Exhibit 10.1
Purchase Agreement
This Purchase Agreement (Agreement) is made by and
among U.S. Environmental Corporation (USEC), a
Colorado corporation, Tonkin Springs Venture
Limited Partnership, a Nevada limited partnership
(TSVLP or the Seller) and, BacTech Nevada
Corporation (BacTech Nevada or BacTech), a Nevada
corporation.
Recitals
A. TSVLP and USEC own all the issued and
outstanding ownership interests of Tonkin Springs
LLC (TSLLC), a Delaware limited liability company.
B. TSLLC is the owner of the Tonkin Springs
Property (defined below).
C. U.S. Gold Corporation (USGold), the parent
corporation of USEC and TSVLP, and BacTech
Enviromet Corporation (BacTech Canada), the parent
company of BacTech Nevada are parties to a certain
letter agreement dated March 25, 2003 as amended
on March 28, 2003 (collectively, the Letter
Agreement), pursuant to which USGold and BacTech
Canada agreed to the basic terms of their
agreement for the sale by TSVLP to BacTech Canada,
or its nominee, of the shares of a fifty-five
percent (55%) ownership interest in TSLLC.
D. The parties desire to formalize the terms of
their agreement as provided in this Agreement.
The parties, 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:
1.1 Applicable Contract means any Contract (a)
under which TSLLC has or may acquire any rights or
interests; (b) under which TSLLC has or may become
subject to any obligations or liabilities; or (c)
by which TSLLC, or any of the assets owned or used
by it, is or may become bound.
1.2 BacTech Canada means BacTech Enviromet
Corporation, a corporation organized under the
laws of the Canada, and its successors and
assigns.
1.3 BacTech Nevada means BacTech Nevada
Corporation, a Nevada corporation, and its
successors and assigns.
1.4 Balance Sheet shall have the meaning defined
in Section 3.5.
1.5 Breach means 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.
1.6 Closing shall have the meaning defined in
Section 2.3.
1.7 Closing Date means the date and time as of
which the Closing actually takes place.
1.8 Commercial Production means the last day of a
consecutive two-month period during which payable
or accountable gold production from the Tonkin
Springs Property totals at least 3,000 ounces of
gold per month, provided that such production is
part of an approved program of at least one year
in duration which contemplates an estimated
budgeted production rate of at least 40,000 ounces
of gold per annum.
1.9 Contemplated Transactions means all of the
transactions contemplated by this Agreement,
including:
(a) the sale of the Ownership Interests by Seller
to BacTech and BacTech's acquisition and ownership
of the Ownership Interests and the exercise of
control over TSLLC;
(b) the execution, delivery and performance of
the Members' Agreement and the Operating
Agreement; and
(c) the performance by BacTech and Seller of
their respective covenants and obligations under
this Agreement.
1.10 Contract means any agreement, contract,
obligation, promise, or undertaking (whether
written or oral and whether express or implied)
that is legally binding.
1.11 Due Diligence means BacTech's examinations
and investigations intended to determine the
accuracy of the representations and warranties of
TSVLP and USEC, the title to and value of the
assets, and all other matters pertinent or related
to BacTech's decision to close the Contemplated
Transactions.
1.12 Due Diligence Period means the period of time
during which BacTech shall have the opportunity to
conduct its due diligence investigation of Seller
and TSLLC which period shall continue until July
31, 2003.
1.13 Environment means soil, land surface or
subsurface strata, surface waters (including
navigable waters, ocean waters, streams, ponds,
drainage basins, and wetlands), ground waters,
underground water, drinking water supply, stream
sediments, ambient air (including indoor air), all
layers of atmosphere, plant and animal life, all
living organisms and interacting natural systems
that include components of air, land, water,
organic or inorganic matter and living organisms
and any other environmental medium or natural
resource.
1.14 Exhibits means the exhibits attached to and
by reference incorporated in this Agreement.
1.15 Governmental Authorization means 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.
1.16 Knowledge means 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.
1.17 Legal Requirement means any federal, state,
local, municipal, foreign, international,
multinational, or other administrative order,
constitution, law, ordinance, principle of common
law, regulation, statute, or treaty.
1.18 Members' Agreement means that certain Second
Amended and Restated Members' Agreement of the
members of Tonkin Springs LLC dated as of July 31,
2003, by and among TSVLP, USEC and BacTech Nevada.
1.19 Operating Agreement means that certain Second
Amended and Restated Operating Agreement of Tonkin
Springs LLC dated as of July 31, 2003, by and
among TSVLP, USEC and BacTech Nevada.
1.20 Organizational Documents means (a) the
articles or certificate of incorporation and the
bylaws of a corporation; (b) the articles of
organization and the operating agreement of a
limited liability company; (c) the partnership
agreement and any statement of partnership of a
general partnership; (d) the limited partnership
agreement and the certificate of limited
partnership of a limited partnership; (e) any
charter or similar document adopted or filed in
connection with the creation, formation, or
organization of a Person; and (f) any amendment to
any of the foregoing.
1.21 Ownership Interests means the interests of
TSLLC owned by TSVLP to be sold to BacTech and
which represent a fifty-five percent (55%)
ownership interest in TSLLC.
1.22 Person means any individual, corporation
(including any non-profit corporation), general or
limited partnership, limited liability company,
joint venture, syndicate, estate, trust, trustee,
administrator or other legal personal
representative, association, organization, labor
union, or other entity or governmental body
however designated or constituted.
