Dated September 13, 2002
(1) WEXFORD GOLDFIELDS LIMITED, as the Borrower
(2) BAYERISCHE HYPO-UND VEREINSBANK AG,
DRESDNER BANK AG LONDON BRANCH,
FORTIS BANK (NEDERLAND) N.V., and
STANDARD BANK LONDON LIMITED, as the Lenders
(3) STANDARD BANK LONDON LIMITED, as the Agent
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WASSA GOLD PROJECT
CONVERSION AGREEMENT
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Mayer, Brown, Rowe & Maw
11 Pilgrim Street
London EC4 6RW
TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND INTERPRETATION.........................................2
2. CONVERSION.............................................................3
3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.........................3
4. NO IMPLIED WAIVERS.....................................................4
5. GENERAL................................................................4
6. ASSIGNMENT.............................................................4
7. COUNTERPARTS...........................................................5
8. GOVERNING LAW AND SUBMISSION TO JURISDICTION...........................5
SCHEDULE INITIAL PERCENTAGE ALLOCATION OF GOLD ROYALTY
-i-
THIS CONVERSION AGREEMENT (as amended, modified or supplemented from time to
time, this "DEED") is made on , 2002
BETWEEN:
(1) WEXFORD GOLDFIELDS LIMITED, a company incorporated under the laws of
the Republic of Ghana (the "BORROWER");
(2) BAYERISCHE HYPO-UND VEREINSBANK AG, DRESDNER BANK AG LONDON BRANCH,
FORTIS BANK (NEDERLAND) N.V. and STANDARD BANK LONDON LIMITED
(collectively, the "LENDERS"); and
(3) STANDARD BANK LONDON LIMITED, a company incorporated under the laws of
England, in its capacity as the Agent under the Loan Agreement (the
"AGENT").
WHEREAS
(A) Pursuant to the terms and conditions of the Loan Agreement, dated 26
June, 2002 (as amended, modified or supplemented from time to time, the
"LOAN AGREEMENT"), between the Borrower, the Lenders and the Agent, the
Lenders have or will advance to the Borrower a Facility B Loan in an
aggregate principal amount of U.S.$5,000,000 for the purposes of
funding the deferred purchase price for an acquisition of assets by the
Borrower.
(B) The parties to the Loan Agreement have agreed that the obligations of
the Borrower to the Lenders in connection with the repayment of the
Facility B Loan (including interest accrued in respect thereof) shall
be satisfied and discharged and replaced by the Borrower's agreement to
pay the gold royalty set forth in the Royalty Agreement, dated the date
hereof (as amended, modified or supplemented from time to time, the
"SECOND ROYALTY AGREEMENT") between the Borrower, the Lenders and the
Agent.
NOW THIS DEED WITNESSES as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
"AGENT" is defined in the preamble;
"BORROWER" is defined in the preamble;
"CONVERSION DATE" means the first date upon which the following
conditions shall have been satisfied:
(a) each Lender shall have received evidence to its satisfaction
(acting reasonably) that all Approvals required for the
performance of the Borrower's obligations (and the receipt by
each party of any payment to be made to each party)
pursuant to the Second Royalty Agreement shall have been
received by such Lender; and
(b) no Default shall have occurred or be continuing.
"DEED" is defined in the preamble;
"GOLD ROYALTY" has the meaning provided in the Second Royalty
Agreement;
"LENDER PARTIES" means, collectively, the Lenders and the Agent;
"LENDERS" is defined in the preamble;
"LOAN AGREEMENT" is defined in Recital (A); and
"SECOND ROYALTY AGREEMENT" is defined in Recital (B).
1.2 INTERPRETATION
(a) capitalised terms used but not defined in this Deed (including
in the preamble hereto) have the same meanings as in the Loan
Agreement and/or the Common Terms Agreement;
(b) this Deed is a Finance Document and shall be interpreted and
construed in accordance with the terms and provisions of the
Loan Agreement and/or Common Terms Agreement (including
Clauses 1.2 to 1.5 thereof which are hereby incorporated into
this Deed with all necessary consequential changes); and
(c) the parties hereto intend that this document shall take effect
as a deed.
2. CONVERSION
(a) With effect from the Conversion Date, each of the parties
hereto agrees that the obligations of the Borrower (to the
extent not already performed) to repay to each Lender the
principal amount of the Facility B Loan and all interest
accrued thereon shall be satisfied and discharged and replaced
by the obligations of the Borrower to pay the Gold Royalty to
each Lender contained in the Second Royalty Agreement as
supplemented by the terms and conditions of this Deed.
(b) The Gold Royalty shall initially be allocated between each
Lender in the percentages set forth in the Schedule to this
Deed. For the avoidance of doubt the obligation of the
Borrower to pay the specified percentage allocation of the
Gold Royalty shall be enforceable by each Lender as an
individual obligation of the Borrower to such Lender.
(c) Except for the obligations discharged pursuant to Clause 2(a),
each of the obligations and liabilities of the Borrower
contained in the Loan Agreement
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shall continue in full force and effect without amendment or
modification of any nature whatsoever.
