Exhibit 2.3
DATED 19 NOVEMBER 2001
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THE PERSONS WHOSE NAMES AND
ADDRESSES ARE SET OUT IN SCHEDULE 4
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THE ANGLO AGGMORE LIMITED PARTNERSHIP
ACTING THROUGH ITS GENERAL PARTNER ANGLO IRISH EQUITY LIMITED
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FOG CUTTER CAPITAL GROUP INC
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OPTION AGREEMENT RELATING TO THE SALE AND PURCHASE OF THE
ENTIRE ISSUED SHARE CAPITAL OF WREP ISLANDS LIMITED AND
WREP ISLANDS UGAP LIMITED
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INDEX
CLAUSE NO. PAGE NO.
1. INTERPRETATION.....................................................3
2. CALL OPTION........................................................6
3. CONDITIONS.........................................................6
4. EXERCISE OF THE OPTION.............................................6
5. CONTINUING OBLIGATION OF DISCLOSURE AFTER EXCHANGE.................6
6. COVENANTS, WARRANTIES AND TAXATION.................................7
7. PURCHASER'S REMEDIES...............................................8
8. VENDORS' LIMITATIONS...............................................9
9. CONTINUING EFFECT OF THIS AGREEMENT...............................10
10. VENDORS RIGHT TO REQUIRE ACQUISITION..............................11
11. POWER OF ATTORNEY.................................................11
12. ENTIRE AGREEMENT..................................................11
13. MISCELLANEOUS.....................................................12
14. GUARANTEE.........................................................13
15. LAW AND JURISDICTION..............................................14
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THIS AGREEMENT is made on 19 November 2001
BETWEEN:
(1) The persons whose names and addresses are listed in schedule 4 (the
"VENDORS"); and
(2) ANGLO IRISH EQUITY LIMITED acting in its capacity as the general
partner of the ANGLO AGGMORE LIMITED PARTNERSHIP whose principal place
of business is at ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "PURCHASER"); and
(3) FOG CUTTER CAPITAL GROUP INC whose registered office is at ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
("GUARANTOR").
IT IS AGREED:
1. INTERPRETATION
In this Deed, except where the context otherwise requires, the
following terms shall have the following meanings:
"ARTICLES" means together the current articles of association or other
constitutional documents of each of the Companies from time to time;
"COMPANIES" means each and any of:
(a) WREP Islands Limited a company incorporated in the British
Virgin Islands under company registration number 280400 whose
registered office is at Akara Building, ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ Cay 1, Road Town, Tortola, BVI and whose
administrative office is at Le Quesne ▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇; and
(b) WREP Islands Ugap Limited a company incorporated in Jersey
under registration number 72552 whose registered and
administrative office is at Le Quesne ▇▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ and "Company" means any one
of them;
"COMPLETION" means completion of the transfer of the Option Shares to
the Purchaser pursuant to the Sale and Purchase Agreement;
"DEED" means this deed (as amended from time to time);
"DISCLOSURE LETTER" means the disclosure letter to be given to the
Purchaser by the Vendors immediately prior to the execution of this
Deed for the purpose of schedule 3;
"EXIT DIVIDENDS" means the dividends which the Vendors shall procure
are declared and paid to the Vendors by each of the Companies in
respect of the profits available for distribution in the Companies (in
accordance with their respective Articles and the provisions of
applicable law) as soon as is reasonably practicable following the
receipt by the Companies of the Purchase Monies;
"ICTA" means the Income and Corporation Taxes Act 1988 and use of a
year followed by the word "Act" shall mean the Finance Act of that
year;
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"OPTION" means the option granted to the Purchaser by the Vendors to
acquire the Option Shares pursuant to clause 2 of this Deed;
"OPTION NOTICE" means a notice in the form or substantially in the form
set out in schedule 2;
"OPTION PERIOD" means. subject to clause 13.10 the period commencing on
the Purchase Date and ending 5 years thereafter;
"OPTION PRICE" means the sum of(pound)1 (one pound sterling);
"OPTION SHARES" means the:
(a) 1,332,560 shares of US$1.00 in the capital of WREP Islands
Limited ; and
(b) 9,142 shares of US$1.00 in the capital of WREP Islands Ugap
Limited,
comprising the entire issued share capital of each of WREP Islands
Limited and WREP Islands Ugap Limited;
"OUTSIDE THE ORDINARY COURSE OF BUSINESS" means in relation to Taxation
(a) a transaction giving rise to a liability to Taxation under
Part XVII of ICTA;
(b) an event giving rise to a liability under section 126 FA 1995;
(c) any distribution or deemed distribution within the meaning of
Part VI of ICTA or of section 418 of ICTA;
(d) an event which may result in the relevant Company becoming
liable to pay or suffer any Taxation chargeable directly or
primarily against or attributable directly or primarily to
another firm, person or company;
(e) an acquisition, disposal or supply or deemed acquisition,
disposal or supply of goods, assets, services or business
facilities of any kind whatsoever (including, without
limitation, a loan of money or a hiring, letting or licensing
of tangible or intangible property) for a consideration which
is treated for the purposes of Taxation as different from the
consideration (if any) actually received but only insofar as
such Taxation is attributable to the difference between the
consideration (if any) actually received and the consideration
treated for Taxation purposes as having been received;
(f) an event in respect of which any Taxation arises as a result
of the failure by the relevant Company duly to recover,
deduct, charge or account for any Taxation;
(g) a disposal of capital assets;
(h) any amount for which the relevant Company is liable to account
to the Commissioners of Customs & Excise under Reg. 107 Value
Added Tax Regulations 1995; and/or
(i) any event which gives rise to a liability to pay interest on
late payment of Taxation or to a liability to pay a fine,
penalty or similar charge relating to Taxation.
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"PROPERTY AGREEMENTS" means the agreements dated the date of this Deed
and made between the Purchaser and each of the Companies in respect of
the sale and purchase of the Properties;
"PROPERTIES" means the freehold and leasehold properties details of
which are set out in the Property Agreements;
"PURCHASE DATE" shall have the meaning given to it in the Property
Agreements;
"PURCHASE MONIES" means the payment or payments due to be made to the
Companies under the Property Agreements;
"PURCHASER'S SOLICITORS" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"RELATED PERSONS" means in relation to any party any subsidiary
undertaking of that party and any holding company of that party and any
subsidiary undertaking of that holding company and "RELATED PARTY"
means any one of them;
"RELEVANT CLAIM" means any claim made by the Purchaser in respect of
breach of Warranty and/or the Tax Covenant;
"RELEVANT DAY" means, for the purposes of clause 13.9, any day other
than a Saturday, Sunday or a day which is a public holiday at the
address given for the receiving party herein or at such other address
as is notified by such party in accordance with clause 13.9;
"SALE AND PURCHASE AGREEMENT" means the agreement for the sale and
purchase of the Option Shares in the form set out in schedule 1;
"TAXATION" means all forms of taxation, charges, duties, imposts,
levies and rates whenever imposed and whether of the United Kingdom,
the Channel Islands, the British Virgin Islands or elsewhere and
whether chargeable directly or primarily against or attributable
directly or primarily to the Companies, any asset of the Companies or
to any other person, including without limitation income tax (including
income tax or amounts equivalent to or in respect of income tax
required to be deducted or withheld from or accounted for in respect of
any payment), withholding taxes, corporation tax, advance corporation
tax (including amounts corresponding to or representing advance
corporation tax), capital gains tax, capital transfer tax, inheritance
tax, rates, uniform business rates, water rates, value added tax,
custom duties, capital duty, excise duties, betterment levy, community
charges, council taxes, insurance premium tax, landfill tax, stamp
duty, stamp duty reserve tax, national insurance, social security or
other similar contributions, and generally any tax, duty, impost, levy
or rate or other amount and any interest, penalty or fine in connection
therewith;
"TAX COVENANT" means the tax covenant set out in clause 6.5;
"VENDORS' SOLICITORS" means Milbank Tweed ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP of Dashwood
House, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇; and
"WARRANTIES" means the warranties set out in schedule 3.
