AMENDED AND RESTATED MASTER AGREEMENT
Exhibit
10.1
EXECUTION
VERSION
AMENDED
AND RESTATED MASTER AGREEMENT
This
AMENDED AND RESTATED MASTER AGREEMENT dated the 12th day of
January, 2010,
BETWEEN:
COMPAÑÍA MINERA XXXX XXXXXX DE
ANDACOLLO, a contractual mining company organized under the laws of
Chile
(“Operator”),
AND:
ROYAL GOLD, INC., a
corporation organized under the laws of the State of Delaware, Unites States of
America (“Royal
Gold”).
WHEREAS:
A. Operator
(formerly known as Compañía Xxxxxx Xxxxxx de Andacollo) and Royal Gold are
parties to that certain Master Agreement dated April 3, 2009, amended by
Amendment No. 1 to the Master Agreement dated August 12, 2009 (together the
“Original Master
Agreement”).
B. Operator
and Royal Gold wish to amend and restate the Original Master Agreement upon the
terms and conditions of this Agreement.
C. Operator
owns and operates a mining project located near the town of Andacollo, Chile,
known as “Xxxxxx de Andacollo” and as part of such project is developing the
hypogene copper-gold project (the “Project”) on the Mining
Properties.
D. In
consideration of payment of the Purchase Price, Operator has agreed to sell,
transfer and assign to Royal Gold a Royalty related to the gold produced from
the Project, subject to the terms and conditions set forth herein and in the
Royalty Agreement.
E. Operator
and Royal Gold have entered into the Stockholder Agreement and desire to enter
into a Registration Rights Agreement in connection with the issuance of shares
of Royal Gold Common Stock to Operator in exchange for the Royalty, subject to
the terms and conditions set forth herein.
F. Operator
and Royal Gold acknowledge that the Royalty Agreement is an aleatory agreement
(contrato aleatorio),
and thus payments thereunder are contingent on the proceeds obtained from the
exploitation of the Subject Properties as provided in this
Agreement.
G. Royal
Gold acknowledges that copper is the main mineral exploited from the Subject
Properties.
NOW,
THEREFORE, in consideration of the respective covenants, agreements,
representations, warranties and indemnities contained in this Agreement and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the Parties, the Parties covenant and agree as
follows:
1. Certain Defined Terms and
Construction.
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(a)
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As
used in this Agreement, the following capitalized terms shall have the
following meanings:
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(i)
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“Affiliate” means, with
respect to any Person, any Person that directly, or indirectly through one
or more intermediaries, controls, is controlled by or is under common
control with such Person.
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(ii)
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“Agent” means the Persons
to be appointed pursuant to the Royalty Agreement, each acting on behalf
of either Royal Gold or Operator.
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(iii)
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“Agreement” means this
Amended and Restated Master Agreement with all Exhibits and Schedules
hereto.
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(iv)
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“Ancillary Property
Rights” mean any land and water rights owned, controlled, leased,
mined or operated by or on behalf of Operator or any Affiliate of Operator
on or after April 3, 2009 that are not included in the Mining Properties
or the Subject Properties, but which are required for the development and
operation of the Project.
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(v)
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“Approvals” mean any
authorizations, licenses, permits, consents, waivers, grant notices,
approvals, rulings, orders, certifications, exemptions, filings,
variances, decrees, registrations, or other action, whether written or
oral, of, by, from or on behalf of any Governmental Authority or any other
third party, together with all easements, rights-of-way and other rights
to access or use property.
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(vi)
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“Avío” means a contrato aleatorio
regulated in the Chilean Mining Code and defined in article 206 therein as
a contract by means of which a person commits to give or to do something
for the benefit of the exploitation of an exploitation mining concession
(pertenencia), to
be paid only with the products obtained therefrom or with an ownership
quota of such mining concession.
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(vii)
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“Capital Reorganization”
has the meaning set forth in Section
2(f).
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(viii)
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“Cash Portion” has the
meaning set forth in Section 2(b).
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(ix)
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“Charter Documents” mean
articles, articles of incorporation, certificate of incorporation, notice
of articles, memorandum, constitutions, bylaws or any similar constating
document of a corporation or other legal
entity.
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(x)
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“Circular Boundary” means
the circular boundary illustrated in bold black on the map
in Part II of Exhibit B and
described by the Universal Transverse Mercator coordinates in Part III(a)
of Exhibit
B.
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(xi)
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“Closing” has the meaning
set forth in Section 2(i).
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(xii)
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“Closing Date” has the
meaning set forth in Section 2(i).
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(xiii)
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“Closing Time” has the
meaning set forth in Section 2(i).
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(xiv)
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“Condiciones Suspensivas”
mean the conditions precedent for effectiveness (condiciones
suspensivas) set forth in Schedule C of
the Royalty Agreement.
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(xv)
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“Confidentiality
Agreement” means the confidentiality agreement between Teck
Resources Limited (formerly known as Teck Cominco Limited) and Royal Gold
dated October 28, 2008.
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(xvi)
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“Convertible Securities”
has the meaning set forth in Section
2(d)(i).
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(xvii)
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“Current Market Price”
means the weighted average trading price of the Royal Gold Common Stock on
the NASDAQ Global Select Market, during the ten consecutive Trading Days
ending on a date which is the fifth Trading Day before such date; provided
that the weighted average trading price shall be determined by dividing
that aggregate sale price of all Royal Gold Common Stock sold on the said
exchange, as the case may be, during the said ten consecutive Trading Days
by the total number of Royal Gold Common Stock so sold; and provided
further that, if the Royal Gold Common Stock are not listed and posted for
trading on any stock exchange in Canada or the United States or traded in
the over-the-counter market, the Current Market Price shall be determined
by the good faith judgment of the board of directors of Royal
Gold.
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(xviii)
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“Dayton” means Compañía
Minera Dayton.
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(xix)
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“Dayton Concessions”
means: (A) Río Elqui Uno 1 to 5 and Río Elqui Uno 8; (B) Xxxxxxx Tercera;
(C) Jazmín; (D) Xxxxxxx 142, Xxxxxxx 143, Xxxxxxx 149 and Xxxxxxx 150; (E)
Nanita 1 to 7, Nanita 9 to 11, Nanita 13 to 23, Nanita 28 to 32 and Nanita
47 to 50; (F) Xxxxxxx 54 to 61; (G) Xxxxxx; (H) Xxxxxxx 1 and 2; (I)
Mercedes 4, Mercedes 5 and Mercedes 6; (J) Xxxxxxx 113 to 115, Xxxxxxx 120
to 123 and Xxxxxxx 127 to 129; (K) Cautín; (L) Río Xxxxx Xxx 0 xx 0, Xxx
Xxxxx Xxx 14 and Río Elqui Dos 15; (M) Río Elqui Tres 1; and (N) Xxxxx 1
and 2.
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(xx)
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“Deed of Cancellation”
means the Chilean public deed or deeds to be entered into by the Agent and
Operator or Royal Gold, as applicable, declaring that the Royalty
Agreement has terminated because the Condiciones Suspensivas have
failed.
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(xxi)
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“Disclosure Documents”
mean:
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(A)
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Annual
Report of Royal Gold on Form 10-K/A for the year ended June 30, 2008,
filed on November 6, 2008, and Annual Report of Royal Gold on Form 10-K
for the year ended June 30, 2009, filed on August 21,
2009;
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(B)
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Quarterly
Reports of Royal Gold on Form 10-Q for the quarters ended (1) December 31,
2008, filed February 6, 2009, (2) March 31, 2009, filed May 11, 2009, and
(3) September 30, 2009, filed on November 6,
2009;
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(C)
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Current
Reports of Royal Gold on Form 8-K filed on August 5, 2008, September 2,
2008, September 17, 2008, September 19, 2008, September 25, 2008, October
7, 2008, October 31, 2008, November 4, 2008, November 6, 2008, November 7,
2008, January 5, 2009, February 24, 2009, March 4, 2009, March 27, 2009,
April 6, 2009, April 8, 2009, April 16, 2009, May 7, 2009, June 3, 2009,
July 28, 2009, August 13, 2009, August 24, 2009, August 27, 2009,
September 28, 2009, October 19, 2009, November 5, 2009, November 6, 2009,
November 18, 2009, November 20, 2009, November 23, 2009, December 18,
2009, December 21, 2009 and December 23,
2009;
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(D)
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Definitive
Proxy Statement, dated and filed October 9, 2009, for Royal Gold’s 2009
Annual Meeting of Stockholders that was held on November 18,
2009;
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(E)
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the
description of the Preferred Stock Purchase Rights contained in the
registration statement of Royal Gold on Form 8-A under the Exchange Act
filed on September 12, 1997, as amended by the registration statement of
Royal Gold on Form 8-A/A filed September 10, 2007, together with any
amendment or report filed with the SEC for the purpose of updating such
description;
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(F)
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(1)
the full text of the MJDS Canadian prospectus of Royal Gold dated and
filed January 20, 2009 and attaching the full text of the United States
prospectus of Royal Gold dated December 19, 2008 and the United States
registration statement dated December 19, 2008 and (2) the full text of
the MJDS Canadian prospectus supplement of Royal Gold dated April 7, 2009
and filed April 8, 2009 and attaching the full text of the United States
prospectus supplement of Royal Gold dated April 7, 2009 and the United
States prospectus dated December 19, 2008;
and
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(G)
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all
other documents filed by Royal Gold pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of the MJDS prospectus of
Royal Gold dated and filed January 20, 2009 and before the Closing
Time.
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(xxii)
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“Dispute” means a dispute
arising out of or connected with this Agreement or any legal relationship
associated with or derived from this
Agreement.
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(xxiii)
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“Exchange Act” means the
United States Securities Exchange Act of 1934, as
amended.
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(xxiv)
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“Environmental Laws” mean
Governmental Requirements relating to pollution or protection of the
environment, including, without limitation, Governmental Requirements
relating to emissions, discharges, releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment (including, without limitation, ambient air, surface water,
ground water, aquifers, land surface or subsurface strata) or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes which are
applicable to the Subject Properties, the Project , the other assets
owned, controlled or managed by Operator which are used on or in
connection with the Subject Properties, the Ancillary Property Rights or
the Project or to the activities of Operator on or in connection with the
Subject Properties, the Ancillary Property Rights or the
Project.
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(xxv)
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“Force Majeure” has the
meaning set forth in Section 9(i).
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(xxvi)
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“Governmental Authority”
means (A) with respect to Operator, the government of Chile or of any
state, provincial, territorial, divisional, county, regional, city or
other political subdivision of Chile and any entity, court, arbitrator or
arbitration panel, agency, department, commission, board, bureau or
regulatory authority or other instrumentality of any of them exercising
executive, legislative, judicial, regulatory or administrative functions
that exercises valid jurisdiction, including over the Project, the
Ancillary Property Rights or the Subject Properties; and (B) with respect
to Royal Gold, the government of any nation, state, provincial,
territorial, divisional, county, regional, city or other political
subdivision thereof and any entity, court, arbitrator or arbitration
panel, agency, department, commission, board, bureau or regulatory
authority or other instrumentality of any of them exercising executive,
legislative, judicial, regulatory or administrative functions that
exercises valid jurisdiction.
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(xxvii)
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“Governmental
Requirement” means any law, statute, code, ordinance, treaty,
order, rule, regulation, judgment, ruling, decree, injunction, franchise,
permit, certificate, license, authorization, approval or other direction
or requirement of any Governmental
Authority.
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(xxviii)
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“ICC” has the meaning set
forth in Section 9(b)(ii).
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(xxix)
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“Intermediary Period” has
the meaning set forth in Section
2(d).
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(xxx)
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“Irrevocable Mandate”
means the Irrevocable Mandate to be executed pursuant to the Royalty
Agreement.
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(xxxi)
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“Knowledge”
means: (A) in respect of Operator, the knowledge of Xxx Xxxxxx,
Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxxxx, Xxxxxx Esuti Xxxxx, Xxxxxxx Canut de Bon
Lagos, Xxxxxxx Xxxxxx Collao, Xxxxxx Xxxxxxxxx Xxxxxxxxxx, Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxx Xxxxx Xxxxxx, Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxx Xxxxxx
Xxxxxxx or Xxxxxx Xxxxx, after reasonable inquiry, in their respective
capacities as employees, officers and/or directors of Operator or its
Affiliates, as the case may be, and not in their respective personal
capacities; and (B) in respect of Royal Gold, the knowledge of Xxxx
Xxxxxx or Xxxxxxx X. Xxxxxxxxxxxxx, after reasonable inquiry, in their
respective capacities as employees of Royal Gold or its Affiliate, as the
case may be, and not in their respective personal
capacities. For greater certainty, where the phrase “to the Knowledge”
qualifies a particular representation or warranty in the Agreement, such
representation or warranty shall not be breached as a result of any fact
or state of affairs that is not within the Knowledge of such
Party.
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(xxxii)
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“Lien” means, as to any
property or asset owned or held by a Person, any mortgage, deed of trust,
lien, pledge, charge, security interest, preferential right, assignment,
option, production payment or royalty (which for greater certainty
excludes any Metal Sales Contract), Avío or other encumbrance in, on or
to, or any interest or title of any vendor, lessor, purchaser or other
secured party to, or interest or title of any Person under any conditional
sale or other title retention agreement or capital lease with respect to,
such property or asset, the signing of any mortgage, deed of trust,
pledge, charge, security agreement, assignment or similar instrument with
respect to such property or asset, or the signing or filing of a financing
statement with respect to such property or asset which names such Person
as debtor, or the signing of any security agreement authorizing any other
party as the secured party thereunder to file any financing statement with
respect to such property or
asset.
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(xxxiii)
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“Losses” has the meaning
set forth in Section 9(f)(i).
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(xxxiv)
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“Material Adverse Effect”
means with respect to Operator, any change, effect, event, or occurrence
that, either individually or in the aggregate, is, or would reasonably be
expected to be, material and adverse to the Project, or the business,
properties, assets, liabilities (contingent or otherwise), condition
(financial or otherwise), capitalization, operations or results of
operations of Operator, each either considered as a whole or collectively
in their entirety, as the case may be, other than any change, effect,
event or occurrence in or relating
to:
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(A)
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changes
in general political, economic or financial conditions, whether domestic
or international in either case, including changes or disruptions in
securities, currency exchange, real property, labour or commodities
markets (including without limitation gold or copper prices), except to
the extent that such changes adversely affect the Project or the business,
properties, assets, liabilities (contingent or otherwise), condition
(financial or otherwise), capitalization, operations or results of
operations of Operator, as the case may be, in a manner distinct from and
with a materially disproportionate effect than it affects other operators
of a similar business in Chile;
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(B)
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acts
of God, any outbreak or escalation of hostilities, declared or undeclared
acts of war or terrorism or civil unrest, except to the extent that such
acts of God, hostilities, war, terrorism or civil unrest adversely affect
the Project or the business, properties, assets, liabilities (contingent
or otherwise), condition (financial or otherwise), capitalization,
operations or results of operations of Operator, as the case may be, in a
manner distinct from and with a materially disproportionate effect than it
affects other operators of a similar business in
Chile;
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(C)
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changes
in applicable law or changes in generally accepted accounting principles,
except to the extent that such changes in applicable law or changes in
generally accepted accounting principles affect the Project or the
business, properties, assets, liabilities (contingent or otherwise),
condition (financial or otherwise), capitalization, operations or results
of operations of Operator, as the case may be, in a manner distinct from
and with a materially disproportionate effect than it affects other
operators of a similar business in
Chile;
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(D)
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changes
due to disruption of power, labour, utilities, water, supply and
transportation systems, except to the extent that such changes affect the
Project or the business, properties, assets, liabilities (contingent or
otherwise), condition (financial or otherwise), capitalization, operations
or results of operations of Operator, as the case may be, in a manner
distinct from and with a materially disproportionate effect than it
affects other operators of a similar business in
Chile;
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(E)
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the
announcement or pendency of the transactions contemplated by this
Agreement or other communication by Royal Gold, Operator or any of their
Affiliates of its plans or intentions with respect to the Project or any
elements of the Project, specifically;
or
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(F)
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the
consummation of the transactions contemplated by this Agreement or any
actions by Royal Gold, Operator or their Affiliates taken pursuant to or
in light of this Agreement.
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With
respect to Royal Gold, any change, effect, event, or occurrence that, either
individually or in the aggregate, is, or would reasonably be expected to be,
material and adverse to the business, properties, assets, liabilities
(contingent or otherwise), condition (financial or otherwise), capitalization,
operations or results of operations of Royal Gold and its Subsidiaries (taken
together as a whole), each either considered as a whole or collectively in their
entirety, as the case may be, other than any change, effect, event or occurrence
in or relating to:
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(A)
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changes
in general political, economic or financial conditions, whether domestic
or international in either case, including changes or disruptions in
securities, currency exchange, real property, labour or commodities
markets (including without limitation gold prices), except to the extent
that such changes adversely affect the business, properties, assets,
liabilities (contingent or otherwise), condition (financial or otherwise),
capitalization, operations or results of operations of Royal Gold and its
Subsidiaries (taken together as a whole), as the case may be, in a manner
distinct from and with a materially disproportionate effect than it
affects other companies of a similar size operating in the industry in
which Royal Gold and its Subsidiaries
operate;
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(B)
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acts
of God, any outbreak or escalation of hostilities, declared or undeclared
acts of war or terrorism or civil unrest, except to the extent that such
acts of God, hostilities, war, terrorism or civil unrest adversely affect
the business, properties, assets, liabilities (contingent or otherwise),
condition (financial or otherwise), capitalization, operations or results
of operations of Royal Gold and its Subsidiaries (taken together as a
whole), as the case may be, in a manner distinct from and with a
materially disproportionate effect than it affects other companies of a
similar size operating in the industry in which Royal Gold and its
Subsidiaries operate;
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(C)
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changes
in applicable law or changes in generally accepted accounting principles,
except to the extent that such changes in applicable law or changes in
generally accepted accounting principles affect the business, properties,
assets, liabilities (contingent or otherwise), condition (financial or
otherwise), capitalization, operations or results of operations of Royal
Gold and its Subsidiaries (taken together as a whole), as the case may be,
in a manner distinct from and with a materially disproportionate effect
than it affects other companies of a similar size operating in the
industry in which Royal Gold and its Subsidiaries
operate;
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(D)
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the
announcement or pendency of the transactions contemplated by this
Agreement or other communication by Royal Gold, Operator or any of their
Affiliates of its plans or intentions with respect to the Project or any
elements of the Project,
specifically;
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(E)
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the
consummation of the transactions contemplated by this Agreement or any
actions by Royal Gold, Operator or their Affiliates taken pursuant to or
in light of this Agreement; or
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(F)
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any
change in the market price or trading volume of any of the securities of
Royal Gold.
