EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
dated June 9, 2002
among
Newmont USA Limited dba
Newmont Mining Corporation,
Echo Bay Exploration Inc.
and
Echo Bay Minerals Company
Table of Contents
Page
Article 1. Definitions.....................................................1
Article 2. Purchase and Sale of Assets.....................................4
2.1 Covenant of Purchase and Sale...................................4
2.2 Excluded Assets.................................................5
2.3 Assumed Liabilities.............................................5
2.4 No Additional Consideration.....................................6
Article 3. Related Matters.................................................6
3.1 Termination of Certain Obligations..............................6
3.2 Bulk Sales......................................................6
3.3 Transfer Taxes..................................................6
Article 4. Buyer's Representations and Warranties..........................6
4.1 Organization of Buyer...........................................6
4.2 Authority.......................................................6
4.3 No Conflict; Required Consents..................................7
Article 5. Sellers' Representations and Warranties.........................7
5.1 Organization and Qualification of Sellers.......................7
5.2 Authority.......................................................7
5.3 No Conflict; Required Consents..................................7
5.4 Title to Assets.................................................7
5.5 Properties......................................................8
5.6 Acquired Contracts..............................................8
5.7 Litigation......................................................8
5.8 Compliance with Legal Requirements, Acquired Governmental
Permits.......................................................9
5.9 Environmental...................................................9
5.10 Bonds...........................................................9
Article 6. Covenants......................................................10
6.1 Certain Affirmative Covenants of Sellers.......................10
6.2 Certain Negative Covenants of Sellers..........................10
6.3 Required Consents..............................................10
6.4 Confidentiality................................................11
6.5 Employee Matters...............................................11
6.6 Deliveries.....................................................12
Article 7. Conditions Precedent...........................................12
7.1 Conditions to Buyer's Obligations..............................12
7.2 Conditions to Sellers' Obligations................................13
Article 8. Closing........................................................14
8.1 Closing; Time and Place........................................14
8.2 Sellers' Obligations...........................................14
8.3 Buyer's Obligations............................................15
Article 9. Termination and Default........................................15
9.1 Termination Events.............................................15
9.2 Effect of Termination..........................................16
Article 10. Indemnification................................................16
10.1 Indemnification by Sellers.....................................16
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Page
10.2 Indemnification by Buyer.......................................16
10.3 Procedure for Indemnified Third Party Claim....................17
10.4 Payment of Indemnification Amounts and Related Matters.........17
10.5 Survival.......................................................17
10.6 Other Indemnification..........................................18
Article 11. Miscellaneous Provisions.......................................18
11.1 Expenses.......................................................18
11.2 Brokerage......................................................18
11.3 Waivers........................................................18
11.4 Notices........................................................18
11.5 Entire Agreement; Amendments...................................19
11.6 Binding Effect; Benefits.......................................19
11.7 Headings, Schedules, and Exhibits..............................19
11.8 Counterparts...................................................19
11.9 Governing Law..................................................19
11.10 Severability...................................................20
11.11 Third Parties; Joint Ventures..................................20
11.12 Construction...................................................20
11.13 Attorneys' Fees................................................20
11.14 Risk of Loss; Condemnation.....................................20
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made and entered into
as of June 9, 2002, by and among Newmont USA Limited, a Delaware corporation
dba Newmont Mining Corporation ("Buyer"), Echo Bay Exploration Inc., a
Delaware corporation ("EBE"), and Echo Bay Minerals Company, a Delaware
corporation ("EBM") (each of EBE and EBM sometimes are referred to
individually in this Agreement as a "Seller," and collectively as the
"Sellers").
Recitals
A. Sellers own certain patented and unpatented mining claims in Lander
County, Nevada, on which they have developed and operated an underground mine
and two open pit mines and have constructed and operate an ore milling
facility. Such properties, mines and mill collectively are known as the
"XxXxx/Cove Complex."
X. Xxxxxxx also own certain ore milling equipment which is in storage in
Tonapah, Nevada.
X. Xxxxxxx desire to sell to Buyer the properties and the other tangible
assets of the XxXxx/Cove Complex and such stored mill equipment, and Buyer
desires to acquire such assets from Sellers, on the terms and subject to the
conditions stated in this Agreement.
Agreements
In consideration of the mutual covenants in this Agreement, Buyer and
Sellers agree as follows:
ARTICLE 1
Certain Definitions
As used in this Agreement, the following terms, whether in singular or
plural forms, shall have the following meanings:
"Acquired Contracts" has the meaning given in Section 2.1.
"Acquired Equipment" has the meaning given in Section 2.1.
"Acquired Governmental Permits" has the meaning given in Section 2.1.
"Acquired Properties" has the meaning given in Section 2.1.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person, with
"control" for such purpose meaning the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or voting
interests, by contract or otherwise.
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"Assets" has the meaning given in Section 2.1.
"Assumed Liabilities" has the meaning given in Section 2.3.
"Business Day" means any day other than Saturday, Sunday or a day on
which banking institutions in Denver, Colorado or New York, New York are
required or authorized to be closed.
"Closing" has the meaning given in Section 8.1.
"Closing Date" means the date on which Closing occurs.
"Contract" means any written contract, mortgage, deed of trust, bond,
indenture, lease, license, note, franchise, certificate, option, warrant,
right, or other instrument, document, obligation, or agreement, and any oral
obligation, right, or agreement.
"Encumbrance" means any security agreement, financing statement filed
with any Governmental Authority, conditional sale or other title retention
agreement, any lease, consignment or bailment given for purposes of security,
any lien, mortgage, indenture, pledge, option, encumbrance, adverse interest,
constructive trust or other trust, claim, attachment, exception to or defect
in title or other ownership interest (including but not limited to royalties,
reservations, rights of entry, possibilities of reverter, encroachments,
easement, rights-of-way, restrictive covenants leases, and licenses) of any
kind, which otherwise constitutes an interest in or claim against property,
whether arising pursuant to any Legal Requirement, Contract or otherwise.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and rules and regulations promulgated thereunder and published
interpretations with respect thereto.
"Excluded Assets" has the meaning given in Section 2.2.
"Xxxxxxxxx Water Lease" means the Lease Agreement dated November 24,
1987, among Echo Bay Minerals Company, Xxxxx X. and Xxxxxx Xxxxxxxxx, Xxxxx
Xxx Xxxxxxxxxx, Xxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxx Marvel, Xxxx Xxxxx Paris
and Xxxxxx Xxxx Xxxxxxxx.
"Governmental Authority" means the United States of America or any other
country or sovereign entity, any state, commonwealth, territory, or possession
thereof, and any political subdivision or quasi-governmental authority of any
of the same, including but not limited to courts, tribunals, departments,
commissions, boards, bureaus, agencies, counties, municipalities, provinces,
parishes, and other instrumentalities.