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2. CALL OPTION
In consideration of the sum of L1 paid to each of the Vendors by
the Purchaser (the receipt of WHICH each of the Vendors hereby
acknowledge) and of the obligations of the Purchaser contained in this
Deed, each Vendor hereby irrevocably agrees and undertakes with the
Purchaser, subject to clause 3, to transfer such of the Option Shares
as are set out against their respective names in schedules 1 and 2 to
the Purchaser (or to such person or persons as shall be nominated by
the Purchaser) for the Option Price on and subject to the provisions of
clause 4.
3. CONDITIONS
3.1 The exercise of the Option shall be conditional upon:
(a) the payment to the Companies of the Purchase Price (as defined
in Property Agreements) and all other monies properly payable
to the Companies pursuant to the Property Agreements ("the
Purchase Monies"); and
(b) the declaration and payment by the Companies to the Vendors of
the Exit Dividends.
3.2 The Vendors shall procure that the Exit Dividends shall be declared and
paid by the Companies within 10 Business Days following the payment of
the Purchase Monies.
4. EXERCISE OF THE OPTION
4.1 Subject to the satisfaction of the conditions set out in clause 3.1 the
Purchaser shall be entitled to require such a sale and transfer as
referred to in clause 2 at any time during the Option Period by giving
5 Business Days' notice in writing to the Vendors in the form of the
Option Notice and for the avoidance of doubt it is hereby agreed that
if such a notice is served or deemed to have been served within the
Option Period then notwithstanding that such notice is to expire or
that completion of the transfer of the Option Shares may take place on
a date (in either case) outside of the Option Period the service of
such notice by the Purchaser shall be a valid exercise of the Option
and the completion provisions under this Deed shall apply accordingly.
4.2 As soon as reasonably practicable and in any event within 10 Business
Days following the service of the Option Notice, the Vendors and the
Purchaser shall enter into the Sale and Purchase Agreement and the
Vendors shall transfer the Option Shares to the Purchaser in accordance
with the terms of the Sale and Purchase Agreement.
5. CONTINUING OBLIGATION OF DISCLOSURE AFTER EXCHANGE
The Vendors hereby agree that with effect from the date of this Deed
they shall (and shall use all reasonable endeavours to procure that any
other necessary person shall) provide all such information (including
without limitation copies of documents and/or written responses to
questions) which relate to the Companies and their business (including
but not limited to the ownership of the Properties and matters relating
to Taxation) as may be reasonably requested from time to time by the
Purchaser, PROVIDED THAT the Vendors shall not be required to disclose
any information which relates to the Vendors the disclosure of which
would or may constitute a breach
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of any requirement of confidentiality on the part of the Vendor or
which otherwise materially adversely affects the business of the
Vendor.
6. COVENANTS, WARRANTIES AND TAXATION
6.1 The Vendors hereby agree and undertake:
(a) to waive all rights including but not limited to any
pre-emption rights over any of the Option Shares conferred
either by the Articles or in any other way whatsoever in
respect of any transfer of the Option Shares to the Purchaser
under the terms of the Sale and Purchase Agreement; and
(b) that prior to Completion they will not take any action or
delegate or otherwise authorise the Companies or either of
them to issue or agree to issue any shares or other securities
in the Companies or either of them or options to acquire any
shares or other securities in the Companies or either of them
otherwise than in accordance with the terms of this Deed.
6.2 The Vendors shall forthwith inform the Purchaser if:
(a) the Companies or either of them is or are insolvent, have
compounded with their creditors, have a receiver appointed
over any material part of their assets, or a liquidator
appointed in respect of their assets or a resolution has been
passed for the appointment of an administrator or a liquidator
over their assets or, if it comes to the attention of the
Vendors, that any of the above matters is likely to occur;
and/or
(b) the Vendors (or any of them) is or are insolvent, has
compounded with their creditors, has a receiver appointed over
any material part of their assets, or a liquidator appointed
in respect of its assets or a resolution has been passed for
the appointment of an administrator or a liquidator over their
assets if it comes to the attention of the Vendors, that any
of the above matters is likely to occur;
6.3 Subject to clause 8, the Vendors warrant on a joint and several basis
to the Purchaser in the terms of the Warranties. Each of the Warranties
shall be construed as a separate and independent warranty and (save
where expressly provided to the contrary including without limitation
and for the avoidance of doubt clause 8 of this Agreement) shall not be
governed, limited or restricted by reference to or inference from any
other terms of this Deed or any other Warranty.
6.4 Each of the Warranties shall be deemed to be given on the date of this
Deed and shall be deemed to be repeated and given by the Vendors on the
date on which the Option is exercised or if later the date of
Completion.
6.5 The Vendors hereby covenant jointly and severally to pay the Purchaser
(on a L for L basis) within seven days of a receipt of a demand for
payment an amount equal to any actual liability to Taxation for which
the Company is or becomes liable in respect of or arising from:
(a)
(i) any event which occurs or is deemed by an authority
with powers to impose Taxation to have occurred on or
before Completion;
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(ii) by reference to any income profits or gains earned,
accrued or received on or before Completion;
(iii) by reference to asset values, turnover, value added
or any other reference measure, for a period ended on
or before Completion;
(iv) as a result of any underpayment of any instalment of
Taxation prior to Completion; and/or
(b) any Taxation affecting the Company in respect of or arising
from any transactions completed after Completion in pursuance
of a legally binding obligation or a legally binding
arrangement (in each case outside the ordinary course of
business) entered into on or before Completion.
6.6 If an authority with the power to impose Taxation requires that any
payment due under this Deed is subject to Taxation in the hands of the
Purchaser, the Purchaser may demand in writing from the Vendors such
sum (after taking into account any Taxation payable in respect of such
sum) as will ensure that the Purchaser receives and retains a net sum
equal to the sum which it would have received had the payment not been
subject to Taxation. The Vendors shall pay any sum which is so demanded
within 5 Business Days of receipt of such demand.
6.7 Where any of the Warranties is qualified by the expression "so far as
the Vendors are aware" or any similar expression, each of the Vendors
shall be deemed to have the awareness of each other Vendor and to have
such additional awareness as the Vendors would have after having made
all due, diligent and careful enquiry of:
(a) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
(b) ▇▇▇▇ ▇▇▇▇▇;
(c) ▇▇▇ ▇▇▇▇▇▇▇▇▇▇; and
(d) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
7. PURCHASER'S REMEDIES
7.1 The Purchaser undertakes to the Vendors to notify the Vendors within a
reasonable time upon its becoming aware of any circumstances entitling
it to make a claim under the Warranties and/or under this Deed which
notice shall specify the general nature of such claim.
