EXHIBIT 10.30
LOAN AND STOCK PURCHASE AGREEMENT
among
RESOURCE CAPITAL FUND L.P.
and
ST. ▇▇▇▇ ▇▇▇▇ & EXPLORATION COMPANY
and
ST. ▇▇▇▇ MINERALS INC.
Dated June 25, 1999
TABLE OF CONTENTS
Page
----
1. DEFINITIONS..............................................................2
2. SALE AND TRANSFER; CLOSING6
2.1 Loan Portion and Security Interest.................................6
2.2 Summo Shares.......................................................6
2.3 Purchase Price.....................................................6
2.4 Closing............................................................6
2.5 Closing Obligations................................................6
3. REPRESENTATIONS AND WARRANTIES OF SELLER.................................7
3.1 Organization and Good Standing.....................................7
3.2 Corporate Power and Authority......................................7
3.3 Enforceability.....................................................7
3.4 No Conflict........................................................8
3.5 Certain Proceedings................................................8
3.6 Regulatory Approvals...............................................8
3.7 No Commissions.....................................................8
3.8 Recitals...........................................................9
3.9 Amendment of Loan Documents; Other Security Interests..............9
3.10 Ownership of the Loan Documents and Summo Shares...................9
3.11 Loan Agreements Free of Default; No Defenses to Collection.........9
3.12 Transferability of Summo Shares....................................9
4. REPRESENTATIONS AND WARRANTIES OF BUYER..................................9
4.1 Good Standing......................................................9
4.2 Authority; Enforceability..........................................9
4.3 No Conflict; Consents.............................................10
4.4 Certain Proceedings...............................................10
4.5 Brokers or Finders................................................10
5. COVENANTS OF SELLERS PRIOR TO CLOSING DATE..............................10
5.1 Delivery of Documents; Access to Records..........................10
5.2 Notification......................................................10
5.3 Best Efforts......................................................11
6. COVENANTS OF BUYER PRIOR TO CLOSING DATE................................11
6.1 Best Efforts......................................................11
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE.....................11
7.1 Accuracy of Representations.......................................11
7.2 Sellers' Performance..............................................11
7.3 Amended and Restated Credit Agreement.............................12
Page
----
8. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE....................12
8.1 Accuracy of Representations.......................................12
8.2 Buyer's Performance...............................................12
8.3 Amended and Restated Credit Agreement.............................12
9. TERMINATION.............................................................12
9.1 Termination Events................................................12
9.2 Effect of Termination.............................................13
10. FURTHER AGREEMENTS OF SELLERS AND BUYER.................................13
10.1 Agreement Regarding Share or Loan Sales...........................13
10.2 Lenders Agreement.................................................14
11. GENERAL PROVISIONS......................................................14
11.1 Expenses..........................................................14
11.2 Notices...........................................................14
11.3 Jurisdiction; Service of Process..................................15
11.4 Further Assurances................................................16
11.5 Waiver............................................................16
11.6 Entire Agreement and Modification.................................16
11.7 Assignments, Successors, and No Third-party Rights................16
11.8 Severability......................................................17
11.9 Section Headings, Construction....................................17
11.10 Time of Essence...................................................17
11.11 Governing Law.....................................................17
11.12 Counterparts......................................................17
LOAN AND STOCK PURCHASE AGREEMENT
This Loan and Stock Purchase Agreement ("Agreement") is made as of June
25, 1999, by and among Resource Capital Fund L.P., a Cayman Islands limited
partnership ("Buyer"), St. ▇▇▇▇ ▇▇▇▇ and Exploration Company, a Delaware
corporation ("St. ▇▇▇▇"), and St. ▇▇▇▇ Minerals Inc., a Colorado corporation
("St. ▇▇▇▇ Minerals," with St. ▇▇▇▇ and St. ▇▇▇▇ Minerals sometimes referred to
together as "Sellers").