"Governmental Permits" means franchises, approvals, authorizations,
permits, licenses, easements, registrations, qualifications, leases, variances
and similar rights obtained from any Governmental Authority.
"Hazardous Substances" means any pollutants, contaminants, chemicals,
industrial, toxic, hazardous or noxious substances or wastes which are
regulated by any Governmental Authority or Legal Requirements, including but
not limited to: (i) any petroleum or petroleum compound (refined or crude),
flammable substance, explosive, radioactive material or any other material or
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pollutant which pose a hazard or potential hazard to real property or Persons;
(ii) asbestos or any asbestos-containing material of any kind or character;
(iii) polychlorinated biphenyls, as regulated by the Toxic Substances Control
Act, 15 U.S.C. ss. 2601 et seq.; (iv) any materials or substances designated
as "hazardous substances" pursuant to the Clean Water Act, 33 U.S.C. ss. 1251
et seq.; (v) "economic poison," as defined in the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. ss. 135 et seq.; (vi) "chemical
substance," "new chemical substance" or "hazardous chemical substance or
mixture" pursuant to the Toxic Substans Control Act, 15 U.S.C. ss. 2601 et
seq.; (vii) "hazardous substances" pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. ss. 9601 et seq.; and
(viii) "hazardous waste" pursuant to the Resource Conservation and Recovery
Act, 42 U.S.C. ss. 6901 et seq.
"Judgment" means any judgment, writ, order, injunction, award, or decree
of any court, judge, justice, magistrate or arbitrator, including any
bankruptcy court or judge, and any order of or by any Governmental Authority.
"knowledge" of any Person of or with respect to any matter means that
such Person (if a natural person) or any of the officers, directors, and
senior managers of such Person (if not a natural Person) has, or after due
inquiry and investigation would have, actual awareness or knowledge of such
matter.
"Legal Requirements" means applicable common law and any statute,
ordinance, code or other law, rule, regulation, order, technical or other
standard, requirement, or procedure enacted, adopted, promulgated, applied, or
followed by any Governmental Authority, including any Judgment.
"Litigation" means any claim, action, suit, proceeding, arbitration,
investigation, hearing, or other activity or procedure that could result in a
Judgment.
"Losses" means any claims, losses, liabilities, damages, Encumbrances,
penalties, costs, and expenses, including but not limited to interest which
may be imposed in connection therewith, expenses of investigation, reasonable
fees and disbursements of counsel and other experts, and the cost to any
Person making a claim or seeking indemnification under this Agreement with
respect to funds expended by such Person by reason of the occurrence of any
event with respect to which indemnification is sought.
"Outside Closing Date" has the meaning given in Section 9.1.
"Patented Claims" has the meaning given in Section 2.1.
"Permitted Encumbrances" means the following Encumbrances: (i) liens for
Taxes not yet due and payable; (ii) zoning laws and ordinances and similar
Legal Requirements; (iii) rights reserved to any Governmental Authority to
regulate the affected Assets; and (iv) only to the extent relating to the
production of minerals from the Properties following Closing, the Summa
Royalty.
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"Person" means any natural person, Governmental Authority, corporation,
general or limited partnership, joint venture, limited liability company,
trust, association, or unincorporated entity of any kind.
"Prime Rate" means the rate announced from time to time by Chase
Manhattan Bank at its head office, as its prime rate for loans to commercial
customers (which may not be the lowest rate at which it loans funds).
"Related Transactions" has the meaning given in Section 7.1.
"Required Consents" means all franchises, licenses, authorizations,
approvals and consents required under Governmental Permits, Contracts or
otherwise for (i) Sellers to transfer any of the Assets to Buyer; (ii) Buyer
to own, lease, use and operate the Assets; and (iii) Buyer to assume and
perform the Acquired Governmental Permits and the Acquired Contracts as
provided in this Agreement.
"Summa Royalty" means the royalty granted under the Letter Agreement
dated April 12, 1977 by and between Summa Corporation and Houston Oil &
Minerals Corporation, as amended by Amendment Number 1 dated July 2, 1985 and
Amendment Number 2 dated March 13, 1986.
"Taxes" means all levies, charges and assessments of any kind or nature
imposed by any Governmental Authority, including but not limited to all
income, sales, use, ad valorem, value added, franchise, severance, net or
gross proceeds, withholding, payroll, employment, excise, or property taxes,
together with any interest thereon and any penalties, additions to tax, or
additional amounts applicable thereto.
"Transaction Documents" means all instruments and documents executed and
delivered by Buyer or any Seller or any officer, director, or Affiliate of any
of them in connection with this Agreement or the transactions contemplated
hereby.
"Unpatented Claims" has the meaning given in Section 2.1.
ARTICLE 2
Purchase and Sale of Assets.
2.1 Covenant of Purchase and Sale. Subject to the terms and conditions in
this Agreement, at Closing Sellers shall convey, assign, and transfer to
Buyer, and Buyer shall acquire from Sellers, for the consideration and on the
terms set forth in this Agreement, free and clear of all Encumbrances other
than Permitted Encumbrances, all properties, privileges, rights, interests and
claims, real and personal, tangible and intangible, of every type and
description that are owned, leased, held, used or useful in the ownership,
operation, closure remediation or reclamation of the XxXxx/Cove Complex and in
which Sellers have any right, title or interest or in which they acquire any
right, title or interest on or before the Closing Date (collectively, the
"Assets"), including but not limited to the following:
(a) all of the patented mining claims (the "Patented Claims"),
unpatented mining claims (the "Unpatented Claims"), easements, rights-of-way
and other interests in real
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property relating to the XxXxx/Cove Complex, and all mill facilities,
buildings, structures and other improvements thereon (collectively, the
"Acquired Properties"), as described on Schedule 2.1(a);
(b) all equipment and other tangible personal property owned,
leased, used or held for use in the ownership, operation, closure, remediation
or reclamation of, or located at, the XxXxx/Cove Complex, and all items of
milling equipment owned by Sellers and located in Tonapah, Nevada (the
"Acquired Equipment"), the principal items of which are described on Schedule
2.1(b);
(c) all ore in stockpiles or on leaching pads, and all metals in
concentrate or solution located at the XxXxx/Cove Complex;
(d) all Governmental Permits pertaining to the ownership,
operations, closure, remediation or reclamation of the XxXxx/Cove Complex (the
"Acquired Governmental Permits"), as described on Schedule 2.1(d);
(e) any other Contracts pertaining to the ownership, operation,
closure, remediation or reclamation of the XxXxx/Cove Complex (the "Acquired
Contracts"), as described on Schedule 2.1(e); and
(f) all claims against third parties arising out of or relating to
the ownership, operation, closure, reclamation or remediation of the
XxXxx/Cove Complex, and all other intangible assets relating thereto.