1.23 Proceeding means any action, arbitration,
audit, hearing, investigation, inquiry,
litigation, or suit (whether civil, quasi-
criminal, criminal, administrative, investigative,
or informal) commenced, brought, conducted, or
heard by or before, or otherwise involving, any
governmental, administrative, regulatory or
similar body or arbitrator.
1.24 Purchase Price means the purchase price for
the Ownership Interests as provided in Section
2.2.
1.25 Representative means 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.
1.26 Securities Act means the Securities Act of
1933 or any successor law, and regulations and
rules issued pursuant to that Act or any successor
law.
1.27 Seller means TSVLP and its successors and
assigns.
1.28 Tax means assessments, charges, deductions,
fees, imposts and levies assessed or imposed by
any federal, provincial, state or local government
agency, office or political subdivision.
1.29 Tax Return means any return (including any
information return), report, statement, schedule,
notice, form, or other document or information
filed with or submitted to, or required to be
filed with or submitted to, any governmental body
in connection with the determination, assessment,
collection, or payment of any Tax or in connection
with the administration, implementation, or
enforcement of or compliance with any Legal
Requirement relating to any Tax.
1.30 Threatened means 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.
1.31 Tonkin Springs Property means the assets,
interests, properties and rights described in
Exhibit A to the Operating Agreement, including
the lands, leases, mineral rights, mining claims
and water rights and obligations and reclamation
obligations related to the foregoing, which
comprise the Tonkin Springs Mine situated in
Eureka County, Nevada.
1.32 TSLLC means Tonkin Springs Limited Liability
Company, a Delaware limited liability company, and
its successors and assigns.
1.33 TSVLP means Tonkin Springs Venture Limited
Partnership, a Nevada limited partnership, and its
successors and assigns.
1.34 USEC means U.S. Environmental Corporation, a
Colorado corporation, and its successors and
assigns.
1.35 USGold means U.S. Gold Corporation, a
Colorado corporation, and its successors and
assigns.
2. Purchase, Sale and Transfer Ownership
Interests; Closing.
2.1 Purchase and Sale. In consideration of
BacTech's payment to Seller of the sum of Two
Hundred Fifty Thousand Dollars ($250,000.00),
which Seller acknowledges BacTech paid to Seller
on the execution of the Letter Agreement, and the
other consideration provided for in this Agreement
and subject to the terms and conditions of this
Agreement, at the Closing, Seller will sell and
transfer the Ownership Interests to BacTech and
BacTech will purchase the Ownership Interests from
Seller. The parties agree that the sum of Two
Hundred Fifty Thousand Dollars ($250,000.00) paid
by BacTech Canada to Seller shall be credited in
BacTech's favor against the Purchase Price.
2.2 Purchase Price. The purchase price for the
Ownership Interests will be (i) One Million Seven
Hundred Fifty Thousand Dollars ($1,750,000.00),
(ii) subject to BacTech's right to withdraw
pursuant to Section 2.1 of the Operating
Agreement, the use at the Tonkin Springs Property
of any proprietary technology owned by BacTech or
its Affiliates at no expense to TSLLC, as
determined by TSLLC's Manager to be necessary or
desirable for operations of the Tonkin Springs
Property, and (iii) subject to BacTech's right to
withdraw pursuant to Section 2.1 of the Operating
Agreement, the additional BACTECH Initial
Contribution as provided in Section 2.2 of the
Members' Agreement. The purchase price shall
consist of the following components:
(a) The sum of Two Hundred Fifty Thousand Dollars
($250,000.00) paid by BacTech Canada to Seller on
execution of the Letter Agreement.
(b) The sum of One Hundred Fifty Thousand Dollars
($150,000.00) payable by BacTech to Seller on the
Closing.
(c) Subject to BacTech's right to withdraw
pursuant to Section 2.1 of the Operating
Agreement, the sum of Six Hundred Thousand Dollars
($600,000.00) payable by BacTech to Seller on or
before October 31, 2003.
(d) Subject to BacTech's right to withdraw
pursuant to Section 2.1 of the Operating
Agreement, the sum of Seven Hundred Fifty Thousand
Dollars ($750,000.00) payable by BacTech to Seller
on the commencement of Commercial Production at
the Tonkin Springs Property, or, if Commercial
Production has not been achieved within twelve
(12) months of Closing, BacTech will pay Seller
Sixty-Two Thousand Five Hundred Dollars
($62,500.00) per month, commencing on the first
anniversary of the Closing Date and continuing on
the same day of the eleven (11) following months.
2.3 Closing. The purchase and sale (the
Closing) provided for in this Agreement will take
place at the offices of Xxxxxxx Xxxxx & Xxxxxxxxx
LLP, 2100 Scotia Plaza, 00 Xxxx Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0 on or before July
31, 2003, or at such other time or place as the
parties may agree.
2.4 Closing Obligations. At the Closing:
(a) Seller will deliver to BacTech:
(i) an assignment of the Ownership Interests
executed by the Seller;
(ii) the resignations of TSVLP with Xxxxxxx X.
Xxxx, Xxxxx X. Xxxx and Xxxxxxx X. Pass as
manager/officers of TSLLC effective on the Closing
Date;
(iii) a certificate executed by Seller and USEC
representing and warranting to BacTech that,
except as stated in such certificate, each of
their representations and warranties in this
Agreement and the Operating Agreement was accurate
in all respects as of the date of this Agreement
and the Operating Agreement, as the case may be,
and is accurate in all respects as of the Closing
Date as if made on the Closing Date (giving full
effect to any supplements to the Exhibits that
were delivered by Seller to BacTech before the
Closing Date); and
(iv) all other documents which Seller and USEC are
obligated to execute and deliver on or before the
Closing, including the Members' Agreement and
Operating Agreement.
