Dated March 1, 2002
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
(as Mortgagee)
(1)
and
WEXFORD GOLDFIELDS LIMITED
(as Buyer)
(2)
----------------------------------------
AGREEMENT
FOR THE SALE AND PURCHASE OF
CERTAIN OF THE ASSETS OF
SATELLITE GOLDFIELDS LIMITED
----------------------------------------
THIS AGREEMENT (this "AGREEMENT") is made on the 1st day of March 2002
(1) THE LAW DEBENTURE TRUST CORPORATION P.L.C. of ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "MORTGAGEE") as mortgagee pursuant to a
Debenture dated 28 May 1998 (the "SECURITY") among the Company, Standard
Bank London Limited and the Mortgagee; and
(2) WEXFORD GOLDFIELDS LIMITED whose registered office is at c/
Bentsi-Enchill & Letsa, 1st Floor Teachers' Hall Annex, Education Loop
(Off ▇▇▇▇▇▇ Road), Accra, P.O. Box 1632, Accra, Ghana (the "BUYER").
RECITALS
(A) The Mortgagee has the power pursuant to the Security to sell the Assets.
(B) The Mortgagee has agreed to sell and the Buyer has agreed to purchase
whatever right, title and interest the Mortgagee may have in the Assets.
(C) The Buyer is entering into this Agreement having made such inspection
and investigation of the Assets as it thinks fit, on the basis of a
purchase by the Buyer of the Assets "as is" and in full knowledge and
acceptance of the terms and conditions of this Agreement and the Buyer
acknowledges that, in particular (but without limitation), the price to
be paid for the Assets has been calculated on the acknowledged basis of
the terms and conditions of this Agreement and that since the Buyer is
contracting with an insolvent company the terms and conditions of this
Agreement are reasonable.
1. INTERPRETATION
1.1 In this Agreement the following words and expressions and abbreviations
have the following meanings, unless the context otherwise requires:
"ASSETS" means all those assets listed in Schedule 3 but shall not
include the Excluded Assets (and so that the expression "ASSET" shall
mean any of the Assets);
"BUSINESS" means the operation of the Wassa gold mine carried on by the
Company as of the date of cessation of operations at the Mine subject to
the Lease;
"BUSINESS DAY" means any day which in England and Ghana is neither a
Saturday nor a Sunday nor a bank or other public holiday;
"CASH ASSETS" means the Debts, all accepted bills or notes, cash in hand
or at the bank, the benefit of all outstanding hedging contracts, gold
boxed for shipment, in shipment, on hand and in the process of
refinement;
"CONFIDENTIAL INFORMATION" means any information relating to the
Business that is not publicly known;
"COMPANY" means Satellite Goldfields Limited;
"COMPANY'S GROUP" means each of the Company, its holding companies,
subsidiary undertakings and associated companies and any other
subsidiary undertakings of any such holding companies, all of them and
each of them as the context admits;
"COMPLETION DATE" means the date of this Agreement;
"CONSIDERATION" means the sum determined by the Valuer in accordance
with clauses 4 and 6 and to be paid on the date specified in clause 4;
"CONTRACTS" means the contracts entered into by the Company for the sale
of goods and the provision of services by or to the Company in
connection with the Business which at the Completion Date remain to be
performed in whole or in part by the Company (excluding for the
avoidance of doubt, the Lease);
"DEBTS" means the book and other debts owing to the Company at the
Completion Date in connection with the Business and all sums due or
which with only the passing of time and the submission of invoices will
become due to the Company under the Contracts whether invoiced or not up
to and including the Completion Date;
"EMPLOYEES" means all those employees of the Company as at the
Completion Date;
"EXCLUDED ASSETS" means the Lease and the Mine, the Shares, the
Contracts, the lease of the Company's office in Accra and all immovable
assets of the Company;
"GOLD INVENTORY" means all gold held by the Company on the Completion
Date as gold lock up in ore stockpiles and heap ▇▇▇▇▇ pads, gold in
solution ponds, gold on carbon, gold on cathodes and any other gold on
the property not smelted and boxed ready for shipment to the refiner;
"GOODWILL" means the goodwill of the Company in relation to the
Business;
"GOVERNMENT" means the duly constituted government of the Republic of
Ghana or any political subdivision thereof, whether central, regional,
district or local, or any judicial body, agency or instrumentality of
any such government or political subdivision (and is deemed to include,