2.2 Excluded Assets. Notwithstanding the provisions of Section 2.1, the
Assets shall not include any of the following (the "Excluded Assets"), all
rights, titles and interests in which shall be retained by Sellers: (i)
insurance policies and rights and claims thereunder (except as otherwise
provided in Section 11.14); (ii) accounts receivable; (iii) bonds, letters of
credit, surety instruments, and other similar items; (iv) cash and cash
equivalents; (v) all rights, titles and interests of Sellers or their
Affiliates under or with respect to the Pyrite Concentrate Agreement dated as
of December 4, 2001, as amended by Addendum to Pyrite Concentrate Agreement
dated as of March 5, 2002, between EBM and Newmont; (vi) all rights, titles
and interests of Sellers or their Affiliates under the Xxxxxxxxx Water Lease,
but only if Buyer notifies Sellers in writing prior to September 27, 2002 that
the Xxxxxxxxx Water Lease shall constitute an Excluded Asset; and (vii) the
other Contracts, rights, assets and/or properties, if any, designated in
writing by Buyer to Sellers within ten days following Buyer's receipt from
Sellers of the Schedules to this Agreement in accordance with Section 6.6
(each of which Contracts, rights, assets and/or properties shall constitute
Excluded Assets, and shall not be included in the Assets, even though they may
be described in the Schedules).
2.3 Assumed Liabilities. After Closing, Buyer shall assume, pay,
discharge, and perform the following (the "Assumed Liabilities"): (i) all
liabilities and obligations of Sellers for the reclamation of the Acquired
Properties or the remediation of any Hazardous Substances on the Acquired
Properties resulting from the operations of Sellers on the Acquired
Properties; (ii) those obligations and liabilities attributable to periods
after Closing under the Acquired Contracts and Acquired Governmental Permits;
and (iii) all obligations and liabilities arising out
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of Buyer's ownership of the Assets or operation or closure of the XxXxx/Cove
Complex after Closing. Except only for Assumed Liabilities, Buyer does not
assume and shall not have any responsibility for any liabilities or
obligations of Sellers, including but not limited to liabilities or
obligations associated with Excluded Assets.
2.4 No Additional Consideration. Except only for its assumption of the
Assumed Liabilities, Buyer shall not pay or give Sellers any consideration for
the Assets.
ARTICLE 3
Related Matters.
3.1 Termination of Certain Obligations. At Closing, and effective as of
the Closing Date, Buyer and Sellers shall, and shall cause their Affiliates
to, terminate and release all of their respective rights and obligations
under: (i) Section 2.3(a)(iv) of the Reciprocal Option Agreement dated as of
May 23, 2000, between Buyer and Echo Bay Mines Ltd., as amended by First
Amendment dated July 7, 2000; and (ii) the Corrective Royalty Agreement dated
as of July 7, 2000, among Newmont Russia Holdings Limited, Echo Bay Mines Ltd.
and EBE.
3.2 Bulk Sales. Buyer and Sellers each waives compliance by the other
with bulk sales Legal Requirements applicable to the transactions contemplated
this Agreement.
3.3 Transfer Taxes. All sales, use, transfer, and similar Taxes arising
from or payable by reason of the transactions contemplated by this Agreement
shall be shared equally between Buyer and Sellers.
ARTICLE 4
Buyer's Representations and Warranties.
Buyer represents and warrants to Sellers, as of the date of this
Agreement and as of Closing, as follows:
4.1 Organization of Buyer. Buyer is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware, and
has all requisite power and authority to own and lease the properties and
assets it currently owns and leases and to conduct its activities as such
activities are currently conducted. Buyer is duly qualified to do business as
a foreign corporation and is in good standing in Nevada.
4.2 Authority. Buyer has all requisite power and authority to execute,
deliver, and perform this Agreement and consummate the transactions
contemplated hereby. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby by
Buyer have been duly and validly authorized by all necessary action on the
part of Buyer. This Agreement has been duly and validly executed and delivered
by Buyer, and is the valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms.
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4.3 No Conflict; Required Consents. The execution, delivery, and
performance by Buyer of this Agreement do not and will not: (i) conflict with
or violate any provision of the charter or bylaws of Buyer; (ii) violate any
provision of any Legal Requirements; or (iii) require any consent, approval,
or authorization of, or filing of any certificate, notice, application,
report, or other document with, any Governmental Authority or other Person.
ARTICLE 5
Sellers' Representations and Warranties.
Sellers jointly and severally represent and warrant to Buyer, as of the
date of this Agreement and as of Closing, as follows:
5.1 Organization and Qualification of Sellers. Each Seller is a
corporation duly organized, validly existing, and in good standing under the
laws of the state of its incorporation, and has all requisite power and
authority to own and lease the properties and assets it currently owns and
leases and to conduct its activities as such activities are currently
conducted. Each Seller is duly qualified to do business as a foreign
corporation and is in good standing in Nevada.
5.2 Authority. Each Seller has all requisite power and authority to
execute, deliver, and perform this Agreement and consummate the transactions
contemplated by this Agreement. The execution, delivery, and performance of
this Agreement and the consummation of the transactions contemplated by this
Agreement on the part of Sellers have been duly and validly authorized by all
necessary action on the part of Sellers. This Agreement has been duly and
validly executed and delivered by Sellers, and is the valid and binding
obligation of each Seller, enforceable against each Seller in accordance with
its terms.
5.3 No Conflict; Required Consents. The execution, delivery, and
performance by Sellers of this Agreement do not and will not: (i) conflict
with or violate any provision of the charter or bylaws of any Seller; (ii)
violate any provision of any Legal Requirements; (iii) conflict with, violate,
result in a breach of, constitute a default under (without regard to
requirements of notice, lapse of time, or elections of other Persons, or any
combination thereof), accelerate, or permit the acceleration of the
performance required by, any Contract or Encumbrance to which any Seller is a
party or by which any Seller or the assets or properties owned or leased by
any Seller are bound or affected; (iv) result in the creation or imposition of
any Encumbrance against or upon any of the Assets; or (v) require any consent,
approval or authorization of, or filing of any certificate, notice,
application, report, or other document with, any Governmental Authority or
other Person.
5.4 Title to Assets. Sellers have exclusive, good and marketable title to
(or, in the case of Assets that are leased, valid leasehold interests in) the
Assets (other than the Properties to which the representations and warranties
in Section 5.5 apply), and such Assets are free and clear of all Encumbrances
of any kind or nature, except: (i) Permitted Encumbrances; and (ii)
restrictions stated in the Acquired Governmental Permits. Except as disclosed
on Schedule 2.1(a), none of the Acquired Equipment is leased by any Seller
from any other Person.