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(xxxv)
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“Material Agreements”
mean (A) with respect to Operator, all Metal Sales Contracts, and all
other material contracts, agreements, leases, instruments and other
material binding commitments and undertakings of Operator necessary for
the development and operation of the Project, and (B) with respect to
Royal Gold, all material contracts, agreements, leases, instruments and
other material binding commitments and undertakings of Royal
Gold.
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(xxxvi)
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“Metal Sales Contract”
means any contract between Operator and any smelter, refiner or other
processor or purchaser for the sale, refining or other beneficiation of
Subject Minerals in any form, including concentrates, that have been
produced from the Subject
Properties.
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(xxxvii)
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“Mining Properties” has
the meaning set forth in Part I of Exhibit B as such list of
exploration and exploitation mining concessions is amended in accordance
with the provisions set forth in Section 5(c)(x) other than any Dayton
Concession or any Overlapping Dayton Concession transferred to Dayton in
accordance with this Agreement and not thereafter
reacquired.
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(xxxviii)
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“Offered Royal Gold Common
Stock” has the meaning set forth in Section
2(e).
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(xxxix)
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“Operator” has the
meaning set forth in the introductory paragraph of this
Agreement.
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(xl)
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“Original Master
Agreement” has the meaning set forth in Recital A to this
Agreement.
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(xli)
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“Outside Date” has the
meaning set forth in Section 8(b).
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(xlii)
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“Overlapping Dayton
Concession” has the meaning set forth in Section
5(c)(ix).
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(xliii)
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“Overlapping Third-Party
Concession” and “Overlapping Third-Party
Concessions” have the meanings set forth in Section
5(c)(xiv).
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(xliv)
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“Parties” mean Operator
and Royal Gold.
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(xlv)
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“Person” means an
individual, partnership, corporation (including a business trust), joint
venture, limited liability company or other legal entity, or a
Governmental Authority.
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(xlvi)
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“Pre-Closing” has the
meaning set forth in Section
5(p)(i).
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(xlvii)
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“Pre-Closing Date” has
the meaning set forth in Section
5(p)(i).
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(xlviii)
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“Project” has the meaning
set forth in Recital C to this
Agreement.
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(xlix)
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“Project Studies” has the
meaning set forth in Section 3(g).
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(l)
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“Purchase Price” has the
meaning set forth in Section 2(b).
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(li)
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“Registration Rights
Agreement” has the meaning set forth in Section
7(a)(iv).
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(lii)
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“Registration Statement”
has the meaning set forth in Section
5(e).
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(liii)
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“Representative” has the
meaning set forth in Section 5(a).
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(liv)
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“Rights Offering” has the
meaning set forth in Section 2(e).
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(lv)
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“Royal Gold” has the
meaning set forth in the introductory paragraph of this
Agreement.
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(lvi)
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“Royal Gold Common Stock”
means shares of Royal Gold’s common stock having a par value of $0.01 per
share.
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(lvii)
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“Royalty” means an
interest in the Subject Minerals when produced from the Subject Properties
and created pursuant to the terms of the Royalty
Agreement.
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(lviii)
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“Royalty Agreement” means
the agreement to be entered into at Pre-Closing between Royal Gold and
Operator, substantially in the form attached hereto as Exhibit C,
subject to the translation of such agreement from the English language to
the Spanish language as contemplated by Section
5(c)(iii).
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(lix)
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“SEC” means the United
States Securities and Exchange
Commission.
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(lx)
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“Securities Act” means
the United States Securities Act of 1933, as
amended.
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(lxi)
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“Shaded Area” means the
area shaded with dotted-lines on the map in Part II of Exhibit
B.
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(lxii)
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“Shaded Area Boundary”
means the boundary around the area shaded with dotted-lines on the map in
Part II of Exhibit B
described by the Universal Transverse Mercator Coordinates in Part III(b)
of Exhibit
B.
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(lxiii)
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“Share Portion” has the
meaning set forth in Section 2(b).
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(lxiv)
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“Share Reorganization”
has the meaning set forth in Section
2(d).
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(lxv)
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“Side Letter Agreement”
means the letter agreement to be entered into at Pre-Closing between Royal
Gold and Operator, substantially in the form attached hereto as Exhibit
H.
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(lxvi)
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“Stockholder Agreement”
means the Stockholder Agreement executed by Operator, Royal Gold and Teck
Resources Limited (formerly known as Teck Cominco Limited) dated April 3,
2009, as amended by Amendment No. 1 to the Stockholder Agreement of the
date hereof and attached hereto as Exhibit
D.
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(lxvii)
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“Subject Minerals” mean
all gold in whatever form, including in concentrates, produced from the
Subject Properties.
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(lxviii)
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“Subject Properties”
mean:
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(A)
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the
Mining Properties; and
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(B)
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any
other exploration or exploitation mining concessions that are acquired or
constituted by Operator or any Affiliate of
Operator
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that are
or may be in the future located wholly or partially within the Universal
Transverse Mercator coordinates in Part III(b) of Exhibit B. Exhibit B, Part II
contains a map to facilitate the visual identification of the coordinates set
forth in Exhibit
B, Part III(b). In case of any discrepancy between the map in
Exhibit B, Part
II and the coordinates set forth in Exhibit B, Part
III(b), the coordinates set forth in Exhibit B, Part
III(b) shall prevail. For greater certainty, the mining concessions that meet
the aforementioned requirements are or will from time to time be part of the
Mining Properties and the Subject Properties and therefore are or will from time
to time be subject to this Agreement, and for further certainty exclude any
exploration or exploitation mining concessions located wholly outside the
Universal Transverse Mercator coordinates in Part III(b) of Exhibit B; provided however such Subject
Properties will not include any Dayton Concession or any Overlapping Dayton
Concession transferred to Dayton in accordance with this Agreement and not
thereafter reacquired.
- 11
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(lxix)
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“Subsidiary” means any
corporation, association or other business entity more than 50% of each
class of equity or voting securities of which is owned, directly or
indirectly, by any Person.
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(lxx)
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“Taxes” mean all present
or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by or on behalf of any
Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
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(lxxi)
|
“Trading Days” mean days
on which shares of Royal Gold Common Stock are traded on the NASDAQ Global
Select Market.
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(lxxii)
|
“Transaction Documents”
mean this Agreement, the Royalty Agreement, the Stockholder Agreement, the
Registration Rights Agreement and the Side Letter
Agreement.
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(lxxiii)
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“Transaction Expenses”
has the meaning set forth in Section
9(g).
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(lxxiv)
|
“Transactions” has the
meaning set forth in Section 2(a).
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(lxxv)
|
“U.S. GAAP” means United
States generally accepted accounting
principles.
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(b)
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In
this Agreement:
|
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(i)
|
unless
the context otherwise clearly requires, (A) references to the plural
include the singular, and references to the singular include the plural;
(B) the words “include,” “includes,” and “including” do not limit
the preceding terms or words and shall be deemed to be followed by the
words “without
limitation”; (C) the terms “hereof,” “herein,” “hereunder,” “hereto,” and similar
terms refer to this entire Agreement and not to any particular provision
of this Agreement; (D) “or” is used in the
inclusive sense of “and/or”; (E) if a word
or phrase is defined, then its other grammatical or derivative forms have
a corresponding meaning; (F) unless otherwise specified, the terms “day” and “days” mean and refer to
calendar day(s); (G) the terms “business day” and “business days” mean and
refer to any day other than a Saturday, Sunday, or federal statutory
holiday in the United States of America, provincial statutory holiday in
British Columbia or statutory holiday in Chile; and (H) if any action,
including a payment hereunder, is required to be taken pursuant to this
Agreement on or by a specified date that is not a business day, the action
is valid if taken on or by the next business
day.
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- 12
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(ii)
|
unless
otherwise specified, all references to articles, sections, and exhibits
are to the Articles, Sections, and Exhibits of this
Agreement;
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(iii)
|
the
headings of the Sections and Subsections of this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement;
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(iv)
|
except
where otherwise expressly provided, all monetary amounts are stated and
shall be paid in the currency of United States of
America;
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(v)
|
for
purposes of Sections 3(b), 3(c), 3(e), 3(j), and 5(m) the terms “material” or “materially” shall mean
any change, effect, event, or occurrence that, either individually or in
the aggregate, would, or would reasonably be expected to, (A) result in
damages to, or expenditures by, Operator that exceed $5,000,000 or (B)
prevent, significantly hinder or significantly delay the construction,
development or operation of the
Project;
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(vi)
|
for
purposes of Sections 3(l), 6(a)(vii), 6(b)(ix), and 9(f)(i)(E), the terms
“material” or
“materially” shall
mean any change, effect, event, or occurrence that, either individually or
in the aggregate, would, or would reasonably be expected to, prevent,
significantly hinder or significantly delay the construction, development
or operation of the Project; and
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(vii)
|
for
purposes of Sections 4(b), 4(c), 4(e), 4(h) and 4(j), the terms “material” or “materially” shall mean
any change, effect, event, or occurrence that, either individually or in
the aggregate, would, or would reasonably be expected to, result in
damages to, or expenditures by, Royal Gold that exceed
$5,000,000.
|
(c) This
Agreement shall be construed according to its fair meaning, taken as a whole, as
if the Parties had prepared it jointly, not as if prepared by one of the
Parties.
2. The Transactions;
Closings.
(a) Effective
as of and from the Closing Date, Operator shall grant, sell, assign, transfer
and convey to Royal Gold, and Royal Gold shall purchase from Operator, the
Royalty free and clear of any Lien (other than any Lien created by the Royalty
Agreement) in accordance with and subject to the terms and conditions set forth
in this Agreement (the “Transactions”).
(b) As
consideration for the Royalty, Royal Gold shall on Closing: (i) pay to Operator
$217,942,500 in cash or other immediately available funds (the “Cash Portion”); and
(ii) issue and deliver to Operator 1,204,136 shares of Royal Gold Common
Stock, as such number of shares of Royal Gold Common Stock may be adjusted
pursuant to Sections 2(d) through (h) (the “Share Portion,” and together
with the Cash Portion, the “Purchase
Price”).
- 13
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(c) [Intentionally
deleted.]
(d) The
number of shares to be issued and delivered to Operator at Closing that
constitutes the Share Portion shall be adjusted proportionately as necessary if,
during the period beginning when the number of shares of Royal Gold Common Stock
that constitutes the Share Portion is calculated and ending on the Closing Date
(the “Intermediary
Period”), Royal Gold:
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(i)
|
fixes
the record date for the issue, or issues to, all or substantially all of
the holders of Royal Gold Common Stock by way of a stock dividend or
otherwise shares of Royal Gold Common Stock or other securities of Royal
Gold or any other issuer convertible into or exchangeable for or otherwise
carrying the right to acquire Royal Gold Common Stock (the “Convertible
Securities”), other than (A) the issue from time to time of Royal
Gold Common Stock or Convertible Securities by way of stock dividend to
holders who elect to receive Royal Gold Common Stock or Convertible
Securities in lieu of cash dividends in the ordinary course or pursuant to
a dividend reinvestment plan or (B) as dividends paid in the ordinary
course; or
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(ii)
|
subdivides
or redivides the issued and outstanding shares of Royal Gold Common Stock
into a greater number of shares of Royal Gold Common Stock;
or
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(iii)
|
combines,
consolidates or reduces the issued and outstanding shares of Royal Gold
Common Stock into a smaller number of shares of Royal Gold Common
Stock
|
(any of
those events being herein called a “Share
Reorganization”),
effective
immediately after the record date at which the holders of Royal Gold Common
Stock are determined for the purposes of the Share Reorganization or the
effective date of the Share Reorganization if no record date is fixed, to a
number that is the product of (1) the Share Portion in effect on the record
date, or the effective date if no record date is fixed, and (2) a
fraction:
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(A)
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the
numerator of which shall be the number of Royal Gold Common Stock
outstanding after giving effect to the Share Reorganization;
and
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(B)
|
the
denominator of which shall be the number of Royal Gold Common Stock
outstanding on the record date, or effective date if no record date is
fixed, before giving effect to the Share
Reorganization.
|
For the
purposes of determining the number of Royal Gold Common Stock outstanding at any
particular time for the purpose of this Section 2(d) there shall be included
that number of Royal Gold Common Stock which would have resulted from the
conversion at that time of all outstanding Convertible Securities.
- 14
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(e) If
during the Intermediary Period Royal Gold fixes a record date for the issuance
of rights, options or warrants to all or substantially all the holders of Royal
Gold Common Stock pursuant to which those holders are entitled to subscribe for,
purchase or otherwise acquire Royal Gold Common Stock or Convertible Securities
within a period of not more than 45 days from such record date at a price per
share, or at a conversion price per share, of less than 95% of the Current
Market Price on such record date (any such issuance being herein called a “Rights Offering” and Royal
Gold Common Stock that may be acquired on exercise of the Rights Offering, or
upon conversion of the Convertible Securities offered by the Rights Offering,
being herein called the “Offered Royal Gold Common
Stock”), the Share Portion shall be adjusted effective immediately after
the applicable record date to a Share Portion that is the product of (1) the
Share Portion in effect on the record date and (2) a fraction:
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(i)
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the
numerator of which shall be the sum of (A) the number of Royal Gold Common
Stock outstanding on the record date plus (B) the number of Offered Royal
Gold Common Stock offered pursuant to the Rights Offering or the maximum
number of Offered Royal Gold Common Stock into which the Convertible
Securities so offered pursuant to the Rights Offering may be converted, as
the case may be; and
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(ii)
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the
denominator of which shall be the sum
of:
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(A)
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the
number of Royal Gold Common Stock outstanding on the record date;
and
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(B)
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the
number arrived at when (I) either the product of (a) the number of Offered
Royal Gold Common Stock so offered and (b) the price at which such Offered
Royal Gold Common Stock are offered, or the product of (c) the conversion
price of the Offered Royal Gold Common Stock so offered and (d) the
maximum number of Offered Royal Gold Common Stock for or into which the
Convertible Securities so offered pursuant to the Rights Offering may be
converted, as the case may be, is divided by (II) the Current Market Price
of Royal Gold Common Stock on the record date for the Rights
Offering.
|
If by the
terms of the rights, options, or warrants referred to in this Section 2(e),
there is more than one purchase, conversion or exchange price per Offered Royal
Gold Common Stock, the aggregate price of the total number of additional Offered
Royal Gold Common Stock offered for subscription or purchase, or the aggregate
conversion or exchange price of the Convertible Securities so offered, shall be
calculated for purposes of the adjustment on the basis of the lowest purchase,
conversion or exchange price per Offered Royal Gold Common Stock, as the case
may be. Any Offered Royal Gold Common Stock owned by or held for the
account of Royal Gold or a Subsidiary of Royal Gold shall be deemed not to be
outstanding for the purpose of any such computation; if all the rights, options
or warrants are not so issued or if all rights, options or warrants are not
exercised prior to the expiration thereof, the Share Portion shall be readjusted
to the Share Portion in effect immediately prior to the record date, and the
Share Portion shall be further adjusted based upon the number of Offered Royal
Gold Common Stock (or Convertible Securities that are convertible into Offered
Royal Gold Common Stock ) actually delivered upon the exercise of the rights,
options or warrants, as the case may be, but subject to any other adjustment
required hereunder by reason of any event arising after that record
date.
- 15
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(f) If
during the Intermediary Period there is a reorganization of Royal Gold not
otherwise provided for in Sections 2(d) and 2(e) or a consolidation, merger,
arrangement, amalgamation or acquisition of Royal Gold by, with or into another
body corporate including a transaction whereby all or substantially all of Royal
Gold’s assets become the property of any other Person through sale, lease,
exchange or otherwise (any such event being herein called a “Capital Reorganization”),
Operator, shall be entitled to receive and shall accept, in lieu of the Share
Portion to which it was theretofore entitled upon Closing, the aggregate amount
of cash and/or the aggregate number of Royal Gold Common Stock or other
securities or property of Royal Gold, or the continuing, successor or purchasing
Person, as the case may be, under the Capital Reorganization that Operator would
have been entitled to receive as a result of the Capital Reorganization if, on
the effective date thereof, Operator had been the holder of the number of Royal
Gold Common Stock to which immediately before the transaction it was
entitled. No Capital Reorganization shall be carried into effect
unless all necessary steps have been taken so that Operator shall thereafter be
entitled to receive the requisite amount of cash and/or the number of Royal Gold
Common Stock or other securities or property of Royal Gold or of the continuing,
successor or purchasing Person, as the case may be, under the Capital
Reorganization, subject to adjustment thereafter in accordance with provisions
the same, as nearly as may be possible, as those contained in this Section
2.