for the purposes of any required approval to be obtained hereunder, the
Bank of Ghana);
"INTELLECTUAL PROPERTY RIGHTS" means the rights owned by the Company's
Group and used exclusively in connection with the Business and to
patents, trade marks, copyrights, designs, know-how and other similar
rights (whether or not registered) and any applications for the
protection or registration of such rights as at Completion Date;
"INVENTORY" means all inventory owned by the Company at the Completion
Date;
"LEASE" means the lease dated 17 September 1992 between the Government
of Ghana and the Company and with the registration number 2033/1994,
particulars of which are set out in Schedule 2;
"MINE" means the Wassa gold mine, located in South West Ghana on the
Wassa shear zone, particulars of which are set out in Schedule 2;
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"PARTIES" means each of the Mortgagee and the Buyer and "PARTY" shall
mean any one of them;
"RELATED PERSONS" means in relation to any party its holding companies
and the subsidiary undertakings from time to time of any such holding
companies, all of them and each of them as the context admits;
"SHARES" means 90% of the issued capital of the Buyer;
"STANDARD BANK" means Standard Bank London Limited; and
"VALUER" means Ronan Stack of ATIS Real Watheralls, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇.
2. INTERPRETATION
2.1 In this Agreement:
(a) any reference to any statute or statutory provision shall include
any statute or statutory provision which amends or replaces, or
has amended or replaced, it, and vice versa, and shall include
any rules, regulations or subordinate legislation made under the
relevant statute provided however that, as between the Parties,
no such amendment or replacement shall apply for the purposes of
this Agreement to the extent that it would impose any new or
extended obligation, liability or restriction on, or otherwise
adversely affect the rights of any Party;
(b) a person shall be deemed to be connected or associated with
another if that person is an associate of the other within the
meaning of Section 435 of the Insolvency ▇▇▇ ▇▇▇▇;
(c) a document specified to be in the "AGREED FORM" is a reference to
that document in the form approved and signed by or on behalf of
each Party for the purpose of identification;
(d) the expressions "ACCOUNTING REFERENCE DATE", "ALLOTMENT", "BODY
CORPORATE", "DEBENTURES", "HOLDING COMPANY", "SUBSIDIARY",
"SUBSIDIARY UNDERTAKING" and "WHOLLY OWNED SUBSIDIARY" shall have
the meaning giving in the Companies ▇▇▇ ▇▇▇▇;
(e) reference to a "COMPANY" shall be construed so as to include any
company, corporation or other body corporate, wherever and
however incorporated or established;
(f) references to this Agreement shall include any Recitals and
Schedules to it and references to Clauses and Schedules are to
Clauses of and Schedules to this Agreement;
(g) use of any gender includes the other genders;
(h) references to a "PERSON" shall be construed so as to include any
individual, firm, company or other body corporate, government,
state or agency of a state,
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local or municipal authority or government body or any joint
venture, association or partnership (whether or not having
separate legal personality);
(i) any reference to a "DAY" (including within the phrase "BUSINESS
DAY") shall mean a period of 24 hours running from midnight to
midnight;
(j) a reference to any other document referred to in this Agreement
is a reference to that other document as amended, varied, novated
or supplemented (other than in breach of the provisions of this
Agreement) at any time;
(k) headings and titles are for convenience only and do not affect
the interpretation of this Agreement;
(l) a reference to any statute statutory instrument, regulation,
bylaw or other requirement of English law or any English legal
term for any action, remedy, method of judicial proceeding, legal
document, legal status, court, official or any legal concept or
thing shall in respect of any jurisdiction other than England be
treated as a reference to that which most nearly approximates in
that jurisdiction to the relevant requirement of English law or
English legal term;
(m) general words shall not be given a restrictive meaning by reason
of the fact that they are followed by particular examples
intended to be embraced by the general words; and
(n) a reference to "$" or "DOLLARS" shall be a reference to the
lawful currency of the United States of America.