(b) BacTech will deliver to Seller:
(i) the sum of One Hundred Fifty Thousand Dollars
($150,000.00) which BacTech will deliver by wire
transfer to an account designated by TSVLP;
(ii) a certificate executed by BacTech to the
effect that, except as otherwise stated in such
certificate, each of BacTech's representations and
warranties in this Agreement and the Operating
Agreement was accurate in all respects as of the
date of this Agreement and the Operating
Agreement, as the case may be, and is accurate in
all respects as of the Closing Date as if made on
the Closing Date; and
(iii) all other documents which BacTech is
obligated to execute and deliver on or before the
Closing, including the Members' Agreement and
Operating Agreement.
3. Covenants, Representations and Warranties of
Seller and USEC. Sellers covenant, represent and
warrant to BacTech as follows and acknowledges
that BacTech is relying upon the following
covenants, representations and warranties in
connection with its purchase of the Ownership
Interests:
3.1 Organization and Good Standing.
(a) TSVLP is a limited partnership duly
organized, validly existing, and in good standing
under the laws of its jurisdiction of
organization, with full power and authority to
conduct its business as it is now being conducted,
to own or use the properties and assets that it
purports to own or use, and to perform all its
obligations under contracts. TSVLP is duly
qualified to do business as a foreign limited
partnership and is in good standing under the laws
of each state or other jurisdiction in which
either the ownership or use of the properties
owned or used by it, or the nature of the
activities conducted by it, requires such
qualification.
(b) TSLLC is a limited liability company duly
organized, validly existing, and in good standing
under the laws of its jurisdiction of
organization, with full corporate power and
authority to conduct its business as it is now
being conducted, to own or use the properties and
assets that it purports to own or use, and to
perform all its obligations under Applicable
Contracts. TSLLC is duly qualified to do business
as a foreign limited liability company and is in
good standing under the laws of each state or
other jurisdiction in which either the ownership
or use of the properties owned or used by it, or
the nature of the activities conducted by it,
requires such qualification.
(c) Sellers have delivered to BacTech correct and
complete copies of the Organizational Documents of
TSVLP, USEC and TSLLC, as currently in effect.
3.2 Authority; No Conflict.
(a) This Agreement constitutes the legal, valid,
and binding obligation of Seller, enforceable
against Seller in accordance with its terms. Upon
the execution and delivery by Seller of the
Members' Agreement and Operating Agreement and
such other written assurances as BacTech
reasonably requests Seller execute and deliver
(collectively, the Seller's Closing Documents),
the Seller's Closing Documents will constitute the
legal, valid, and binding obligations of Seller,
enforceable against Seller in accordance with
their respective terms. Seller has the absolute
and unrestricted right, power, authority, and
capacity to execute and deliver this Agreement and
the Seller's Closing Documents and to perform its
obligations under this Agreement and the Seller's
Closing Documents. Each of this Agreement, the
Members' Agreement and Operating Agreement and the
Seller's Closing Documents required to be
delivered by the Sellers at Closing has been duly
authorized by the Seller.
(b) Neither the execution and delivery of this
Agreement nor the consummation or performance of
any of the Contemplated Transactions will,
directly or indirectly (with or without notice or
lapse of time):
(i) contravene, conflict with, or result in a
violation of (A) any provision of the
Organizational Documents of any Seller; (B) any
resolution adopted by the general partner or the
limited partners of TSVLP; or (C) any resolution
adopted by the managers or the members of TSLLC;
(ii) 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 any Sellers, or
any of the assets owned or used by the Seller, may
be subject;
(iii) contravene, conflict with, or result in a
violation of any of the terms or requirements of,
or give any governmental body the right to revoke,
withdraw, suspend, cancel, terminate, or modify,
any Governmental Authorization that is held by the
Seller or that otherwise relates to the business
of, or any of the assets owned or used by, a
Seller;
(iv) cause BacTech or Seller to become subject
to, or to become liable for the payment of, any
Tax;
(v) cause any of the assets owned by the Seller
to be reassessed or revalued by any taxing
authority or other governmental body;
(vi) contravene, conflict with, or result in a
violation or breach of any provision of, or give
any Person the right to declare a default or
exercise any remedy under, or to accelerate the
maturity or performance of, or to cancel,
terminate, or modify, any Applicable Contract; or
(vii) result in the imposition or creation of any
encumbrance upon or with respect to any of the
assets owned or used by the Seller.
The Seller is not or will not be required to give
any notice (except the designation to governmental
authorities of the new Responsible Person as
required regarding environmental regulations) to
or obtain any approval or consent from any Person
or file with any governmental entity, regulatory
body, court or other Person in connection with the
execution, delivery or performance of this
Agreement or the consummation or performance of
any of the Contemplated Transactions.
3.3 Financial Statements. Seller has delivered
to BacTech: (a) consolidated balance sheet of
USGold as at December 31, 2002, and the related
audited consolidated statements of income, changes
of stockholders' equity and cash flow for the year
ending December 31, 2002; (b) a consolidated
balance sheet of USGold as at December 31, 2002
(including the notes, the Balance Sheet), and the
related consolidated statements of income, changes
in stockholders' equity, and cash flow for the
fiscal year then ended, together with the report
of December 31, 2002, independent certified public
accountants; and (c) an unaudited consolidated
balance sheet of USGold as at March 31, 2003 (the
Interim Balance Sheet) and the related unaudited
consolidated statements of income, and cash flow
for the 3 months then ended, including in each
case the applicable notes. Such financial
statements and notes fairly, completely and
accurately present the financial condition and the
results of operations, changes in stockholders'
equity, and cash flow of USGold as at the
respective dates of and for the periods referred
to in such financial statements, all in accordance
with generally accepted United States accounting
principles, applied on a consistent basis,
subject, in the case of interim financial
statements, to normal recurring year-end
adjustments (the effect of which will not,
individually or in the aggregate, be materially
adverse) and the absence of notes (that, if
presented, would not differ materially from those
include in the Balance Sheet); the financial
statements referred to in this Section 3.3 reflect
the consistent application of such accounting
principles throughout the periods involved, except
as disclosed in the notes to such financial
statements. There has been no material change in
the financial condition of USGold from that
reflected in the above noted financial statements.