7.2 If on or prior to the exercise of the Option any of the Warranties is
or are untrue or inaccurate or the Purchaser becomes aware of any of
the matters referred to in clause 6.2 or of any other breach of this
Deed the Purchaser may at its option either:
(a) elect not to exercise the Option and to rescind this Deed; or
(b) exercise the Option,
but in each case without prejudice to the rights of the Purchaser to
claim for breach of the Warranties and/or any breach of any other
provision of this Deed (including without limitation the Tax Covenant).
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8. VENDORS' LIMITATIONS
8.1 Each of the Warranties shall be construed as a separate warranty and is
given subject to the matters contained or referred to in the Disclosure
Letter.
8.2 No Relevant Claim shall be made unless written notice containing
specific details of the Relevant Claim is served on the Vendors:
(a) in the case of a claim under the Warranties before 30 June
2003; and
(b) in the case of a claim under the Tax Covenant before 31
December 2007
PROVIDED THAT the Purchaser shall be entitled to give notice of a
Relevant Claim and such notice shall be validly given notwithstanding
that the Purchaser shall by such date not have recovered or sought to
recover any sums pursuant to clause 8.7.
8.3 A Relevant Claim shall not be enforceable against the Vendors and shall
be deemed to have been withdrawn unless any legal proceedings in
connection with it are commenced within 9 months after written notice
of it is first served on the Vendors.
8.4 The aggregate amount of the liability of the Vendors in respect of all
Relevant Claims under the Warranties (but not the Tax Covenant) shall
not exceed the Purchase Monies.
8.5 No liability shall attach to the Vendors in respect of Relevant Claims
under the Warranties (but not the Tax Covenant) unless the aggregate
amount of the liability of the Vendors in respect of all such Relevant
Claims shall exceed L 5,000, and no Relevant Claim shall be made
unless the individual Relevant Claim exceeds L1,000.
8.6 The Vendors shall not be liable in respect of a Relevant Claim under
the Warranties (but not the Tax Covenant):
(a) if it would not have arisen but for anything voluntarily done
or omitted to be done after Completion by the Purchaser or
either of the Companies; or
(b) to the extent that it relates to any loss which is recoverable
by the Purchaser or either Company from its insurers or which
would have been recoverable if at the time the Relevant Claim
arises the Purchaser had maintained the level and type of
insurance affording the same degree of cover as the Vendors
maintained as at the date of this Deed;
(c) to the extent it arises or is increased as a result only of:
(i) an increase in the rates, method of calculation or
scope of Taxation after Completion;
(ii) any change in generally accepted accounting
principles after Completion;
(iii) the passing of any legislation, or making of any
subordinate legislation after Completion;
(iv) any matter provided for or included as a liability in
the financial statements for the Companies dated 30
September 2001; and
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(v) any liability for Taxation arising in the ordinary
course of business of either of the Companies in
respect of the period beginning immediately after
Completion; and
(d) if the Relevant Claim or the facts or matters giving rise to
the Relevant Claim were or are in the actual knowledge of
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (in his capacity as manager of the
Properties) and/or the Vendors or the Companies had made
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (acting in such capacity) aware of such
facts or matters through established procedures set up between
the Vendors, the Companies and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in
connection with him acting in that capacity.
8.7 Subject always to the proviso in clause 8.2, where the Purchaser or
either of the Companies is or may be entitled to recover from some
other person any sum in respect of any matter or event which could give
rise to a Relevant Claim, the person so entitled shall take all such
practicable steps to commence the recovery of that sum before making
the Relevant Claim but without prejudice to the right of the Purchaser
to make a Relevant Claim (keeping the Vendors at all times fully and
promptly informed of the conduct of such recovery), and any sum
recovered will reduce the amount of the Relevant Claim (and, in the
event of the recovery being delayed until after the Relevant Claim has
been satisfied by the Vendors, shall be paid to the Vendors, after
deduction of all reasonable costs and expenses of the recovery).
8.8 The Purchaser shall:
(a) as soon as reasonably practicable notify the Vendors in
writing of any Relevant Claim;
(b) subject to the Purchaser being suitably indemnified take such
action as the Vendors may reasonably require to avoid, resist,
contest or compromise any claim or matter which gives or may
give rise to a Relevant Claim provided that the Purchaser
shall not be required to take any action or omit to take any
such action which the Purchaser in its reasonably exercised
discretion considers would increase its liability in respect
of such claim or which would otherwise prejudice the rights or
benefits of the Purchaser;
(c) not settle, make any admission of liability nor compromise any
claim or matter which gives or may give rise to a Relevant
Claim without the prior written consent of the Vendors
provided that the Purchaser shall not be required to take any
action or omit to take any such action which the Purchaser in
its reasonably exercised discretion considers would increase
its liability in respect of the such claim or which would
otherwise prejudice the rights or benefits of the Purchaser.
9. CONTINUING EFFECT OF THIS AGREEMENT
All provisions of this Deed shall, so far as they are capable of being
performed or observed, continue in full force and effect
notwithstanding Completion except in respect of those matters then
already performed and Completion shall not constitute a waiver of the
rights of either party in relation to this Deed.
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10. VENDORS RIGHT TO REQUIRE ACQUISITION
10.1 If by a date falling 12 months from the date of this Deed and subject
to the satisfaction of the conditions set out in clause 10.2, the
Purchaser has not exercised the Option then the Vendors may by notice
in writing to the Purchaser require the Purchaser (or a nominee of the
Purchaser at the Purchaser's discretion) to acquire the Option Shares
on the same terms as if the Purchaser had exercised the Option (the
"Right of Acquisition").
10.2 The Vendors shall only be permitted to exercise the Right of
Acquisition in respect of either Company (and any purported exercise
shall only be valid and binding on the Purchaser) if in relation to
that Company:
(a) notwithstanding the provisions of clause 6, were the
Warranties to be repeated there would be no breach of Warranty
on the date the acquisition is to be made (and for the
purposes of this clause any disclosure made after the date of
this Agreement shall be disregarded); and/or
(b) the relevant Company remains the registered legal owner of any
Property and has not entered into a binding agreement (whether
or not completed) for the transfer of all (but not some only)
of the legal titles to the Properties which it holds.
11. POWER OF ATTORNEY
11.1 If upon the proper exercise of the Option by the Purchaser, the Vendors
(or any of them) refuse to enter into the Sale and Purchase Agreement,
the Vendors each hereby irrevocably appoint and authorise any director
or partner of the Purchaser as their respective attorney to execute the
Sale and Purchase Agreement on their behalf and hereby irrevocably
consent to the registration of the Purchaser in the registers of
members of the Companies as the new registered holder of the Option
Shares.
11.2 If upon the proper exercise of the Right of Acquisition by the Vendors,
the Purchaser refuses to enter into the Sale and Purchase Agreement,
the Purchaser hereby irrevocably appoints and authorises any director
or partner of any of the Vendors as their attorney to execute the Sale
and Purchase Agreement on their behalf and irrevocably consents to the
registration of the Purchaser in the registers of members of the
Companies as the new registered holder of the Option Shares.