3. SALE AND PURCHASE OF THE ASSETS
3.1 The Mortgagee shall sell and the Buyer shall purchase such right, title
and interest as the Mortgagee may have in the Assets with effect from
the date of this Agreement.
3.2 Nothing in this Agreement shall impose any liability upon the Buyer for
any liability of the Company or the Mortgagee existing prior to the
Completion Date.
4. CONSIDERATION PAYABLE BY THE BUYER
4.1 The Consideration for the Assets shall be a sum equal to the fair market
value of the Assets as at the date hereof to be determined by the Valuer
in accordance with Clause 6.
4.2 Subject to Clause 6, the Consideration shall be payable by cash on:
(a) that day falling three calendar months after the date of
this Agreement; or
(b) such earlier date as the Buyer may in its absolute
discretion determine; and
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shall be paid by CHAPS transfer to such account as the Mortgagee has
notified in writing is to be used for the purpose of the payment and
shall be paid without deduction, withholding, set-off or counterclaim
whatsoever.
4.3 The Mortgagee is authorised to receive payment of the Consideration and
receipt by the Mortgagee shall be a sufficient discharge for the Buyer
of its obligations with respect to such payment and the payment of the
Consideration.
4.4 If payment of the Consideration falls due on a day which is not a
Business Day, payment shall be made on the following Business Day.
5. COMPLETION
5.1 The Completion shall take place immediately following the signing of
this Agreement at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Letsa.
5.2 At Completion the Buyer shall deliver to the Mortgagee evidence in a
form satisfactory to the Mortgagee that the Government of the Republic
of Ghana holds not less than a 10% shareholding in the equity of the
Buyer.
5.3 Upon receipt of the document referred to under Clause 5.2, the Mortgagee
shall deliver or give possession of the Assets to the Buyer and title
(but not risk) to the Assets shall pass to the Buyer at Completion.
5.4 Risk in the Assets shall pass to the Buyer when payment of the
Consideration is made pursuant to Clause 4.2.
6. VALUATION OF THE CONSIDERATION
6.1 The Mortgagee and the Buyer shall procure that the Valuer shall prepare
and deliver to the Mortgagee and the Buyer for review a draft valuation
of the fair market value of the Assets as at the date hereof as soon as
practicable following execution of this Agreement and in any case within
the period of 30 business days thereafter (the "DRAFT VALUATION
CERTIFICATE");
6.2 The Mortgagee and the Buyer shall be entitled to examine all the working
papers and other data and records relating to the preparation of the
Draft Valuation Certificate with a view to satisfying themselves that it
has been duly prepared in accordance with this Agreement. Each of the
Mortgagee and the Buyer shall then within ten Business Days following
the Draft Valuation Certificate either:-
6.2.1 confirm in writing to the other parties to this Agreement that it
agrees that the Draft Valuation Certificate has been duly
prepared and determined in accordance with this Agreement; or
6.2.2 give notice in writing to the other parties to this Agreement why
it is unable so to confirm.
6.3 If the Mortgagee or the Buyer fail to so confirm or to give such notice
in accordance with Clause 6.2, the Draft Valuation Certificate shall be
conclusively deemed to have been accepted and agreed by the relevant
party.