RECITALS
A. Sellers made a series of loans (the "Loans") to Summo USA Corporation, a
Colorado corporation ("Summo USA") and Summo Minerals Corporation, a British
Columbia corporation ("Summo") (collectively, the "Borrowers"), on a joint and
several liability basis. The Loans are evidenced by various Promissory Notes of
the Borrowers payable to the order of Sellers and executed between October 1,
1997 and January 1, 1999 (collectively, the "Notes"). A schedule of the Notes is
attached hereto as Exhibit 1. The Notes were issued pursuant to a series of
credit agreements between Sellers and Borrowers executed between May 15, 1997
and January 25, 1999 (collectively, the "Loan Agreements"). A schedule of the
Loan Agreements is attached hereto as Exhibit 2.
B. The total principal amount and unpaid interest outstanding on the Notes as of
April 30, 1999 is US$3,459,101.
C. Pursuant to the Loan Agreements, Borrowers caused to be assigned and
delivered to Sellers certain collateral security documents executed by Summo,
Summo USA and the Borrowers, including a Pledge and Security Agreement of Summo
USA and Lisbon Valley Mining Co. LLC, a Utah limited liability company ("Lisbon
Valley"), a Deed of Trust, Assignment of Rents and Security Agreement of Lisbon
Valley and related Uniform Commercial Code ("UCC") Financing Statements
(collectively, the "Security Documents"). A schedule of the Security Documents,
including recording and filing information, is attached hereto as Exhibit 3.
D. The Notes, the Loan Agreements and the Security Documents collectively are
referred to herein as the "Loan Documents."
E. By this Agreement Sellers and Buyer wish to evidence their agreement whereby:
(a) Sellers will sell, assign and transfer to Buyer a US$ 2,059,101 portion of
their collective rights in the Loan Agreements and Notes (the "Loan Portion");
(b) Sellers will sell, assign and transfer to Buyer an undivided interest in the
Security Documents (the "Security Interest") such that the interests of the
Buyer and Sellers under the Loan Documents are secured pari passu by the
Security Documents; (c) Buyer will purchase and acquire the Loan Portion from
Sellers; and (d) Buyer will purchase and acquire the Security Interest from
Sellers.
F. By this Agreement St. ▇▇▇▇ and Buyer also wish to evidence their agreement
whereby: (a) St. ▇▇▇▇ will sell, assign and transfer to Buyer the Summo Shares
and (b) Buyer will purchase and acquire the Summo Shares from St. ▇▇▇▇.
G. The aggregate consideration to St. ▇▇▇▇ for the Loan Portion and the Summo
Shares, in addition to the Purchase Price set forth in Section 2.3 of this
Agreement, includes the Warrant to be received from Summo pursuant to the
Warrant Agreement, which Warrant has a fair market value of $512,569. Based upon
the foregoing, the Loan Portion has a fair market value of $1,237,572 and the
Summo Shares have an aggregate fair market value of $1,340,098.
AGREEMENT
The parties hereto, intending to be legally bound, agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1:
"Agreement" --as defined in the Recitals of this Agreement.
"Amended and Restated Credit Agreement" -- the Amended and Restated Credit
Agreement dated as of June 25, 1999 among Borrowers, St. ▇▇▇▇ Minerals and the
Buyer.
"Assignment" --as defined in Section 2.5 of this Agreement.
"Best Efforts" --the efforts that a prudent Person desirous of achieving a
result would use in similar circumstances to ensure that such result is achieved
as expeditiously as possible.
"Borrowers" --as defined in the Recitals of this Agreement.
"Breach" --a "Breach" of a representation, warranty, covenant, obligation,
or other provision of this Agreement or any instrument delivered pursuant to
this Agreement will be deemed to have occurred if there is or has been (a) any
inaccuracy in or breach of, or any failure to perform or comply with, such
representation, warranty, covenant, obligation, or other provision, or (b) any
claim (by any Person) or other occurrence or circumstance that is or was
inconsistent with such representation, warranty, covenant, obligation, or other
provision, and the term "Breach" means any such inaccuracy, breach, failure,
claim, occurrence, or circumstance.
"Buyer" --as defined in the first paragraph of this Agreement.