12. ENTIRE AGREEMENT
Each party on behalf of itself and on behalf of its respective Related
Persons acknowledges and agrees with the other party that:
(a) this Deed together with any other documents referred to in
this Deed (together the "TRANSACTION DOCUMENTS") constitute
the entire and only agreement between the parties relating to
the Option and/or the Option Agreement;
(b) neither it nor any of its Related Persons has been induced to
enter into any Transaction Document in reliance upon, nor have
they been given, any warranty, representation, statement,
assurance, covenant, agreement, undertaking, indemnity or
commitment of any nature whatsoever other than as are
expressly set out in the Transaction Documents and, to the
extent that any
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of them has been, it and as agent for its Related Persons,
unconditionally and irrevocably waives any claims, rights or
remedies which any of them might otherwise have had in
relation thereto; and
(c) the only remedies available to it in respect of the
Transaction Documents are as set out in the Transaction
Documents together with any other remedies which cannot
lawfully be excluded and for the avoidance of doubt neither
party has any right to rescind or terminate any Transaction
Document either for breach of contract or for negligent or
innocent misrepresentation or otherwise unless such rescission
or termination is specifically provided for this Deed;
PROVIDED THAT the provisions of this clause 12 shall not exclude any
liability which any of the parties or, their Related Persons would
otherwise have to any other party or, where appropriate, to their
Related Persons or any right which any of them may have to rescind this
Deed in respect of any statements made fraudulently by any of them
prior to the execution of this Deed or any rights which any of them may
have in respect of fraudulent concealments by any of them.
13. MISCELLANEOUS
13.1 Nothing in this Deed shall be read or construed as excluding any
liability or remedy in respect of fraud or as excluding any other
liability or remedy which cannot lawfully be excluded.
13.2 This Deed may be executed in counterparts and by the parties on
different counterparts and this Deed shall not take effect until it has
been executed by all parties. Each counterpart shall constitute an
original of this Deed but both the counterparts shall together
constitute one and the same deed.
13.3 The operation of the Contracts (Rights of Third Parties Act) 1999 is
hereby excluded, and nothing in this Deed is intended to confer on any
person any right to enforce any term of this Deed which that person
would not have had but for that Act.
13.4 No failure or delay by any party in exercising any right or remedy that
party may have under or by virtue of this Deed shall operate as a
waiver therefore or preclude the exercise of such right or remedy on
any subsequent occasion.
13.5 This Deed shall not be varied except in writing signed by all of the
parties.
13.6 No party shall be entitled to assign the benefit of any rights under
this Deed without the prior written consent of the other parties.
13.7 No party shall make any announcement or issue any circular or other
publicity material relating to the existence or subject matter of this
Deed without it first being approved in writing by the other party.
However, any party may make an announcement concerning the transaction
contemplated by this Deed, or any ancillary matter, if required by law
or by any regulatory or governmental body to which such party is
subject, wherever situated (including, without limitation, the Inland
Revenue or the Inland Revenue Service) whether or not the requirement
has the force of law.
13.8 Each of the parties shall be responsible for its respective legal and
other costs incurred in relation to the negotiation preparation and
completion of this Deed and all documents ancillary to it.
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13.9 Any notice or other communication under or in connection with this Deed
shall be in writing and shall be delivered personally or sent by first
class post in a pre-paid envelope or by facsimile transmission to the
party due to receive the notice or communication at its address set out
in this Deed or such other address as a party may specify for this
purpose by notice in writing to the others. For the purposes of this
Deed the fax number of the Vendors is 001 503 553 7401, attention
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Esq, with a copy to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ fax number 01534
887 081and the fax number of the Purchaser is 020 7710 7050, attention
▇▇▇▇ ▇▇▇▇, and the email address of the Purchaser is
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇. Any notice or other communication shall
be deemed to have been served when received except that if it is
received between 5.30 p.m. on a Relevant Day and 9.00 a.m. on the next
Relevant Day it shall be deemed to have been served at 9.00 a.m. on the
second of such Relevant Days.
13.10 Any perpetuity created by this Deed shall be for no longer than 80
years.
14. GUARANTEE
14.1 In consideration of the Purchaser entering into this agreement at the
request of the Guarantor and the Vendors the Guarantor agrees and
undertakes to guarantee all of the obligations of the Vendors under
this Deed and the Sale and Purchase Agreement, and all other of the
documents and other matters referred to in this agreement (which in
this clause shall be together referred to as the "Guaranteed
Documents").
14.2 Without prejudice to the generality of sub-clause 14.1, the Guarantor
agrees that the Purchaser may without the consent of and without
affecting the Guarantor's liability under the Guaranteed Documents
grant time or indulgence to or compound with the Vendors and the
guarantee contained in sub-clause 14.1 shall not be discharged nor
shall the Guarantor's liability under it be affected by anything which
would not have discharged or affected the Guarantor's liability if the
Guarantor had been the primary obligor.
14.3 If the Vendors default under their obligations under the Guaranteed
Documents then the Purchaser may enforce the provisions of sub-clause
14.1 against the Guarantor as if the Guarantor were a principal obligor
to the Purchaser under the Guaranteed Documents.
14.4 If the Vendors are in default of the obligations guaranteed by the
Guarantor then the Guarantor waives any right to require the Purchaser
to proceed first against the Vendors or enforce any claim or payment
from, or file any proof or claim in any insolvency, administration, or
dissolution of the Vendors, bankruptcy or liquidation proceedings of
the Vendors before claiming from the Guarantor under this clause.
14.5 For the avoidance of doubt the Guarantor irrevocably and
unconditionally agrees to indemnify and to keep the Purchaser
indemnified against any loss of whatever kind resulting from the
failure of the Vendors to observe and perform their obligations under
the Guaranteed Documents or to pay when due any monies in respect of
any claims under the Guaranteed Documents (including without limitation
under the Warranties and/or the Tax Covenant) and to pay to the
Purchaser the amount of such loss whether or not the Purchaser has
attempted to enforce its rights against the Vendors. Without prejudice
to the generality of the foregoing, such loss shall include the total
amount of:
-13-
(a) all monies (to the extent to which the Purchaser shall not
already have received them) as may be due in respect of any
claims under the Guaranteed Documents; and
(b) all reasonable costs which the Purchaser may suffer or incur
as a result of any breach of the Guaranteed Documents; and
(c) all proper and reasonable expenses which the Purchaser may
incur in proceeding against the Vendors and/or the Guarantor
in respect of claims under the Guaranteed Documents.
14.6 Any amounts payable under this clause 14 shall be paid in full without
any deduction or withholding whatsoever (whether in respect of set-off,
counterclaim, duties, charges, taxes or otherwise) unless such
deduction or withholding is required in law, in which event the
Guarantor shall pay to the Purchaser an additional amount so that the
net amount received by the Purchaser will equal the full amount which
the Purchaser would have received had no such deduction or withholding
been made.
15. LAW AND JURISDICTION
15.1 This Deed shall be governed by and construed in accordance with English
law and each party to this agreement submits to the non-exclusive
jurisdiction of the English courts.
15.2 The Vendors and the Purchaser agree that any legal action or proceeding
arising out of or in connection with this Deed may be brought in the
High Court of Justice in England, and the Vendors and the Purchaser
hereby irrevocably submit to the non-exclusive jurisdiction of such
court in connection with any such legal action or proceedings.
15.3 The Vendors' and the Guarantor's address for service in respect of any
legal proceedings arising in connection with this Deed or the
transactions contemplated hereunder and in respect of any notice to be
given hereunder or otherwise in connection with this Deed including
without limitation the Option Notice is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇, fax number ▇▇▇ ▇▇▇▇ ▇▇▇▇ marked for the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Esq, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Esq, fax number ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Esq, fax number ▇▇▇▇▇ ▇▇▇ ▇▇▇.
IN WITNESS whereof this Deed has been entered into the day and year first above
written.