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6.4 If the Mortgagee or the Buyer gives notice in accordance with Clause
6.2.2, the Valuer shall give consideration to the reasons which have
been submitted in any such notice, (the "SUBMISSIONS") and shall
determine the Draft Valuation Certificate finally within the period of
14 Business Days of the expiry of the period specified under Clause 6.2.
In making such determination the Valuer shall act as an expert and not
as an arbitrator and his decision shall (in the absence of manifest
error) be final and binding on the parties. The parties shall procure
that the Valuer is allowed access to such working papers and other data
and records as he may reasonably request for the purposes of making such
determination.
7. THIRD PARTY ITEMS AND RETENTION OF TITLE
7.1 The Buyer hereby acknowledges that it may be given possession of certain
assets pursuant to the terms of this Agreement which are subsequently
found by the Buyer not to be beneficially owned by the Mortgagee or the
Company. In respect of such assets, the Buyer undertakes that it will
not hold itself out following discovery of such fact as the owner of
such assets nor sell, offer for sale, assign, discharge, pledge, create
or permit the creation of a lien on or otherwise deal with such assets
and that it will keep such assets in its possession and in as good
repair and condition they were in when such claim or fact came to its
notice. The Buyer further undertakes that it will deliver possession of
such assets to the owners of such assets forthwith on demand and the
Buyer agrees to indemnify and keep the Mortgagee, the Company and each
of their agents fully and effectively indemnified against all claims,
costs, demands, liabilities, actions and expenses of whatsoever nature
and howsoever arising in connection with any breach by the Buyer of its
obligations under this Clause.
7.2 If any of the assets which are subject to the terms and conditions of
this Agreement are affected by any claim for a lien, charge or retention
of title arising by reason of the conditions of sale and purchase under
which the Company agreed or purported to purchase the same and such
claim(s) are advised to be valid by the Mortgagee's solicitors, then,
upon the Mortgagee communicating such advice to the Buyer, the Buyer
shall, at its option, either:
(a) discharge such claim forthwith by paying the relevant person
therefore; or
(b) deliver the assets (which are the subject of such claim)
forthwith to the relevant person,
and shall, in any event, indemnify and keep the Mortgagee fully and
effectively indemnified against all claims, costs, demands, liabilities,
actions and expenses of whatsoever nature and howsoever arising in
connection with any breach by the Buyer of its obligations under this
Clause. It is agreed, for the avoidance of doubt, that in no event shall
the Buyer have any right to a refund in respect of any item affected by
this Clause nor any right of rescission.
8. EMPLOYEES
8.1 The Mortgagee and the Buyer hereby agree and acknowledge that the
contracts of employment of the Employees shall neither transfer to the
Buyer nor be terminated by the sale and purchase of the Assets hereunder
but shall continue until terminated by the Mortgagee at its sole
discretion.
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9. GOODWILL
The Buyer acknowledges that the name "WASSA" and the rights therein
(including without prejudice to the generality of the foregoing the
right to use the name "WASSA" in relation to the Business and the
Contracts) is not the property of the Mortgagee or the Company and that
accordingly any use of the name "WASSA" by the Buyer shall be at the
Buyer's own risk.
10. EXCLUSION OF WARRANTIES
10.1 Save for the provisions of Clause 10.6, all other representations,
warranties and conditions, express or implied and whether statutory or
otherwise are expressly excluded (including without limitation,
warranties and covenants for or as to title of the Assets, freedom from
encumbrances, quiet possession, further assurance, satisfactory quality,
fitness or purchase and description) in relation to the sale of the
Assets hereunder. It is agreed by the Buyer that the provisions of this
Agreement are fair and reasonable in the context of a sale of the
business and assets of an insolvent company and particularly having
regard to the following matters, namely:
(a) that the Mortgagee has specifically informed the Buyer that the
Buyer must rely absolutely on its own opinion and/or that of its
professional advisers concerning the Assets and the quality,
state and condition of the same, their fitness and/or suitability
for any purpose, the possibility that some or all of them may
have defects not apparent on inspection and examination (which
could render it inappropriate that they should be described as
they are in fact described in this Agreement) or the reasons that
the Buyer has or should have for purchasing the Assets and the
use to which the Buyer intends or should intend to put them;
(b) that the Buyer has, and has informed the Mortgagee that it has
skilled professional advice available to it concerning the Assets
and the matters referred to in sub-Clause 10.1(a) above, that it
is on the basis of this advice that the Buyer has agreed to
purchase the Assets on an "as is" basis for a consideration
calculated to take into account (inter alia) the risk to the
Buyer represented by this Agreement, the Mortgagee making it
clear that on any other basis they would not have agreed to sell
the same except for a much higher consideration;
(c) that the Buyer and its professional advisers have been given
every opportunity it or they may wish to examine and inspect the
Mine and all or any of the Assets and all or any books, records
and documents relating thereto; and
(d) that the Company is insolvent; and
(e) that the knowledge of the Assets available to the Mortgagee and
its staff, agents and advisers, is in each case, necessarily
limited.