"Closing" --as defined in Section 2.4.
"Closing Date" --the date and time as of which the Closing actually takes
place.
"Consent" --any approval, consent, ratification, waiver, or other
authorization (including any Governmental Authorization).
"Contemplated Transactions" --all of the transactions contemplated by this
Agreement, including:
(a) the sale of the Loan Portion and Security Interest by Sellers to
Buyer;
(b) St. Mary's sale of the Summo Shares to Buyer;
(c) the performance by Buyer and Sellers of their respective
covenants and obligations under this Agreement; and
(d) Buyer's acquisition and ownership of the Loan Portion, Security
Interest and Summo Shares.
"Damages" --as defined in Section 10.2.
"Encumbrance" --any charge, claim, community property interest, condition,
equitable interest, lien, option, pledge, security interest, right of first
refusal, or restriction of any kind, including any restriction on use, voting,
transfer, receipt of income, or exercise of any other attribute of ownership.
"Governmental Authorization" --any approval, consent, license, permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"Governmental Body" --any:
(a) nation, state, county, city, town, village, district, or other
jurisdiction of any nature;
(b) federal, state, local, municipal, foreign, or other government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or entity and
any court or other tribunal);
(d) multi-national organization or body; or
(e) body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority or
power of any nature.
"Knowledge" --an individual will be deemed to have "Knowledge" of a
particular fact or other matter if:
(a) such individual is actually aware of such fact or other matter;
or
(b) a prudent individual could be expected to discover or otherwise
become aware of such fact or other matter in the course of conducting a
reasonably comprehensive investigation concerning the existence of such fact or
other matter.
A Person (other than an individual) will be deemed to have "Knowledge" of a
particular fact or other matter if any individual who is serving, or who has at
any time served, as a director, officer, partner,
executor, or trustee of such Person (or in any similar capacity) has, or at any
time had, Knowledge of such fact or other matter.
"Legal Requirement" --any federal, state, local, municipal, foreign,
international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"Lisbon Valley" --as defined in the Recitals of this Agreement.
"Loan Agreements" --as defined in the Recitals of this Agreement.
"Loan Documents" --as defined in the Recitals of this Agreement.
"Loan Portion" --as defined in the Recitals of this Agreement.
"Loans" --as defined in the Recitals of this Agreement.
"Order" --any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"Organizational Documents" --(a) the articles or certificate of
incorporation and the bylaws of a corporation; (b) the partnership agreement and
any statement of partnership of a general partnership; (c) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership; (d) any charter or similar document adopted or filed in connection
with the creation, formation, or organization of a Person; and (e) any amendment
to any of the foregoing.
"Person" --any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
"Proceeding" --any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"Purchase Price" --as defined in Section 2.3 of this Agreement.
"Representative" --with respect to a particular Person, any director,
officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants and financial advisors.
"Securities Act" --the Securities Act of 1933 or any successor law, and
regulations and rules issued pursuant to that Act or any successor law.
"Security Documents" --as defined in the Recitals of this Agreement.
"Security Interest" --as defined in the Recitals of this Agreement.
"Sellers" --as defined in the first paragraph of this Agreement.
"Sellers' Closing Documents" --as defined in Section 2.5 of this
Agreement.
"St. ▇▇▇▇" --as defined in the first paragraph of this Agreement.
"St. ▇▇▇▇ Minerals" --as defined in the first paragraph of this Agreement.
"Summo" --as defined in the Recitals of this Agreement.
"Summo Share Certificates" --as defined in Section 2.5 of this Agreement.
"Summo Shares" --fifty percent of St. Mary's holdings of fully paid,
nonassessable, freely transferrable Summo common stock, but in no event less
than 4,962,046 shares of such stock as identified on Schedule 1 hereto.
"Summo USA" --as defined in the Recitals of this Agreement.