-14-
SCHEDULE 1
SALE AND PURCHASE AGREEMENT
THIS AGREEMENT is made the day of [ ]
BETWEEN:
(1) FOG CUTTER CAPITAL GROUP INC whose registered office is at ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
("FCCGI");
(2) FOG CAP LP whose principal place of business is at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("Fog Cap" and
together with FCCGI, "the Vendors")
(3) ANGLO IRISH EQUITY LIMITED acting in its capacity as general partner of
THE ANGLO AGGMORE LIMITED PARTNERSHIP whose place of business is at ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Purchaser")
RECITALS
(A) Pursuant to an agreement (the "Option Agreement") dated [ ] and made
between the Vendors and the Purchaser, the Vendors granted to the
Purchaser the right to acquire the Option Shares on the terms of this
Agreement and the Purchaser granted to the Vendors the right to sell to
it the Option Shares on the terms of this Agreement;
(B) The Purchaser wishes to acquire the Option Shares pursuant to the terms
of the Option Agreement and this Agreement and the Vendors wish to
transfer the Option Shares to the Purchaser on the terms of the Option
Agreement and this Agreement]; and
(C) Details of WREP Islands Limited and WREP Islands Ugap Limited (the
"COMPANIES") are set out in schedule 1.
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 Savewhere the context otherwise requires words and expressions defined
in the Option Agreement shall have the same meaning when used in this
Agreement and:
"AGREEMENT" means this Agreement and the schedules to it;
"COMPLETION" means completion of the sale and purchase of the Option
Shares pursuant to this Agreement;
"COMPLETION DATE" means the date of this Agreement;
"ENCUMBRANCE" means any security, option, claim, mortgage, charge,
pledge, lien, assignment, title retention, restriction, right of first
refusal or other third party right or interest or claim or any other
encumbrance or security interest of any kind whatsoever including
rights of pre-emption of any nature whatsoever;
-15-
"POWERS OF ATTORNEY" means the powers of attorney in the agreed form
pursuant to which the Companies grant power to the Purchaser (or to
such person nominated by the Purchaser) to execute such documents to
transfer the legal title to the Properties (with the consent of the
Companies);
"PURCHASE PRICE" has the meaning given to it in clause 3;
"RELEVANT DAY" means, for the purposes of clause 7.7, any day other
than a Saturday, Sunday or a day which is a public holiday at the
address given for the receiving party herein or at such other address
as is notified by such party in accordance with clause 7.7;
"SHARES" shall have the same meaning as the Option Shares; and
1.2 Words and phrases used in this Agreement and defined in the Companies
▇▇▇ ▇▇▇▇ shall bear the meanings attributed thereto in that Act.
1.3 The table of contents and headings and sub-headings in this Agreement
are for convenience only and shall not affect the construction of this
Agreement.
1.4 Unless the context otherwise requires words denoting the singular shall
include the plural and vice versa and references to any gender shall
include all other genders. References to any person (which for the
purposes of this Agreement shall include bodies corporate
unincorporated associations partnerships governments governmental
agencies and departments statutory bodies or other entities in each
case whether or not having a separate legal personality) shall include
the person's successors.
1.5 References to recitals, schedules, clauses and sub-clauses are to
(respectively) recitals, to schedules to and clauses and sub-clauses of
this Agreement (unless otherwise specified) and references within a
schedule to paragraphs are to paragraphs of that schedule (unless
otherwise specified).
2. SALE AND PURCHASE
2.1 Subject to the terms of this Agreement:
(a) Fog Cutter Capital Group Inc shall sell with full title
guarantee or procure the sale of, (in either case, with full
title guarantee) and the Purchaser shall purchase the Shares
in WREP Islands Limited together with all benefits and rights
attaching to them at the date of this Agreement free from all
Encumbrances; and
(b) Fog Cap LP shall sell with full title guarantee or procure the
sale of, (in either case, with full title guarantee) and the
Purchaser shall purchase the Shares in WREP Island Ugap
Limited together with all benefits and rights attaching to
them at the date of this Agreement free from all Encumbrances.
2.2 The Vendors jointly and severally waive or agree to procure the waiver
of any rights, restrictions or Encumbrances conferred upon either of
them or any other person which may exist in relation to the Shares
under the Articles of the Companies or otherwise;
2.3 The Purchaser shall not be obliged to complete the purchase of any of
the Shares unless the Vendors complete the sale of all of the Shares
simultaneously but completion of the
-16-
purchase of part of the Shares shall not affect the rights of the
Purchaser with respect to its rights to the other Shares.
2.4 The Purchaser shall be entitled to receive all dividends and
distributions of any nature whatsoever declared paid or made by the
Companies in respect of the Shares on or after the date of this
Agreement.
2.5 The Vendors jointly and severally covenant that:
(a) the Shares are fully paid and constitute the entire issued
share capital of each of the Companies;
(b) each of the Vendors have the right to transfer or direct the
transfer of the legal and beneficial title to the Shares; and
(c) the Shares are free from all Encumbrances.
2.6 Fog Cap LP shall procure that Whitmill Nominees Limited (as holder of 1
Share in WREP Islands Ugap Limited) transfers such share in accordance
with this clause 2 and the remaining provisions of this Agreement.
3. CONSIDERATION
The Shares shall be sold for such sum as is equal to the Option Price
(the "PURCHASE PRICE"). The Purchase Price shall be satisfied in cash
on Completion of which L0.50.shall be payable to Fog Cutter Capital
Group Inc and L0.50 is payable to Fog Cap LP.
4. COMPLETION
4.1 Completion shall take place on the Completion Date at the offices of
the Purchaser's Solicitors. At Completion the parties shall perform
their respective Completion obligations set out in schedule 3.
4.2 Notwithstanding Completion:
(a) each provision of this Agreement (and any other document
referred to in it) not performed at or before Completion but
which remains capable of performance; and
(b) all covenants (including without limitation the Tax Covenant),
the Warranties and other undertakings contained in or entered
into pursuant to this Agreement and/or the Option Agreement,
will remain in full force and effect and (except as otherwise expressly
provided in this Agreement or the Option Agreement) without limit in
time.
5. FURTHER ASSURANCE
The Vendors shall from time to time on being required to do so by the
Purchaser promptly and at the cost and expense of the Purchaser do or
procure the doing of all such acts and/or execute or procure the
execution of all such documents in a form satisfactory to the Purchaser
as the Purchaser may reasonably consider necessary for
-17-
giving full effect to this Agreement and transferring to the Purchaser
full legal and beneficial title to the Shares.
6. ENTIRE AGREEMENT
6.1 Eachparty on behalf of itself and on behalf of their respective Related
Persons acknowledges and agrees with the other party that:-
(a) this Agreement together with any other documents referred to
in this Agreement (together the "TRANSACTION DOCUMENTS")
constitute the entire and only agreement between the parties
relating to the sale and purchase of the Shares;
(b) neither it nor any of its Related Persons has been induced to
enter into any Transaction Document in reliance upon, nor have
they been given, any warranty, representation, statement,
assurance, covenant, agreement, undertaking, indemnity or
commitment of any nature whatsoever other than as are
expressly set out in the Transaction Documents and, to the
extent that any of them has been, it and as agent for its
Related Persons, unconditionally and irrevocably waives any
claims, rights or remedies which any of them might otherwise
have had in relation thereto; and
(a) the only remedies available to it in respect of the
Transaction Documents are as set out in the Transaction
Documents and for the avoidance of doubt neither party has any
right to rescind or terminate any Transaction Document either
for breach of contract or for negligent or innocent
misrepresentation or otherwise unless such rescission or
termination is specifically provided for this Agreement;
PROVIDED THAT the provisions of this clause 6.1 shall not exclude any
liability which any of the parties or, their Related Persons would
otherwise have to any other party or, where appropriate, to their
Related Persons or any right which any of them may have to rescind this
Agreement in respect of any statements made fraudulently by any of them
prior to the execution of this Agreement or any rights which any of
them may have in respect of fraudulent concealments by any of them.