10.2 The Buyer acknowledges, for the avoidance of doubt, that if it shall be
found that the Mortgagee does not have title or unencumbered title to
any or all of the Assets this shall not be a ground for rescinding,
avoiding or varying any or all of the provisions
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hereof or for the recovery of any or all of the consideration paid by
the Buyer hereunder.
10.3 The exclusion of liability set out in this clause shall arise and
continue notwithstanding the termination of the agency of the Mortgagee
before or after the signing of this Agreement and shall operate in
favour of the Mortgagee as waivers of any claims in tort as well as
under the law of contract and such exclusions shall be in addition to
and not in substitution for and notwithstanding any right of indemnity
or relief otherwise available to the Mortgagee.
10.4 The Buyer accepts and agrees that it shall be its responsibility and at
its expense to apply for and obtain all necessary or appropriate
licences, protection orders, legally required consents, permits and
rights to use or have the benefit of the Assets and the Buyer undertakes
to indemnify and keep the Mortgagee fully and effectively indemnified
against all claims, costs, demands, liabilities, actions and expenses of
whatsoever nature and howsoever arising by reason of any infringement of
any third party rights in the course of the use of the Assets by the
Buyer in breach of any duty or requirement of whatever kind or howsoever
and whenever arising.
10.5 For the avoidance of doubt:
(a) the exclusions and limitations in Schedule 1 shall also apply to
this Agreement; and
(b) in no circumstances shall the liability of the Mortgagee arising
out of or in connection with this Agreement exceed the
consideration paid by the Buyer for the Assets.
11. BOOKS AND RECORDS
Title to the books, documents, files and records of either the Company
or the Mortgagee in so far as they relate to the Assets are not the
subject of any sale or assignment to the Buyer hereunder. For a period
of 18 months from the Completion Date or until such time as the Company
goes into liquidation or, if earlier, at all reasonable times during
usual business hours on prior reasonable written notice having been
given by the Buyer to the Mortgagee, the Buyer shall be given reasonable
access by the Mortgagee to such records and documents of the Mortgagee
relating to the Business as the Buyer may reasonably require for
inspection and use by the Buyer. During such period the Buyer shall be
entitled to take and retain such copies and compile such extracts from
such records at its own expense as it may reasonably require in order to
properly deal with the Assets following the Completion Date and subject
to honouring any applicable confidentiality obligations. The Mortgagee
undertakes not to destroy any of its books, documents, files and records
compiled in relation to the Assets without first giving 30 days notice
in writing to the Buyer of their intention to do so.
12. CONFIDENTIAL INFORMATION
12.1 The Mortgagee shall not use or disclose to any person any Confidential
Information.
12.2 Clause 12.1 does not apply to:
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(a) disclosure of Confidential Information to or at the written
request of the Buyer;
(b) use or disclosure of Confidential Information required to be
disclosed by law, the Dublin Stock Exchange, the rules or
standards of the London Stock Exchange, the listing rules of the
UK Listing Authority or any other regulatory body;
(c) disclosure of Confidential Information to professional advisers
for the purpose of advising the Mortgagee; or
(d) Confidential Information which is in the public domain other than
by the Mortgagee's breach of Clause 12.1.