(g) If
during the Intermediary Period Royal Gold reclassifies or otherwise changes the
issued and outstanding shares of Royal Gold Common Stock, the Share Portion
shall be adjusted effective immediately upon the reclassification becoming
effective so that if Operator thereafter shall be entitled to receive such Share
Portion as it would have received had the Share Portion been issued immediately
prior to the effective date, subject to adjustment thereafter in accordance with
provisions the same, as nearly as may reasonably be possible, as those contained
in this Sections 2(d) through (f).
(h) The
adjustments and readjustments provided for in Sections 2(d) through 2(g) are
cumulative and, apply (without duplication) to successive issues, subdivisions,
combinations, consolidations, distributions and any other events that require
adjustment of the Share Portion.
(i) Subject
to terms and conditions of this Agreement, the closing of the transactions
contemplated by this Agreement (the “Closing”) shall take place at
the offices of Urenda, Rencoret, Xxxxxx y Xxxx, Abogados, Xx. Xxxxxxxxx
Xxxxxx Xxxxx 0000, Xxxx 00 Xxx Xxxxxx - Xxxxxxxx, Xxxxx, at 10:00 a.m.
local time (the “Closing
Time”) on the later of the date (the “Closing Date”):
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(i)
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to
be designated by Royal Gold, which date shall be no later than the fifth
business day after Royal Gold and its Chilean counsel have received, to
their reasonable satisfaction:
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- 16
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(A)
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for
each of the Mining Properties, the following certificates from the
relevant Mining Register: (X) mortgages and encumbrances, (Y)
interdictions and prohibitions, and (Z) ownership;
and
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(B)
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authorized
copies of the registrations made evidencing the mortgages and grant of
prohibition under the Royalty
Agreement;
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(ii)
|
that
is mutually agreed to in writing by the Parties;
and
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(iii)
|
that
is ten business days after the date designated by Royal Gold pursuant to
Section 2(i)(i) or mutually agreed by the Parties pursuant to Section
2(i)(ii), as the case may be; provided that the
Operator has delivered written notice to Royal Gold pursuant to Section
6(a)(vii)(A), and Royal Gold has delivered written notice to Operator of
its intention to postpone the Closing Date by ten business
days,
|
provided, however that each
of the other conditions set forth in Section 6 and Section 7 (other than the
conditions which by their nature are to be satisfied at the Closing, but subject
to the satisfaction or waiver of each of such conditions) shall have been
satisfied or waived as of the designated or agreed date.
3. Representations and
Warranties of Operator. Operator hereby represents and
warrants to Royal Gold, and acknowledges that Royal Gold is relying on such
representations and warranties in entering this Agreement, that:
(a) Organization and
Qualification; Subsidiaries. Operator is a contractual mining
company duly incorporated, validly existing and in good standing under the laws
of Chile and has all requisite corporate power and authority to enter into this
Agreement and the other Transaction Documents to which it is a party and to
carry out the transactions contemplated hereby and thereby. Operator
is otherwise duly qualified to do business as a foreign corporation or other
entity in each jurisdiction where the nature of its business or properties
requires such qualification. Operator does not have any
Subsidiaries.
(b) Authorization; No
Conflict. The execution, delivery and performance by Operator
of this Agreement and of the other Transaction Documents to which it is a party
have been duly authorized by all necessary shareholder and corporate action on
the part of Operator and do not and will not (i) contravene
Operator’s Charter Documents; (ii) materially violate any provision of any
Governmental Requirement, order, judgment, injunction, decree, determination or
award presently in effect; (iii) result in a material breach of or
constitute a material default under or require the consent of any Person
pursuant to any indenture or loan, credit agreement, debenture or any other
agreement, lease or instrument to which Operator is a party or by which it or
its properties may be bound or affected; or (iv) result in, or require, the
creation or imposition of any Lien upon or with respect to any of the properties
now owned by Operator (other than the Liens created under the Royalty
Agreement), and (v) to the Knowledge of Operator, Operator is not in material
default under any such Governmental Requirement, judgment, injunction, decree,
determination or award or any such indenture, agreement, lease or
instrument.
- 17
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(c) Governmental and Other
Approvals. No Approval of any Governmental Authority or other
third party is required for the due execution and delivery of, and the due
performance of all obligations of, Operator under this Agreement or any other
Transaction Document to which it is a party, except for Approvals as have been
obtained or for which application has been made, for notices or filings
necessary to be made by Operator with the Central Bank of Chile in connection
with the acquisition of the Share Portion by Operator, and registration of the
mortgages referred to in Section 6(o) of the Royalty
Agreement. Except as set out in Schedule 3(c), all
Approvals which are necessary to carry out the activities contemplated by
Operator with respect to the Project in the Project Studies have been obtained
by Operator and are in full force and effect in accordance with their terms,
free of material defaults (except those Approvals that are not necessary or
obtainable prior to the Closing Date or which have been applied for but not yet
received), and except as set out in Schedule 3(c),
Operator has not received any notice alleging a material breach or default under
any of the Approvals received to date or challenging or questioning the validity
of such Approvals. With respect to Approvals applied for but not yet
received or to be applied for, Operator knows of no reason why such Approvals
should not be timely received as and when required.
(d) Binding
Obligations. This Agreement is, and the other Transaction
Documents to which Operator is a party when delivered hereunder will be, the
legal, valid and binding obligations of Operator, enforceable against it in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws or equitable principles affecting enforcement of creditors’ rights
generally at the time in effect.
(e) Litigation. Except
as set forth in Schedule 3(e),
there is no claim, action, lawsuit, proceeding, arbitration, mediation or
investigation pending, or to the Knowledge of Operator threatened, against or
involving Operator, the Project or any portion of the Ancillary Property Rights
or the Subject Properties, which alleges the material violation of any
Governmental Requirement, or which questions the validity of this Agreement or
any of the other Transaction Documents, or any action taken or to be taken
pursuant to this Agreement, or any of the Transaction Documents, or which
questions or challenges the nature or extent of the rights of Operator to the
Subject Properties, the Ancillary Property Rights or the Project, or which
involves any Material Agreement, or which could reasonably be expected to
result, either in any case or in the aggregate, in a Material Adverse Effect on
Operator.
(f) No Material Adverse
Change. Since December 31, 2008, neither the business,
properties, assets, liabilities (contingent or otherwise), condition (financial
or otherwise), capitalization, operation or results of operations of Operator,
have been affected by any change, effect, event or occurrence (whether or not
insured against) which could reasonably be expected to result, either
individually or in the aggregate, in a Material Adverse Effect on
Operator.
(g) Data and
Information. Operator has heretofore made available to Royal
Gold all feasibility studies and all geological, reserve, engineering,
metallurgical and financial data and evaluations of the Project, the Ancillary
Property Rights and the Subject Properties prepared by or for the benefit of
Operator or otherwise in the possession and control of Operator which would
reasonably be expected to be material to Royal Gold (the “Project
Studies”). The Project Studies have been prepared in good
faith based on reasonable assumptions, and Operator is not aware to its
Knowledge of any fact or state of affairs related thereto, or any defect or
deficiency therein, which would cause it to be unable to complete the Project
consistent with the most current capital cost estimates and construction
schedule in the Project Studies. Since the date of the most recent
capital cost estimates and construction schedule in the Project Studies, to the
Knowledge of Operator, there has been no material change in the assumptions
underlying such estimates, or the basis therefor.
- 18
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(h) Title;
Liens.
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(i)
|
Except
as set out in Schedule 3(h),
Operator has good and marketable title to its owned real property,
easements, and concessions, and has valid rights in and to its leased
property and other property interests, necessary or desirable for the
construction and operation of the Project in each case free and clear of
Liens (except for statutory Liens such as patentes), royalties, production
payments and other rights and interests of third
parties.
|
|
|
(ii)
|
Except
as set out in Schedule 3(h),
Operator owns all water rights necessary or desirable for the conduct of
the operations at the Project.
|
|
|
(iii)
|
Except
as set out in Schedule 3(h),
Operator owns all surface, exploration and exploitation concessions,
mineral, leasehold, access and other interests in real property, or has
valid and outstanding Approvals granted by the registered owners,
necessary or desirable for the construction and operation of the
Project.
|
(i) Capital
Structure. Teck Resources Limited, a corporation organized
under the laws of British Columbia, Canada, owns indirectly through one or more
of its wholly-owned Subsidiaries, 90% of the issued and outstanding shares of
capital stock of Operator. Empresa Nacional de Mineria, a Chilean
State-owned company organized under the laws of Chile, owns 10% of the issued
and outstanding shares of capital stock of Operator. All such issued
and outstanding shares of capital stock are duly and validly issued and are
fully paid and non-assessable.
(j) Material Agreements; Absence
of Default; Other Agreements. The Material Agreements of
Operator made available to Royal Gold include all material contracts,
agreements, leases, instruments and other binding commitments of Operator which
are necessary for the development and operation of the Project and any contract,
agreement, lease, instrument or other binding commitment where an alternative,
replacement or substitution is readily available on comparable terms as an
existing contract, agreement, lease, instrument or other binding
commitment. Except as set out in Schedule 3(j), all
Material Agreements of Operator are in full force and effect in accordance with
their terms. Operator is not in material default under any of its
Material Agreements, it has not received any notice of an asserted default
thereunder from any other Person, and Operator has no Knowledge of a material
breach by any counterparty thereto or the inability of any counterparty thereto
to perform its obligations thereunder. Operator is not a party to any
contract, agreement, lease, instrument or other binding commitment (other than
its Material Agreements) or subject to any charter or other corporate
restriction which could reasonably be expected, upon a default thereunder or
otherwise, to result in a Material Adverse Effect on Operator or to materially
impair the ability of Operator to carry out its obligations under this Agreement
or any of the other Transaction Documents.
- 19
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(k) Taxes. Operator
has filed all Tax returns and reports required by law to have been filed by it
and has paid all Taxes and no claim for the same exists except as permitted
hereunder, except any such Taxes, charges or amounts which are being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with Canadian generally accepted accounting principles
have been set aside on the books of Operator.
(l) Compliance with
Laws.
|
|
(i)
|
Except
as set out in Schedule 3(l),
the Subject Properties and the Ancillary Property Rights have been, and
continue to be, owned, operated, leased or utilized by Operator in
material compliance with all applicable Governmental Requirements,
including Environmental Laws and
Approvals.
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(ii)
|
Except
as set out in Schedule 3(l),
with respect to the Subject Properties, the Ancillary Property Rights and
the Project, there have been no past, and there are no pending or
threatened, material claims, complaints, notices or requests for
information or notices of investigation received by Operator with respect
to any violation or alleged violation of any Governmental Requirements,
including Environmental Laws and Approvals, nor does Operator have
Knowledge or reason to believe that any such notice or action will be
received or is being threatened.
|
|
|
(iii)
|
Except
as set out in Schedule 3(1),
no judicial or investigatory proceeding by a Governmental Authority under
any Governmental Requirements, including Environmental Laws and Approvals,
is pending or, to the Knowledge of Operator, is threatened, against
Operator, the Ancillary Property Rights or the Subject
Properties. Except as set out in Schedule 3(l),
there are no material consent decrees or other clean-up orders, mitigation
orders, compliance orders, remediation orders, decrees, consent orders,
administrative orders or other orders or requirements outstanding or
arising under any Environmental Laws with respect to Operator, the
Ancillary Property Rights, the Subject Properties or the
Project.
|
(m) Financial
Statements. The consolidated historical financial statements
of Operator for the period ended December 31, 2008 and the unaudited
financial statements of Operator for the nine months ended September 30, 2009
present fairly in all material respects the consolidated financial condition,
results of operations and cash flows and the changes in financial position of
Operator as of the date and for the periods indicated, comply as to form with
the applicable Governmental Requirements and in the case of the financial
statements for the period ended December 31, 2008 have been prepared in
conformity with Canadian generally accepted accounting principles applied on a
basis consistent with prior periods (except as noted therein and unaudited
financial statements do not contain all footnotes required by Canadian generally
accepted accounting principles) and in the case of the unaudited financial
statements for the nine months ended September 30, 2009 have been prepared in
conformity with Chilean generally accepted accounting principles applied on a
basis consistent with prior periods (except as noted therein and unaudited
financial statements do not contain all footnotes required by Chilean generally
accepted accounting principles). Except as otherwise disclosed in the
unaudited financial statements for the period ended September 30, 2009, since
December 31, 2008, Operator has not effected any change in its accounting
methods, principles or practice and has carried on its business in the ordinary
and usual course.
- 20
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(n) Information. Operator
has received a copy of the Prospectus of Royal Gold dated July 6, 2004, that is
part of the Registration Statement filed by Royal Gold with the SEC on July 7,
2004, and Operator has had the opportunity to review the Prospectus and all of
the documents incorporated by reference into such Prospectus. No
representations or warranties have been made to Operator by Royal Gold or any of
its officers, employees or other agents other than as set forth in this
Agreement.
4. Representations and
Warranties of Royal Gold. Royal Gold hereby represents and
warrants to Operator, and acknowledges that Operator is relying on such
representations and warranties in entering this Agreement, that:
(a) Organization and
Qualification. Royal Gold is a corporation duly incorporated, validly
existing and in good standing under the General Corporation Law of the State of
Delaware and has all requisite corporate power and authority to enter into this
Agreement and the other Transaction Documents to which it is a party and to
carry out the transactions contemplated hereby and thereby. Royal
Gold is duly qualified to do business as a foreign corporation or other entity
in each jurisdiction where the nature of its business or properties requires
such qualification.
(b) Authorization; No
Conflict. The execution, delivery and performance by Royal
Gold of this Agreement and of the other Transaction Documents to which it is a
party have been duly authorized by all necessary shareholder and corporate
action on the part of Royal Gold and do not and will not
(i) contravene Royal Gold’s Charter Documents; (ii) materially violate
any provision of any Governmental Requirement, order, writ, judgment,
injunction, decree, determination or award presently in effect;
(iii) result in a material breach of or constitute a material default under
or require the consent of any Person pursuant to any indenture or loan, credit
agreement, debenture or any other agreement, lease or instrument to which Royal
Gold is a party or by which it or its properties may be bound or affected; or
(iv) result in, or require, the creation or imposition of any Lien upon or
with respect to any of the properties now owned by Royal Gold, and to the
Knowledge of Royal Gold, Royal Gold is not in material default under any such
Governmental Requirement, writ, judgment, injunction, decree, determination or
award or any such indenture, agreement, lease or instrument.
(c) Governmental and Other
Approvals. Except as set forth in Schedule 4(c), no
Approval of any Governmental Authority or other third party is required for the
due execution and delivery of, and the due performance of all obligations of,
Royal Gold under this Agreement or any other Transaction Document to which it is
a party, except for Approvals as have been obtained or for which application has
been made.
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(d) Binding
Obligations. This Agreement is, and the other Transaction
Documents to which Royal Gold is a party when delivered hereunder will be, the
legal, valid and binding obligations of Royal Gold, enforceable against it in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws or equitable principles affecting enforcement of creditors’ rights
generally at the time in effect.
(e) Litigation. Except
as set forth in Schedule 4(e), there
is no claim, action, lawsuit, proceeding, arbitration, mediation or
investigation pending or to the Knowledge of Royal Gold threatened against or
involving Royal Gold which alleges the material violation of any Governmental
Requirement, or which questions the validity of this Agreement or any of the
other Transaction Documents, or any action taken or to be taken pursuant to this
Agreement, or any of the Transaction Documents or which involves any Material
Agreement, or which could reasonably be expected to result, either in any case
or in the aggregate, in a Material Adverse Effect on Royal Gold.
(f) No Material Adverse
Change. Since December 31, 2008, neither the business,
properties, assets, liabilities (contingent or otherwise), condition (financial
or otherwise), capitalization, operation or results of operations of Royal Gold,
have been affected by any change, effect, event or occurrence (whether or not
insured against) which could reasonably be expected to result, either
individually or in the aggregate, in a Material Adverse Effect on Royal
Gold.
(g) Validity of Issuance of
Royal Gold Common Stock. The shares of Royal Gold Common Stock
that constitute the Share Portion to be issued and delivered pursuant to this
Agreement, will, when issued, be duly authorized, validly issued, fully paid and
non-assessable, and issued in compliance with all applicable federal and state
securities laws. The authorized capital stock of Royal Gold consists
of 100,000,000 shares of Royal Gold Common Stock, of which 41,006,170 shares of
Royal Gold Common Stock were issued and outstanding as of December 31, 2009, all
of which are duly authorized, validly issued, fully paid and
non-assessable. As of December 31, 2009, there were 900,380 shares of
Royal Gold Common Stock subject to issuance upon the exercise of outstanding
options, warrants, and other rights to issue, sell or acquire shares of Royal
Gold Common Stock or upon the settlement of outstanding performance shares or
stock appreciation rights. Except as described in the preceding sentence,
pursuant to Royal Gold’s shareholder rights plan or as otherwise described in
the Disclosure Documents, as of December 31, 2009, there are no other options,
warrants, conversion privileges, calls or other rights, agreements,
arrangements, commitments or obligations of Royal Gold to issue, sell or acquire
any securities of Royal Gold (including any pre-emptive or similar rights
granted by Royal Gold) or securities or obligations of any kind convertible into
or exchangeable for any securities of Royal Gold or any other person, nor are
there outstanding any stock appreciation rights, phantom equity or similar
rights, agreements, arrangements or commitments based upon the share price, book
value, income or any other attribute of Royal Gold. Upon their issue,
the Share Portion will not be subject to any pre-emptive right or other similar
contractual right except as provided in the Transaction
Documents.