"Threatened" --a claim, Proceeding, dispute, action, or other matter will
be deemed to have been "Threatened" if any demand or statement has been made
(orally or in writing) or any notice has been given (orally or in writing), or
if any other event has occurred or any other circumstances exist, that would
lead a prudent Person to conclude that such a claim, Proceeding, dispute,
action, or other matter is likely to be asserted, commenced, taken, or otherwise
pursued in the future.
"UCC Form 3 Assignment" --as defined in Section 2.5 of this Agreement.
2. SALE AND TRANSFER; CLOSING
2.1 Loan Portion and Security Interest
Subject to the terms and conditions of this Agreement, at the Closing,
Sellers will sell and transfer the Loan Portion and Security Interest to Buyer,
and Buyer will purchase the Loan Portion and Security Interest from Sellers.
2.2 Summo Shares
Subject to the terms and conditions of this Agreement, at the Closing, St.
▇▇▇▇ will sell and transfer the Summo Shares to Buyer, and Buyer will purchase
the Summo Shares from St. ▇▇▇▇.
2.3 Purchase Price
The purchase price (the "Purchase Price") for the Loan Portion, Security
Interest and Summo Shares, collectively, will be US $2,059,101 (Two Million,
Fifty-Nine Thousand, One Hundred and One Dollars).
2.4 Closing
The purchase and sale of the Loan Portion, Security Interest and Summo
Shares (the "Closing") provided for in this Agreement will take place at the
offices of Buyer's counsel at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at
10:00 a.m. (local time) on June 25, 1999. Subject to the provisions of Section
9, failure to consummate the purchase and sale provided for in this Agreement on
the date and time and at the place determined pursuant to this Section 2.4 will
not result in the termination of this Agreement and will not relieve any party
of any obligation under this Agreement.
2.5 Closing Obligations
At the Closing:
(a) Sellers will deliver to Buyer the following (the "Sellers'
Closing Documents"):
(i) an assignment of the Loan Portion and Security Interest in
substantially the same form as Exhibit 4 attached hereto, duly executed by
Sellers, transferring the Loan Portion and Security Interest from Sellers to
Buyer (the "Assignment");
(ii) a UCC Form 3 assignment of the UCC Financing Statements
associated with the Security Interest from Sellers to Buyer (the "UCC Form 3
Assignment"); and
(iii) certificates representing the Summo Shares, duly
endorsed by St. ▇▇▇▇ (or accompanied by duly executed stock powers), with
signatures guaranteed by a commercial bank or by a member firm of the New York
Stock Exchange, for transfer to Buyer (the "Summo Share Certificates").
(b) Buyer will deliver to Sellers a bank cashier's or certified
check payable to the order of Sellers and in the amount of US$ 2,059,101.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
Sellers jointly and severally represent and warrant to the Buyer the
following as of the date hereof (except as specified otherwise) and as of the
Closing Date:
3.1 Organization and Good Standing
St. ▇▇▇▇ is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. St. ▇▇▇▇ Minerals is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Colorado.
3.2 Corporate Power and Authority
Sellers and the individuals executing this Agreement on Sellers' behalf
have the power and authority to enter into and perform this Agreement and to
consummate the Contemplated Transactions. The execution and delivery of this
Agreement, the consummation of the Contemplated
Transactions, and the performance by Sellers of all of their obligations under
this Agreement have been duly authorized and approved by each of Sellers.
3.3 Enforceability
This Agreement constitutes the legal, valid, and binding obligation of
each of Sellers, enforceable against each of Sellers in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
reorganization, moratorium, fraudulent transfer or other similar laws affecting
creditors' rights generally or by principles governing the availability of
equitable remedies. Upon the execution and delivery by Sellers of the Assignment
and the UCC Form 3 Assignment and upon execution and by St. ▇▇▇▇ of the Summo
Share Certificates, the Assignment, the UCC Form 3 Assignment and Summo Share
Certificates will constitute legal, valid and binding obligations of the
respective Sellers, enforceable against Sellers in accordance with their
respective terms, except as such enforceability may be limited by applicable
bankruptcy, reorganization, moratorium, fraudulent transfer or other similar
laws affecting creditors' rights generally or by principles governing the
availability of equitable remedies.