13. ANNOUNCEMENTS
13.1 No Party shall disclose the making of this Agreement nor its terms nor
any other agreement referred to in this Agreement (except those matters
set out in the press release in the agreed form) unless agreed in
writing by the other Parties (such agreement not to be unreasonably
withheld) and each Party shall procure that each of its Related Persons
shall not make any such disclosure without the prior consent of the
other Parties unless disclosure is:
(a) to its professional advisers; or
(b) required by law; or
(c) required by the rules or standards of the London Stock Exchange,
the Dublin Stock Exchange or the Listing Rules of the UK Listing
Authority or the rules and requirements of any other regulatory
body and disclosure shall then only be made by that Party:
(i) after it has taken all such steps as may be reasonable in
the circumstances to agree the contents of such
announcement with the other Parties before making such
announcement and provided that any such announcement shall
be made only after notice to the other Parties; and
(ii) to the person or persons and in the manner required by law
or the rules of the Dublin Stock Exchange, the London
Stock Exchange or the UK Listing Authority or such other
regulatory body or as otherwise agreed between the
Parties.
13.2 The restrictions contained in Clause 13.1 shall apply without limit of
time.
14. ASSIGNMENT
14.1 This Agreement is personal to the Parties and accordingly, subject to
Clauses 14.2 and 14.3, the Buyer may not without the prior written
consent of the Mortgagee assign, transfer or declare a trust of the
benefit of all or any of the Buyer's obligations nor any benefit arising
under this Agreement.
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14.2 Following Completion, the Buyer shall be entitled to charge and/or
assign the benefit of all (but not part) of its rights under this
agreement (the "RIGHTS") (in each case by way of security) to a bank or
financial institution that provides facilities to the Buyer or acts as
facility agent and security trustee or security agent by way of security
for the indebtedness of the Buyer incurred in connection with the
acquisition of the Business and Assets (provided always that the Buyer
shall procure that the Rights may not be further charged or assigned to
any third party except pursuant to Clause 14.3 below).
14.3 The person to whom the Rights have been charged or assigned in
accordance with Clause 14.2 above or any administrative receiver
appointed by it or other person appointed to enforce any such security
may charge or assign all but not part of the Rights to any third party
for the purpose of or in connection with such enforcement.
14.4 The Company has charged and/or assigned the benefit of all of its rights
(but none of its obligations) under this Agreement and the Buyer hereby
acknowledges and consents such charge and assignment.
15. COSTS
Unless expressly otherwise provided in this Agreement each of the
Parties shall bear its own legal, accountancy and other costs, charges
and expenses in connection with the sale and purchase of the Assets.
16. EFFECT OF COMPLETION
The terms of this Agreement (insofar as not performed at the Completion
Date and subject as specifically otherwise provided in this Agreement)
shall continue in force after and notwithstanding Completion.
17. FURTHER ASSURANCES
Following the Completion Date, the Mortgagee shall, at the sole expense
of the Buyer and subject to the provisions of this Agreement, execute
such further assurances and do such further acts and things (insofar as
it may be reasonably able and empowered so to do) as shall be reasonably
necessary for the purpose of transferring to the Buyer all of the
Mortgagee's right, title and interest in and to the Assets provided that
this shall not oblige the Mortgagee to become a party to any litigation
or arbitration proceedings and provided further that no document
executed pursuant to this Clause shall confer or have the effect of
conferring on the Buyer any additional right or rights not conferred by
this Agreement against the Mortgagee. The obligations of the Mortgagee
under this Clause shall cease six months from Completion.
18. ENTIRE AGREEMENT
This Agreement (including all documents to be executed pursuant to this
Agreement) contain the whole agreement between the Parties relating to
the subject matter of this Agreement and no variation of this Agreement
shall be effective unless in writing and signed by or on behalf of each
of the Parties to this Agreement.