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5.5 Properties.
(a) Sellers have good and marketable title to the Patented Claims.
(b) (i) Subject to the paramount title of the United States of
America (the "U.S."), Sellers are the sole owners of all of the Unpatented
Claims; (ii) each of the Unpatented Claims has been validly located, filed,
recorded, and maintained in compliance with the past and current Legal
Requirements of the U.S. and the State of Nevada; (iii) Sellers have timely
complied with all of the filing provisions of the Federal Land Policy and
Management Act (43 U.S.C. Section 1701, et seq.) as they pertain to the
Unpatented Claims; (iv) the Unpatented Claims are subsisting mining claims,
valid and in good standing under the laws and regulations applicable thereto;
and (v) Sellers have performed assessment work upon the Unpatented Claims, or
paid the applicable holding fees in lieu thereof that have become due and
payable prior to the date of this Agreement, and have recorded and filed proof
thereof, all of which work, recordings, and filings have been completed in
accordance with the applicable Legal Requirements pertaining to assessment
work.
(c) Except only for the Permitted Encumbrances: (i) the Acquired
Properties are not subject to any royalties, overriding royalties, net profit
interests, payments on or out of production, or any other burden, restriction
or Encumbrance, and (ii) the Properties are free from adverse claims of third
parties;
5.6 Acquired Contracts.
(a) Except for the Acquired Contracts described on Schedule 2.1(a),
and Contracts included in the Excluded Assets, no Seller is bound or affected
by any of the following that relate to ownership, operation, closure,
remediation or reclamation of the XxXxx/Cove Complex: (i) leases or subleases
of real property (including water) or personal property (whether as lessor or
lessee); (ii) Contracts with consultants or independent contractors; or (iii)
Contracts other than those described in any other clause of this paragraph
that are material to the ownership, operation, closure, remediation or
reclamation of the XxXxx/Cove Complex.
(b) Each of the Acquired Contracts is valid, in full force and
effect, and enforceable in accordance with its terms against the parties
thereto other than Sellers, and Sellers have fulfilled when due, or have taken
all action necessary to enable them to fulfill when due, all of their
respective obligations thereunder. There has not occurred any default (without
regard to lapse of time, the giving of notice, the election of any Person
other than Sellers, or any combination thereof) by Sellers nor, to the
knowledge of any Seller, has there occurred any default (without regard to
lapse of time, the giving of notice, the election of Sellers, or any
combination thereof) by any Person other than Sellers under any of the
Acquired Contracts. No Seller nor, to the knowledge of any Seller, any other
Person is in arrears in the performance or satisfaction of its obligations
under any of the Acquired Contracts, and no waiver or indulgence has been
granted by any of the parties thereto.
5.7 Litigation. Except for pending litigation in Nevada state courts
between Summa Corporation and EBE with respect to the calculation of amounts
payable under the Summa Royalty (Summa Corporation v. Echo Bay Exploration
Inc. and Echo Bay Management Corp., in
8
the District Court for Xxxxx County, Nevada, case number A-311583, appealed to
the Nevada Supreme Court, case number 31292), there is no Litigation pending
or, to Sellers' knowledge, threatened, or any Judgment currently outstanding,
relating to, involving or affecting all or any part of the Assets or the
XxXxx/Cove Complex.
5.8 Compliance with Legal Requirements, Acquired Governmental Permits.
(a) The ownership, leasing and use of the Assets as they are
currently, and as they have in the past been, owned, leased and used by
Sellers and the operation, closure, remediation and reclamation of the
XxXxx/Cove Complex as it currently is, and as it has in the past been,
conducted by Sellers do not violate any Legal Requirements. Sellers have not
received any notice claiming a violation by any Seller of any Legal
Requirement applicable to the XxXxx/Cove Complex or the operation, closure,
remediation and reclamation thereof, as it currently is and as it has in the
past been conducted, and to Sellers' knowledge there is no basis for any claim
that such a violation exists.
(b) All of the Acquired Governmental Permits are listed on Schedule
2.1(d). The Acquired Governmental Permits are currently in full force and
effect, and are valid under all applicable Legal Requirements according to
their terms. There is no Litigation pending or, to Sellers' knowledge,
threatened, to terminate, suspend or modify any Acquired Governmental Permit
and Sellers are in compliance with the terms and conditions of all the
Acquired Governmental Permits and with other applicable Legal Requirements
relating to the Acquired Governmental Permits, including but not limited to
all requirements for notification, filing, reporting, posting and maintenance
of logs and records.
5.9 Environmental. Any disposals, releases, or threatened releases of
reportable quantities of Hazardous Substances on, from, or under the Acquired
Properties, occurring during Sellers' possession of the Acquired Properties,
have been reported on a timely basis to the applicable Governmental Authority
in accordance with applicable Legal Requirements; there have occurred no such
disposals, releases or threatened releases that are reportable to any
Governmental Authority under any Legal Requirements within any period of time
that has not yet expired; and there are no outstanding notices of violation or
other administrative proceeding affecting the Assets or Sellers in respect of
any such disposals, releases or threatened releases. Sellers have no knowledge
of the presence of, or of any disposals, releases, or threatened releases of
reportable quantities of Hazardous Substances on, from or under, the Acquired
Properties which may have occurred prior to Sellers taking possession of the
Acquired Properties.
5.10 Bonds. Schedule 5.10 describes all bonds and similar instruments
required by any Governmental Authority to be maintained with respect to the
operation, closure, reclamation or remediation of the XxXxx/Cove Complex.
9
ARTICLE 6
Covenants.
6.1 Certain Affirmative Covenants of Sellers. Except as Buyer may
otherwise consent in writing, between the date of this Agreement and Closing
Sellers shall:
(a) (i) duly comply with all Legal Requirements applicable to the
XxXxx/Cove Complex and the operation, closure, remediation and reclamation
thereof; (ii) perform all of its obligations under all of the Acquired
Contracts and Acquired Governmental Permits without default; (iii) maintain
the Assets in their current condition, ordinary wear and tear excepted.
(b) (i) give to Buyer, and its counsel, accountants, and other
representatives, on reasonable notice, full access during normal business
hours to the XxXxx/Cove Complex, the Assets, and all files, abstracts of
title, title reports and similar or related records relating to the Properties
or the XxXxx/Cove Complex; provided, however, that no investigation by Buyer
or its representatives shall affect or limit the scope of any of the
representations and warranties of Sellers in the Agreement or in any
Transaction Document or limit the liability of Sellers for any breach of such
representations and warranties; and
(c) promptly notify Buyer of any circumstance, event, or action by
any Seller or otherwise (i) which, if known at the date of this Agreement,
would have been required to be disclosed in or pursuant to this Agreement; or
(ii) the existence, occurrence, or taking of which would result in any of the
representations and warranties of Sellers in this Agreement not being true and
correct when made or at Closing.