7. MISCELLANEOUS
7.1 Nothing in this Agreement shall be read or construed as excluding any
liability or remedy in respect of fraud or any other liability or
remedy which cannot lawfully be excluded.
7.2 The operation of the Contracts (Rights of Third Parties Act) 1999 is
hereby excluded, and nothing in this Agreement is intended to confer on
any person any right to enforce any term of this Agreement which that
person would not have had but for that Act.
7.3 This Agreement may be executed in counterparts and by the parties on
different counterparts and this Agreement shall not take effect until
it has been executed by all parties. Each counterpart shall constitute
an original of this Agreement but all the counterparts shall together
constitute one and the same agreement.
-18-
7.4 No failure or delay by any party in exercising any right or remedy that
party may have under or by virtue of this Agreement shall operate as a
waiver therefore or preclude the exercise of such right or remedy on
any subsequent occasion.
7.5 This Agreement shall not be varied except in writing signed by all of
the parties.
7.6 No party shall be entitled to assign the benefit of any rights under
this Agreement without the prior written consent of the other party.
7.7 No party shall make any announcement or issue any circular or other
publicity material relating to the existence or subject matter of this
Agreement without it first being approved in writing by the other
party. However, any party may make an announcement concerning the
transaction contemplated by this Agreement, or any ancillary matter, if
required by law or by any regulatory or governmental body to which such
party is subject, wherever situated (including, without limitation, the
Inland Revenue) whether or not the requirement has the force of law.
7.8 All of the parties shall be responsible for its respective legal and
other costs incurred in relation to the negotiation preparation and
completion of this Agreement and all documents ancillary to it.
7.9 Any notice or other communication under or in connection with this
Agreement shall be in writing and shall be delivered personally or sent
by first class post in a pre-paid envelope or by facsimile transmission
to the party due to receive the notice or communication at its address
set out in this Agreement or such other address as a party may specify
for this purpose by notice in writing to the others. For the purposes
of this Deed the fax number of the Vendors is 001 503 553 7401,
attention ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Esq, with a copy to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ fax
number ▇▇▇▇▇ ▇▇▇ 081and the fax number of the Purchaser is 020 7710
7050, attention ▇▇▇▇ ▇▇▇▇, and the email address of the Purchaser is
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇, and notice provided to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall constitute good discharge of the
Purchaser's obligations with regard to notification. Any notice or
other communication shall be deemed to have been served when received
except that if it is received between 5.30 p.m. on a Relevant Day and
9.00 a.m. on the next Relevant Day it shall be deemed to have been
served at 9.00 a.m. on the second of such Relevant Days.
8. LAW AND JURISDICTION
8.1 This Deed shall be governed by and construed in accordance with English
law and each party to this Agreement submits to the non-exclusive
jurisdiction of the English courts.
8.2 The Vendors and the Purchaser agree that any legal action or proceeding
arising out of or in connection with this Deed may be brought in the
High Court of Justice in England, and each of the Vendors and the
Purchaser hereby irrevocably submit to the non-exclusive jurisdiction
of such court in connection with any such legal action or proceedings.
8.3 The Vendors' address for service in respect of any legal proceedings
arising in connection with this Deed or the transactions contemplated
hereunder and in respect of any notice to be given hereunder or
otherwise in connection with this Deed including without limitation the
Option Notice is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, fax number ▇▇▇ ▇▇▇▇
0265 marked for the attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Esq, with a copy to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Esq, fax number ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Esq, fax number ▇▇▇▇▇ ▇▇▇ ▇▇▇.
-19-
AS WITNESS the hands of the parties or their duly authorised representatives the
day and year first above written
-20-
SCHEDULE 1
DETAILS OF WREP ISLANDS LIMITED
Name: WREP Islands Limited
Number: IBC 280400
Jurisdiction of incorporation: British Virgin Islands
Date of incorporation: 20th May 1998
Registered office: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Wickhams Cay 1
Road Town
Tortola BritishVirgin Islands
Share capital:
- authorised: US$ 1,332,560
- issued: US$ 1.332,560
Shareholders:
- names: Fog Capital Group Inc
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
- Shares held: 1,332,560
Directors: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Wijsmuller
R ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Secretary: Whitmill Secretaries Limited
Charges/Debentures:
Debenture dated 28 January 1999 between WREP Islands Limited and Nationwide
Building Society
Legal charge dated 28 January 1999 between WREP Islands Limited and Nationwide
Building Society
Auditors: None.
-21-
SCHEDULE 2
DETAILS OF WREP ISLANDS UGAP LTD
Name: WREP Islands Ugap Ltd
Number: 72552
Jurisdiction of incorporation: Jersey
Date of incorporation: 14th September 1998
Registered office: ▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Share capital:
- authorised: US$ 10,000
- issued: US$ 9,142
Shareholders:
- names: Fog Cap ▇.▇.
▇▇▇▇▇▇▇▇ Nominees Limited
(as nominee of Fog Cap L.P.)
- Shares held: Fog Cap L.P. 9,141
Whitmill Nominees Limited (as nominee of
Fog Cap L.P.) 1
Directors: ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Wijsmuller
R ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Secretary: Whitmill Secretaries Limited
Charges/Debentures:
Legal charge dated 13 November 2000 between Nationwide Building Society and WREP
Islands Ugap Limited
Legal charge dated 5 April 2001 between WREP Islands Ugap Limited, BEP Islands
Limited and WREP Islands Limited
Legal charge dated 13 November 2000 between WREP Islands Ugap Limited and WREP
Islands No2 Limited.
Auditors: None.
-22-
SCHEDULE 3
COMPLETION OBLIGATIONS
1. The Vendors shall each deliver to the Purchaser (or otherwise make
available to the reasonable satisfaction of the Purchaser):
(a) stock transfer forms in respect of the Shares held by them
respectively duly executed by the registered holder(s) in
favour of the Purchaser or to such person or persons as the
Purchaser shall direct together with the relevant share
certificates in the names of such registered holder(s);
(b) the statutory registers and minute books (properly written up
to the time immediately prior to Completion), the common seals
(if any) and the memoranda and articles of association
together with any registered amendments thereto or certified
true copies thereof and the certificates of incorporation of
the Companies shall be delivered by or on behalf of the
Vendors to such registered agent as the Purchaser may appoint;
(c) the written resignations of all persons who are directors or
company secretaries of each of the Companies as at Completion,
containing confirmation that they have no claims (whether
statutory contractual or otherwise) against either of the
Companies for compensation for loss of office or otherwise,
such resignations to take effect on and from Completion;
(d) evidence that any charges referred to in schedules 1 and 2
(together with any other encumbrance created by the Company
over its assets) have been released;
(e) evidence that all the liabilities of the Companies (as set out
in the financial statements of the Companies as at 30
September 2001), including without limitation all loan
arrangements between the Companies, have been released or
otherwise settled in full and that, save in respect of any
matters approved by the Purchaser in respect of the period
from the date of this Deed to Completion, no further
liabilities have been incurred or are likely to be incurred by
the Companies.