3.4 Books and Records. The books of account,
minute books, membership, ownership and stock
record books, and other records of the Seller and
TSLLC, all of which have been made available to
BacTech, are complete and correct and have been
maintained in accordance with sound business
practices and the requirements of law, including
the maintenance of an adequate system of internal
controls. The minute books of the Seller and
TSLLC contain accurate and complete records of all
meetings held of, and actions taken by, the
managers, members, partners and stockholders,
respectively, the boards of directors, general
partners and managers, respectively, and
committees of Seller, and no meeting of any such
managers, members, board of directors, or
partners, or committee has been held for which
minutes have not been prepared and are not
contained in such minute books. At the Closing,
all of those books and records will be in the
possession of USGold.
3.5 No Undisclosed Liabilities. Neither Seller
nor TSLLC has any outstanding liabilities or
obligations of any nature [other than as set forth
under governmental authorities, property lease or
related agreements, as described in the Operating
Agreement, the Members' Agreement, or Exhibits
thereto,] and neither the Seller nor TSLLC is a
party to or bound by any agreement of guarantee,
support, indemnification, assumption or
endorsement of any kind, or any similar commitment
with respect to the obligations, liabilities
(contingent or otherwise) of any Person, except
for liabilities or obligations reflected or
reserved against in the general ledger balances
Exhibit E to the Operating Agreement and current
liabilities incurred in the ordinary course of
business consistent with past practice, none of
which has been materially adverse in the nature,
results of operations, assets or financial
condition of the Seller or TSLLC since June 30,
2003.
3.6 Taxes.
(a) TSLLC has filed or caused to be filed (on a
timely basis since inception) all Tax Returns that
are or were required to be filed by or with
respect to TSLLC, either separately or as a member
of a group of corporations, pursuant to applicable
Legal Requirements. The Sellers has delivered, or
will deliver and make available to BacTech, copies
of all such Tax Returns filed since inception.
TSLLC has paid, or made provision for the payment
of, all Taxes that have or may have become due
pursuant to those Tax Returns or otherwise, or
pursuant to any assessment received by Sellers or
TSLLC.
(b) All Tax Returns filed by (or that include on
a consolidated basis) the Seller are true,
correct, and complete. There is no tax sharing
agreement that will require any payment by TSLLC
after the date of this Agreement.
3.7 No Material Adverse Change. Since the date
of the Balance Sheet, there has not been any
material adverse change in the business,
operations, properties, prospects, assets, or
condition of TSLLC, and no event has occurred or
circumstance exists that may result in such a
material adverse change.
3.8 Pension and Retirement Plans. TSLLC has no
pension, retirement or other ERISA plan or
program.
3.9 Insurance.
(a) The Seller has delivered to BacTech true and
complete copies of all policies of insurance to
which the Seller is a party or under which the
Seller, is or has been covered at any time within
the one year preceding the date of this Agreement;
(b) (i) All policies to which the Seller is a
party or that provide coverage to the Seller or
any of the Sellers:
(A) are valid, outstanding, and enforceable;
(B) are issued by a responsible insurer that is
financially sound and reputable;
(ii) Seller has paid all premiums due, and have
otherwise performed all of the Seller's
obligations, under each policy to which the Seller
is a party or that provides coverage to the
Seller; and
(iii) The Seller has given notice to the insurer
of all claims that may be insured.
3.10 Employees.
(a) The Seller has provided to BacTech a complete
and accurate list of the following information for
each employee of TSLLC, including each employee on
leave of absence or layoff status: employer; name;
job title; current compensation paid or payable;
and vacation accrued;
(b) No employee, director, manager, member or
officer of TSLLC is a party to, or is otherwise
bound by, any agreement or arrangement, including
any confidentiality, noncompetition, or
proprietary rights agreement, between such
employee, director, manager, member or officer and
any other Person (Proprietary Rights Agreement)
that in any way adversely affects or will affect
(i) the performance of such person's duties as an
employee, manager, member, officer or director of
TSLLC; or (ii) the ability of TSLLC to conduct
TSLLC's business. To the Seller's Knowledge, no
director, officer, or other key employee of TSLLC
intends to terminate his employment with TSLLC.
3.11 Disclosure.
(a) No representation or warranty of the Seller
in this Agreement and no statement in this
Agreement omits to state a material fact necessary
to make the statements herein or therein, in light
of the circumstances in which they were made, not
misleading.
(b) No notice given pursuant to Section 5.5 will
contain any untrue statement or omit to state a
material fact necessary to make the statements
therein or in this Agreement, in light of the
circumstances in which they were made, not
misleading.
(c) There is no fact known to the Seller that has
specific application to the Seller (other than
general economic or industry conditions) and that
materially adversely affects or, as far as the
Seller can reasonably foresee, materially
threatens, the assets, business, prospects,
financial condition, or results of operations of
TSLLC that has not been stated in this Agreement,
Member Agreement and Operating Agreement.