6.2 Certain Negative Covenants of Sellers. Except as Buyer may otherwise
consent in writing (which consent, in the case of paragraph (b) below, Buyer
shall not unreasonably withhold), or as contemplated by this Agreement,
between the date of this Agreement and Closing Sellers shall not:
(a) dispose of any of the Assets;
(b) modify, terminate, renew, suspend, or abrogate any Acquired
Governmental Permit or Acquired Contract; or
(c) enter into any transaction or permit the taking of any action
that would result in any of the representations and warranties of Sellers in
this Agreement not being true and correct when made or at Closing.
6.3 Required Consents. Sellers shall exercise their reasonable best
efforts to obtain, as soon as possible and at their expense, all Required
Consents; provided, however, that Sellers shall not agree or accede to any
amendments or modifications of, or any condition to the transfer to Buyer of,
any Acquired Contract or Acquired Governmental Permit, that are not acceptable
to Buyer in its discretion. Buyer shall cooperate reasonably with such efforts
of Sellers.
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6.4 Confidentiality.
(a) Any non-public information that Buyer may obtain from Sellers in
connection with this Agreement with respect to the XxXxx/Cove Complex shall be
deemed confidential and, unless and until Closing shall occur, Buyer shall not
disclose any such information to any third party (other than its directors,
officers and employees, and representatives of its advisers and lenders whose
knowledge thereof is necessary in order to facilitate the consummation of the
transactions contemplated hereby) or use such information for any commercial
purpose; provided, however, that (i) Buyer may use and disclose any such
information once it has been publicly disclosed (other than by Buyer in breach
of its obligations under this Section) or which rightfully has come into the
possession of Buyer (other than from any Seller); (ii) Buyer may disclose such
information to its officers, directors, agents, employees, representatives,
advisors and lenders as necessary in connection with the transactions
contemplated in this Agreement or the Related Transactions; and (iii) to the
extent that Buyer may become compelled by Legal Requirements to disclose any
of such information, Buyer may disclose such information if it shall have used
all reasonable efforts, and shall have afforded Sellers the opportunity, to
obtain an appropriate protective order, or other satisfactory assurance of
confidential treatment, for the information compelled to be disclosed.
(b) Any non-public information that Sellers shall obtain from Buyer
in connection with this Agreement with respect to Buyer or any of its
Affiliates shall be deemed confidential, and Sellers shall not disclose such
information to any third party or use such information for any commercial
purpose; provided, however, that (i) Sellers may use and disclose any such
information once it has been publicly disclosed (other than by Sellers in
breach of their obligations under this Section) or which rightfully has come
into the possession of Sellers (other than from Buyer); (ii) Sellers may
disclose such information to their officers, directors, agents, employees,
representatives, advisors and lenders as necessary in connection with the
transactions contemplated in this Agreement or the Related Transactions; and
(iii) to the extent that Sellers may become compelled by Legal Requirements to
disclose any of such information, Sellers may disclose such information if
they shall have used all reasonable efforts, and shall have afforded Buyer the
opportunity, to obtain an appropriate protective order, or other satisfactory
assurance of confidential treatment, for the information compelled to be
disclosed.
(c) Except as required by applicable Legal Requirements, neither
Sellers nor Buyer shall make any press release or public announcement or
statement without the prior written consent and approval of the other. Sellers
and Buyer shall consult with and cooperate with the other with respect to the
content and timing of all press releases and other public announcements or
statements, and any oral or written statements to Sellers' employees
concerning this Agreement and the transactions contemplated hereby.
6.5 Employee Matters.
(a) Prior to Closing Sellers shall terminate all of their employees
involved in the operations of the XxXxx/Cove Complex (the "Sellers
Employees"). Sellers shall pay the Sellers Employees all compensation,
including salaries, commissions, bonuses, deferred compensation, severance,
insurance, pensions profit sharing, vacation, sick pay and other compensation
or benefits to which they are entitled.
11
(b) Sellers shall be responsible for maintenance and distribution of
benefits accrued under any employee benefit plan (as defined in ERISA)
maintained by Sellers pursuant to the provisions of such plans. Buyer assumes
neither any liability for any such accrued benefits nor any fiduciary or
administrative responsibility to account for or dispose of any such accrued
benefits under any employee benefit plans maintained by Sellers.
(c) All claims and obligations under, pursuant to or in connection
with any welfare, medical, insurance, disability or other employee benefit
plans of Sellers or arising under any Legal Requirement affecting the Sellers
Employees shall remain the responsibility of Sellers.
6.6 Deliveries. Within forty-five days following the date of this
Agreement, Sellers shall deliver to Buyer the following:
(a) complete and correct copies of each of the Acquired Contracts,
including any amendments thereto (or, in the case of oral Acquired Contracts,
true and complete written summaries thereof);
(b) complete and correct copies of the Acquired Governmental
Permits;
(c) complete and correct copies of, or access (with the right and
means to copy) to (i) all studies, reports, surveys or other materials in
Sellers' possession or to which Sellers have access relating to the presence
or alleged presence of Hazardous Substances at, on or affecting any of the
Acquired Properties; (ii) all notices or other materials in Sellers'
possession or to which Sellers have access that were received from any
Governmental Authority having the power to administer or enforce any Legal
Requirements relating to current or past ownership, use or operation of any
parcel of the Acquired Properties or activities at any of the Acquired
Properties; and (iii) all materials in Sellers' possession or to which Sellers
have access relating to any claim, allegation or action by any private third
party under any Legal Requirements; and
(d) copies of all of the Schedules to this Agreement completed with
a reasonable degree of detail and in form reasonably acceptable to Buyer.
ARTICLE 7
Conditions Precedent.
7.1 Conditions to Buyer's Obligations. The obligations of Buyer to
consummate the transactions contemplated by this Agreement shall be subject to
the following conditions, which may be waived by Buyer:
(a) Accuracy of Representations and Warranties. The representations
and warranties of Sellers in this Agreement shall be true and accurate in all
material respects at and as of Closing with the same effect as if made at and
as of Closing.
(b) Performance Of Agreements. Sellers shall have, in all material
respects, performed all obligations and agreements and complied with all
covenants in this Agreement to be performed and complied with by them at or
before Closing.
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(c) Officers' Certificates. Buyer shall have received a certificate
executed by an executive officer of each Seller, dated as of Closing,
reasonably satisfactory in form and substance to Buyer, certifying that the
conditions specified in paragraphs 7.1(a) and (b) have been satisfied.
