NOTES REPURCHASE
AGREEMENT
This NOTES REPURCHASE AGREEMENT (this “
Agreement ”) dated September 22, 2009 is made
by and between China Shen Zhou Mining & Resources, Inc., a
Nevada corporation with limited liability having its registered
office at Zeyang Building, No. 166 Fushi Road, Shijingshan
District, Beijing China, whose shares of commons stocks of are
listed and traded on NYSE-AMEX (the “ Company
”) and Mountview Path Limited, a corporation incorporated
under the laws of the British Virgin Islands and having its
registered office at P.O. Box 957, Offshore Incorporations Centre,
Road Town, Tortola, British Virgin Islands (the “
Seller ”).
RECITALS:
WHEREAS, the Company has issued to Citadel Equity Fund
Ltd. (“ Citadel ”), and Citadel has
purchased from the Company, the Company’s 6.75% Senior
Convertible Notes due 2012 of US$28,000,000 principal amount (the
“ Notes ”) pursuant to that certain Notes
Purchase Agreement dated December 21, 2006 by and between the
Company and Citadel (the “ Notes Purchase
Agreement ”).
WHEREAS, in connection with such transaction, an
Indenture dated December 27, 2006, as amended and supplemented by
the First Supplemental Indenture dated May 17, 2007 and the Second
Supplemental Indenture dated September 28, 2007, (the “
Indenture ”) was entered into by and between
the Company and The Bank of New York (the “
Trustee ”) and a Share Pledge Agreement dated
December 27, 2006 (the “ Share Pledge Agreement
”) was entered into by and among Ms. Xiao Jing Yu and Mr. Xue
Ming Xu (each a “ Pledgor ” and together
the “ Pledgors ”), The Bank of New York,
as collateral agent and Citadel. Capitalized terms that are not
otherwise defined in this Agreement shall have the meanings
ascribed to them in the Indenture or other relevant Transaction
Documents (as that term is defined in the Notes Purchase
Agreement), as applicable.
WHEREAS , Citadel and China Mining Resources Group
Limited, being the holding company of Best Tone Holdings Limited,
entered into that certain Amended and Restated Trade Confirmation
dated April 8, 2009, pursuant to which Citadel agreed to sell,
transfer and deliver to China Mining Resources Group Limited all of
Citadel’s rights and interest in the Notes and all rights and
interest of Citadel under the Transaction Documents (as that term
is defined in the Notes Purchase Agreement).
WHEREAS, Citadel and Best Tone Holdings Limited entered
into that certain Assignment and Assumption Agreement dated as of
April 8, 2009, pursuant to which Citadel agreed to sell, assign,
transfer and deliver to Best Tone Holdings Limited and Best Tone
Holdings Limited thereby agreed to purchase and assume from Citadel
all of the legal and beneficial right, title and interest of
Citadel in the Notes and under the Transaction Documents (as that
term is defined in Notes Purchase Agreement).
WHEREAS , Best Tone Holdings Limited and the Seller
entered into that certain Trade Confirmation dated August 19, 2009,
pursuant to which Best Tone Holdings Limited agreed to sell,
transfer and deliver to the Seller all of Best Tone Holdings
Limited’s rights and interest in the Notes and all rights and
interest of Best Tone Holdings Limited under the Transaction
Documents (as that term is defined in the Notes Purchase
Agreement).
WHEREAS , Best Tone Holdings Limited and the Seller
entered into certain Assignment and Assumption Agreement dated
August 19, 2009, pursuant to which Best Tone Holdings
Limited agreed to sell, assign, transfer and deliver to the
Seller and the Seller thereby agreed to purchase and assume from
Best Tone Holdings Limited all of the legal and beneficial right,
title and interest of Best Tone Holdings Limited in the Notes and
under the Transaction Documents.