3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower hereby represents and warrants to each Lender Party on the
date of this Deed in the terms set out below:
(a) each of this Deed and the Second Royalty Agreement constitutes
the Borrower's legal, valid and binding obligations, is within
its powers, has been duly authorised by it and does not and
will not breach its constitutional documents or any other
document binding on it or violate any applicable law, rule or
regulation binding on it; and
(b) it has the power to enter into and perform, and has taken all
necessary action to authorise the entry into, performance and
delivery of each of this Deed and the Second Royalty Agreement
and the transactions contemplated by each of this Deed and the
Second Royalty Agreement.
4. NO IMPLIED WAIVERS
4.1 NO WAIVERS
No failure or delay by any Lender Party in exercising any right, power
or privilege under this Deed shall operate as a waiver thereof nor
shall any single or partial exercise of any right, power or privilege
preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
4.2 RIGHTS CUMULATIVE
The rights and remedies of the Lender Parties provided in this Deed are
cumulative and not exclusive of any rights or remedies provided by law.
4.3 WAIVERS IN WRITING
A waiver given or consent granted by any Lender Party under this Deed
will be effective only if given in writing and then only in the
instance and for the purpose for which it is given.
5. GENERAL
5.1 SEVERABILITY
If a provision of this Deed is or become illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any
other provision of this Deed; or
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(b) the validity of enforceability in other jurisdictions of that
or any other provisions of this Deed.
6. ASSIGNMENT
6.1 ASSIGNMENT BY THE LENDER PARTIES
Any Lender Party may at any time assign or otherwise transfer all or
any part of its rights under this Deed.
6.2 ASSIGNMENT BY THE BORROWER
The Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder.
7. COUNTERPARTS
This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the
same instrument.
8. GOVERNING LAW AND SUBMISSION TO JURISDICTION
8.1 GOVERNING LAW; ENTIRE AGREEMENT
(a) This Deed and all matters and disputes relating hereto shall
be governed by, and construed in accordance with, English law.
(b) This Deed constitutes the entire understanding among the
parties hereto with respect to the subject matter hereof and
thereof and supersede any prior agreements, written or oral,
with respect thereto.
8.2 FORUM SELECTION AND CONSENT TO JURISDICTION; WAIVER OF IMMUNITY
The Borrower irrevocably agrees for the benefit of each of the Lender
Parties that the courts of England shall have non-exclusive
jurisdiction to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with
this Deed and, for such purposes, irrevocably submits to the
non-exclusive jurisdiction of such courts.
8.3 FORUM
The Borrower irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clause 8.2 being nominated
as the forum to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with
this Deed and agrees not to claim that any such court is not a
convenient or appropriate forum.
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8.4 PROCESS AGENT
The Borrower agrees that the process by which any suit, action or
proceeding is begun may be served on it by being delivered in
connection with any suit, action or proceeding in England, to it at:
Moriah Limited (No. 03991620) a company incorporated in
England and Wales and having its registered office at 60A
Manchuria Road, London SW11 6AE,
or, if different, such person's principal place of business in England
for the time being.
8.5 NON-EXCLUSIVE
The submission to the jurisdiction of the courts referred to in Clause
8.2 shall not (and shall not be construed so as to) limit the right of
the Lender Parties or any of them to take proceedings against the
Borrower in any other court of competent jurisdiction nor shall the
taking of proceedings in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction, whether concurrently
or not.
8.6 WAIVER OF IMMUNITY
To the extent that the Borrower may be entitled in any jurisdiction to
claim for itself or its assets immunity from suit, execution,
attachment or other legal process whatsoever, it hereby irrevocably
agrees not to claim and hereby irrevocably waives such immunity to the
fullest extent permitted by the laws of such jurisdiction.
IN WITNESS whereof this Deed has been duly executed and delivered on the day and
year first before written.
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SCHEDULE
Initial Percentage
Lender Allocation of Gold Royalty
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Bayerische Hypo-und Vereinsbank AG 27.272725%
Dresdner Bank AG London Branch 36.363625%
Fortis Bank (Nederland) N.V. 18.181825%
Standard Bank London Limited 18.181825%
SS-1
Signed by: ________________________________ )
a duly authorised representative of and for )
and on behalf of WEXFORD )
GOLDFIELDS LIMITED, as the )
Borrower )
S-1
EXECUTED as a deed on behalf of )
STANDARD BANK LONDON )
LIMITED, as the Agent )
Signature:
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Name Printed:
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Title:
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and
Signature:
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Name Printed:
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Title:
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EXECUTED as a deed on behalf of )
BAYERISCHE HYPO-UND )
VEREINSBANK AG, as a Lender )
Signature:
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Name Printed:
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Title:
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Signature:
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Name Printed:
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Title:
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S-3
EXECUTED as a deed on behalf of )
DRESDNER BANK AG LONDON )
BRANCH, as a Lender )
Signature:
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Name Printed:
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Title:
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Signature:
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Name Printed:
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Title:
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S-4
EXECUTED as a deed on behalf )
of FORTIS BANK (NEDERLAND) N.V., )
as a Lender )
Signature:
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Name Printed:
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Title:
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Signature:
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Name Printed:
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Title:
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S-5
EXECUTED as a deed on behalf of )
STANDARD BANK LONDON )
LIMITED, as a Lender )
Signature:
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Name Printed:
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Title:
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Signature:
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Name Printed:
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Title:
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