(d) Legal Proceedings. There shall be no Legal Requirement, and no
Judgment shall have been entered and not vacated, which (i) enjoins,
restrains, makes illegal, or prohibits consummation of the transactions
contemplated by this Agreement; or (ii) requires separation or divestiture by
Buyer of all or any significant portion of the Assets after Closing, nor shall
there be any pending or threatened Litigation seeking (or which if successful
would have the effect of) either (i) or (ii).
(e) Xxxxxxxxx Water Lease Termination. If Buyer notifies Sellers in
accordance with Section 2.2 that the Xxxxxxxxx Water Lease shall constitute an
Excluded Asset, the Xxxxxxxxx Water Lease shall have been terminated without
liability or obligation to Buyer, as evidenced to Buyer's reasonable
satisfaction.
(f) Required Consents. Buyer shall have received evidence, in form
and substance satisfactory to it, that there have been obtained all Required
Consents.
(g) Releases of Encumbrances. Sellers shall have delivered to Buyer
releases, in form and substance satisfactory to Buyer, of all Encumbrances
affecting any of the Assets other than Permitted Encumbrances.
(h) Consummation of Related Transactions. There shall have been
consummated the transactions contemplated by the Combination Agreement,
executed concurrently with the execution of this Agreement, by and among
Kinross Gold Corporation, TVX Gold Inc. and Echo Bay Mines Ltd. (the "Related
Transactions").
7.2 Conditions to Sellers' Obligations. The obligations of Sellers to
consummate the transactions contemplated by this Agreement shall be subject to
the following conditions, which may be waived by Sellers:
(a) Accuracy of Representations and Warranties. The representations
and warranties of Buyer in this Agreement shall be true and accurate in all
material respects at and as of Closing with the same effect as if made at and
as of Closing.
(b) Performance of Agreements. Buyer shall have, in all material
respects, performed all obligations and agreements and complied with all
covenants in this Agreement to be performed and complied with by it at or
before Closing.
(c) Officer's Certificate. Sellers shall have received a certificate
executed by an executive officer of Buyer, dated as of Closing, reasonably
satisfactory in form and substance to Sellers, certifying that the conditions
specified in paragraphs 7.2(a) and (b) have been satisfied.
(d) Legal Proceedings. There shall be no Legal Requirement, and no
Judgment shall have been entered and not vacated, which enjoins, restrains,
makes illegal, or
13
prohibits consummation of the transactions contemplated by this Agreement, nor
shall there be any pending or threatened Litigation seeking (or which if
successful would have the effect of) any of the foregoing.
(e) Consummation of Related Transactions. The Related Transactions
shall have been consummated.
ARTICLE 8
Closing.
8.1 Closing; Time and Place. The closing of the transactions contemplated
by this Agreement ("Closing") shall take place on, or within five Business
Days following, the date on which the Related Transactions are consummated, at
a time and location mutually determined by Sellers and Buyer; provided,
however, that either party may, at its option, postpone Closing on one or more
occasions to a later date (but in no event later than the Outside Closing
Date), in order to allow for the satisfaction of the conditions to the
obligations of such party stated in Sections 7.1 or 7.2, as applicable.
8.2 Sellers' Obligations. At Closing, Sellers shall deliver or cause to
be delivered to Buyer the following:
(a) Xxxx of Sale and General Assignment. A Xxxx of Sale and General
Assignment in the form of Exhibit 8.2(a), executed by each Seller.
(b) GBS Deeds. A Grant, Bargain and Sale Deed in the form attached
as Exhibit 8.2(b), with respect to the Patented Claims owned by each Seller,
executed by such Seller.
(c) Mining Deeds. A Mining Deed in the form attached as Exhibit
8.2(c), with respect to the Unpatented Claims owned by each Seller, executed
by such Seller.
(d) Kuranakh Termination Agreement. A counterpart Termination
Agreement in the form attached as Exhibit 8.2(d) (the "Kuranakh Termination
Agreement"), executed by Sellers' Affiliate Echo Bay Mines Ltd.
(e) Vehicle Titles. Title certificates to all vehicles included
among the Assets, endorsed for transfer of title to Buyer, and separate bills
of sale therefor, if required by the laws of the State of Nevada, executed for
transfer by the applicable Seller.
(f) FIRPTA Affidavit. An affidavit of the Sellers, under penalty of
perjury, that each Seller is not a "foreign person" (as defined in the Foreign
Investment in Real Property Tax Act and applicable regulations) and that Buyer
is not required to withhold any portion of the consideration payable under
this Agreement under the provisions of such Act, in the form attached as
Exhibit 8.2(f).
(g) Officer's Certificate. The certificate described in paragraph
7.1(c).
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(h) Evidence of Corporate Actions. Certified resolutions of the
boards of directors of Sellers, or other evidence reasonably satisfactory to
Buyer, that Sellers have taken all action necessary to authorize the execution
of this Agreement and the consummation of the transactions contemplated by
this Agreement.
(i) Other. Such other documents and instruments as shall be
necessary to effect the intent of this Agreement and consummate the
transactions contemplated hereby.
8.3 Buyer's Obligations. At Closing, except as otherwise provided below,
Buyer shall deliver or cause to be delivered to Sellers the following:
(a) Assumption Agreement. An Assumption Agreement in the form
attached as Exhibit 8.3(a), executed by Buyer.
(b) Kuranakh Termination Agreement. A counterpart of the Kuranakh
Termination Agreement, executed by Buyer and its Affiliate Newmont Russia
Holdings Limited.
(c) Officer's Certificate. The certificate described in paragraph
7.2(c).
(d) Evidence of Corporate Actions. Certified resolutions of the
board of directors of Buyer, or other evidence reasonably satisfactory to
Sellers, that Buyer has taken all action necessary to authorize the execution
of this Agreement and the consummation of the transactions contemplated by
this Agreement.
(e) Other. Such other documents and instruments as shall be
necessary to effect the intent of this Agreement and consummate the
transactions contemplated hereby.
ARTICLE 9
Termination and Default.
9.1 Termination Events. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned:
(a) at any time, by the mutual agreement of the Buyer and Sellers;
(b) by either Buyer or Sellers, at any time, if the other or others
is or are in material breach or default of its or their respective covenants,
agreements, or other obligations in this Agreement, or if any of its or their
representations in this Agreement are not true and accurate in all material
respects when made or when otherwise required by this Agreement to be true and
accurate;
(c) by either Buyer or Sellers upon written notice to the other or
others, if any of the conditions to its or their obligations set forth in
Sections 7.1 and 7.2, respectively, shall not have been satisfied on or before
December 31, 2002 (the "Outside Closing Date"), for any reason other than a
material breach or default by such party or parties of its or their respective
covenants, agreements, or other obligations under this Agreement, or any of
its or their
15
representations in this Agreement not being true and accurate in all material
respects when made or when otherwise required by this Agreement to be true and
accurate in all material respects; or
(d) as otherwise provided in this Agreement.
