EXHIBIT 10.1
GUARANTY
FOR VALUE RECEIVED, and in order to induce Newmont USA Limited, a
Delaware corporation dba Newmont Mining Corporation ("Buyer"), to enter into
the Asset Purchase Agreement, dated as of the date of this Guaranty (the
"Purchase Agreement"), among Buyer, Echo Bay Exploration Inc., a Delaware
corporation and Echo Bay Minerals Company, a Delaware corporation (each
individually a "Seller," and collectively the "Sellers"), and to induce Buyer
to perform its obligations under and to consummate the transactions described
in the Purchase Agreement, Echo Bay Mines Ltd., a Canadian corporation
("Guarantor"), agrees as follows:
1. Definitions. Capitalized terms used this Guaranty, unless otherwise
defined in this Guaranty, shall have the meanings ascribed to them in the
Purchase Agreement.
2. Representations and Warranties of Guarantor. Guarantor represents and
warrants to Buyer as follows:
(a) The execution and delivery by Guarantor of this Guaranty and the
performance by Guarantor of its obligations under this Guaranty do not and
will not contravene or conflict with any provision of any law, regulation or
rule, any license, agreement, or instrument to which Guarantor is a party or
by which Guarantor or any of Guarantor's property may be bound or affected, or
any judgment, order or decree of any court of any federal, state, or local
commission, board, or other administrative agency by which Guarantor or any of
Guarantor's property may be bound or affected.
(b) This Guaranty is the legal, valid, and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms.
3. Guaranty. Guarantor hereby absolutely, irrevocably and unconditionally
guaranties (i) the performance by Sellers when due of all covenants,
agreements, and obligations of every nature under the Purchase Agreement and
(ii) the accuracy and completeness of all representations and warranties of
Sellers under the Purchase Agreement. Without limiting the generality of the
foregoing, Guarantor hereby absolutely, irrevocably and unconditionally
guaranties any and all of Sellers' indemnification obligations under Article
10 of the Purchase Agreement, including but not limited to the full and prompt
payment when due of any and all monies which may become due or payable at any
time under or pursuant to such indemnification provisions (the performance and
indemnification obligations of Sellers are herein, individually and
collectively, referred to as the "Obligations"). Xxxxxxxxx further agrees that
the following terms and conditions shall apply to this Guaranty:
(a) This Guaranty is in all respects continuing, absolute, and
unconditional.
(b) This Guaranty is a guaranty of both performance and payment when
due, and not of collection.
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(c) Xxxxx may, from time to time, at Xxxxx's sole discretion and
without notice to Guarantor, take any or all of the following actions:
(i) Accept a security interest in any property to secure
payment of any or all of the Obligations;
(ii) Obtain the primary or secondary obligation of any third
party in addition to Guarantor with respect to any or all of the Obligations;
(iii) Release, compromise, extend, alter, or modify any of the
Obligations or any obligation of any nature of any other obligor with respect
to any of the Obligations;
(iv) Release, compromise, or extend any obligation of Guarantor
hereunder;
(v) Release any security interest in, or surrender, release, or
permit any substitution or exchange for, all or any part of any property
security any of the Obligations or any obligation hereunder, or release,
compromise, extend, alter, or modify any obligation of any nature of any
obligor with respect to any such property; and
(vi) Resort to or proceed against Guarantor for performance or
payment of any of the Obligations whether or not Buyer shall have proceeded
against Sellers or any other obligor primarily or secondarily obligated with
respect to any of the Obligations, shall have resorted to any property
securing any of the Obligations or any obligation hereunder, or shall have
pursued any other remedy.
(d) As between Buyer and Guarantor, any amounts received by Buyer
from whatsoever source on account of any Obligation (arising by whatever
means) may be applied by Buyer toward the payment of any Obligation then due
and payable, in such order of application as Buyer may from time to time
elect, and, notwithstanding any performance or payments made by or for the
account of Guarantor pursuant to this Guaranty, Guarantor will not be
subrogated to any rights of Buyer until such time as Buyer shall have received
performance and payment in full of all of the Obligations and performance of
all obligations of Guarantor hereunder. Without limiting the generality of the
foregoing, Xxxxxxxxx agrees and acknowledges that if Buyer is required at any
time to return all or part of any payment applied by Buyer to the payment of
the Obligations or any costs or expenses covered by this Guaranty, whether by
virtue of the insolvency, bankruptcy, or reorganization of any Seller or
otherwise, the Obligations to which the returned payment was applied shall be
deemed to have continued in existence and this Guaranty shall continue to be
effective or to be reinstated, as the case may be, as to such Obligations, as
though such payment had not been received and such application by Buyer had
not been made.
(e) Guarantor hereby expressly waives:
(i) Notice of the acceptance by Xxxxx of this Guaranty;
(ii) Notice of the existence, creation, release, compromise,
extension, alteration, modification, non-performance, or non-payment of any or
all of the Obligations;
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(iii) Presentment, demand, notice of dishonor, protest, and all
other notices whatsoever; and
(iv) All diligence in collection of or realization upon any
payments on, or assurance of performance of, any of the Obligations or any
obligation hereunder, or in collection on, realization upon, or protection of
any security for, or guaranty of, any of the Obligations or any obligation
hereunder.
(f) As between Guarantor and Buyer, Buyer may assign or otherwise
transfer the right to receive performance of or payment upon any of the
Obligations of Sellers and/or from Guarantor to any third party.
4. Notices. All notices and communications under this Guaranty shall be
in writing and shall be deemed to have been duly given when delivered by
messenger, by overnight delivery service, or by facsimile (receipt confirmed),
or mailed by first class certified mail, return receipt requested; if to
Guarantor, addressed to Sellers' address set forth in the Purchase Agreement;
and if to Buyer, addressed to Xxxxx's address set forth in the Purchase
Agreement; or in each case to such other address respectively as the party
shall have specified by notice to the other.
5. Integration, Assignment, Modification, Payment of Expenses and
Construction. This Guaranty constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes any prior
written or oral agreements between Guarantor and Buyer. This Guaranty may not
be assigned by Guarantor without the prior written consent of Xxxxx. Subject
to the foregoing, this Guaranty will inure to the benefit of Buyer, and be
binding upon guarantor, and their respective successors and assigns. This
Guaranty may be amended or modified only by a writing signed by Guarantor and
Xxxxx. Guarantor shall pay all of Buyer's expenses (including, without
limitations, costs and expenses of litigation and reasonable attorneys' fees)
in enforcing or endeavoring to realize upon this Guaranty which is not paid
when due. The unenforceability or invalidity of any provision of this Guaranty
or the Purchase Agreement shall not affect the validity of the remainder of
this Guaranty.
6. Waiver. The failure of Buyer to insist upon strict performance of any
of the terms, conditions, agreements, or covenants in this Guaranty in any one
or more instances shall not be deemed to be a waiver by Buyer of its rights to
enforce thereafter any of such terms, conditions, agreements, or covenants.
Any waiver by Buyer of any of the terms, conditions, agreements, or covenants
in this Guaranty must be in writing signed by Xxxxx.
7. Applicable Law. This Guaranty will be governed by, and construed and
interpreted in accordance with, the internal laws of the State of Colorado,
without regard to the conflicts of laws rules of such state.
8. Section Headings. The section headings used in this Guaranty are for
the convenience of Buyer and Guarantor only and shall not affect the
construction or interpretation of the provisions of this Guaranty.
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Xxxxxxxxx has executed this Guaranty as of June 9, 2002.
Echo Bay Mines Ltd.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive
Officer
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