3.4 No Conflict
Neither the execution and delivery of this Agreement nor the consummation
or performance of any of the Contemplated Transactions will, directly or
indirectly:
(a) contravene, conflict with, or result in a violation of Sellers'
Organizational Documents;
(b) contravene, conflict with, or result in a violation of, or give
any Governmental Body or other Person the right to challenge any of the
Contemplated Transactions or to exercise any remedy or obtain any relief under,
any Legal Requirement or any Order to which either of the Sellers may be
subject;
(c) to the knowledge of either Seller, cause Buyer to become subject
to, or to become liable for the payment of, any tax by reason of its execution
and delivery of this Agreement; or
(d) result in the imposition or creation of any Encumbrance upon or
with respect to the Loan Portion, Security Interest or Summo Shares.
Sellers are not nor will be required to give any notice to or obtain any Consent
from any Person in connection with the execution and delivery of this Agreement
or the consummation or performance of any of the Contemplated Transactions.
3.5 Certain Proceedings
There is no pending Proceeding that has been commenced against either of
Sellers and that challenges, or may have the effect of preventing, delaying,
making illegal, or otherwise interfering with, this Agreement or any of the
Contemplated Transactions. To Sellers' Knowledge, no such Proceeding has been
Threatened.
3.6 Regulatory Approvals
No Governmental Authorization is required to be given, filed or obtained
by either of Sellers in connection with the execution, delivery and performance
by Sellers of this Agreement or the Contemplated Transactions.
3.7 No Commissions
Sellers and their agents have incurred no obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
or other similar payment in connection with this Agreement.
3.8 Recitals
The Recitals A. through C. above are true and correct.
3.9 Amendment of Loan Documents; Other Security Interests
The Loan Documents have not been modified or amended in any respect since
June 11, 1999, and Sellers hold no other property as security for repayment of
the Notes except (a) as described in the Loan Documents and (b) Sellers' rights
under applicable law to funds in the Borrower's accounts at either of Seller's.
3.10 Ownership of the Loan Documents and Summo Shares
Sellers are the legal and beneficial owners of the Loan Documents and St.
▇▇▇▇ is the legal and beneficial owner of the Summo Shares, and the Loan
Documents and Summo Shares are free from Encumbrances or other interests by
third parties. Prior to consummation of the Contemplated Transactions, St. ▇▇▇▇
owns, in total, 9,924,093 shares of fully paid, nonassessable, freely
transferrable Summo common stock.
3.11 Loan Agreements Free of Default; No Defenses to Collection
The Loan Agreements are free of defaults by Sellers and the Notes are not
subject to any defenses against collection available to Borrowers arising from
actions of Sellers.
3.12 Transferability of Summo Shares
Upon receipt by Buyer, the Summo Shares will be freely transferable on the
Toronto Stock Exchange, without holding period requirements, transfer volume
limitations or other restrictions.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Sellers as follows:
4.1 Good Standing
Buyer is a limited partnership validly existing and in good standing under
the laws of the Cayman Islands.
4.2 Authority; Enforceability
This Agreement constitutes the legal, valid, and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms. Buyer and the
individuals executing this Agreement on Buyer's behalf have the absolute and
unrestricted right, power, and authority to execute and deliver this Agreement.
4.3 No Conflict; Consents
Neither the execution and delivery of this Agreement by Buyer nor the
consummation or performance of any of the Contemplated Transactions by Buyer
will give any Person the right to prevent, delay, or otherwise interfere with
any of the Contemplated Transactions pursuant to any Legal Requirement or Order
to which Buyer may be subject. Buyer is not and will not be required to obtain
any Consent from any Person in connection with the execution and delivery of
this Agreement or the consummation or performance of any of the Contemplated
Transactions.
4.4 Certain Proceedings
There is no pending Proceeding that has been commenced against Buyer and
that challenges, or may have the effect of preventing, delaying, making illegal,
or otherwise interfering with, this Agreement or any of the Contemplated
Transactions. To Buyer's Knowledge, no such Proceeding has been Threatened.