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(h) Material Agreements; Absence
of Default; Other Agreements. The Material Agreements of Royal
Gold are in full force and effect in accordance with their
terms. Royal Gold is not in material default under any of its
Material Agreements, it has not received any notice of an asserted default
thereunder from any other Person, and except as set forth on Schedule 4(h) Royal
Gold has no Knowledge of a material breach by any counterparty thereto or the
inability of any counterparty thereto to perform its obligations
thereunder. Royal Gold is not a party to any contract, agreement,
lease, instrument or other binding commitment (other than the Material
Agreements) or subject to any charter or other corporate restriction which could
reasonably be expected, upon a default thereunder or otherwise, to result in a
Material Adverse Effect or to materially impair the ability of Royal Gold to
carry out its obligations under this Agreement or any of the other Transaction
Documents.
(i) Taxes. Royal
Gold has filed all Tax returns and reports required by law to have been filed by
it and has paid all Taxes and no claim for the same exists except as permitted
hereunder, except any such Taxes, charges or amounts which are being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with U.S. GAAP have been set aside on the books of Royal
Gold.
(j) Compliance with
Laws.
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(i)
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The
properties, assets and business of Royal Gold and its Subsidiaries have
been, and continue to be, owned, operated, leased or utilized by Royal
Gold in material compliance with all applicable Governmental Requirements,
including Environmental Laws and
Approvals.
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(ii)
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There
have been no past, and there are no pending or threatened, material
claims, complaints, notices or requests for information or notices of
investigation received by Royal Gold and its Subsidiaries with respect to
any violation or alleged violation of any Governmental Requirements,
including Environmental Laws and
Approvals.
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(iii)
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No
judicial or investigatory proceeding by a Governmental Authority under any
Governmental Requirements, including Environmental Laws and Approvals, is
pending or, to the Knowledge of Royal Gold, is threatened, against Royal
Gold or its properties, assets or business. Except as set forth
on Schedule
4(j)(iii), there are no material consent decrees or other clean-up
orders, mitigation orders, compliance orders, remediation orders, decrees,
consent orders, administrative orders or other orders or requirements
outstanding or arising under any Environmental Laws with respect to Royal
Gold, its properties, assets and
business.
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(k) Financial
Statements. The consolidated historical financial statements
of Royal Gold and its Subsidiaries included or incorporated by reference in the
Disclosure Documents present fairly in all material respects the consolidated
financial condition, results of operations and cash flows and the changes in
financial position of Royal Gold and its Subsidiaries as of the date and for the
periods indicated, comply as to form with the applicable Governmental
Requirements and have been prepared in conformity with U.S. GAAP applied on a
basis consistent with prior periods (except as noted therein and the interim and
unaudited financial statements are subject to normal year-end audit
adjustments and do not contain all footnotes required by U.S.
GAAP). Since June 30, 2008, Royal Gold and its Subsidiaries have not
effected any change in accounting methods, principles or practices not fully
disclosed in the Disclosure Documents and have carried on their respective
businesses in the ordinary and usual course.
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(l) Disclosure Documents.
The Disclosure Documents do not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Disclosure Documents comply in all material respects
with the Governmental Requirements.
(m) Credit
Facilities. As of the date of this Agreement, Royal Gold is
entitled to drawdown and knows of no reason in the future why it would not be
entitled to drawdown all advances under Royal Gold’s committed credit facilities
existing as of the date of this Agreement that Royal Gold may need to drawdown
upon in order to pay the Cash Portion and consummate the Transactions
contemplated by this Agreement.
(n) Listing. The Royal
Gold Common Stock is listed for trading on the NASDAQ Global Select Market and
the Toronto Stock Exchange.
5. Covenants of the
Parties.
(a) Access to
Information. Prior to the Closing Date, to the extent
permitted by this Section 5(a) and any applicable Governmental Requirements,
Royal Gold shall be entitled, through its officers, employees and
representatives (including its legal advisors and accountants) (collectively,
the “Representatives”)
to make and continue such investigation of the properties, businesses and
operations of Operator (including the Project, the Ancillary Property Rights and
the Subject Properties) and such examination of the books and records of
Operator as Royal Gold reasonably requests and to make extracts and copies of
such books and records. Any such investigation and examination shall
be conducted during regular business hours and under reasonable circumstances
and shall be subject to restrictions under applicable Governmental
Requirement. Operator shall cause the officers, employees,
consultants, agents, accountants, attorneys and other representatives of
Operator to cooperate with Royal Gold and its Representatives in connection with
such investigation and examination, and Royal Gold and its Representatives shall
cooperate with Operator and their representatives and shall use their
commercially reasonable efforts to minimize any disruption to the
business. No investigation pursuant to this Section 5(a) shall affect
any representation or warranty in this Agreement of any Party or any condition
to the obligations of the Parties.
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(b) Exclusivity. Prior
to the Closing Date, Operator shall not, other than pursuant to Metal Sales
Contracts in respect of concentrates including Subject Minerals, (i) sell,
assign, lease, license, transfer or otherwise dispose of, or agree to sell,
assign, lease, license, transfer or otherwise dispose of, any interest in the
production of Subject Minerals from the Project or the Subject Properties
(including entering into an Avío) or any other direct or indirect transfer of an
interest in the Project, the Ancillary Property Rights, the Subject Properties
or Operator’s other assets that would be inconsistent with, or would reasonably
be expected to impede or delay the consummation of the Transactions, (ii)
initiate, solicit, knowingly encourage or knowingly facilitate (including by way
of furnishing non-public information or assistance) any inquiries or the making
of any proposal or other action that constitutes, or may reasonably be expected
to lead to, any sale, assignment, lease, license, transfer or other disposition
of any interest in the production of Subject Minerals from the Project or the
Subject Properties (including entering into an Avío) or any other direct or
indirect transfer of an interest in the Project, Subject Properties or
Operator’s other assets that would be inconsistent with, or would reasonably be
expected to impede or delay the consummation of the Transactions, or (iii) enter
into discussions or negotiate with any Person in furtherance of such inquiries
or otherwise with respect to any sale, assignment, lease, license, transfer or
other disposition of any interest in the production of Subject Minerals from the
Project or the Subject Properties (including entering into an
Avío) or any other direct or indirect acquisition of an interest in
the Project, the Ancillary Property Rights, the Subject Properties or Operator’s
assets that would be inconsistent with, or would reasonably be expected to
impede or delay the consummation of the Transactions. For the
avoidance of doubt, the Parties expressly acknowledge that notwithstanding the
provisions of this Section 5(b), Operator will be entitled to negotiate and
enter into the Metal Sales Contracts and to provide information of Operator and
the Project required in connection therewith.
(c) Appropriate Action;
Consents; Filings.
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(i)
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Upon
the terms and subject to the conditions set forth in this Agreement, the
Parties shall use their commercially reasonable efforts to take, or cause
to be taken, all appropriate action, and do, or cause to be done, all
things required under applicable Governmental Requirements or otherwise to
consummate and make effective the Transactions contemplated by this
Agreement as promptly as practicable, including (A) executing and
delivering any additional instruments necessary, proper or advisable to
consummate the Transactions contemplated by, and to carry out fully the
purposes of, this Agreement, (B) obtaining from any Governmental
Authorities any Approvals required to be obtained or made by Royal Gold or
Operator in connection with the authorization, execution and delivery of
this Agreement and the consummation of the Transactions contemplated by
this Agreement and (C) making all necessary filings, and thereafter making
any other required submissions, with respect to this Agreement under any
applicable Governmental Requirement; provided, however that Royal Gold
or Operator shall cooperate with each other in connection with the making
of all such filings, including providing copies of all such documents to
the non-filing Party and its advisors prior to filing and discussing all
reasonable additions, deletions or changes suggested in connection
therewith. Royal Gold or Operator shall furnish to each other
all information reasonably required for any application or other filing to
be made pursuant to any applicable Governmental Requirement in connection
with the Transactions contemplated by this
Agreement.
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(ii)
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Except
as the Parties may otherwise agree, Operator and Royal Gold shall give any
notices required to be given by any of them, as applicable, to any third
parties, and use their commercially reasonable efforts to obtain at the
earliest practicable date all third party Approvals, consents, or waivers
required to obtained by them, as applicable, in order to consummate the
Transactions contemplated in this
Agreement.
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(iii)
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Operator
and Royal Gold shall use their commercially reasonable efforts to (x)
translate the Royalty Agreement, in the form attached hereto as Exhibit C, from
the English language to the Spanish language and to adapt it to comply
with any legal requirements under Chilean law applicable to public deeds,
and (y) agree on the final version of such translation no later than five
(5) days following the date of this
Agreement.
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(iv)
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Operator
shall use its commercially reasonable efforts to continue in full force
and effect those previously entered Metal Sales Contracts that satisfy the
requirements set forth in Section
6(b)(viii)
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(v)
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[Intentionally
deleted.]
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(vi)
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[Intentionally
deleted.]
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(vii)
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[Intentionally
deleted.]
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(viii)
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[Intentionally
deleted.]
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(ix)
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Notwithstanding
any other provision of this Agreement and even if a Dayton Concession
falls wholly or partially within the Shaded Area, the Dayton Concessions
will not be subject to the mortgages and prohibitions of the Royalty
Agreement and will not be Mining Properties or Subject Properties provided, however, that
if:
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(A)
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a
Dayton Concession falls wholly or partially within the Shaded Area and is
reacquired by Operator or any Affiliate of Operator; such Dayton
Concession shall be subject to the mortgages and prohibitions of the
Royalty Agreement and will be part of the Mining Properties and Subject
Properties; or
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(B)
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a
Dayton Concession has not been transferred to Dayton on or before March
31, 2010 such Dayton Concession shall be subject to the mortgages and
prohibitions of the Royalty Agreement and will be part of the Mining
Properties and Subject Properties until such time as the Dayton Concession
is transferred to Dayton.
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Operator
shall, following consultation with Royal Gold, determine if any individual
exploitation mining concession or group of exploitation mining concessions owned
by Operator or any Affiliate of Operator that is wholly or partially within the
Shaded Area, overlaps with any of the Dayton Concessions and is required to be
transferred to Dayton in order to permit the transfer of the Dayton Concessions
to Dayton free of any overlap (each an “Overlapping Dayton
Concession”). To the extent that an Overlapping Dayton Concession is
transferred to Dayton and not thereafter reacquired, such Overlapping Dayton
Concession shall not be subject to the mortgages and prohibitions of the Royalty
Agreement and shall not be Mining Properties or Subject
Properties. For greater certainty any interest in an Overlapping
Dayton Concession wholly or partially within the Shaded Area that is retained by
Operator following a transfer of an interest in Overlapping Dayton Concessions
to Dayton in accordance with this Agreement, shall be subject to the mortgages
and prohibitions of the Royalty Agreement and will be part of the Mining
Properties and Subject Properties.
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(x)
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The
Parties shall, in accordance with such determination in Section
5(c)(ix):
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(A)
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amend
Exhibit B
of this Agreement to add to the list of Mining Properties described in
Part I any Dayton Concession or Overlapping Dayton Concession reacquired
in accordance with Section 5(c)(ix)(A) or any Dayton Concession or
Overlapping Dayton Concession not transferred on or prior to March 31,
2010 in accordance with Section 5(c)(ix)(B);
and
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(B)
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revise
the form of Royalty Agreement prior to the Pre-Closing Date or amend the
Royalty Agreement after the Pre-Closing Date, as the case may be, to add
to the list of Mining Properties described in Section 1(d) any Dayton
Concession or Overlapping Dayton Concession reacquired in accordance with
Section 5(c)(ix)(A) or any Dayton Concession or Overlapping Dayton
Concession not transferred on or prior to March 31, 2010 in accordance
with Section 5(c)(ix)(B);
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(xi)
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Notwithstanding
any other provision of this Agreement and even if a Dayton Concession
falls wholly or partially within the Shaded
Area,
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(A)
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if
for any reason after Closing, Operator determines, following consultation
with Royal Gold, that any Overlapping Dayton Concession must be
transferred to Dayton in order to permit the transfer to Dayton of the
Dayton Concessions free of any overlap;
or
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(B)
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if
a Dayton Concession is subject to the mortgages and prohibitions set forth
in the Royalty Agreement in accordance with Section 5(c)(ix)(B) and it
shall be transferred to Dayton,
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Royal
Gold shall consent to the transfer, and the release and cancellation of any
mortgages and prohibitions in respect of such Overlapping Dayton Concession or
Dayton Concession under the Royalty Agreement and such Overlapping Dayton
Concession or Dayton Concession, upon the transfer to Dayton, shall not be
subject to the mortgages and prohibitions of the Royalty Agreement and shall not
be Mining Properties or Subject Properties for the purposes herein or the
Royalty Agreement.
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(xii)
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The
Parties undertake to grant or execute all such further agreements, deeds,
public or private instruments, or documents and do all such further
actions as may be necessary to:
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(A)
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consent
to and permit the transfer to Dayton of any Dayton Concession or
Overlapping Dayton Concession, free and clear of any Liens (including the
Royalty and the mortgages and prohibitions in the Royalty
Agreement);
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(B)
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release
and cancel any mortgages and prohibitions in respect of any such Dayton
Concession or Overlapping Dayton Concession under the Royalty
Agreement;
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(C)
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revise,
to the extent necessary, the form of Royalty Agreement prior to the
Pre-Closing Date to give effect to these matters;
and
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(D)
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amend,
to the extent necessary the Royalty Agreement on or after the Pre-Closing
Date to give effect to these
matters.
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(xiii)
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Notwithstanding
any other provision of this Agreement, if for any reason after Closing,
Operator or any Affiliate of Operator reacquires any Dayton Concession or
Overlapping Dayton Concession wholly or partially within the Shaded Area
then such Dayton Concession or Overlapping Dayton Concession will be
subject to the mortgages and prohibitions of the Royalty Agreement and
will be Mining Properties or Subject Properties for the purposes herein or
the Royalty Agreement. The Parties shall execute all such
further agreements, deeds, instruments, or documents and do all such
further actions as may be necessary to grant any mortgages and
prohibitions in respect of any such Dayton Concession or Overlapping
Dayton Concession under the Royalty
Agreement.
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(xiv)
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Operator
and Royal Gold acknowledge and agree that some of the exploitation mining
concessions described in Part I of Exhibit B that
are located wholly or partially within the Circular Boundary and the
Shaded Area Boundary overlap or are overlapped by exploitation mining
concessions owned by third parties (each an “Overlapping Third-Party
Concession” and collectively, the “Overlapping Third-Party
Concessions”). Operator represents and warrants to Royal Gold that
the Overlapping Third-Party Concessions do not currently impact nor are
they expected to impact in the future the activities or operations of the
Project, except where such impact could not reasonably be expected to have
a Material Adverse Effect.
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(xv)
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Royal
Gold and Operator acknowledge and agree that the rights and obligations of
the Parties under the Royalty Agreement shall be exercised in such a way
that the Dayton Concessions or Overlapping Dayton Concessions to be
transferred or are transferred by Operator to Dayton, may be exploited by
Dayton as if there were no overlapping between such Dayton Concessions or
Overlapping Dayton Concessions and those mining concessions owned by
Operator or an Affiliate of Operator; provided that in no
event shall those Dayton Concessions or Overlapping Dayton Concessions
affect: (i) the exploitation mining concessions wholly or partially
located within the Circular Boundary; or (ii) the exploitation mining
concessions that the Operator or any Affiliate of Operator now or in the
future exploits as part of the Project wholly or partially within the
Shaded Area Boundary and outside the Circular
Boundary.
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(d) Notice of
Developments. Each of the Parties shall promptly notify the
other Party of any development or other information occurring after the date of
this Agreement and prior to the Closing Date which renders any representation,
warranty or statement contained in this Agreement or the Schedules hereto made
by such Party inaccurate or incomplete at any time prior to the Closing,
including any such development or information which first becomes known to such
Party after the date hereof. Any written notice delivered pursuant to
this Section 5(d) shall not amend the Schedules in any way, nor shall it (or the
information contained therein) modify, affect, limit or otherwise qualify, in
any way, the representations and warranties contained in this Agreement, or be
deemed to have cured any misrepresentation or breach of warranty that otherwise
might have existed hereunder by reason of the development or
information. The delivery of any written notice pursuant to this
Section 5(d) shall not limit or otherwise affect the remedies available
hereunder to the Party receiving such notice.
(e) Registration
Statement. Royal Gold shall use its commercially reasonable
efforts to take, or cause to be taken, all appropriate action to cause the
shares of Royal Gold Common Stock that constitute the Share Portion to be issued
pursuant to a registration statement, which has become effective under the
Securities Act (the “Registration
Statement”).
(f) Listing. Royal
Gold shall promptly prepare and file with the NASDAQ Global Select Market and
the Toronto Stock Exchange any required notification for listing the shares of
Royal Gold Common Stock that constitute the Share Portion to be issued and
delivered to Operator pursuant to this Agreement, and Royal Gold shall use its
commercially reasonable efforts to obtain, prior to the Closing Date, any
approval for the listing of such shares of Royal Gold Common Stock, subject to
notice to the NASDAQ Global Select Market and the Toronto Stock Exchange of
issuance and customary post-issuance filings, and Operator shall reasonably
cooperate with respect to such filings.
(g) Drawdown on Credit
Facilities. Royal Gold shall use its commercially reasonable
efforts to ensure that it will be entitled to draw down at Closing all advances
under Royal Gold’s committed credit facilities existing as of the date of this
Agreement that Royal Gold needs to drawdown upon in order to pay the Cash
Portion and consummate the Transactions contemplated by this
Agreement.