3.12 Relationships With Related Persons. No
related person of the Seller or of TSLLC has, or
since the first day of the next to last completed
fiscal year of TSLLC has had, any interest in any
property (whether real, personal, or mixed and
whether tangible or intangible), used in or
pertaining to TSLLC's businesses. No related
person of the Seller or of TSLLC is, or since the
first day of the next to last completed fiscal
year of TSLLC has owned (of record or as a
beneficial owner) an equity interest or any other
financial or profit interest in, a Person that has
(i) had business dealings or a material financial
interest in any transaction with TSLLC other than
business dealings or transactions conducted in the
ordinary course of business with TSLLC at
substantially prevailing market prices and on
substantially prevailing market terms. No related
person of the Seller, is a party to any Contract
with, or has any claim or right against, TSLLC.
3.13 Brokers or Finders. The Seller and it's
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 BacTech harmless from any such
payment alleged to be due by or through the Seller
as a result of the action of the Seller, its
limited partner, its several partner or its
agents.
4. Representations And Warranties of BacTech.
BacTech represents and warrants to Seller and USEC
as follows and acknowledges that the Seller is
relying upon the following representations and
warranties in connection with BacTech's purchase
of the Ownership Interests:
4.1 Organization and Good Standing. BacTech
Nevada is a corporation duly organized, validly
existing, and in good standing under the laws of
its jurisdiction of incorporation, with full
corporate power and authority to conduct its
business as it is now being conducted, to own or
use the properties and assets that it purports to
own or use.
4.2 Authority; No Conflict.
(a) This Agreement constitutes the legal, valid,
and binding obligation of BacTech Nevada,
enforceable against it in accordance with its
terms. Upon the execution and delivery by BacTech
of the Members' Agreement, Operating Agreement and
other instruments which BacTech is obligated to
execute and deliver on or before the Closing
(collectively, BacTech's Closing Documents), the
BacTech's Closing Documents will constitute the
legal, valid, and binding obligations of BacTech,
enforceable against BacTech in accordance with
their respective terms. BacTech has the absolute
and unrestricted right, power, and authority to
execute and deliver this Agreement and the
BacTech's Closing Documents and to perform its
obligations under this Agreement and the BacTech's
Closing Documents.
(b) Neither the execution and delivery of this
Agreement by BacTech Nevada, nor the consummation
or performance of any of the Contemplated
Transactions by them will give any Person the
right to prevent, delay, or otherwise interfere
with any of the Contemplated Transactions pursuant
to:
(i) any provision of the Organizational Documents
of BacTech Nevada;
(ii) any resolution adopted by the board of
directors or the stockholders of BacTech Nevada;
(iii) any Legal Requirement or order to which
BacTech Nevada may be subject; or
(iv) any Contract to which BacTech Nevada is a
party or by which it may be bound.
BacTech Nevada 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.
4.3 Investment Intent. BacTech is acquiring the
Ownership Interests for its own account and not
with a view to their distribution within the
meaning of the Securities Act.
4.4 Certain Proceedings. There is no pending
Proceeding that has been commenced against BacTech
and that challenges, or may have the effect of
preventing, delaying, making illegal, or otherwise
interfering with, any of the Contemplated
Transactions. To BacTech's Knowledge, no such
Proceeding has been Threatened.
4.5 Brokers or Finders. BacTech 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 Seller and USEC
harmless from any such payment alleged to be due
by or through BacTech as a result of the action of
BacTech or its officers or agents.
5. Covenants of Seller Before Closing Date.
5.1 Due Diligence Access And Investigation.
Between the date of this Agreement and the Closing
Date, Seller will, and will cause TSLLC and its
Representatives to: (a) afford BacTech and its
Representatives and prospective lenders and their
Representatives (collectively, BacTech's Advisors)
full and free access to TSLLC's personnel,
properties, contracts, books and records, and
other documents and data; (b) furnish BacTech and
BacTech's Advisors with copies of all such
contracts, books and records, and other existing
documents and data as BacTech may reasonably
request; and (c) furnish BacTech and BacTech's
Advisors with such additional financial,
operating, and other data and information as
BacTech may reasonably request. BacTech
represents and warrants that it is unaware of any
material facts or circumstances that have not been
disclosed in this Agreement which should be
disclosed to the Seller in order to prevent the
representations and warranties of the Seller
contained herein from being materially misleading;
5.2 Operation of The Businesses of TSLLC. Between
the date of this Agreement and the Closing Date,
Seller will, and will cause TSLLC to:
(a) conduct the business of TSLLC only in the
ordinary course of business consistent with past
practice;
(b) use its best efforts to preserve intact the
current business organization of TSLLC, keep
available the services of the current officers,
employees, and agents of TSLLC, and maintain the
relations and good will with suppliers, customers,
landlords, creditors, employees, agents, and
others having business relationships with TSLLC;
(c) confer with BacTech concerning operational
matters of a material nature;
(d) maintain all assets or equipment, whether
owned or leased, in as-is condition and repair,
maintain insurance on all the assets and equipment
comparable in amount, scope and coverage that is
in effect on the date of this Agreement;
(e) do or refrain from doing all acts and things
in order to ensure that the representations and
warranties in Section 3 remain true and correct at
Closing as if such representations and warranties
were made as of such date; and
(f) otherwise report periodically to BacTech
concerning the status of the business, operations,
and finances of TSLLC.