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19. WAIVER
19.1 A waiver of any term, provision or condition of, or consent granted
under, this Agreement shall be effective only if given in writing and
signed by the waiving or consenting Party and then only in the instance
and for the purpose for which it is given.
19.2 No failure or delay on the part of any Party in exercising any right,
power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
20. INVALIDITY
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction:
(a) the validity, legality and enforceability under the law of that
jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any
other jurisdiction of that or any other provision,
shall not be affected or impaired in any way.
21. NOTICES
21.1 Any notice, demand or other communication given or made under or in
connection with the matters contemplated by this Agreement shall be in
writing and shall be delivered personally or sent by fax or prepaid
first class post:
In the case of the Buyer to: Wexford Goldfields Limited
c/ Bentsi-Enchill & Letsa
1st Floor Teachers' Hall Annex
Education Loop (Off ▇▇▇▇▇▇ Road),
Accra
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇
Fax: 00 233 21 226 129
Attention: Company Secretary
In the case of the Mortgagee to: The Law Debenture Trust Corporation
p.l.c.
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇ ▇▇ (▇)▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
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and shall be deemed to have been duly given or made as follows:
(a) if personally delivered, upon delivery at the address of the
relevant Party;
(b) if sent by first class post to an address within Ghana, ten
Business Days after the date of posting;
(c) if sent by first class post to an address outside Ghana, two
Business Days after the date of posting;
(d) if sent by air mail, five Business Days after the date of
posting; and
(e) if sent by fax, when despatched;
provided that if, in accordance with the above provisions, any such
notice, demand or other communication would otherwise be deemed to be
given or made outside 9.00 a.m. - 5.00 p.m. on a Business Day such
notice, demand or other communication shall be deemed to be given or
made at 9.00 a.m. on the next Business Day.
21.2 A Party may notify the other Party to this Agreement of a change to its
name, relevant addressee, address or fax number for the purposes of
Clause 21.1 provided that such notification shall only be effective:
(a) on the date specified in the notification as the date on which
the change is to take place; or
(b) if no date is specified or the date specified is less than five
Business Days after the date on which notice is given, the date
falling five Business Days after notice of any such change has
been given.
22. THIRD PARTY RIGHTS
The terms of this Agreement may be enforced only by a Party to it and
shall not create any rights in favour of any third parties whether under
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ or otherwise save and
except for those granted to the Mortgagee. Notwithstanding any provision
of this Agreement, the Parties do not require the consent of any third
party to rescind or vary this Agreement at any time.
23. COUNTERPARTS
This Agreement may be executed in any number of counterparts which
together shall constitute the Agreement. Any Party may enter into this
Agreement by executing a counterpart and this Agreement shall not take
effect until it has been executed by all Parties.
24. GOVERNING LAW AND JURISDICTION
24.1 This Agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this Agreement
or its formation) shall, except to the extent otherwise agreed by the
Parties in writing, be governed by and construed in accordance with
English law.
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24.2 Except to the extent otherwise agreed by the Parties in writing:
(a) the courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "DISPUTE");
(b) the Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary;
(c) each Party irrevocably waives any objection which it may have now
or hereafter to proceedings being brought in the courts of
England, and any claim that proceedings have been brought in an
inconvenient forum. Each Party further irrevocably agrees that a
judgment in any proceedings in the courts of England shall be
conclusive and binding upon each Party and may be enforced in the
courts of any other jurisdiction.
24.3 Without prejudice to any other mode of service allowed under any
relevant law, the Buyer and the Mortgagee:
(a) each irrevocably appoints Law Debenture Corporate Services
Limited of ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
respectively as its agent for service of process in relation to
any proceedings before the English courts in connection with this
Agreement; and
(b) each agrees that failure by a process agent to notify it of the
process will not invalidate the proceedings concerned.
If the appointment of a person mentioned in this Clause 24.3 ceases to
be effective, the relevant Party shall immediately appoint another
person in England as its agent for service of process in relation to any
proceeding before the English courts in connection with this Agreement.