(f) if either of the Companies have appointed auditors as at the
time of Completion or at any time since their incorporation,
the written resignations of such auditors together with
evidence reasonably satisfactory to the Purchaser that:
(i) there are no fees or other payments due to them from
either of the Companies; and
(ii) such resignations are valid and effective as
resignations of the auditors of the Companies under
the terms of any applicable law;
(g) the executed Powers of Attorney; and
(h) such other documents as the Purchaser may reasonably require
to enable the Purchaser or its nominees to be registered as
holders of the Shares;
2. The Vendors shall procure a board meeting of each of the Companies to
be held at which:
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(a) the transfers of the Shares will be approved for registration
and to direct that new share certificates are issued
accordingly and the respective registers of members updated;
(b) all resignations provided for above will be tendered and
accepted so as to take effect at the close of the meeting;
(c) all persons nominated by the Purchaser (in the case of
directors subject to any maximum number imposed by the
articles of association of the Companies) will be appointed
additional directors and appointed secretary.
(d) the registered office of the Companies shall be changed in
accordance with the written instructions (if any) given by the
Purchaser to the Vendors prior to Completion.
3. The Purchaser shall pay the Purchase Price in accordance with the
provisions of clause 3.
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SCHEDULE 2
FORM OF OPTION NOTICE
For the attention of
[date]
Dear Sirs
EXERCISE OF OPTION
In accordance with the provisions of clause [4/10] of the Option Agreement dated
[ ] between us and [ ] (the "AGREEMENT") we hereby give notice of exercise of
the [Option/Right of Acquisiton] in respect of the Option Shares.
Completion of the Sale and Purchase Agreement shall take place 5 Business Days
from the date hereof.
Terms defined in the Agreement shall have the same meaning when used herein.
Yours faithfully
Director of [ ]
In its capacity as general partner of the Anglo Aggmore Limited Partnership
-25-
SCHEDULE 3
WARRANTIES
In this schedule "AGREEMENT" shall mean the Sale and Purchase Agreement and the
Option Agreement and "COMPANIES" shall mean the Companies and their subsidiary
undertakings from time to time.
1. SHARE CAPITAL
1.1 Other than pursuant to this Agreement there is no agreement,
arrangement, understanding or obligation requiring the creation, issue,
allotment, sale, transfer, redemption or repayment or the grant to any
person of the right (conditional or not) to require the creation,
issue, allotment, grant, sale, transfer, redemption or repayment of the
Option Shares or any other share or other security in the capital of
either of the Companies (including without limitation any option or
right of pre-emption or conversion).
2. THE COMPANY AND THE OPTION SHARES
2.1 The Option Shares constitute the whole of the issued and allotted share
capitals of the Companies. All of the Option Shares are fully paid or
properly credited as fully paid and the Vendors are the sole legal and
beneficial owners of them.
2.2 There is no charge, pledge or other Encumbrance in relation to or
affecting any of the unissued shares in the capital of either of the
Companies.
2.3 The Companies are not and have not agreed to become the holders or
other owners of any shares debentures or other securities of any body
corporate.
2.4 The Companies have not issued any loan stock or other document or
instrument creating or evidencing indebtedness.
2.5 The registers of members and statutory books of each of the Companies
contain complete, true and accurate records of the members of the
Companies and all the other information which they are required to
contain under any applicable law and are fully, properly and accurately
drawn up to the date of this Agreement and comply with all the
requirements of all applicable laws and all returns particulars
resolutions and other documents required to be delivered by the
Companies to the Registrar of Companies in the relevant jurisdiction
and have been duly delivered within the required time limits and no
fines or penalties are outstanding or known to be due.
2.6 The Company has at no time repurchased or contracted to repurchase any
of its share capital or equity securities.
3. VENDORS' CAPACITY/AUTHORISATION
3.1 The Vendors each have the requisite power and authority under their
respective memoranda and articles of association and have obtained all
corporate authorisations and all other applicable government statutory
regulatory or other consents licences
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waivers or exemptions required to empower them to enter into and
perform their obligations under this Agreement.
3.2 The execution and delivery of, and the performance by each of the
Vendors of their obligations under this Agreement will not result in a
breach of any agreement, arrangement, order, judgment or decree of any
Court or any governmental agency to which the Vendors are parties or by
which the Vendors or any of their assets are bound.
4. BUSINESS OF THE COMPANY
4.1 Save pursuant to the documents listed in Warranty 9 below and other
than in respect of their issued share capitals the Companies have not
ever had and have not agreed to acquire any assets (other than the
Properties) and are not or have not ever been party to any contract
(other than those listed in Warranty number 8 below), arrangement,
agreement, understanding or transaction of whatever nature and whether
in writing or not, contingent or otherwise.
4.2 The Companies have no liabilities (whether actual, accrued, contingent
or disputed and whether incurred on a joint or several basis) in
respect of:
(a) Taxation;
(b) the documents listed in Warranty 9; or
(c) otherwise howsoever arising whether in relation to
indebtedness in the nature of borrowings or otherwise.
4.3 Statements of all the bank accounts and building society accounts and
other investment accounts and of the credit or debit balances thereon
of each of the Companies as at the Business Day prior to the date of
this Agreement are annexed to this Agreement; and neither of the
Companies has any bank, building society, investment or deposit account
(whether in credit or overdrawn) not included in such statement, and
since such statement there have been no payments out of any such
accounts; and there are no unpresented cheques drawn by either of the
Companies for any amount.
4.4 Neither of the Companies has received notice to repay under any
agreement relating to any borrowing or indebtedness in the nature of
borrowing on the part of the Companies which is repayable on demand,
and there has not occurred any event of default under any agreement
relating to any other borrowing or indebtedness in the nature of
borrowing on the part of the Companies or any event which with the
giving of notice and/or the lapse of time and/or a relevant
determination would constitute such an event of default or entitle any
person to require repayment of the same prior to the full term of the
borrowing or indebtedness in the nature of borrowing.
4.5 All charges by or in favour of either of the Companies have been duly
registered in accordance with the provisions of any applicable law in
the relevant jurisdictions or comply with all necessary formalities as
to registration or otherwise in any other relevant jurisdiction; and
the registered particulars of all charges over any assets of either of
the Companies are complete and accurate in all material respects.
4.6 The Companies:-
(a) do not have, have never had and have not agreed to employ any
employees;
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(b) have not given a power of attorney to any person other than
in relation to the execution of documents in relation to the
transactions referred to in this Agreement.
(c) are not and as a result of Completion will not become subject
to a liability to Taxation;
5. THE ACCOUNTS
5.1 True, complete and accurate copies of the balance sheet of each of the
Companies (the "Accounts") are attached to the Disclosure Letter.
5.2 The Accounts:
(a) give an accurate view of the assets and liabilities of the
Companies as at 30 September 2001 (the "Accounts Date") and of
profits for the nine months ended on the Accounts Date;
(b) disclose all the assets of the Companies as at the Accounts
Date;
(c) make full provision for, reserve for or disclose, as
appropriate, all liabilities, whether actual, contingent,
unquantified or disputed, all capital commitments, whether
actual or contingent, and all bad or doubtful debts of the
Companies as at the Accounts Date in each case, in accordance
with all applicable law.