4.5 Brokers or Finders
Buyer and its officers and agents have incurred no obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement and will
indemnify and hold Sellers harmless from any such payment alleged to be due by
or through Buyer as a result of the action of Buyer or its officers or agents.
5. COVENANTS OF SELLERS PRIOR TO CLOSING DATE
5.1 Delivery of Documents; Access to Records
Promptly after the date of this Agreement, Sellers shall deliver to Buyer
true and correct copies of all of the Loan Documents. Up until the Closing Date,
Sellers shall provide, at reasonable times during regular business hours, access
to Buyer and its Agents to other records of Sellers pertaining to the Loan
Documents.
5.2 Notification
Between the date of this Agreement and the Closing Date, Sellers will
promptly notify Buyer in writing if either of Sellers becomes aware of any fact
or condition that causes or constitutes a
Breach of any of Sellers' representations and warranties as of the date of this
Agreement, or if either of Sellers becomes aware of the occurrence after the
date of this Agreement of any fact or condition that would (except as expressly
contemplated by this Agreement) cause or constitute a Breach of any such
representation or warranty had such representation or warranty been made as of
the time of occurrence or discovery of such fact or condition. During the same
period, Sellers will promptly notify Buyer of the occurrence of any Breach of
any covenant of Sellers in this Section 5 or of the occurrence of any event that
may make the satisfaction of the conditions in Section 7 impossible or unlikely.
5.3 Best Efforts
Between the date of this Agreement and the Closing Date, Sellers will use
their Best Efforts to cause the conditions in Sections 7 and 8 to be satisfied.
6. COVENANTS OF BUYER PRIOR TO CLOSING DATE
6.1 Best Efforts
Between the date of this Agreement and the Closing Date, Buyer will use
its Best Efforts to cause the conditions in Sections 7 and 8 to be satisfied.
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Loan Portion, Security Interest and
Summo Shares and to take the other actions required to be taken by Buyer at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Buyer, in whole or in
part):
7.1 Accuracy of Representations
All of Sellers' representations and warranties in this Agreement
(considered collectively), and each of these representations and warranties
(considered individually), must have been accurate in all material respects as
of the date of this Agreement, and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date.
7.2 Sellers' Performance
(a) All of the covenants and obligations that Sellers are required
to perform or to comply with pursuant to this Agreement at or prior to the
Closing (considered collectively), and each of these covenants and obligations
(considered individually), must have been duly performed and complied with in
all material respects.
(b) Each of Sellers' Closing Documents must have been delivered, and
each of the other covenants and obligations in Section 5 must have been
performed and complied with in all respects.
7.3 Amended and Restated Credit Agreement
The Borrowers shall have executed the Amended and Restated Credit
Agreement and all conditions precedent set forth in Article 5 thereof shall have
been satisfied or waived by St. ▇▇▇▇ Minerals and the Buyer.
8. CONDITIONS PRECEDENT TO SELLERS' OBLIGATION TO CLOSE
Sellers' obligation to sell the Loan Portion, Security Interest and Summo
Shares and to take the other actions required to be taken by Sellers at the
Closing is subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Sellers, in whole or in
part):
8.1 Accuracy of Representations
All of Buyer's representations and warranties in this Agreement
(considered collectively), and each of these representations and warranties
(considered individually), must have been accurate in all material respects as
of the date of this Agreement and must be accurate in all material respects as
of the Closing Date as if made on the Closing Date.
8.2 Buyer's Performance
(a) All of the covenants and obligations that Buyer is required to
perform or to comply with pursuant to this Agreement at or prior to the Closing
must have been performed and complied with in all material respects.
(b) The Purchase Price must have been delivered to Sellers.
8.3 Amended and Restated Credit Agreement
The Borrowers shall have executed the Amended and Restated Credit
Agreement and all conditions precedent set forth in Article 5 thereof shall have
been satisfied or waived by St. ▇▇▇▇ Minerals and the Buyer.