If the relevant Party fails to do so (and such failure continues for a
period of not less than 15 Business Days), the other Party shall be
entitled to appoint such a person by notice to the relevant Party.
IN WITNESS whereof this Agreement has been executed on the date first above
written.
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SCHEDULE 1
EXCLUSIONS
1. The interest in the Assets which the Mortgagee sells and the Buyer buys
is such right, title and interest as the Mortgagee may have at the
commencement of business on the date hereof.
2. Save as expressly provided in this Agreement the Assets are sold in
their present state and condition, and whereabouts, and subject to all
faults and to any extant lien, distraint, execution or detention, or
claims of third parties over them or in respect of their use the cost of
discharging or compromising any or all of which shall be for the account
of the Buyer. The Buyer accepts that it has had opportunity to inspect
the Assets, as have its advisers, and the Buyer acknowledges and agrees
that it has satisfied itself as to the state and condition, and
whereabouts of the Assets and as to their fitness for such purpose or
purposes as the Buyer may intend to use them, and as to their
correspondence with any description given or to be implied.
3. It is accepted that no reliance has been placed in regard to the matters
referred to in Clause 10.1 of the Agreement on any statement, or
silence, of the Mortgagee or of their respective employees, solicitors,
advisers, valuers, agents, partners or representatives.
4. Any claim of the Buyer, or of any person claiming through it, against
the Company or the Mortgagee shall not take effect otherwise than as an
unsecured claim.
5. The exclusions of liability in this Schedule and this Agreement shall
arise and continue notwithstanding the entry into receivership,
administration or liquidation of the Mortgagee before or after the
signing of this Agreement, and shall operate as waivers of any claims in
tort as well as under the law of contract. Such exclusions shall be in
addition to, and not in substitution for and notwithstanding any right
of indemnity or relief otherwise available to the Mortgagee. They shall
continue as well after as before completion of this Agreement in whole
or in part.
6. Except as expressly provided in this Agreement, the Mortgagee shall not
incur any liability to the Buyer by reason of any act or omission, or
negligence or default, of any officer or employee, that expression
including anyone under a contract for services, as well as of service,
the Mortgagee whose services may be made available to the Buyer on a
sub-contract basis from time to time.
7. Save as expressly provided in this Agreement nothing in this Agreement
is to require either the Mortgagee or the Buyer to discharge in whole or
in part any liability of the Company outstanding at Completion.
8. If any of the provisions of this Agreement is held not to be valid but
would be valid if part of the wording were deleted or modified, then
such provision shall apply with such modification as may be necessary to
make it enforceable.
9. Nothing in this Agreement shall, in the absence of an express provision
to the contrary herein contained, require the Mortgagee to carry out or
continue to carry out
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any arrangement or contract, whether single or of continuing effect,
with third parties and whether in relation to the Mine or any of the
Assets or otherwise
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SCHEDULE 2
THE LEASE AND THE MINE
A certified copy of the Lease has been delivered to the Buyer including full
particulars of the Mine.
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SCHEDULE 3
ASSETS
All right, title and interest of the Mortgagee in all movable property for the
purposes of the laws of Ghana including, but not limited to, each of the
moveable items of plant and equipment detailed in the asset register forming
Annexure 1 to this Agreement (but excluding all cash on and/or at bank other
than the Transferred Cash), the Intellectual Property Rights, the Inventory, the
Gold Inventory, the Cash Assets and each other moveable asset (for the avoidance
of doubt for the purposes of the law of Ghana) other than the Excluded Assets
owned by the Company as at the Completion Date.
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)
SIGNED BY )
)
under power of attorney for and on )
behalf of WEXFORD GOLDFIELDS LIMITED
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)
SIGNED BY )
for and on behalf of THE LAW DEBENTURE )
TRUST CORPORATION P.L.C. )
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ANNEXURE 1
ASSET REGISTER
AS ATTACHED
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