WHEREAS, the Company now wishes to repurchase from the
Seller, and the Seller wishes to sell to the Company, the Notes in
an aggregate principal amount of US$28,000,000 (the “
Repurchased Notes ”) upon the terms and
conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
promises, covenants and agreements of the parties contained herein,
the parties hereto agree as follows:
|
|
|
NOTES
REPURCHASE; PAYMENT; CANCELLATION
|
|
|
|
Repurchase and
Sale of the Repurchased Notes. At the closing (the “
Closing ”), the Company shall repurchase the
Repurchased Notes from the Seller and the Seller shall sell to the
Company the Repurchased Notes for an aggregate purchase price of
US$28 million, (the “ Repurchase Price ”)
which shall be satisfied by (i) payment in cash of US$8 million by
the Company to the Seller at Closing and (ii) by the Company
allotting and issuing 5 million shares of the Company’s
common stock at an issued price of US$4 per share to the Seller at
Closing. Notwithstanding any terms of this Agreement, the Seller
shall be entitled to all rights and privileges in respect of the
Repurchased Notes as a noteholder up to and including the Closing
Date (as defined below), except that the right to receive any
Interest and Additional Interest payable on the Repurchased Notes
in respect of any Record Date prior to the Closing Date is waived.
For the avoidance of doubt, except as provided in the preceding
sentence, the Seller shall not be entitled to any accrued and
unpaid Interest on the Repurchased Notes.
|
|
|
|
Closing. The
Closing shall occur at the Beijing office of Cadwalader, Wickersham
& Taft LLP at 2301 China Central Place Tower 2, No. 79 Jianguo
Road, Beijing, or at such other place as the Company and the Seller
shall mutually agree, on November 30, 2009 or such
other date as the parties mutually agree (the “
Closing Date ”).
|
|
|
|
Cancellation of
Notes. On the Closing Date, the Seller shall, against the payment
of the Repurchase Price by the Company, surrender to the Trustee
the respective Repurchased Notes for the prompt cancellation of
such Repurchased Notes by the Trustee pursuant to Section 2.11 of
the Indenture. The Company and the Seller hereby agree to take all
actions necessary and proper in order for the Trustee to promptly
cancel such Repurchased Notes pursuant to this Agreement and the
terms of the Indenture. All costs and expenses for
cancellation of the Repurchased Notes shall be borne by the
Company.
|
|
|
|
Waiver. The
Seller hereby waives, pursuant to Section 6.04 of the Indenture,
all Defaults, Events of Defaults and their consequences, if any, on
the part of the Company for failure to duly observe and perform
covenants set forth in the Indenture (collectively, the “
Waived Matters ”), provided , that this
waiver shall terminate, and be deemed to have never taken effect,
if the Company defaults in its obligations to complete the
repurchase of the Repurchased Notes at the Closing.
|
|
|
|
Forbearance.
The Seller hereby agrees to forbear, and directs the Trustee to
forbear, from taking or exercising any Enforcement Action (as
defined below) in connection with the Waived Matters (the “
Forbearance ”), provided that this
Section 2.2 shall terminate if the waiver is terminated as provided
in 2.1 above. “Enforcement Action” means any
Default-related right, remedy or other action available to the
Seller or the Trustee or aiding and abetting, assisting,
cooperating with or otherwise supporting any other Person in taking
or exercising any Default-related right, remedy or other action
available to such Person.
|
|
|
|
The Pledge
Agreement and the obligations, rights and restrictions thereunder
and in connection therewith on all of the parties thereto are
cancelled as of the Closing Date. The Company and the
Seller hereby agree to take all actions necessary and proper in
order for the Bank of New York, as collateral agent, to promptly
release the security interest created thereunder and to deliver the
Pledged Stock, as defined in the Pledge Agreement, to the relevant
Pledgor. All costs and expenses for the release the security
interest created thereunder and to deliver the Pledged Stock shall
be borne by the Company.
|
|
|
|
SELLER’S REPRESENTATIONS AND
WARRANTIES
|
|
|
|
Seller’s
Authority. The Seller is the beneficial owner of all the
Repurchased Notes, and has all requisite right, power and authority
to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by the Seller and constitutes the legal, valid and
binding obligation of the Seller, enforceable against the Seller in
accordance with its terms.
|
|
|
|
Title to the
Repurchased Notes. The Seller
|
|
