upon receipt of a certificate ing to be signed by an
authorized signatory of the Beneficiary reading as follows:
-36-
"All the required government consents have not been obtained in accordance with
the Sale and Purchase Agreement referred to in the Chase Manhattan Bank Letter
of Credit No. ____________________." or
"The Sellers have failed to comply with the obligations at completion as set out
in the Sale and Purchase Agreement referred to in the Chase Manhattan Bank
Letter of Credit No. ____________________." or
"The Sellers have entered into a contract to sell the sales shares, the IFC debt
and the DEG debt to a third party." or
"The Sale and Purchase Agreement referred to in the Chase Manhattan Bank Letter
of Credit No. ______________ has not been signed by the Sellers by June 1, 1999.
" or
"An event has occurred which has prevented the Obligor from effecting completion
of the Sale and Purchase Agreement referred to in the Chase Manhattan Bank
Letter of Credit No. ______________________in circumstances in which the Sellers
are not entitled to draw under the Letter of Credit."
All correspondence and any drawings presented in connection with this Letter of
Credit must only be presented to us at the Chase Manhattan Bank, 4 Chase
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Standby
Letter of Credit Department, Customer Inquiry Numbers are (▇▇▇) ▇▇▇-▇▇▇▇ and
(▇▇▇) ▇▇▇-▇▇▇▇.
We hereby issue this Standby Letter of Credit in your favor. It is subject to
the uniform customs and practice for documentary credits (1993 revision
International Chamber of Commerce, Paris, France Publication No. 500) and
engages us in accordance with the terms thereof. The number and the date of our
credit and the name of our bank must be quoted on all drafts required under this
Letter of Credit.
-37-
Annex 1
List of Sellers
Bank Austria AG
Bank Austria Cayman Islands Ltd.
Banque Internationale a Luxembourg
CLIFAP
Credit Lyonnais
DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH
DB (Belgium) Finance N.V.
Ecobank Transnational Incorporated
International Finance Corporation
Societe Generale
The Sumitomo Bank, Limited
-38-
SCHEDULE 11
APPROVED CAPITAL EXPENDITURE PLAN
BGL Approved/Committed (@ 1 April 1999)
Project Description Budget Unspent Unspent
US$'000 US$'000 %
--------------------------------------------------------------------------------------------------------
Strategic
Water Resource Evaluation 35 34 97%
Oxide Exploration Program 3 1,650 295 18%
Transition Ore Investigation Phase 3 289 109 38%
Sulphide Ore Treatment Options 136 134 98%
Mining
R984B Excavator 363 8 2%
773B ▇▇▇▇▇ Water Tank 62 10 16%
Field Mess/Office 20 14 72%
Water Filling Stations 40 10 25%
Maintenance
773B Dump Truck Overhaul (DT7) 110 10 9%
773B Dump Truck Overhaul (DT8) 110 60 55%
DHA600S Tamrock Overhaul 90 (9) 0%
Component Bay Extension 20 10 50%
Used Service Truck 100 20 20%
Plant Workshop Equipment 25 3 12%
Processing
Tailings System Upgrade 231 158 68%
Acid Mixing Facility 61 39 64%
Oxygen Plant 205 65 32%
Administration and Infrastructure
Radio VHF and Relay Station 50 19 38%
Data Room & Finance Modifications 15 5 33%
Security Fence Upgrade 45 40 89%
Emergency Generators 1,280 11 1%
V-SAT Communications 79 4 5%
Kubota Lawn Mower 12 (4) 0%
Replacement Ambulance 25 (2) 0%
Replacement Nissan Patrol 38 38 100%
--------------------------------------------------------------------------------------------------------
Total 5,091 1,081
--------------------------------------------------------------------------------------------------------
NOTES:
1. "BGL Approved/Committed" are projects in progress with BGL Board approval
as at 1 April 1999.
-39-
EXECUTED by the parties:
The Sellers
INTERNATIONAL FINANCE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Authorised Representative
CLIFAP
By: /s/ ▇▇▇▇▇▇ Mas
--------------
Authorised Representative
CREDIT LYONNAIS
By: /s/ ▇▇▇▇▇▇ Mas
--------------
Authorised Representative
THE SUMITOMO BANK, LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------
Authorised Representative
ECOBANK TRANSNATIONAL INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
Authorised Representative
SOCIETE GENERALE
By: /s/ Jean-Roche Dubourdieu
-------------------------
Authorised Representative
BANK AUSTRIA CAYMAN ISLANDS LTD.
By: /s/ ▇. ▇. ▇'▇▇▇▇▇
-----------------
Authorised Representative
-▇▇-
▇▇▇▇ ▇▇▇▇▇▇▇ AG
By: /s/ Udo Szekulics /s/ Maj. ▇▇ ▇▇▇▇▇▇▇
----------------- -------------------
Authorised Representative
BANQUE INTERNATIONALE A LUXEMBOURG
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ Deborse
------------------ ------------------
Authorised Representative
DEG-DEUTSCHE INVESTITIONS UND
ENTWICKLUNGSGESELLSCHAFT mbH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Authorised Representative
DB (BELGIUM) FINANCE N.V.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------- -----------------
Authorised Representative
THE BUYERS
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
ANVIL MINING NL
Authorised Representative
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
GOLDEN STAR RESOURCES LTD.
Authorised Representative
-41-