5.3 Negative Covenant. Except as otherwise
expressly permitted by this Agreement, between the
date of this Agreement and the Closing Date,
Seller will not, and will cause TSLLC not to,
without the prior consent of BacTech, take any
affirmative action, or fail to take any reasonable
action within their or its control, the result of
which would cause the representations and
warranties referred to in Section 3 to become
untrue.
5.4 Required Approvals. As promptly as
practicable after the date of this Agreement,
Seller will, and will cause TSLLC to, make all
filings required by Legal Requirements to be made
by them in order to consummate the Contemplated
Transactions. Between the date of this Agreement
and the Closing Date, Seller will, and will cause
TSLLC to, (a) cooperate with BacTech with respect
to all filings that BacTech elects to make or is
required by Legal Requirements to make in
connection with the Contemplated Transactions, and
(b) cooperate with BacTech in obtaining all
consents required to be delivered by Seller.
5.5 Notification. Between the date of this
Agreement and the Closing Date, Seller will
promptly notify BacTech in writing if Seller
becomes aware of any fact or condition that causes
or constitutes a Breach of any of Seller's
representations and warranties as of the date of
this Agreement, or if Seller 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,
Seller and USEC will promptly notify BacTech of
the occurrence of any Breach of any covenant of
Seller and USEC 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.
5.6 Best Efforts. Between the date of this
Agreement and the Closing Date, Seller and USEC
will use their Best Efforts to cause the
conditions in Sections 7 and 8 to be satisfied.
6. Covenants of BacTech Before Closing Date.
6.1 Approvals of Governmental Bodies. As
promptly as practicable after the date of this
Agreement, BacTech will, and will cause each of
its related persons to, make all filings required
by Legal Requirements to be made by them to
consummate the Contemplated Transactions. Between
the date of this Agreement and the Closing Date,
BacTech will, and will cause each related person
to, cooperate with Seller with respect to all
filings that Seller is required by Legal
Requirements to make in connection with the
Contemplated Transactions, and (ii) cooperate with
Seller in obtaining all consents required to be
delivered by Seller; provided that this Agreement
will not require BacTech to dispose of or make any
change in any portion of its business or to incur
any other burden to obtain a Governmental
Authorization.
6.2 Best Efforts. Except as stated in the
proviso to Section 6.1, between the date of this
Agreement and the Closing Date, BacTech will use
its Best Efforts to cause the conditions in
Sections 7 and 8 to be satisfied.
7. Conditions Precedent to BacTech's Obligation
to Close. BacTech's obligation to purchase the
Ownership Interests and to take the other actions
required to be taken by BacTech at the Closing is
subject to the satisfaction, at or before the
Closing, of each of the following conditions (each
of which is acknowledged to be for the exclusive
benefit of BacTech and any of which may be waived
by BacTech, in whole or in part):
7.1 Accuracy of Representations.
(a) All of Seller's and USEC's representations
and warranties in the Operating Agreement
(considered collectively), and each of these
representations and warranties (considered
individually), must have been true and accurate as
of the date of this Agreement, and must be true
and accurate as of the Closing Date as if made on
the Closing Date.
(b) BacTech shall have received certificates
confirming the foregoing signed for and on behalf
of Seller and USEC by a senior officer or general
partner in form and substance satisfactory to
BacTech and BacTech's counsel.
7.2 Seller's Performance.
(a) All of the covenants and obligations that
Seller and USEC are required to perform or to
comply with pursuant to this Agreement at or
before 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 document required to be delivered
pursuant to Section 2.4 must have been delivered,
and each of the other covenants and obligations in
Section 5.4 must have been performed and complied
with in all respects.
(c) BacTech shall have received certificates
confirming the foregoing signed for and on behalf
of Seller and USEC by a senior officer or general
partner in form and substance reasonably
satisfactory to BacTech and BacTech's counsel.
7.3 Consents. Each of the consents required to
be delivered by Seller must have been obtained and
must be in full force and effect.
7.4 Additional Documents. Each of the following
documents must have been delivered to BacTech:
(a) an opinion of TSLLC's counsel, dated the
Closing Date, in form acceptable to BacTech in
accordance with which TSLLC's counsel opines
favorably concerning the Seller's representations
and warranties in sections 3.1 and 3.2;
(b) such other documents as BacTech may reasonably
request for the purpose of: (i) evidencing the
accuracy of any of the Seller's and TSLLC's
representations and warranties; (ii) evidencing
the performance by Seller and TSLLC of, or the
compliance by Seller and TSLLC with, any covenant
or obligation required to be performed or complied
with by Seller and TSLLC, including delivery of
written releases and terminations of any claims,
encumbrances, liens or security interests in, to
or against the Tonkin Springs Property;; (iii)
evidencing the satisfaction of any condition
referred to in this Section 7; or (iv) otherwise
facilitating the consummation or performance of
any of the Contemplated Transactions.
7.5 Due Diligence. Seller shall have permitted
BacTech and its representatives to have conducted
such due diligence investigations of TSLLC and the
Tonkin Springs Property as BacTech shall have
considered necessary or advisable and BacTech
shall be satisfied from its due diligence
investigation of TSLLC and the Tonkin Springs
Property on or before July 31, 2003.
7.6 No Transactions. From the date of the Letter
Agreement to and including the Closing Date,
Seller shall not have effected or taken any steps
to effect any transaction or action involving
TSLLC or the Tonkin Springs Property out of the
ordinary course of business without BacTech's
prior written consent.
7.7 No Liens or Encumbrances. There shall be no
liens or encumbrances on the Tonkin Springs
Property except as disclosed in Exhibit A to the
Operating Agreement.