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(h) Publicity. Prior
to the Closing Date, no Party nor any Affiliates thereof shall issue any press
release or public announcement concerning this Agreement or the Transactions
contemplated in this Agreement without obtaining the prior written approval of
the other Party, which approval will not be unreasonably withheld or delayed,
unless, in the sole judgment of Royal Gold or Operator, as applicable,
disclosure is otherwise required by Governmental Requirement or by the
applicable rules of any securities exchange or marketplace on which Royal Gold
or Teck Resources Limited lists its securities, provided, however that to the extent
required by any Governmental Requirement or by the applicable rules of any
securities exchange or marketplace, the Party intending to make such release, or
whose Affiliates intends to make such release, shall use its commercially
reasonable efforts consistent with such Governmental Requirement or applicable
rules to consult with the other Parties with respect to the timing and content
thereof. Each Party agrees that the terms of this Agreement shall not
be disclosed or otherwise made available to the public and that copies of this
Agreement shall not be publicly filed or otherwise made available to the public,
except where such disclosure, availability or filing is required by any
Governmental Requirement or by the applicable rules of any securities exchange
or marketplace and then only to the extent required by such Governmental
Requirement or applicable rules.
(i) Maintenance of
Insurance. Prior to the Closing Date, Operator will maintain,
with financially sound and reputable insurance companies, property, liability,
business interruption, construction and other insurance covering Operator and
its operations, the Project, the Ancillary Property Rights and the Subject
Properties and covering at least such risks, liabilities, damages and loss as
are usually insured against at mining operations of similar size and scope in
Chile.
(j) Preservation of Existence,
Etc. Prior to the Closing Date, Operator shall preserve and
maintain its existence, rights, franchises and privileges in the jurisdiction of
its incorporation or formation; and, Operator will maintain the qualifications
required in view of its business and operations or the ownership of its
properties. Operator shall not (i) liquidate or dissolve or (ii)
enter into any consolidation, amalgamation or merger, or enter into any
partnership, joint venture or other combination where such combination involves
a contribution by Operator of all or substantially all of its assets, or sell,
lease or dispose of its business or assets as a whole or in an amount which
constitutes substantially all of such assets, or sell, lease or dispose of all
or substantially all of the Subject Properties or the Ancillary Property Rights,
or enter into any agreement with respect to the foregoing or agree to do or
undertake any of the foregoing, unless in the case of any of the events set
forth in clause (ii), (x) the transferee or surviving Person has the financial
wherewithal and either has the technical wherewithal or has engaged a Person
with the technical wherewithal, to assume all of Operator’s obligations under
this Agreement, (y) Operator shall provide Royal Gold with at least 60 days’
prior written notice to the occurrence of such event and (z) Operator shall
deliver to Royal Gold a written undertaking, in form and substance satisfactory
to Royal Gold, acting reasonably, by the Person receiving the Subject Properties
and enforceable by Royal Gold, that it will be bound by the terms and conditions
of this Agreement.
(k) Maintenance of the
Project. Prior to the Closing Date, Operator shall not,
directly or indirectly, abandon, delay, forego or stop the exploration,
development, construction or operation of the Project, or abandon, relinquish,
terminate or allow the termination of any claim, lease, title or interest within
or forming part of the Subject Properties or the Ancillary Property Rights, or
abandon, relinquish, terminate or allow the termination of any Approval
necessary for the development, construction or operation of the Project, except
for cessation of operations under care and maintenance or as a result of a Force
Majeure.
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(l) Material
Agreements. Prior to the Closing Date, Operator shall comply
with the terms and conditions of each of the Material Agreements except where
any non-compliance could not reasonably be expected to either cause a default
under such Material Agreement or have a Material Adverse Effect on
Operator.
(m) Compliance with Law.
Prior to the Closing Date, Operator shall materially comply with all applicable
Governmental Requirements relating to Operator’s operations on or with respect
to the Subject Properties or the Ancillary Property Rights, including but not
limited to Environmental Laws; provided, however, Operator
shall have the right to contest any of the same if such contest does not
jeopardize title to or its operations on the Subject Properties or the Ancillary
Property Rights or Royal Gold’s rights under this Agreement. Operator
shall timely and fully perform in all material respects all environmental
protection and reclamation activities required pursuant to applicable
Governmental Requirements, including but not limited to Environmental Laws, on
or with respect to the Subject Properties or the Ancillary Property
Rights.
(n) Title Maintenance and
Taxes. Prior to the Closing Date, Operator shall maintain,
preserve, protect and defend, at its own expense, its ownership of, title,
rights or interests to the Subject Properties and the Ancillary Property Rights,
including, paying when due all patentes, annual fees, Taxes, Liens and
assessments, and doing all other things and making all other payments necessary
or appropriate to maintain the ownership, right, title or interest of Operator
in the Subject Properties and the Ancillary Property Rights and the rights of
Royal Gold under this Agreement.
(o) Operations. Prior
to the Closing Date, Operator shall engage solely in the business of developing
and operating the Subject Properties, the Ancillary Property Rights and the
Project and other prospective mineral properties, and in activities incidental
thereto, in accordance with good mining industry practices. Operator
shall conduct all operations on or that affect the Subject Properties or the
Ancillary Property Rights in a good, workmanlike, safe and efficient manner.
Operator shall use all commercially reasonable efforts to diligently
(i) pursue completion of construction and completion of the Project and to
cause such construction and completion to occur in accordance with the Project
schedules in the Project Studies and consistent with prudent Project development
practices; (ii) construct and complete the mill, plant, physical facilities
and infrastructure for the Project in accordance in accordance with the Project
schedules in the Project Studies and consistent with prudent Project development
practices; and (iii) develop, operate and manage the Project in all
material respects in accordance with the Governmental Requirements, the
Approvals, and in accordance with the Project schedules in the Project Studies
and consistent with prudent Project development practices. Operator
shall diligently pursue all Approvals necessary for the development,
construction and operation of the Project that have not been obtained prior to
the date of this Agreement. Operator shall maintain in full force and
effect, and diligently comply, in all material respect with the terms and
conditions of all Approvals necessary for the development, construction and
operation of the Project which have been obtained prior to or after the date of
this Agreement, and Operator shall diligently enforce, maintain and protect the
rights and interests granted to it in connection with such
Approvals. Operator will use its reasonable commercial efforts to
resolve any actual or threatened withdrawal by any Governmental Authority or
actual or threatened challenge by any Person of any material Approval under
Environmental Laws which is necessary for the construction or operation of the
Project.
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(p) Pre-Closing.
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(i)
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The
Parties will hold a pre-closing with respect to the Transactions (the
“Pre-Closing”) at
the offices of Urenda, Rencoret, Xxxxxx y Xxxx, Abogados, Xx. Xxxxxxxxx
Xxxxxx Xxxxx 0000, Xxxx 00 Las Xxxxxx - Xxxxxxxx, Chile, in the
presence of a Notary Public designated by Royal Gold with prior written
notice to Operator:
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(x)
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promptly
following the satisfaction or waiver of the conditions precedent set forth
in Sections 6(a)(iv) and 6(b)(iv) (Governmental and Other Approvals),
Sections 6(a)(v) and 6(b)(v) (Registration Statement), Section 6(a)(vi)
(Listing), and Section 6(b)(viii) (Committed Metal Sales Contract),
and
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(y)
|
subject
to the satisfaction of each of the other conditions precedent set forth in
Section 6 (Conditions to Closing) (other than the conditions set forth in
Sections 6(a)(vii) and Section 6(b)(ix) (Approvals under Environmental
Laws) and such conditions precedent which by their nature may only be
satisfied at Closing including the Closing deliverables set forth in
Section 7 (Closing Arrangements)),
|
in case
of both clauses (x) and (y) applying each such condition precedent, mutatis mutandis, as if the
Pre-Closing Date (as defined below) were the Closing Date, but in no event later
than January 13, 2010 (the “Pre-Closing
Date”). For purposes of greater certainty, (A) neither of the
Parties shall be obligated to proceed with the Pre-Closing if any of the
conditions of the preceding sentence in favor of such Party is not satisfied
prior to the Pre-Closing Date, (B) either Party may waive any condition in favor
of such Party and (C) the failure to proceed with the Pre-Closing shall not
otherwise relieve either of the Parties of any of its duties or obligations
under this Agreement.
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(ii)
|
At
the Pre-Closing, Operator and Royal Gold shall each cause to be executed
by its duly authorized
representative:
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|
(x)
|
the
Royalty Agreement and the Irrevocable Mandate, each by means of a public
deed granted before the designated Notary Public;
and
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(y)
|
the
Side Letter Agreement.
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Promptly
following receipt of a legalized copy of the Royalty Agreement from the Notary
Public, Operator and Royal Gold shall each use their commercially reasonable
efforts to request the registrations applicable at the relevant Mining Register
of the mortgages and grant of prohibition under the Royalty
Agreement. Following such registrations:
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(A)
|
Operator
and Royal Gold shall request that the relevant Mining Register issue for
each of the Subject Properties the following certificates: (I) mortgages
and encumbrances; (II) interdictions and prohibitions; and (III)
ownership; and
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(B)
|
Operator
will deliver to Royal Gold a legalized copy of the registrations made
evidencing the mortgages and grant of prohibition under the Royalty
Agreement.
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(q) Termination of Royalty
Agreement. If the Closing has not occurred on or before the
Outside Date, the Parties acknowledge and hereby agree that notwithstanding any
provision of this Agreement, neither Party shall take any action, step, or
proceeding that shall in any way impede, prevent, challenge, object to or
otherwise delay:
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|
(i)
|
the
immediate termination of the Royalty Agreement and the Side Letter
Agreement;
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|
(ii)
|
the
performance of the Agent pursuant to the Irrevocable
Mandate;
|
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(iii)
|
the
execution and delivery by the Agent of the Deed of
Cancellation;
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|
(iv)
|
the
cancellation pursuant to the Deed of Cancellation, the authority of the
Agent under the Irrevocable Mandate or otherwise of any mortgages and
prohibitions made or granted under the Royalty
Agreement.
|
For
purposes of greater certainty, the termination of the Royalty Agreement as
contemplated under this Section 5(q) shall not result in a termination of this
Agreement under Section 8, unless this Agreement is terminated in accordance
with the terms of Section 8.
6. Conditions of
Closing.
(a) Conditions of Closing in
Favor of Operator. The obligation of Operator to complete the
Transactions contemplated by this Agreement is subject to each of the following
conditions for the exclusive benefit of Operator being fulfilled or performed on
or prior to the Closing Date:
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(i)
|
Representations and
Warranties. The representations and warranties of Royal
Gold contained in this Agreement shall be true and correct in all respects
on and as of the Closing Date with the same force and effect as though
such representations and warranties had been made at and as of the Closing
Date (except for any representation and warranty made as of specific date,
which shall have been true and correct as of such date), provided, however that
for purposes of determining the accuracy of the representations and
warranties of Royal Gold contained in this Agreement which have “Material
Adverse Effect” qualifications and other “material” and “materiality”
qualifications limiting the scope of the representations and warranties of
Royal Gold contained in this Agreement or the scope of the defined terms
used in the representations and warranties of Royal Gold contained in this
Agreement,
|
|
|
(A)
|
all
“Material Adverse Effect” qualifications and other “material” and
“materiality” qualifications limiting the scope of the representations and
warranties of Royal Gold contained in this Agreement shall be
disregarded;
|
|
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(B)
|
all
“Material Adverse Effect” qualifications and other “material” and
“materiality” qualifications limiting the scope of the defined terms used
in the representations and warranties of Royal Gold contained in this
Agreement shall be disregarded; and
|
|
|
(C)
|
any
inaccuracies in such representations and warranties of Royal Gold will be
disregarded if such inaccuracies considered collectively do not
constitute, and would not reasonably be expected to have or result in, a
Material Adverse Effect on Royal
Gold;
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|
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(ii)
|
Covenants. All
of the terms, covenants, obligations and conditions of this Agreement to
be performed, observed or complied with by Royal Gold on or before the
Closing Date shall have been duly performed, observed or complied with by
Royal Gold;
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(iii)
|
No Orders or
Proceedings. No injunction or restraining order or other
decision, ruling or order of any Governmental Authority of competent
jurisdiction being in effect which prohibits, restrains, materially limits
or imposes material adverse conditions on, the Transactions contemplated
by this Agreement and no action or proceeding having been instituted or
remaining pending or having been threatened and not resolved before any
such Governmental Authority to restrain, prohibit, materially limit or
impose material adverse conditions on such contemplated
Transactions;
|
|
|
(iv)
|
Governmental and Other
Approvals. Any Approvals by any Governmental
Authorities, shareholders of Royal Gold or any other third parties
required to consummate the Transactions contemplated by this Agreement
under any applicable Governmental Requirements or otherwise shall have
been obtained and shall remain in full force and effect as of the Closing
Date;
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|
(v)
|
Registration
Statement. The appropriate Registration Statement
relating to the shares of Royal Gold Common Stock that constitute the
Share Portion to be issued pursuant to this Agreement shall have become
effective under the Securities Act and shall not be the subject of any
stop order or proceeding seeking a stop
order;
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(vi)
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Listing. NASDAQ
Global Select Market and the Toronto Stock Exchange shall have
conditionally agreed to list the shares of Royal Gold Common Stock that
will constitute the Share Portion to be issued pursuant to this Agreement,
subject to receipt of ordinary course post-closing filings;
and
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(vii)
|
Approvals Under
Environmental Laws. As of any Closing Date (but not upon a
postponed Closing Date, if Royal Gold has elected to postpone the Closing
Date by ten business days in accordance with Section 2(i)(iii)), no
material Approval under any Environmental Laws, which is necessary for the
construction or operation of the Project, will be either: (x) withdrawn or
threatened to be withdrawn by any Governmental Authority; or (y)
challenged or threatened to be challenged by any Person on non-frivolous
grounds; provided
that (A) Operator has provided written notice to Royal Gold prior
to such proposed Closing Date describing in reasonable detail the factual
circumstances giving rise to the condition set out in this Section
6(a)(vii) not having been met and (B) Royal Gold has not on or prior to
the Closing Time irrevocably waived its right to indemnity pursuant to
Section 9(f)(i)(E) by written notice to Operator. For
purposes of greater certainty, if Royal Gold has waived its right to
indemnity pursuant to Section 9(f)(i)(E), the Closing condition set forth
in this Section 6(a)(vii) shall be deemed to be waived by Operator subject
to the Closing occurring.
|
(b) Conditions of Closing in
Favor of Royal Gold. The obligations of Royal Gold to complete
the Transactions contemplated by this Agreement are subject to each of the
following conditions for the exclusive benefit of Royal Gold, being fulfilled or
performed on or prior to the Closing Date:
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|
(i)
|
Representations and
Warranties. The representations and warranties of
Operator contained in this Agreement shall be true and correct in all
respects on and as of the Closing Date with the same force and effect as
though such representations and warranties had been made at and as of the
Closing Date (except for any representation and warranty made as of
specific date, which shall have been true and correct as of such date),
provided, however
that for purposes of determining the accuracy of the representations and
warranties of Operator contained in this Agreement which have “Material
Adverse Effect” qualifications and other “material” and “materiality”
qualifications limiting the scope of the representations and warranties of
Operator contained in this Agreement or the scope of the defined terms
used in the representations and warranties of Operator contained in this
Agreement,
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- 35
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|
(A)
|
all
“Material Adverse Effect” qualifications and other “material” and
“materiality” qualifications limiting the scope of the representations and
warranties of Operator contained in this Agreement shall be
disregarded;
|
|
|
(B)
|
all
“Material Adverse Effect” qualifications and other “material” and
“materiality” qualifications limiting the scope of the defined terms used
in the representations and warranties of Operator contained in this
Agreement shall be disregarded; and
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|
|
(C)
|
any
inaccuracies in such representations and warranties of Operator will be
disregarded if such inaccuracies considered collectively do not
constitute, and would not reasonably be expected to have or result in, a
Material Adverse Effect on
Operator;
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|
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(ii)
|
Covenants. All
of the terms, covenants, obligations and conditions of this Agreement to
be performed, observed or complied with by Operator on or before the
Closing Date shall have been duly performed, observed or complied with by
Operator;
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(iii)
|
No Orders or
Proceedings. No injunction or restraining order or other
decision, ruling or order of any Governmental Authority of competent
jurisdiction being in effect which prohibits, restrains, materially limits
or imposes material adverse conditions on, the Transactions contemplated
by this Agreement and no action or proceeding having been instituted or
remaining pending or having been threatened and not resolved before any
such Governmental Authority to restrain, prohibit, materially limit or
impose material adverse conditions on such contemplated
Transactions;
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|
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(iv)
|
Governmental and Other
Approvals. Any Approvals by any Governmental
Authorities, shareholders of Operator or any other third parties required
to consummate the Transactions contemplated by this Agreement under any
applicable Governmental Requirements or otherwise shall have been obtained
and shall remain in full force and effect as of the Closing
Date;
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(v)
|
Registration
Statement. The appropriate Registration Statement
relating to the shares of Royal Gold Common Stock that constitute the
Share Portion to be issued pursuant to this Agreement shall have become
effective under the Securities Act and shall not be the subject of any
stop order or proceeding seeking a stop
order;
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(vi)
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[Intentionally
deleted];
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(vii)
|
Financial
Commitments. Royal Gold shall be entitled to draw down all advances
under Royal Gold’s committed credit facilities existing as of the date of
this Agreement that Royal Gold needs in order to pay the Cash Portion and
consummate the Transactions contemplated by this
Agreement;
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- 36
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|
(viii)
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Committed Metals Sales
Contracts. Operator shall have entered into committed
Metal Sales Contracts on terms consistent with industry practice for the
sale of a minimum of 255,000 tonnes of copper concentrate per annum for a
period of not less than three years, and such Metals Sales Contracts shall
not have been terminated; and
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(ix)
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Approvals Under
Environmental Laws. As of the Closing Date, no material Approval
under any Environmental Laws, which is necessary for the construction or
operation of the Project, will be either: (x) withdrawn or threatened to
be withdrawn by any Governmental Authority; or (y) challenged or
threatened to be challenged by any
Person.
|
7. Closing
Arrangements.