9.2 Effect of Termination. If this Agreement shall be terminated pursuant
to Section 9.1, all obligations of the parties hereunder shall terminate,
except for the obligations set forth in Section 6.4, this Section 9.2 and
Article 11. Termination of this Agreement pursuant to paragraphs 9.1(a), (b),
(c) or, except as otherwise provided in this Agreement, (d), shall not limit
or impair any remedies that either Sellers or Buyer may have with respect to a
breach or default by the other of its covenants, agreements or obligations
under this Agreement or any Transaction Document.
ARTICLE 10
Indemnification.
10.1 Indemnification by Sellers. From and after Closing, Sellers jointly
and severally shall indemnify and hold harmless Buyer and its affiliates and
their respective officers and directors, employees, agents, and
representatives, and any Person claiming by or through any of them, as the
case may be, from and against any and all Losses arising out of or resulting
from:
(a) any representations and warranties of Sellers in this Agreement
not being true and accurate when made or at Closing;
(b) any failure by Sellers to perform any of their covenants,
agreements, or obligations in this Agreement;
(c) the development operations, closure, remediation and reclamation
of the XxXxx/Cove Complex prior to Closing, including but not limited to the
payment and performance of its obligations under or with respect to the Summa
Royalty with respect to periods prior to Closing, but excluding any
liabilities arising out of the development, operations, closure, remediation
or reclamation of the XxXxx/Cove Complex that are Assumed Liabilities; and
(d) all other liabilities and obligations of Sellers that are not
Assumed Liabilities.
If, by reason of the claim of any third party relating to any of the matters
subject to such indemnification, an Encumbrance, attachment, garnishment, or
execution is placed or made upon any of the properties or assets owned or
leased by Buyer or any other Indemnitee under this Section, in addition to any
indemnity obligation of Sellers under this Section, Sellers shall furnish a
bond sufficient to obtain the prompt release thereof within five days from
receipt of notice relating thereto.
10.2 Indemnification by Buyer. From and after Closing, Buyer shall
indemnify and
16
hold harmless Sellers and their affiliates and their respective officers and
directors, agents, and representatives, and any Person claiming by or through
any of them, as the case may be, from and against any and all Losses arising
out of or resulting from:
(a) any representations and warranties of Buyer in this Agreement
not being true and accurate when made or at Closing;
(b) any failure by Buyer to perform any of its covenants,
agreements, or obligations in this Agreement; and
(c) the Assumed Liabilities.
10.3 Procedure for Indemnified Third Party Claim. Promptly after receipt
by a party entitled to indemnification hereunder (the "Indemnitee") of written
notice of the assertion or the commencement of any Litigation with respect to
any matter referred to in Sections 10.1 or 10.2, the Indemnitee shall give
written notice thereof to Sellers if the Indemnitee is a Person entitled to
indemnification under Section 10.1, or Buyer, if the Indemnitee is a Person
entitled to indemnification under Section 10.2 (in either case, the
"Indemnitor"), and thereafter shall keep the Indemnitor reasonably informed
with respect thereto; provided, however, that failure of the Indemnitee to
give the Indemnitor notice as provided herein shall not relieve the Indemnitor
of its obligations hereunder except to the extent that the Indemnitor is
prejudiced thereby. If any Litigation shall be commenced against any
Indemnitee by a third party, the Indemnitor shall be entitled to participate
in such Litigation and, at its option, assume the defense thereof with counsel
reasonably satisfactory to the Indemnitee, at the Indemnitor's sole expense;
provided, however, that the Indemnitor shall not have the right to assume the
defense of any Litigation if (i) the Indemnitee shall have one or more legal
or equitable defenses available to it which are different from or in addition
to those available to the Indemnitor, and, in the reasonable opinion of the
Indemnitee, counsel for the Indemnitor could not adequately represent the
interests of the Indemnitee because such interests could be in conflict with
those of the Indemnitor, (ii) such Litigation is reasonably likely to have a
material adverse effect on any other matter beyond the scope or limits of the
indemnification obligation of the Indemnitor, or (iii) the Indemnitor shall
not have assumed the defense of the Litigation in a timely fashion (but in any
event within thirty days of notice of such Litigation). If the Indemnitor
shall assume the defense of any Litigation, the Indemnitee shall be entitled
to participate in any Litigation at its expense, and the Indemnitor shall not
settle such Litigation unless the settlement shall include as an unconditional
term thereof the giving by the claimant or the plaintiff of a full and
unconditional release of the Indemnitee, from all liability with respect to
the matters that are subject to such Litigation, or otherwise shall have been
approved reasonably by the Indemnitee.
10.4 Payment of Indemnification Amounts and Related Matters. Amounts
payable pursuant to Sections 10.1 or 10.2 shall be payable by the Indemnitor
as incurred by the Indemnitee, and shall bear interest at the Prime Rate from
the date the Losses for which indemnification is sought were incurred by the
Indemnitee until the date of payment of indemnification by the Indemnitor.
10.5 Survival. The representations and warranties of Buyer and Sellers in
this Agreement shall survive Closing.
17
10.6 Other Indemnification. The provisions of Sections 10.3 and 10.4
shall be applicable to any claim for indemnification made under any other
provision of this Agreement, and all references in Sections 10.3 and 10.4 to
Sections 10.1 and 10.2 shall be deemed to be references to such other
provisions of this Agreement.
ARTICLE 11
Miscellaneous Provisions.
11.1 Expenses. Except as otherwise provided in Section 11.13 or elsewhere
in this Agreement, each of the parties shall pay its own expenses and the fees
and expenses of its counsel, accountants, and other experts in connection with
this Agreement.
11.2 Brokerage. Sellers shall indemnify and hold Buyer harmless from and
against any and all Losses arising from any employment by them of, or services
rendered to them by, any finder, broker, agency, or other intermediary, in
connection with the transactions contemplated hereby, or any allegation of any
such employment or services. Buyer shall indemnify and hold Sellers harmless
from and against any and all Losses arising from any employment by it of, or
services rendered to it by, any finder, broker, agency, or other intermediary,
in connection with the transactions contemplated hereby, or any allegation of
any such employment or services.
11.3 Waivers. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party hereto, shall be deemed to
constitute a waiver by the party taking the action of compliance with any
representation, warranty, covenant or agreement contained herein or in any
Transaction Document. The waiver by any party hereto of any condition or of a
breach of another provision of this Agreement or any Transaction Document
shall not operate or be construed as a waiver of any other condition or
subsequent breach. The waiver by any party of any of the conditions precedent
to its obligations under this Agreement shall not preclude it from seeking
redress for breach of this Agreement other than with respect to the condition
so waived.