6. COMPLIANCE WITH LAW
The Companies have complied in all material respects with applicable
legal and administrative requirements in any jurisdiction in which they
are incorporated or in which they have carried on business since their
incorporation.
7. INSOLVENCY
7.1 No order has been made, petition presented or threatened or resolution
passed for the winding up of the Companies or either of them or for the
appointment of any insolvency practitioner of any description (whether
provisional or otherwise) pursuant to the law of any jurisdiction in
respect of the Companies or either of them or the whole or any part of
their businesses or assets.
7.2 Both of the Companies are of good standing and all official taxes,
duties fees and other imposts of like nature have been paid in full in
accordance with applicable legislation and all necessary filings have
been made in order to keep them in good standing in their respective
jurisdictions of incorporation.
8. CONTRACTS
Neither the Vendors nor the Companies have any knowledge of the
invalidity of or a ground for termination, avoidance, rescission, or
repudiation of an agreement, arrangement or obligation to which the
Companies or either of them are party. No party with whom the Companies
or either of them have entered into an agreement, arrangement or
obligation has given notice of its intention to terminate or has sought
to avoid, rescind, repudiate or disclaim any such agreement,
arrangement or obligation.
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9. OPERATING HISTORY
Since incorporation the only agreements entered into by the Companies
are the following:
(i) joint venture agreement dated 10 November 2000 and made
between ▇.▇.▇▇▇▇▇▇▇▇▇ Esq (1) WREP Islands Ugap Limited (2)
and WREP Islands Limited (3);
(ii) legal charge dated 13 November 2000 and made between WREP
Islands Ugap Limited (1) and WREP Islands No. 2 Limited (2);
(iii) deed of subordination dated 13 November 2000 and made between
WREP Islands Limited (1), WREP Islands Ugap Limited (2) and
Nationwide Building Society (3);
(iv) deed of priorities dated 13 November 2000 and made between
Nationwide Building Society (1), WREP Islands Limited (2),
WREP Islands Ugap Limited (3) and WREP Islands No. 2 Limited
(4);
(v) legal charge dated 13 November 2000 and made between
Nationwide Building Society (1) and WREP Islands Ugap Limited
(2);
(vi) loan document dated 13 November 2000 and made between WREP
Islands Limited (1) and WREP Islands Ugap Limited (2);
(vii) loan document dated 20 October 2000 and made between
Nationwide Building Society (1) and WREP Islands Ugap Limited
(2);
(viii) legal charge dated 5 April 2001 and made between WREP Islands
Ugap Limited (1), BEP Islands Limited (2) and WREP Islands
Limited (3);
(ix) administration agreement dated 30 June 1998 and made between
WREP Islands Limited (1) and Wilshire Servicing Company UK
Limited (2);
(x) Barclays Bank Treasury Loan dated 29 June 1998 and made
between WREP Islands limited (formerly Myrtle Properties
Limited) (1) and Barclays Bank Plc (2);
(xi) debenture dated 30 June 1998 and made between WREP Islands
Limited (formerly Myrtle Properties Limited) (1) and Barclays
bank Plc (2);
(xii) rate swap instrument dated 1 July 1998 and made between
Barclays Bank Plc (1) and WREP Islands Limited (formerly
Myrtle Properties Limited) (2);
(xiii) deed of subordination dated 28 January 1999 and made between
Wilshire Real Estate Partnership LP (1), WREP Islands Limited
(2) and Nationwide Building Society (3);
(xiv) composite deed of release dated 28 January 1999 and made
between Barclays Bank Plc (1) and WREP Islands Limited (2);
(xv) interest bearing subordinated debt agreement dated 30 June
1998 and made between Wilshire Real Estate Partnership LP (1)
and WREP Islands Limited (2);
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(xvi) sterling loan facility agreement dated 30 November 1998 and
made between Nationwide Building Society (1) and WREP Islands
Limited (2);
(xvii) novation agreement dated 27 January 1999 and made between WREP
Islands Limited (1), Barclays Bank Plc (2) and Nationwide
Building Society (3);
(xviii) debenture dated 28 January 1999 and made between WREP Islands
Limited (1) and Nationwide Building Society (2); and
(xix) legal charge dated 28 January 1999 and made between WREP
Islands Limited (1) and Nationwide Building Society (2)
and no Company has any liability or obligation under any such agreement
which remains to be performed or is outstanding or contingent.
10. INSURANCE
Copies of the Companies insurance polices are attached to the
Disclosure Letter and all premiums due in respect of such policies have
been paid in full and so far as the Vendors are aware there are no
circumstances which entitle the insurers to avoid the insurances
thereon.
11. ASSETS
The Companies have no assets apart from the Properties and do not
require any assets for the proper conduct of their businesses.
12. ENCUMBRANCES
12.1 There are not at today's date Encumbrances of any nature on or
affecting the assets of the Companies or the Properties or any part of
the assets of the Companies or any part of the Properties.
12.2 At the date hereof there are no encumbrances which have been registered
at either Her Majesty's Land Registry or at the Companies Registry and
neither the Vendors nor the Companies are aware of any person who would
be entitled to apply for any such registration.
13. INFORMATION
The information in Schedules 1 and 2 is true and accurate in all
respects.
14. LITIGATION
Neither of the Companies is a party (whether as claimant or defendant
or otherwise) to any claim, litigation, arbitration, prosecution or
other legal or quasi legal proceedings or enquiry and neither of the
Companies has been engaged in any such claim, proceedings or enquiry
during the three years prior to today's date and there are no claims or
actions (whether criminal or civil) pending or, so far as the Vendors
are aware threatened or anticipated by or against either of the
Companies or any of their directors or employees in relation to the
Companies, their businesses or the Properties or in respect whereof
either of the Companies is liable to indemnify any party
-30-
concerned or may be vicariously liable and so far as the Vendors are
aware there are no circumstances likely to give rise to such a claim.
-31-
SCHEDULE 4
THE VENDORS
WREP ISLANDS LIMITED
Fog Cutter Capital Group Inc
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
WREP ISLANDS UGAP LIMITED
Fog Cap L.P.
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
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Signed by )
)
as attorney for and in the name of )
FOG CUTTER CAPITAL GROUP INC ) ▇.▇.▇▇▇▇▇▇▇▇▇▇
in the presence of: )
▇▇▇▇ ▇▇▇▇▇▇
Le Quesne ▇▇▇▇▇▇▇▇
9 Burrard Street
St Helier
Jersey
Signed by )
as attorney for and in the name of ) ▇.▇.▇▇▇▇▇▇▇▇▇▇
FOG CAP L.P. )
in the presence of: )
▇▇▇▇ ▇▇▇▇▇▇
Le Quesne ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
Signed by )
ANGLO IRISH EQUITY LIMITED )
as General Partner for )
THE ANGLO AGGMORE LIMITED PARTNERSHIP )
in the presence of:- )
Director ▇▇▇▇ ▇▇▇▇
Director ▇▇▇▇▇ ▇▇▇▇▇▇
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Signed by )
as attorney for and in the name of )
FOG CUTTER CAPITAL GROUP INC ) ▇.▇.▇▇▇▇▇▇▇▇▇▇
in the presence of:- )
▇▇▇▇ ▇▇▇▇▇▇
Le Quesne ▇▇▇▇▇▇▇▇
9 Burrard Street
St Helier
Jersey
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