(a) Operator’s Closing
Deliveries. At the Closing, Operator shall deliver, or cause
to be delivered, the following to Royal Gold:
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|
(i)
|
a
certificate of Operator dated as of the Closing Date, executed by an
authorized senior officer of Operator, certifying that the conditions set
forth in Section 6(b)(i) (Representations and Warranties) and Section
6(b)(ii) (Covenants) have been duly
satisfied;
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(ii)
|
evidence
by the relevant notary public that the Royalty Agreement has been executed
by Operator and recorded into the Notary’s registry (repertorio) and
authorized copies of the due registration and certificates evidencing the
due registration of the mortgages and grant of prohibition under the
Royalty Agreement from the Mining Registry evidencing that no Liens have been made with
respect to the Mining Properties, other than those in favor of Royal Gold
or as set forth in Schedule
3(h);
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|
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(iii)
|
[Intentionally
deleted];
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(iv)
|
a
duly executed registration rights agreement, in the form attached hereto
as Exhibit
E (the “Registration Rights
Agreement”);
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(v)
|
a
legal opinion of Xxxxx y Cia., counsel to Operator, dated as of the
Closing Date, in the form attached hereto as Exhibit
F;
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|
|
(vi)
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certified
copies of resolutions of the directors and shareholders of Operator
approving the Transactions contemplated by this Agreement and the
execution and delivery of this Agreement and all documents, instruments
and agreements required to be executed and delivered by Operator pursuant
to this Agreement and the performance by Operator of its rights and
obligations thereunder;
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- 37
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(vii)
|
copies
of the Metal Sales Contracts satisfying the requirements set forth in
Section 6(b)(viii);
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(viii)
|
[Intentionally deleted];
and
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(ix)
|
such
other transfers, assignments and other documentation in form and substance
agreed to by the Parties, acting reasonably, required to carry out the
Transactions contemplated by this
Agreement.
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(b) Royal Gold’s Closing
Deliveries. At the Closing, Royal Gold shall deliver, or cause
to delivered, the following to Operator:
|
|
(i)
|
a
certificate of Royal Gold, dated as of the Closing Date, executed by an
authorized senior officer of Royal Gold, certifying that certifying the
conditions set forth in Section 6(a)(i) (Representations and Warranties)
and Section 6(a)(ii) (Covenants) have been duly
satisfied;
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|
|
(ii)
|
evidence
by the relevant notary public that the Royalty Agreement has been executed
by Royal Gold and recorded into the Notary’s registry (repertorio);
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(iii)
|
[Intentionally
deleted];
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(iv)
|
a
duly executed Registration Rights
Agreement;
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|
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(v)
|
legal
opinions of Xxxxx & Xxxxxxx L.L.P. and Urenda, Rencoret, Xxxxxx y
Xxxx, Abogados, counsel to Royal Gold dated as of the Closing Date, in the
forms attached as Exhibits G-1 and
G-2;
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(vi)
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payment
of the Cash Portion, in cash or other immediately available funds, by wire
transfer, in accordance with the written instructions of
Operator;
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(vii)
|
the
number of shares of Royal Gold Common Stock equal to the Share Portion of
the Purchase Price shall be deposited in a dematerialized form by Royal
Gold's transfer agent on behalf of Royal Gold to the account of Operator
or its nominee as Operator may request by written notice to Royal Gold at
least two business days prior to the Closing Date and Operator shall have
received written confirmation of such deposit to its account or the
account of its nominee as directed;
and
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(viii)
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certified
copies of resolutions of the directors of Royal Gold approving the
Transactions contemplated by this Agreement and the execution and delivery
of this Agreement and all documents, instruments and agreements required
to be executed and delivered by Royal Gold pursuant to this Agreement and
the performance by Royal Gold of its rights and obligations
thereunder.
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- 38
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(c) Concurrent
Delivery. It shall be a condition of the Closing that all
matters of payment and the execution and delivery of documents by any Party to
the other Party pursuant to the terms of this Agreement shall be concurrent
requirements and that nothing will be complete at the Closing until everything
required as a condition precedent to the Closing has been paid, executed and
delivered, as the case may be.
8. Termination. This
Agreement may be terminated at any time (except where otherwise indicated) prior
to the Closing, whether before or after approval of this Agreement (unless
otherwise set forth below), as follows:
(a) by
mutual written consent of Royal Gold and Operator;
(b) by
Royal Gold,
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|
(i)
|
if
there has been a breach or failure to perform any covenant or agreement on
the part of Operator that causes any of the conditions provided in Section
6(b) not to be met and such breach or failure has not been cured (if
curable) within 15 days following receipt by Operator of written notice of
such breach describing the extent and nature thereof in reasonable detail;
or
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|
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(ii)
|
if
there has been any event, change, occurrence or circumstance that renders
the conditions set forth in Section 6(b) incapable of being satisfied by
the later of January 29, 2010 or the postponed Closing Date if Royal
Gold has elected on or after January 15, 2010 to postpone the Closing Date
by ten business days in accordance with Section 2(i)(iii) (the “Outside
Date”);
|
(c) by
Operator,
|
|
(i)
|
if
there has been a breach or failure to perform any covenant or agreement on
the part of Royal Gold that causes any of the conditions provided in
Section 6(a) not to be met and such breach or failure has not been cured
(if curable) within 15 days following
receipt by Royal Gold of written notice of such breach describing the
extent and nature thereof in reasonable detail;
or
|
|
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(ii)
|
if
there has been any event, change, occurrence or circumstance that renders
the conditions set forth in Section 6(a) incapable of being satisfied by
the Outside Date;
|
(d) by
either:
(i) Royal
Gold; or
- 39
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(ii) Operator,
if there
shall be in effect a final, unappealable order restraining, enjoining or
otherwise prohibiting the consummation of the Transactions contemplated by this
Agreement; provided,
however, that the Party seeking to terminate this Agreement pursuant to
this Section 8(d) shall not have initiated such proceeding or taken any action
in support of such proceeding (it being agreed that the Parties shall use their
commercially reasonable efforts to promptly appeal any such order that is
appealable and diligently pursue such appeal); or
(e) by
either:
(i) Royal
Gold; or
(ii) Operator,
on or
after the Outside Date if the Closing shall not have occurred by the close of
business on such date (unless the failure to consummate the Closing is
attributable to a breach of this Agreement on the part of the Party seeking to
terminate this Agreement); provided, however, that the
terminating Party is not in material default of any of its obligations
hereunder.
In the
event of termination of this Agreement by (i) Royal Gold, (ii) Operator, or
(iii) the mutual agreement of all Parties pursuant to this Section 8, written
notice thereof shall be given to the other Party and this Agreement shall
terminate without any further action by any of the Parties.
Upon the
termination of this Agreement in accordance with this Section 8, each of the
Parties shall be relieved of any further duties and obligations under this
Agreement after the date of such termination; provided, however that no such
termination shall relieve any Party hereto from liability for any material
breach of any covenant or obligation contained in this Agreement or for any
intentional and material breach of any representation or warranty contained in
this Agreement; provided,
further that the obligations of the Parties set forth in Section 5(h),
Section 8 and Sections 9(a)-(g), (m), (o) and (s) shall survive any such
termination and shall be enforceable after such termination.
Neither
Royal Gold nor Operator may rely on the failure of any condition set forth in
Sections 6(a) or 6(b) to be satisfied as a basis for the termination of this
Agreement if such failure was caused by such Party’s failure to comply with or
perform any of its covenants or obligations set forth in this
Agreement.
9. Miscellaneous.
(a) Governing
Law. This Agreement is to be governed by and construed under
the laws of the State of Colorado, without giving effect to those principles of
conflicts of laws that might otherwise require application of the laws of any
other jurisdiction.
- 40
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(b) Dispute
Resolution.
|
|
(i)
|
If
for any reason any Dispute arising under this Agreement, either Party may
deliver written notice to the other Party regarding such Dispute and the
Dispute shall be determined by arbitration as provided in this Section
9(b). THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM OR COUNTERCLAIM ARISING FROM
OR CONNECTED WITH THIS AGREEMENT.
|
|
|
(ii)
|
All
Disputes shall be referred to and finally resolved by arbitration under
the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The number of
arbitrators shall be three. The place of Arbitration shall be Houston,
Texas, USA. The language of the Arbitration shall be English. Judgment may
be entered upon an award in any court of competent
jurisdiction.
|
|
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(iii)
|
The
Party referring a Dispute to arbitration hereunder shall appoint an
arbitrator in the arbitration petition and the respondent Party shall
appoint an arbitrator in its response. If within 30 days after the date of
the arbitration petition, the respondent has not appointed an arbitrator,
such arbitrator shall be appointed by the ICC. Within 30 days of their
appointment, the two arbitrators so appointed shall appoint a third
arbitrator who shall preside over the arbitration panel. If the two
arbitrators cannot agree on a third arbitrator within such 30 day period,
the third arbitrator shall be appointed by the
ICC.
|
|
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(iv)
|
Notwithstanding
the provisions of Section 9(b)(i), the arbitral tribunal shall have the
power to grant interim measures of protection, but, without derogating
from the commitment to arbitrate or the power of the arbitral tribunal to
grant such measures, it shall not be inconsistent with this Agreement for
a party to apply to a court of competent jurisdiction for an interim
measure of protection pending the commencement or completion of
arbitration.
|
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(v)
|
In
any arbitration, or in any court proceeding authorized to be taken under
this Agreement, the arbitral tribunal or the court, as the case may be,
shall in addition to any other relief, be entitled to make an award or
enter a judgment, as the case may be, for reasonable attorney’s fees and
disbursements, including experts witness fees, and any other costs of the
proceeding. The arbitration panel may only award damages as provided for
under the terms of this Agreement and in no event may punitive,
consequential or special damages be
awarded.
|
|
|
(vi)
|
If
contemporaneous Disputes arise under this Agreement, a single arbitration
may be commenced in respect of the
Disputes.
|
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(c) Notices. Unless
otherwise provided in this Agreement, any notice or other correspondence
required or permitted by this Agreement shall be deemed to have been properly
given or delivered when made in writing and hand-delivered to the Party to whom
directed, or when given by facsimile transmission, with all necessary delivery
charges fully prepaid (or in the case of a facsimile, upon confirmation of
receipt), and addressed to the Party to whom directed at the following
address:
If to
Operator:
Compañía
Minera Xxxx Xxxxxx de Andacollo
c/o Teck
Operaciones Mineras Chile Ltda.
Xxxxxxx
Xxxxxxxx 0000, Xxxx 00
Xxx
Xxxxxx, Xxxxxxxx, Xxxxx
Attention:
Xxxxxxxxx Xxxxxxxx
Facsimile: (00-0) 000
0000
with a
copy, which shall not constitute notice, to:
Xxxxxx
Xxxxxx Xxxxxxx LLP
1200
Waterfront Centre
000
Xxxxxxx Xxxxxx, X.X. Xxx 00000
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0 Xxxxxx
Attention: Xxxx
X. Xxxxxxxx
Facsimile: (000)
000-0000
If to
Royal Gold:
Royal
Gold, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx
0000
Xxxxxx,
XX 00000-0000 XXX
Attention: Vice
President and General Counsel
Facsimile: (000)
000-0000
with a
copy, which shall not constitute notice, to:
Xxxxx
& Xxxxxxx L.L.P.
One Xxxxx
Center
0000
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000 XXX
Attention: Xxxx
Xxxxxx, Esq.
Facsimile: (000)
000-0000
Any Party
may change its address for the purpose of notices or communications by
furnishing notice thereof to the other Party in the manner provided in this
Section 9(c).
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(d) Assignment. This
Agreement shall inure to the benefit of and shall be binding on and enforceable
by the Parties and, where the context so permits, their respective permitted
successors and permitted assigns. No Party may assign all or any part
of its rights, liabilities and obligations under this Agreement without the
prior written consent of the other Party to this Agreement, except that Royal
Gold may assign all or any part of its rights, liabilities and obligations under
this Agreement, to any directly or indirectly wholly-owned Subsidiary of Royal
Gold, provided that:
|
|
(i)
|
such
Subsidiary covenants with Operator to be bound by the terms and conditions
of this Agreement and any amendments
hereto;
|
|
|
(ii)
|
such
Subsidiary shall first have covenanted with Operator that if at any time
thereafter and prior to the Closing Date it ceases or proposes to cease to
be a Subsidiary of Royal Gold then such Subsidiary shall immediately, and
effective prior to ceasing to be a Subsidiary of the Royal Gold, assign
all or any part of its rights, liabilities and obligations under this
Agreement back to Royal Gold;
|
|
|
(iii)
|
Royal
Gold shall covenant that if at any time thereafter and prior to the
Closing Date the Subsidiary ceases or proposes to cease to be an Affiliate
of Royal Gold then such Subsidiary shall immediately, and prior to ceasing
to be a Subsidiary, assign to Royal Gold all or any part of its rights,
liabilities and obligations under this Agreement;
and
|
|
|
(iv)
|
any
assignment by Royal Gold will not release Royal Gold of its obligation to
issue the shares of Royal Gold Common Stock that constitute the Share
Portion to be issued and registered in the name of Operator pursuant to
this Agreement.
|
(e) Survival. All
covenants, agreements, and indemnities made under this Agreement shall survive
the execution and delivery of this Agreement and shall survive the Closing Date
until such covenants, agreements and indemnities have been performed or
satisfied in accordance with the terms thereof. All representations
and warranties made under this Agreement shall survive the execution and
delivery of this Agreement and shall survive the Closing Date for a period of
two years from the Closing Date, except that any representation and warranty
shall not terminate with respect to any item as to which a Party seeking
indemnification under Section 9(f) has, prior to the expiration of such two year
period, previously made a claim against the other indemnifying Party by
delivering written notice in accordance this Agreement.
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(f) Indemnification.
|
|
(i)
|
Subject
to Section 9(f)(iii), Operator agrees to indemnify Royal Gold from and
against, and to hold Royal Gold harmless from any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
claims, expenses or disbursements of any kind whatsoever (collectively
“Losses”) which
may at any time be imposed on, incurred by or asserted against Royal Gold
in any way relating to or arising out of (A) any breach by Operator or any
misrepresentation or inaccuracy of any representation or warranty of
Operator contained in this Agreement or in any document, instrument or
agreement delivered pursuant hereto other than the Royalty Agreement; (B)
any breach or non-performance by Operator of any covenant or agreement to
be performed by Operator contained in this Agreement or in any document,
instrument or agreement delivered pursuant hereto other than the Royalty
Agreement; (C) except as set forth on Schedule 3(c),
the failure of Operator on or prior to the Closing Date to comply with any
Governmental Requirement, including any Governmental Requirement or
Approvals relating to environmental protection and reclamation
obligations, with respect to the Subject Properties or the Ancillary
Property Rights; (D) the physical environmental condition of the Subject
Properties or the Ancillary Property Rights and matters of health or
safety related to the Subject Properties or Ancillary Property Rights on
or prior to the Closing Date or any action or claim brought with respect
to either; and (E) if both Parties have waived their respective conditions
to Closing in Sections 6(a)(vii) and 6(b)(ix) (but not in the case where
Operator has been deemed to have waived such condition to Closing pursuant
to the final sentence of Section 6(a)(vii)), any actual or threatened
withdrawal by any Governmental Authority, as at the Closing Date, of any
material Approval under Environmental Laws which is necessary for the
construction or operation of the Project, or any actual or threatened
challenge by any Person, as at the Closing Date, to any material Approval
under Environmental Laws which is necessary for the construction or
operation of the Project.
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(ii)
|
Subject
to Sections 9(f)(iii), Royal Gold agrees to indemnify Operator from and
against, and to hold Operator harmless from, any and all Losses which may
at any time be imposed on, incurred by or asserted against Operator in any
way relating to or arising out of (A) any breach by Royal Gold or any
misrepresentation or inaccuracy of any representation or warranty of Royal
Gold contained in this Agreement or in any document, instrument or
agreement delivered pursuant hereto other than the Royalty Agreement; and
(B) any breach or non-performance by Royal Gold of any covenant or
agreement to be performed by Royal Gold contained in this Agreement or in
any document, instrument or agreement delivered pursuant hereto other than
the Royalty Agreement.
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(iii)
|
In
no event will either Party be liable to the other Party for any lost
profits or incidental, indirect, speculative, consequential, special,
punitive, or exemplary damages of any kind (whether based in contract,
tort, including negligence, strict liability, fraud, or otherwise, or
statutes, regulations, or any other theory) arising out of or in
connection with this Agreement, even if advised of such potential
damages.
|
(g) Expenses. Each
of the Parties agrees to bear and pay its own costs and expenses incurred in
connection with the preparation, execution, delivery and performance of this
Agreement and the other Transaction Documents (“Transaction Expenses”), provided, however that
Operator shall pay all of the Transaction Expenses incurred by Royal Gold if
Operator terminates this Agreement in accordance with Section 8 or otherwise
decides not to proceed with the Transactions unless Royal Gold is in material
breach of any of its obligations under this Agreement at the time of such
termination.