7.8 No Liabilities. TSLLC shall have no vendor
liabilities as of the Closing Date and there shall
be no adverse claims against or claims,
encumbrances or liens on the Tonkin Springs
Property except the inherent liability and
obligations related to reclamation of the
properties and governmental permits and
authorities, and as set forth in the Operating
Agreement and Member's Agreement, and Exhibits
thereto.
7.9 No Proceedings. Since the date of this
Agreement, there must not have been commenced or
threatened against Seller, USEC or TSLLC, or
against any Person affiliated with Seller or
TSLLC, any Proceeding (a) involving any challenge
to, or seeking damages or other relief in
connection with, any of the Contemplated
Transactions; or (b) that may have the effect of
preventing, delaying, making illegal, or otherwise
interfering with any of the Contemplated
Transactions.
7.10 No Claim Regarding Equity Ownership or Sale
Proceeds. There must not have been made or
Threatened by any Person any claim asserting that
such Person (a) is the holder or the beneficial
owner of, or has the right to acquire or to obtain
beneficial ownership of, any voting, equity, or
ownership interest in TSLLC; or (b) is entitled to
all or any portion of the Purchase Price payable
for the Ownership Interests.
7.11 No Prohibition. Neither the consummation nor
the performance of any of the Contemplated
Transactions will, directly or indirectly (with or
without notice or lapse of time), materially
contravene, or conflict with, or result in a
material violation of, or cause BacTech or any
Person affiliated with BacTech to suffer any
material adverse consequence under (a) any
applicable Legal Requirement or order; or (b) any
Legal Requirement or order that has been
published, introduced, or otherwise proposed by or
before any governmental body.
8. Conditions Precedent to Seller's Obligation to
Close. Seller's obligation to sell the Ownership
Interests and to take the other actions required
to be taken by Seller at the Closing is subject to
the satisfaction, at or before the Closing, of
each of the following conditions (any of which may
be waived by Seller, in whole or in part):
8.1 Accuracy of Representations. All of
BacTech's representations and warranties in this
Agreement (considered collectively), and each of
these representations and warranties (considered
individually), must have been true and accurate in
all material respects as of the date of this
Agreement and must be true and accurate in all
material respects as of the Closing Date as if
made on the Closing Date.
8.2 BacTech's Performance.
(a) all of the covenants and obligations that
BacTech is required to perform or to comply with
pursuant to this Agreement at or before the
Closing (considered collectively), and each of
these covenants and obligations (considered
individually), must have been performed and
complied with in all material respects.
(b) BacTech must have delivered each of the
documents required to be delivered by BacTech
pursuant to Section 2.4 and must have made the
cash payments required to be made by BacTech
pursuant to Section 2.2(a).
8.3 Consents. Each of the consents to be
delivered by Seller, must have been obtained and
must be in full force and effect.
8.4 Additional Documents. BacTech must have
caused the following documents to be delivered to
Seller:
(a) an opinion of BacTech's counsel, dated the
Closing Date in form acceptable to Seller opining
favorable concerning BacTech's representations and
warranties in Sections 4.1 and 4.2; and
(b) such other documents as Seller may reasonably
request for the purpose of (i) evidencing the
accuracy of any representation or warranty of
BacTech; (ii) evidencing the performance by
BacTech of, or the compliance by BacTech with, any
covenant or obligation required to be performed or
complied with by BacTech; (iii) evidencing the
satisfaction of any condition referred to in this
Section 8; or (iv) otherwise facilitating the
consummation of any of the Contemplated
Transactions.
8.5 No Injunction. There must not be in effect
any Legal Requirement or any injunction or other
order that (a) prohibits the sale of the Ownership
Interests by Seller to BacTech; and (b) has been
adopted or issued, or has otherwise become
effective, since the date of this Agreement.
9. Termination.
9.1 Termination Events. This Agreement may, by
notice given before or at the Closing, be
terminated:
(a) by BacTech, in its sole and exclusive
discretion, at any time before expiration of the
Due Diligence Period;
(b) by either BacTech or Seller if a material
Breach of any provision of this Agreement has been
committed by the other party and such Breach has
not been waived;
(c) (i) by BacTech 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 BacTech to comply with its obligations under
this Agreement) and BacTech has not waived such
condition on or before the Closing Date; or (ii)
by Seller, 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
Seller to comply with their obligations under this
Agreement) and Seller has not waived such
condition on or before the Closing Date; or
(d) by mutual consent of BacTech and Seller.
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. Indemnification.
10.1 Indemnification.
(a) each of the Seller and BacTech shall
indemnify the other party, and its affiliates and
their respective directors, officers, managers,
employees, agents and attorneys, (collectively
Indemnified Party) from and against all direct and
indirect costs, expenses, damages, obligations,
claims, demands, actions or liabilities, including
reasonable attorneys' fees and other costs of
litigation (either threatened or pending) arising
out of or based on a breach by the first party
(Indemnifying Party) of any representation,
warranty or covenant contained in this Agreement.
(b) If any claim or demand is asserted against an
Indemnified Party in respect of which such
Indemnified Party may be entitled to
indemnification under this Agreement, written
notice of such claim or demand shall promptly be
given to the Indemnifying Party. The Indemnifying
Party shall have the right, but not the
obligation, by notifying the Indemnified Party
within thirty (30) days after its receipt of the
notice of the claim or demand, to assume the
entire control of (subject to the right of the
Indemnified Party to participate, at the
Indemnified Party's expense and with counsel of
the Indemnified Party's choice) the defense,
compromise or settlement of the matter, including,
at the Indemnifying Party's expense, employment of
counsel of the Indemnifying Party's choice. Any
damages to the assets or business of the
Indemnified Party caused by a failure by the
Indemnifying Party to defend, compromise or settle
a claim or demand in a reasonable and expeditious
manner requested by the Indemnified Party, after
the Indemnifying Party has given notice that it
will assume control of the defense, compromise or
settlement of the matter, shall be included in the
damages for which the Indemnifying Party shall be
obligated to indemnify the Indemnified Party. Any
settlement or compromise of a matter by the
Indemnifying Party shall include a full release of
claims against the Indemnified Party which have
arisen out of the indemnified claim or demand.