9. TERMINATION
9.1 Termination Events
This Agreement may, by notice given prior to or at the Closing, be
terminated:
(a) by either Buyer or Sellers (acting jointly) if a material Breach
of any provision of this Agreement has been committed by the other party and
such Breach has not been waived;
(b) (i) by Buyer if any of the conditions in Section 7 has not been
satisfied as of the Closing Date or if satisfaction of such a condition is or
becomes impossible (other than through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not waived such condition on or
before the Closing Date; or (ii) by Sellers, if any of the conditions in Section
8 has not been satisfied of the Closing Date or if satisfaction of such a
condition is or becomes
impossible (other than through the failure of Sellers to comply with its
obligations under this Agreement) and Sellers have not waived such condition on
or before the Closing Date;
(c) by mutual consent of Buyer and Sellers; or
(d) by either Buyer or Sellers (acting jointly) if the Closing has
not occurred (other than through the failure of any party seeking to terminate
this Agreement to comply fully with its obligations under this Agreement) on or
before July 15, 1999, or such later date as the parties may agree upon.
9.2 Effect of Termination
Each party's right of termination under Section 9.1 is in addition to any
other rights it may have under this Agreement or otherwise, and the exercise of
a right of termination will not be an election of remedies. If this Agreement is
terminated pursuant to Section 9.1, all further obligations of the parties under
this Agreement will terminate; provided, however, that if this Agreement is
terminated by a party because of the Breach of the Agreement by the other party
or because one or more of the conditions to the terminating party's obligations
under this Agreement is not satisfied as a result of the other party's failure
to comply with its obligations under this Agreement, the terminating party's
right to pursue all legal remedies will survive such termination unimpaired.
10. FURTHER AGREEMENTS OF SELLERS AND BUYER
10.1 Agreement Regarding Share or Loan Sales
In the event that either Buyer or Sellers plans to sell all or any portion
of its interest in (a) the Loan, (b) the Summo Shares, (c) any other shares of
capital stock of Summo or (d) the Warrants (as defined in the Warrant Agreement
of June 25, 1999 among Summo, St. ▇▇▇▇ Minerals and Buyer), it shall first give
written notice to that effect to the other party indicating the interest to be
sold and the purchase price and terms which it expects to obtain. The other
party shall thereafter have the right for a period of ten days to sell an
equivalent portion of its interest in the Loan, Shares or Warrant (as the case
may be) at the same price and on the same terms as the sale to be made by the
selling party. If the purchaser of the interest of the selling party is not
willing to purchase equivalent portions of the interests of both parties, each
may sell a portion of the interest to be purchased by the purchaser determined
by multiplying such interest by a fraction the numerator of which is the
equivalent portion of such party and the denominator of which is the equivalent
portions of both parties.
10.2 Lenders Agreement
Notwithstanding the provisions of Article 11 of the Amended and Restated
Credit Agreement, the following acts of the Lenders under the Credit Agreement
shall require the unanimous approval of Buyer and St. ▇▇▇▇ Minerals:
(a) Any change in the provisions of Section 3.2, 3.3 and 3.4 of the
Amended and Restated Credit Agreement relating to the payment of the principal
of and the interest on the Loans;
(b) The application of Section 4.3 of the Amended and Restated
Credit Agreement with respect to the subordination of liens;
(c) The approval of any modification of the Work Program and Budget;
and
(d) The exercise or non-exercise of remedies upon any Event of
Default.
In the event of any failure of Buyer and St. ▇▇▇▇ Minerals to agree upon
any matter set forth above, which failure continues for sixty days after such
agreement is first sought, either Buyer or St. ▇▇▇▇ Minerals (the "Noticing
Party") may give notice to the other (the "Recipient Party") of the price and
terms upon which it is willing to sell its Percentage of the Loans after which
the Recipient Party shall have 15 days in which, by notice to the Noticing
Party, to elect either to purchase such Percentage of the Loans at such price
and upon such terms or to elect to sell its Percentage of the Loans at the same
price, adjusted for the difference between the Percentage of the Recipient Party
and that of the Noticing Party, and upon the same terms. If such notice is not
given within such period by the Recipient party, it shall be deemed to have
elected to sell its Percentage of the Loans.