- 44
-
(h) Further
Assurances. The Parties shall from time to time execute all
such further instruments and documents and do all such further actions as may be
necessary to effectuate the purposes of this Agreement.
(i) Force
Majeure. The obligation of Operator in respect of the
development, construction, and operation of the Project and shipment of copper
concentrate to any smelter, refiner or other processor or purchaser under any
Metal Sales Contract shall be suspended to the extent and for the period that
performance is prevented by any cause, whether foreseeable or unforeseeable,
beyond its reasonable control (except for lack of funds), including, without
limitation, labour disputes (however arising and whether employee demands are
reasonable or within the power of the parties to grant); acts of God; laws,
regulations, orders, proclamations, instructions or requests of any government
or governmental entity; judgments or orders of any court; inability to obtain on
reasonably acceptable terms any public or private license, permit or other
authorization; curtailment or suspension of activities to remedy or avoid an
actual or alleged, present or prospective violation of federal, territorial or
local environmental standards; acts of war, whether declared or undeclared;
riot, civil strife, insurrection or rebellion; fire, explosion, earthquake,
storm, flood, sink holes, drought or other adverse weather conditions; delay or
failure by suppliers or transporters of materials, machinery, equipment,
supplies, utilities or services; accidents; breakdown of equipment, machinery or
facilities; or any other cause whether similar or dissimilar to the foregoing
beyond the reasonable control of Operator (“Force
Majeure”). Operator shall promptly give notice to Royal Gold
of the suspension of performance, stating therein the nature of the suspension,
the reasons therefore, and the expected duration thereof. Operator
shall resume performance as soon as reasonably possible. Except as
expressly set forth in Sections 9(i) and 5(k), the obligations of Operator under
this Agreement shall not be affected by any Force Majeure.
(j) Nature of
Interests. All of the covenants, conditions, and terms of this
Agreement shall (i) be of benefit to the Parties, and (ii) bind and inure to the
benefit of the Parties and their permitted successors and assigns.
(k) No
Partnership. Nothing in this Agreement shall be construed to
create, expressly or by implication, a joint venture, mining partnership,
commercial partnership, or other partnership of any kind or as imposing upon any
Party any partnership duty, obligation or liability or any fiduciary duty,
obligation or liability to any other Party at any time before or after the
Closing Date.
(l) Specific
Performance. Without limiting or waiving in any respect any
rights or remedies of the Parties under this Agreement now or hereafter existing
at law in equity or by statute, Royal Gold shall be entitled to such specific
performance of the obligations to be performed by Operator hereto in accordance
with the provisions of this Agreement and Operator shall be entitled to specific
performance of the obligations of Royal Gold set forth in Sections 5(q) and
5(c)(vi) through 5(c)(xiii) of this Agreement and such remedies shall, however,
be cumulative and not exclusive and shall be in addition to any other remedies
which Royal Gold or Operator may have under this Agreement or
otherwise.
- 45
-
(m) Business
Opportunity. Except as expressly provided in this Agreement
and the other Transaction Documents, each Party shall have the right
independently to engage in and receive full benefits from its business
activities, whether or not competitive with the other Party, without consulting
the other Party. The doctrines of “corporate opportunity” or
“business opportunity”
shall not be applied to any other activity of any Party at any time before or
after the Closing Date.
(n) Time of the
Essence. Time is of the essence in this
Agreement.
(o) Entire
Agreement. This Agreement, together with the Confidentiality
Agreement, and the other Transaction Documents and the Schedules and Exhibits
attached hereto and thereto are the complete expression of the entire agreement
of the Parties, and no oral promise, statement or representation not contained
herein shall be binding on the Parties unless reduced to writing and signed by
the Parties. Subject to express covenants of the Parties contained in
Section 5(q) of this Agreement, if during the period of time following the
signing of the Royalty Agreement and prior to the Closing Date there are any
discrepancies between the legal interpretations of either:
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|
(i)
|
the
adjustments to the Share Portion set forth in Sections 2(d) through 2(h)
of this Agreement and the provisions of Schedule D of
the Royalty Agreement, or
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(ii)
|
the
conditions of closing in Section 6 and closing arrangements in Section 7
of this Agreement and the Condiciones
Suspensivas,
|
then the
Parties hereby agree and acknowledge that (x) the provision of this Agreement
shall govern; and (y) subject to the express covenants of the Parties contained
in Section 5(q) of this Agreement, any Dispute with respect to such matters on
or prior to Closing shall be governed by the
provisions of Section 9(b) of this Agreement and not the dispute resolution
provisions of the Royalty Agreement.
(p) Waiver and
Amendment. This Agreement may not be amended, modified or
changed, nor shall any waiver of any provision hereof be effective, except by
means of a written instrument that has been executed by the Party or Parties to
be bound.
(q) Counterparts; Exchange by
Facsimile or Electronic Delivery. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute but one single
instrument. This Agreement may be delivered by facsimile or
electronic delivery.
- 46
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(r) Taxes.
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(i)
|
If
any Taxes are required by law to be deducted from or in respect of any
amounts payable to Royal Gold
hereunder:
|
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(A)
|
Royal
Gold will receive an amount equal to the sum it would have received if
such deduction had not been made, less the amount of such
deduction;
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(B)
|
Operator
will make such deductions; and
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(C)
|
Operator
will pay the full amount deducted to the relevant taxing authority in
accordance with applicable law, and Operator will promptly furnish to
Royal Gold written proof of such
payment.
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(ii)
|
If
Operator fails to pay any Taxes when due to the appropriate taxing
authority, Operator will indemnify Royal Gold for any incremental Taxes,
interest or penalties that may become payable by Royal Gold as a result of
any such failure.
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(iii)
|
Operator
shall be responsible for and shall pay when due any excise Taxes (goods
and services Taxes), stamp duties, sales and use Taxes and similar Taxes
and any registration fees payable in respect of the sale and transfer of
the Royalty to Royal Gold other than Taxes assessed on Royal Gold under
the law of the jurisdiction in which it is incorporated or, if different,
the jurisdiction (or jurisdictions) in which Royal Gold is treated as
resident for tax purposes.
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(s) No Brokers or
Commissions. Each of the Parties acknowledges, agrees and
represents and warrants to the other Parties that it has not engaged any broker,
agent or other intermediary to act on its behalf on connection with the
Transactions contemplated by this Agreement and that it is not aware of any
current or possible future claim for any brokerage, agency or finder's fee or
commission in connection with the Transactions contemplated by this Agreement
and that if any such claim should arise through, or under, or by virtue of any
action taken by any party, such Party shall indemnify and hold harmless the
others in respect thereof.
- 47
-
IN
WITNESS WHEREOF, the undersigned have executed this Agreement to be effective as
of the date first set forth above.
|
COMPAÑÍA
MINERA XXXX XXXXXX DE ANDACOLLO
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By:
|
/s/Xxxxxxxxx Xxxxxxxx
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Print Name:
|
Xxxxxxxxx Xxxxxxxx
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Title:
|
Director
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By:
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/s/Xxxxxxxxx Xxxxxxx
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Print
Name:
|
Xxxxxxxxx Xxxxxxx
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Title:
|
Director
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ROYAL
GOLD, INC.
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By:
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/s/Xxxx X. Xxxxxx
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Print Name:
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Xxxx X. Xxxxxx
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Title:
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President and
CEO
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[Signature
Page to Amended and Restated Master Agreement]
EXHIBIT
A
[INTENTIONALLY
DELETED]
A-1
EXHIBIT
B
Mining
Properties
Part I – Mining
Properties
“Mining Properties”
mean:
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1.
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Exploitation
mining concession named “Aconcagua”, the measurement minute of which is
registered on page 507 number 86 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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2.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 616 number 107 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
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3.
|
Exploitation
mining concession named “Aguada” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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4.
|
Exploitation
mining concessions named “Aldo 1 to 50” the measurement minute of which is
registered on page 441 number 79 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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5.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 242 number 48 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
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6.
|
Exploitation
mining concessions named “Xxxxx 1 to 15” the measurement minute of which
is registered on page 260 number 52 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 714, number 120 of the
cited Registry and Registrar of
1996;
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B-1
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7.
|
Exploitation
mining concessions named “Antofagasta 1 to 2” the measurement minute of
which is registered on page 536 number 92 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
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8.
|
Exploitation
mining concessions named “Antonio 1 to 5”; “Antonio 16”; and
“Antonio 17” (of the group named “Antonio 1 to 17”) the measurement minute
of which is registered on page 275 number 54 of the Property Registry of
the Andacollo Custodian of Mines of the year 1996. The ownership of
Operator over this mining concession is registered on page 714, number 120
of the cited Registry and Registrar of
1996;
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9.
|
Exploitation
mining concessions named “Antonio 1 to 17” (of the group named “Antonio 1
to 23”) the measurement minute of which is registered on page 37 number 20
of the Property Registry of the Andacollo Custodian of Mines of the year
2009. The ownership of Operator over this mining concession is registered
on page 44, number 21 of the cited Registry and Registrar of
2009;
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10.
|
Exploitation
mining concession named “Arica” the measurement minute of which is
registered on page 527 number 90 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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11.
|
Exploitation
mining concession named “Atacama” the measurement minute of which is
registered on page 517 number 88 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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12.
|
Exploitation
mining concessions named “Xxxxxx 1 to 2” the measurement minute of which
is registered on page 31 number 17 of the Property Registry of the
Andacollo Custodian of Mines of the year 2009. The ownership of Operator
over this mining concession is registered on page 34, number 18 of the
cited Registry and Registrar of
2009;
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13.
|
Exploitation
mining concessions named “Xxxxxx Xxxxxx 1 to 2” the measurement minute of
which is registered on page 34 number 10 of the Property Registry of the
Andacollo Custodian of Mines of the year 1994. The ownership of Operator
over this mining concession is registered on page 27, number 19 of the
cited Registry and Registrar of
2003;
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B-2
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14.
|
Exploitation
mining concession named “Blanquita” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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15.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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16.
|
Exploitation
mining concession named “Xxxxxx Xxxx” the measurement minute of which is
registered on page 321 number 62 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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17.
|
Exploitation
mining concessions named “Chifute 1 to 8” the measurement minute of which
is registered on page 707 number 119 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
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18.
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Exploitation
mining concessions named “Chorrillo”, “Chorrillo Segunda” and “Chorrillo
Tercera” the measurement minute of which is registered on page 629 number
110 of the Property Registry of the Andacollo Custodian of Mines of the
year 1996. The ownership of Operator over this mining concession is
registered on page 718, number 121 of the cited Registry and Registrar of
1996;
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19.
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Exploitation
mining concessions named “Churque 1 to 85”; and “Churque 95 to 100” (of
the group named “Churque 1 to 100”) the measurement minute of which is
registered on page 287 number 55 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
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20.
|
Exploitation
mining concessions named “Churque 1 to 4” the measurement minute of which
is registered on page 566 number 98 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
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21.
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Exploitation
mining concessions named “Churque 5 to 9” the measurement minute of which
is registered on page 255 number 51 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 714, number 120 of the
cited Registry and Registrar of
1996;
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B-3
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22.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 521 number 89 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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23.
|
Exploitation
mining concessions named “Cobre Xxxxxx 1 to 6” (of the group
named “Cobre Xxxxxx 1 to 10”) the measurement minute of which is
registered on page 15 number 9 of the Property Registry of the Andacollo
Custodian of Mines of the year 1997. The ownership of Operator over this
mining concession is registered on page 106, number 61 of the cited
Registry and Registrar of 2006;
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24.
|
Exploitation
mining concession named “Compañia” the measurement minute of which is
registered on page 331 number 67 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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25.
|
Exploitation
mining concessions named “Complemento 1 to 10” the measurement minute of
which is registered on page 266 number 53 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 714, number 120 of the
cited Registry and Registrar of
1996;
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26.
|
Exploitation
mining concession named “Xxxxxxxx” the measurement minute of which is
registered on page 623 number 109 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
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27.
|
Exploitation
mining concession named “Coquimbana” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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28.
|
Exploitation
mining concession named “Coquimbo” the measurement minute of which is
registered on page 319 number 61 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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B-4
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29.
|
Exploitation
mining concession named “Culebron” the measurement minute of which is
registered on page 562 number 97 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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30.
|
Exploitation
mining concession named “Desempeño” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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31.
|
Exploitation
mining concession named “El Toro” the measurement minute of which is
registered on page 582 number 102 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
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32.
|
Exploitation
mining concession named “Emmita” the measurement minute of which is
registered on page 329 number 66 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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33.
|
Exploitation
mining concessions named “Xxxxxxxxxxx 1 to 5” (of the group named
“Xxxxxxxxxxx 1 to 10”) the measurement minute of which is registered on
page 83 number 17 of the Property Registry of the Andacollo Custodian of
Mines of the year 1996. The ownership of Operator over this mining
concession is registered on page 718, number 121 of the cited Registry and
Registrar of 1996;
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34.
|
Exploitation
mining concessions named “Xxxxxxxxxxx 6 to 10” (of the group named
“Xxxxxxxxxxx 1 to 10”) the measurement minute of which is registered on
page 83 number 17 of the Property Registry of the Andacollo Custodian of
Mines of the year 1996. The ownership of Operator over this mining
concession is registered on page 714, number 120 of the cited Registry and
Registrar of 1996;
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35.
|
Exploitation
mining concessions named “Escondida 1 to 2” the measurement minute of
which is registered on page 633 number 111 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
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36.
|
Exploitation
mining concession named “Xxxxx” the measurement minute of which is
registered on page 185 number 35 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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B-5
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|
37.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 149 number 29 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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38.
|
Exploitation
mining concession named “Guanaco” the measurement minute of which is
registered on page 333 number 68 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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39.
|
Exploitation
mining concessions named “Hermosa 1 to 3” the measurement minute of which
is registered on page 120 number 24 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
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40.
|
Exploitation
mining concession named “Hermosa” the measurement minute of which is
registered on page 179 number 34 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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41.
|
Exploitation
mining concession named “Huamachuco” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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42.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 327 number 65 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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43.
|
Exploitation
mining concession named “Invierno” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
B-6
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44.
|
Exploitation
mining concession named “Las Dos Coloradas” the measurement minute of
which is registered on page 315 number 59 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
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45.
|
Exploitation
mining concession named “Xxxxx” the measurement minute of which is
registered on page 237 number 47 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
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46.
|
Exploitation
mining concession named “Limari” the measurement minute of which is
registered on page 541 number 93 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
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47.
|
Exploitation
mining concession named “Los Angeles” the measurement minute of which is
registered on page 733 number 122 and on page 795 number 130, both of the
Property Registry of the Andacollo Custodian of Mines of the year 1996.
The ownership of Operator over this mining concession is registered on
page 718, number 121 of the cited Registry and Registrar of
1996;
|
|
|
48.
|
Exploitation
mining concessions named “Los Veneros 88”; “Los Veneros 89”; “Los Veneros
94 to 97; “Los Veneros 101 to 105”; “Los Veneros 108 to 110”; and “Los
Veneros 113” (of the group named “Los Veneros 1 to 114”),the measurement
minute of which is registered on page 10 number 4 of the Property Registry
of the Andacollo Custodian of Mines of the year 2007. The ownership of
Operator over this mining concession is registered on page 10, number 4 of
the cited Registry and Registrar of
2007;
|
|
|
49.
|
Exploitation
mining concessions named “Louisiana”, “Clarin”, “Alabama”, “Xxxx”,
“Colorada”, “Demasia”, “Florida”, “Tennesee” and “Xxxxx” the measurement
minute of which is registered on page 74 number 15 of the Property
Registry of the Andacollo Custodian of Mines of the year 1996. The
ownership of Operator over this mining concession is registered on page
718, number 121 of the cited Registry and Registrar of
1996;
|
|
|
50.
|
Exploitation
mining concessions named “Xxx 1 to 4”,(of the group named “Xxx 1 to 6”)
the measurement minute of which is registered on page 619 number 108 of
the Property Registry of the Andacollo Custodian of Mines of the year
1996. The ownership of Operator over this mining concession is registered
on page 718, number 121 of the cited Registry and Registrar of
1996;
|
B-7
|
|
51.
|
Exploitation
mining concession named “Xxxxxxxxx” the measurement minute of which is
registered on page 499 number 84 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
52.
|
Exploitation
mining concession named “Xxxxx Xxxxxx” the measurement minute of which is
registered on page 317 number 60 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
53.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 231 number 46 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
54.
|
Exploitation
mining concession named “Xxxxxx Primera” the measurement minute of which
is registered on page 335 number 69 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
55.
|
Exploitation
mining concession named “Xxxxxx Segunda” the measurement minute of which
is registered on page 750 number 124 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
56.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 614 number 106 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
57.
|
Exploitation
mining concessions named “Nanita 8”; “Nanita 12”; “Nanita 24 to 27”;
“Nanita 33 to 46”; and “Nanita 51 to 65” (of the group named “Nanita 1 to
65”) the measurement minute of which is registered on page 39 number 13 of
the Property Registry of the Andacollo Custodian of Mines of the year
1996. The ownership of Operator over this mining concession is registered
on page 718, number 121 of the cited Registry and Registrar of
1996;
|
B-8
|
|
58.
|
Exploitation
mining concession named “Negrita” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
59.
|
Exploitation
mining concessions named “Nelly 1 to 5” the measurement minute of which is
registered on page 304 number 56 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
|
|
|
60.
|
Exploitation
mining concession named “Ohio” the measurement minute of which is
registered on page 521 number 89 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
61.
|
Exploitation
mining concession named “Otoño” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
62.
|
Exploitation
mining concession named “Pelargonia” the measurement minute of which is
registered on page 557 number 96 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
63.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 325 number 64 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
64.
|
Exploitation
mining concession named “Poderosa” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
65.
|
Exploitation
mining concession named “Preciosa” the measurement minute of which is
registered on page 217 number 41 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
B-9
|
|
66.
|
Exploitation
mining concession named “Primavera” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
67.
|
Exploitation
mining concession named “Protectora” the measurement minute of which is
registered on page 219 number 42 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
68.
|
Exploitation
mining concession named “Xxxxxxxxx” the measurement minute of which is
registered on page 221 number 43 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
69.
|
Exploitation
mining concession named “Reforma” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
70.
|
Exploitation
mining concession named “Relleno” the measurement minute of which is
registered on page 173 number 33 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
71.
|
Exploitation
mining concession named “Resguardo” the measurement minute of which is
registered on page 311 number 57 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
72.
|
Exploitation
mining concessions named “Rio Elqui Uno 6”; “Río Elqui Uno 7”; and “Rio
Elqui Uno 9 to 33” (of the group named “Río Elqui Uno 1 to 33”), the
measurement minute of which is registered on page 1160 number 229 of the
Property Registry of the Andacollo Custodian of Mines of the year 1996.