11. General Provisions.
11.1 Expenses. Except as otherwise expressly
provided in this Agreement, each party to this
Agreement will bear its respective expenses
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. Seller will cause TSLLC not to
incur any out-of-pocket expenses in connection
with this Agreement. In the event of termination
of this Agreement, the obligation of each party to
pay its own expenses will be subject to any rights
of such party arising from a breach of this
Agreement by another party.
11.2 Confidentiality. Between the date of this
Agreement and the Closing Date, BacTech, Seller
and USEC will maintain in confidence, and will
cause the advisors, agents, directors, employees,
managers, members and representatives of BacTech,
Seller and USEC to maintain in confidence, and not
use to the detriment of another party any written,
oral, or other information obtained in confidence
from another party in connection with this
Agreement or the Contemplated Transactions, unless
(a) such information is already known to such
party or to others not bound by a duty of
confidentiality or such information becomes
publicly available through no fault of such party;
(b) the use of such information is necessary or
appropriate in making any filing or obtaining any
consent or approval required for the consummation
of the Contemplated Transactions; or (c) the
furnishing or use of such information is required
by or necessary or appropriate in connection with
legal proceedings. If the Contemplated
Transactions are not consummated, each party will
return or destroy as much of such written
information as the other party may reasonably
request.
11.3 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 stated below (or to such other
addresses and telecopier numbers as a party may
designate by notice to the other parties):
Seller: Tonkin Springs Venture Limited
Partnership
U.S. Environmental Corporation
C/o U.S. Gold Corporation
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000-0000
With a Copy to: Xxxxx X. Parcel, Esq.
Xxxxxxx Coie LLP
0000 Xxxxxxx Xx., Xxx. 000
Xxxxxx, XX 00000
BacTech: BacTech Enviromet Corporation
BacTech Nevada Corporation
0000-000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
With a Copy to: Xxxxxxx Xxxxx &
Xxxxxxxxx LLP
Att: Xxxx Xxxxxxx
0000 Xxxxxx Xxxxx
00 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
With a Copy to: Xxxxxx X. Xxxxx, Esq.
Xxxxx & Xxxxxxxx LLP
0 X. Xxxxxxx Xxxxxx, Xxxxx 000
P.O. Box 40817
Xxxx, XX 00000
11.4 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 Nevada,
County of Washoe, or, if it has or can acquire
jurisdiction, in the United States District Court
for the Northern Division of the District of
Nevada, 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.
Process in any action or proceeding referred to in
the preceding sentence may be served on any party
anywhere in the world.
11.5 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.
11.6 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.
11.7 Entire Agreement And Modification. This
Agreement supersedes all prior agreements between
the parties with respect to its subject matter
(including the Letter Agreement) and constitutes
(along with the Members' Agreement and Operating
Agreement and other 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. In the event
of an inconsistency between the terms of this
Agreement and the terms of the Members Agreement
and the Operating Agreement, the terms of the
Members Agreement and the Operating Agreement
shall prevail. This Agreement may not be amended
except by a written agreement executed by all the
parties hereto.
11.8 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 except that BacTech
may assign any of its rights under this Agreement
to any subsidiary of BacTech. 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.
11.9 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.
11.10 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.
11.11 Time of Essence. With regard to all dates
and time periods stated or referred to in this
Agreement, time is of the essence.
11.12 Governing Law. This Agreement will be
governed by the laws of the State of Delaware
without regard to conflicts of laws principles.
11.13 Counterparts; Facsimile. This Agreement
may be executed and delivered in one or more
counterparts, including counterparts delivered by
facsimile, portable document format (PDF), or
otherwise, each of which shall constitute an
original document, and all of which taken together
shall constitute one and the same instrument. A
party providing its signature buy facsimile, PDF
or otherwise shall promptly forward to the other
party an original of the executed copy of this
Agreement which was so delivered by facsimile or
other means.
11.14 Independent Representation. The parties
acknowledge that the terms of this Agreement have
been negotiated by Seller and BacTech, as
represented by their respective counsel,
concerning the Contemplated Transactions to the
end that any and all nonstandard terms and
previous oral agreements and understandings of the
parties have been placed in this Agreement and
reduced to writing. The parties acknowledge that
certain provisions of this Agreement and the
instruments to be executed and delivered by the
parties in accordance with this Agreement may have
been drafted by one party, but acknowledge that
neither this Agreement nor any instrument executed
by any party in accordance with this Agreement
shall be construed for or against a party by
reason of such party's drafting or participation
in the drafting of such instrument.
The parties have executed and delivered this
Agreement effective as of July 31, 2003.
U.S. Environmental Corporation
By /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx, President
Tonkin Springs Venture Limited Partnership
By: Tonkin Springs Gold Mining Company,
its general partner
By /s/ Xxxxxxx X. Xxxx
Title: Xxxxxxx X. Xxxx, President
BacTech Nevada Corporation
By /s/ Xxxxxxx X. Xxxxxxxx
Title: Xxxxxxx X. Xxxxxxxx, President