11. GENERAL PROVISIONS
11.1 Expenses
Except as otherwise expressly provided in this Agreement, neither party to
this Agreement will bear the expenses of the other party incurred in connection
with the preparation, execution and performance of this Agreement and the
Contemplated Transactions, including all fees and expenses of agents,
representatives, counsel and accountants; subject, however, to any rights of any
party that may arise from a breach of this Agreement by another party.
11.2 Notices
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt), (b) sent by telecopier
(with written confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
Sellers: St. ▇▇▇▇ ▇▇▇▇ and Exploration Company
St. ▇▇▇▇ Minerals, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Ballard, Spahr, ▇▇▇▇▇▇▇ & Ingersoll, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Buyer: Resource Capital Fund L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. McCelements
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
11.3 Jurisdiction; Service of Process
Any action or proceeding seeking to enforce any provision of, or based on
any right arising out of, this Agreement may be brought against any of the
parties in the courts of the State of Colorado, County of Denver, or, if it has
or can acquire jurisdiction, in the United States District Court for the
Colorado District of Denver, and each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be
served on any party anywhere in the world.
11.4 Further Assurances
The parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents, and
(c) to do such other acts and things, all as the other party may reasonably
request for the purpose of carrying out the intent of this Agreement and the
documents referred to in this Agreement.
11.5 Waiver
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by any party in
exercising any right, power, or privilege under this Agreement or the documents
referred to in this Agreement will operate as a waiver of such right, power, or
privilege, and no single or partial exercise of any such right, power, or
privilege will preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed
to be a waiver of any obligation of such party or of the right of the party
giving such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
11.6 Entire Agreement and Modification
This Agreement supersedes all prior agreements between the parties with
respect to its subject matter (including the Letter of Intent between Buyer and
St. ▇▇▇▇ Minerals dated May 1, 1999) and constitutes (along with the documents
referred to in this Agreement) a complete and exclusive statement of the terms
of the agreement between the parties with respect to its subject matter. This
Agreement may not be amended except by a written agreement executed by the party
to be charged with the amendment.
11.7 Assignments, Successors, and No Third-party Rights
Neither party may assign any of its rights under this Agreement without
the prior consent of the other parties, which will not be unreasonably withheld,
except that Buyer may assign any of its rights under this Agreement to any
affiliate of Buyer. Subject to the preceding sentence, this Agreement will apply
to, be binding in all respects upon, and inure to the benefit of the successors
and permitted assigns of the parties. Nothing expressed or referred to in this
Agreement will be construed to give any Person other than the parties to this
Agreement any legal or equitable right, remedy or claim under or with respect to
this Agreement or any provision of this Agreement. This Agreement and all of its
provisions and conditions are for the sole and exclusive benefit of the parties
to this Agreement and their successors and assigns.
11.8 Severability
If any provision of this Agreement is held invalid or unenforceable by any
court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
11.9 Section Headings, Construction
The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation. All references to
"Section" or "Sections" refer to the corresponding Section or Sections of this
Agreement. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
11.10 Time of Essence
With regard to all dates and time periods set forth or referred to in this
Agreement, time is of the essence.
11.11 Governing Law
This Agreement will be governed by, and construed in accordance with, the
laws of the State of Colorado without regard to conflicts of laws principles.
11.12 Counterparts
This Agreement may be executed in one or more counterparts, each of which
will be deemed to be an original copy of this Agreement and all of which, when
taken together, will be deemed to constitute one and the same agreement.
[Balance of page intentionally left blank]
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
-------------------------------------------------------------------------------
RESOURCE CAPITAL FUND LP ST. ▇▇▇▇ ▇▇▇▇ &
By Resource Capital Associates LLC, EXPLORATION COMPANY
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Managing Director Title: President and Chief
Executive Officer
ST. ▇▇▇▇ MINERALS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
--------------------------------------------------------------------------------