11.4 Notices. All notices, requests, demands, applications, services of
process, and other communications which are required to be or may be given
under this Agreement or any Transaction Document shall be in writing and shall
be deemed to have been duly given if sent by telecopy or facsimile
transmission or delivered by courier or mailed, certified first class mail,
postage prepaid, return receipt requested, to the parties hereto at the
following addresses:
To Sellers:
x/x Xxxx Xxx Xxxxx Ltd.
00000 000 Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxx X0X0X0
Attention: Vice-President and Secretary
Facsimile: (000) 000-0000
18
To Buyer:
Newmont USA Limited
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Land Department
Facsimile: (000) 000-0000
or to such other address as any party shall have furnished to the other by
notice given in accordance with this Section. Such notice shall be effective,
(i) if delivered in person or by courier, upon actual receipt by the intended
recipient, or (ii) if sent by telecopy or facsimile transmission, upon
receipt, or (iii) if mailed, upon the earlier of five days after deposit in
the mail and the date of delivery as shown by the return receipt therefor.
11.5 Entire Agreement; Amendments. This Agreement embodies the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral or written, with
respect thereto. This Agreement may not be modified orally, but only by an
agreement in writing signed by the party or parties against whom any waiver,
change, amendment, modification, or discharge may be sought to be enforced.
11.6 Binding Effect; Benefits. This Agreement shall inure to the benefit
of and will be binding upon the parties hereto and their respective heirs,
legal representatives, successors, and permitted assigns. Neither Buyer nor
Sellers shall assign this Agreement or delegate any of its duties hereunder to
any other Person without the prior written consent of the other. For purposes
of this Section any change in control of Buyer or Sellers, other than as a
result of the Related Transactions, shall constitute an assignment of this
Agreement. Notwithstanding the foregoing, Buyer shall be entitled to assign
this Agreement, in whole or in part, to any Affiliate of Buyer without the
consent of Sellers.
11.7 Headings, Schedules, and Exhibits. The section and other headings in
this Agreement are for reference purposes only and will not affect the meaning
of interpretation of this Agreement. Reference to Exhibits shall, unless
otherwise indicated, refer to the Exhibits attached to this Agreement and
reference to Schedules shall refer to the Schedules delivered by Sellers to
Buyer pursuant to Section 6.6, each of which shall be incorporated in and
constitute a part of this Agreement by such reference. Any item that could be
deemed to be properly disclosable on more than one Schedule to this Agreement
shall be deemed to be properly disclosed on all such Schedules if it is
disclosed in reasonable detail on any Schedule to the Agreement.
11.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together will be deemed to be one and the same instrument.
11.9 Governing Law. The validity, performance, and enforcement of this
agreement and all transaction documents, unless expressly provided to the
contrary, shall be governed by the laws of the State of Colorado, without
giving effect to the principles of conflicts of law of such State.
19
11.10 Severability. Any term or provision of this Agreement which is
invalid or unenforceable shall be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable the remaining
rights of the Person intended to be benefited by such provision or any other
provisions of this Agreement.
11.11 Third Parties; Joint Ventures. This Agreement constitutes an
agreement solely among the parties hereto, and, except as otherwise provided
herein, is not intended to and will not confer any rights, remedies,
obligations, or liabilities, legal or equitable, including any right of
employment, on any Person (including but not limited to any employee or former
employee of Sellers) other than the parties hereto and their respective
successors, or assigns, or otherwise constitute any Person a third party
beneficiary under or by reason of this Agreement. Nothing in this Agreement,
expressed or implied, is intended to or shall constitute the parties hereto
partners or participants in a joint venture.
11.12 Construction. This Agreement has been negotiated by Buyer and
Sellers and their respective legal counsel, and legal or equitable principles
that might require the construction of this Agreement or any provision of this
Agreement against the party drafting this Agreement shall not apply in any
interpretation of this Agreement.
11.13 Attorneys' Fees. If any Litigation between Sellers and Buyer with
respect to this Agreement or the transaction contemplated hereby shall be
resolved or adjudicated by a Judgment of any court, the party prevailing under
such Judgment shall be entitled, as part of such Judgment, to recover from the
other party its reasonable attorneys' fees and costs and expenses of
litigation.
11.14 Risk of Loss; Condemnation.
(a) Sellers shall bear the risk of any loss or damage to the Assets
resulting from fire or other casualty (except reasonable wear and tear) at all
times prior to Closing. If any such loss or damage occurs prior to Closing (i)
Sellers immediately shall notify Buyer of such occurrence; and (ii) at
Closing, Sellers shall deliver to Buyer all insurance proceeds payable as a
result of the occurrence of the event resulting in such loss or damage, or
Sellers shall assign to Buyer the rights to any such proceeds not yet paid
over to Sellers.
(b) If, prior to Closing, any material part of or interest in the
Assets is taken or condemned as a result of the exercise of the power of
eminent domain, or if a Governmental Authority having such power informs
Sellers or Buyer that it intends to condemn all or any part of the Assets
(such event being called, in either case, a "Taking"), (i) Buyer shall have
the sole right, in the name of Sellers, if Buyer so elects, to negotiate for,
claim, contest and receive all damages with respect to the Taking; (ii)
Sellers shall be relieved of their obligation to convey to Buyer the Assets or
interests that are the subject of the Taking; (iii) at Closing, Sellers shall
assign to Buyer all of Sellers' rights to all damages payable with respect to
such Taking and shall pay to Buyer all damages previously paid to any Seller
with respect to the Taking; and (iv) following Closing, Sellers shall give
Buyer such further assurances of such rights and assignment with respect to
the Taking as Buyer from time to time reasonably may request.
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Buyer and Sellers have executed this Agreement as of the date first
written above.
SELLERS
Echo Bay Exploration Inc.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive
Officer
Echo Bay Minerals Company
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive
Officer
BUYER
Newmont USA Limited dba Newmont Mining
Corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President, General
Counsel & Secretary
21
EXHIBITS TO ASSET PURCHASE AGREEMENT
Exhibit No. Exhibit
Exhibit 8.2(a) Xxxx of Sale and General Assignment
Exhibit 8.2(b) Grant, Bargain and Sale Deed
Exhibit 8.2(c) Mining Deed
Exhibit 8.2(d) Termination Agreement
Exhibit 8.2(f) FIRPTA Affidavit
Exhibit 8.3(a) Assumption Agreement
A copy of any omitted Exhibit will be provided to the SEC upon request.