The ownership of Operator over this mining concession is registered on
page 1160, number 229 of the cited Registry and Registrar of
1996;
|
B-10
|
|
73.
|
Exploitation
mining concessions named “Rio Elqui Dos 1 to 4”; “Río Elqui Dos 8 to 13”;
and “Río Xxxxx Xxx 00 to 95” (of the group named “Río Elqui Dos 1 to 95”)
the measurement minute of which is registered on page 1169 number 230 of
the Property Registry of the Andacollo Custodian of Mines of the year
1996. The ownership of Operator over this mining concession is registered
on page 1169, number 230 of the cited Registry and Registrar of
1996;
|
|
|
74.
|
Exploitation
mining concessions named “Rio Elqui Tres 2 to 53” (of the group named “Río
Elqui Tres 1 to 53”) the measurement minute of which is registered on page
769 number 127 of the Property Registry of the Andacollo Custodian of
Mines of the year 1996. The ownership of Operator over this mining
concession is registered on page 769, number 127 of the cited Registry and
Registrar of 1996;
|
|
|
75.
|
Exploitation
mining concessions named “Rio Limari Dos 1 to 11” the measurement minute
of which is registered on page 788 number 129 of the Property Registry of
the Andacollo Custodian of Mines of the year 1996. The ownership of
Operator over this mining concession is registered on page 788, number 129
of the cited Registry and Registrar of
1996;
|
|
|
76.
|
Exploitation
mining concessions named “Rio Limari Tres 1 to 70” the measurement minute
of which is registered on page 1178 number 231 of the Property Registry of
the Andacollo Custodian of Mines of the year 1996. The ownership of
Operator over this mining concession is registered on page 1178, number
231 of the cited Registry and Registrar of
1996;
|
|
|
77.
|
Exploitation
mining concessions named “Rio Limari Cuatro 1 to 82” the measurement
minute of which is registered on page 779 number 128 of the Property
Registry of the Andacollo Custodian of Mines of the year 1996. The
ownership of Operator over this mining concession is registered on page
779, number 128 of the cited Registry and Registrar of
1996;
|
|
|
78.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 223 number 44 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
79.
|
Exploitation
mining concession named “Rojo Dos” the measurement minute of which is
registered on page 454 number 80 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
B-11
|
|
80.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
81.
|
Exploitation
mining concessions named “Xxxxxxx 62 to 67”; and “Xxxxxxx 89” (of the
group named “Xxxxxxx 1 to 89”) the measurement minute of which is
registered on page 598 number 105 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
82.
|
Exploitation
mining concession named “Xxxxxxx 66” the measurement minute of which is
registered on page 70 number 14 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
83.
|
Exploitation
mining concessions named “Xxxxxxx 130 to 138” the measurement minute of
which is registered on page 34 number 12 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
84.
|
Exploitation
mining concessions named “Xxxxxxx 181” and “Xxxxxxx 183” (of the group
named “Xxxxxxx 171 to 185”) the measurement minute of which is registered
on page 586 number 103 of the Property Registry of the Andacollo Custodian
of Mines of the year 1996. The ownership of Operator over this mining
concession is registered on page 718, number 121 of the cited Registry and
Registrar of 1996;
|
|
|
85.
|
Exploitation
mining concessions named “Xxxxxxx 186 to 188” and “Xxxxxxx 193” (of the
group named “Xxxxxxx 186 to 193”) the measurement minute of which is
registered on page 591 number 104 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
86.
|
Exploitation
mining concession named “Xxxxxxx 194” the measurement minute of which is
registered on page 80 number 16 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
87.
|
Exploitation
mining concession named “San Xxxx” the measurement minute of which is
registered on page 733 number 122, page 755 number 125 and page 795 number
130, of the Property Registry of the Andacollo Custodian of Mines of the
year 1996. The ownership of Operator over this mining concession is
registered on page 718, number 121 of the cited Registry and Registrar of
1996;
|
B-12
|
|
88.
|
Exploitation
mining concession named “San Xxxxxxx” the measurement minute of which is
registered on page 323 number 63 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
89.
|
Exploitation
mining concession named “San Xxxxxx” the measurement minute of which is
registered on page 578 number 101 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
90.
|
Exploitation
mining concession named “San Xxxxx” the measurement minute of which is
registered on page 574 number 100 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
91.
|
Exploitation
mining concession named “Xxxxxx 1” and “Xxxxxx 3” (of the group named
“Xxxxxx 1 to 3”) the measurement minute of which is registered on page 387
number 74 of the Property Registry of the Andacollo Custodian of Mines of
the year 1996. The ownership of Operator over these mining concessions is
registered on page 718, number 121 of the cited Registry and Registrar of
1996;
|
|
|
92.
|
Exploitation
mining concession named “Sandro” the measurement minute of which is
registered on page 247 number 49 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
|
|
|
93.
|
Exploitation
mining concession named “Sebastopol” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
94.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 191 number 36 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
|
B-13
|
|
95.
|
Exploitation
mining concession named “Xxxxx Primera” the measurement minute of which is
registered on page 200 number 38 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
96.
|
Exploitation
mining concession named “Xxxxx Segunda” the measurement minute of which is
registered on page 206 number 39 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
97.
|
Exploitation
mining concession named “Xxxxx Tercera” the measurement minute of which is
registered on page 212 number 40 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
98.
|
Exploitation
mining concession named “Sussy Primera” the measurement minute of which is
registered on page 108 number 22 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
99.
|
Exploitation
mining concession named “Tarapaca” the measurement minute of which is
registered on page 570 number 99 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
100.
|
Exploitation
mining concession named “Xxxxxxxx 1” the measurement minute of which is
registered on page 531 number 91 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
101.
|
Exploitation
mining concession named “Veranito 1” the measurement minute of which is
registered on page 659 number 116 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
B-14
|
|
102.
|
Exploitation
mining concession named “Verde Bajo” the measurement minute of which is
registered on page 313 number 58 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
103.
|
Exploitation
mining concessions named “Viejo 1 to 4” the measurement minute of which is
registered on page 546 number 94 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
104.
|
Exploitation
mining concessions named “Zapallo 1 to 3” the measurement minute of which
is registered on page 552 number 95 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
105.
|
Exploitation
mining concessions named “Xxxxxxxxx 1 to 3” the measurement minute of
which is registered on page 19 number 12 of the Property Registry of the
Andacollo Custodian of Mines of the year 2004. The ownership of Operator
over these mining concessions is registered on page 19, number 05 of the
cited Registry and Registrar of
2009;
|
|
|
106.
|
Exploitation
mining concessions named “Fuerza 4 to 6”; “Fuerza 8”; “Fuerza 9”; “Fuerza
11 to 13”; “Fuerza 16 to 18”; and “Fuerza 22 to 24” (of the group named
“Fuerza 1 to 24”) the measurement minute of which is registered on page
109 number 62 of the Property Registry of the Andacollo Custodian of Mines
of the year 2003. The ownership of Operator over this mining
concession is registered on page 21, number 7 of the cited Registry and
Registrar of 2009;
|
|
|
107.
|
Exploitation
mining concessions named “Milla 1 to 10” the measurement minute of which
is registered on page 91 number 59 of the Property Registry of the
Andacollo Custodian of Mines of the year 2003. The ownership of Operator
over this mining concession is registered on page 22, number 8 of the
cited Registry and Registrar of
2009;
|
|
|
108.
|
Exploitation
mining concessions named “Nuevo Mexico 5”; “Nuevo Mexico 10”; and “Nuevo
Mexico 29” (of the group named “Nuevo Mexico 1 to 37”) the measurement
minute of which is registered on page 9 number 9 of the Property Registry
of the Andacollo Custodian of Mines of the year 2004. The ownership of
Operator over this mining concession is registered on page 26, number 12
of the cited Registry and Registrar of
2009;
|
|
|
109.
|
Exploitation
mining concessions named “Osorno 1 to 8” the measurement minute of which
is registered on page 1098 number 213 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 27, number 13 of the
cited Registry and Registrar of
2009;
|
B-15
|
|
110.
|
Exploitation
mining concession named “Recife 1” the measurement minute of which is
registered on page 104 number 61 of the Property Registry of the Andacollo
Custodian of Mines of the year 2003. The ownership of Operator over this
mining concession is registered on page 23, number 9 of the cited Registry
and Registrar of 2009;
|
|
|
111.
|
Exploitation
mining concessions named “Remanso 1 to 30” the measurement minute of which
is registered on page 97 number 60 of the Property Registry of the
Andacollo Custodian of Mines of the year 2003. The ownership of Operator
over this mining concession is registered on page 24, number 10 of the
cited Registry and Registrar of
2009;
|
|
|
112.
|
Exploitation
mining concessions named “Xxxx 1 to 15” the measurement minute of which is
registered on page 250 number 55 of the Property Registry of the Andacollo
Custodian of Mines of the year 1997. The ownership of Operator over these
mining concessions is registered on page 90, number 58 of the cited
Registry and Registrar of 2003; and
|
|
|
113.
|
Exploitation
mining concessions named “Xxxx Segunda 1 to 41” the measurement minute of
which is registered on page 232 number 53 of the Property Registry of the
Andacollo Custodian of Mines of the year 1997. The ownership of Operator
over these mining concessions is registered on page 28, number 14 of the
cited Registry and Registrar of
2009.
|
B-16
EXHIBIT
B
Mining
Properties
Part II –
Map
(Attached)
B-17
EXHIBIT
B
Mining
Properties
Part III – Universal
Transverse Mercator Coordinates
(Attached)
|
(a)
|
UTM
Coordinates – Circular Boundary:
(Attached)
|
|
(b)
|
UTM
Coordinates – Shaded Area Boundary:
(Attached)
|
X-00
XXXXXXX
X
XXXX
XX XXXXXXX AGREEMENT
In
Santiago, Chile, before me, ___________________________, Notary Public of the
____Notary of Santiago, with domicile in ________, appear Mr._________ [name, nationality, marital status,
profession, national identity card number] on behalf of Compañía Minera
Xxxx Xxxxxx de Andacollo, a company organized under the law of Chile (“Operator”), for these purposes
both domiciled at _________________, and Mr. _______________ [name, nationality, marital status,
profession, national identity card number], on behalf of Royal Gold,
Inc., a Delaware corporation (“Royal Gold”), for these
purposes both domiciled at___________________, who evidenced their identity with
the referred to documents, the parties of legal age, who state as
follows:
WHEREAS:
A. Operator
owns and operates a copper mining project located near the town of Andacollo,
Chile, and as part of such project is developing a hypogene copper-gold project
(the “Project”) on the
Mining Properties.
B. Operator
and Royal Gold entered into that certain Amended and Restated Master Agreement
dated as of January 12, 2010 (the “Amended and Restated Master Agreement”), whereby
Operator agreed to sell, transfer and assign to Royal Gold a Royalty related to
the gold produced from the Project in exchange for the Purchase
Price.
C. In
consideration of payment of the Purchase Price, Operator hereby sells, transfers
and assigns to Royal Gold a Royalty, on and subject to the terms and conditions
set forth herein.
D. Operator
and Royal Gold acknowledge that this Agreement is an aleatory agreement (contrato aleatorio) and thus
payments hereunder are contingent on the proceeds obtained from the exploitation
of the Subject Properties as provided in this Agreement.
E. Royal
Gold acknowledges that copper is the main mineral exploited in the Subject
Properties.
NOW,
THEREFORE, the Parties covenant and agree as follows:
1. Certain Defined Terms and
Construction.
(a) As
used in this Agreement, the following capitalized terms shall have the following
meanings:
(i) “Abandonment Property” has the
meaning set forth in Section 6(j).
|
|
(ii)
|
“Affiliate” means, with
respect to any Person, any Person that directly, or indirectly through one
or more intermediaries, controls, is controlled by or is under common
control with such Person, provided that the term
“control” for purposes of this definition under this Agreement shall mean
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, by contract, or otherwise, and provided, further that
a Person who owns greater than 50% of any outstanding class of voting
securities of any other Person shall be deemed to control such other
Person.
|
- 1
-
|
|
(iii)
|
“Agent” means Xxxx Xxxx
Xxxx Xxxxxx, Xxxxxx Xxxx Xxxxxx or Xxxxxx Xxxxxxxx Monckeberg, each acting
on behalf of either Royal Gold or
Operator.
|
|
|
(iv)
|
“Agreement” means this
Royalty Agreement with all Exhibits and Schedules
hereto.
|
|
(v)
|
“Allowable Refining
Charge” has the meaning set forth in Section
3(e).
|
|
|
(vi)
|
“Amended and Restated Master
Agreement” has the meaning set forth in Recital B
hereto.
|
|
|
(vii)
|
“Ancillary Property
Rights” mean any land and water rights owned, controlled, leased,
mined or operated by or on behalf of Operator or any Affiliate of Operator
on or after the date of this Agreement not included in the Mining
Properties or the Subject Properties, but which are required for the
development and operation of the
Project.
|
|
(viii)
|
“Applicable Rate” has the
meaning set forth in Section 3(c).
|
|
|
(ix)
|
“Approvals” mean any
authorizations, licenses, permits, consents, waivers, grant notices,
approvals, rulings, orders, certifications, exemptions, filings,
variances, decrees, registrations, or other actions, whether written or
oral, of, by, from or on behalf of any Governmental Authority or any other
third party, together with all easements, rights-of-way and other rights
to access or use property.
|
|
|
(x)
|
“Avío” means a contrato aleatorio
regulated in the Chilean Mining Code and defined in article 206 therein as
a contract by means of which a person commits to give or to do something
for the benefit of the exploitation of an exploitation mining concession
(pertenencia), to
be paid only with the products obtained therefrom or with an ownership
quota of such mining concession.
|
|
(xi)
|
“Cash Portion” has the
meaning set forth in Section 2(b).
|
|
|
(xii)
|
“Circular Boundary” means
the circular boundary illustrated in bold black on the map in Part I of
Schedule
B and described by the Universal Transverse Mercator Coordinates in
Part II(a) of Schedule
B.
|
|
|
(xiii)
|
“Closing Date” has the
meaning set forth in Section 2(c).
|
- 2
-
|
|
(xiv)
|
“Condiciones Suspensivas”
has the meaning set forth in Section
2(a).
|
|
|
(xv)
|
“Confidential
Information” has the meaning set forth in Section
5(e).
|
|
|
(xvi)
|
“Dayton” means Compañía
Minera Dayton.
|
|
|
(xvii)
|
“Dayton Agreement” means
an Agreement of Intent (Acuerdo de Intención)
between Dayton and Operator dated May 30, 2008, as amended from time to
time, and any document, instrument, deed, or agreement delivered pursuant
thereto.
|
|
|
(xviii)
|
“Dayton Concessions”
means: (A) Río Elqui Uno 1 to 5 and Río Elqui Uno 8; (B) Xxxxxxx Tercera;
(C) Jazmín; (D) Xxxxxxx 142, Xxxxxxx 143, Xxxxxxx 149 and Xxxxxxx 150; (E)
Nanita 1 to 7, Nanita 9 to 11, Nanita 13 to 23, Nanita 28 to 32 and Nanita
47 to 50; (F) Xxxxxxx 54 to 61; (G) Xxxxxx; (H) Xxxxxxx 1 and 2; (I)
Mercedes 4, Mercedes 5 and Mercedes 6; (J) Xxxxxxx 113 to 115, Xxxxxxx 120
to 123 and Xxxxxxx 127 to 129; (K) Cautín; (L) Río Xxxxx Xxx 0 xx 0, Xxx
Xxxxx Xxx 14 and Río Elqui Dos 15; (M) Río Elqui Tres 1; and (N) Xxxxx 1
and 2.
|
|
|
(xix)
|
“Deed of Cancellation”
has the meaning set forth in Section
2(a).
|
|
|
(xx)
|
“Deed of Release” has the
meaning set forth in Section 2(a).
|
|
|
(xxi)
|
“Dispute” means a dispute
arising out of, or connected with, this Agreement or any legal
relationship associated with, or derived from, this Agreement (including
any dispute related to the Deed of Release regardless of when it arises),
provided, however
that any dispute arising before February 16, 2010 related to
the interpretation, waiver or satisfaction of the Condiciones Suspensivas
or the interpretation of the adjustment provisions of Schedule D
shall not be considered a Dispute for purposes of this Agreement and shall
be resolved as provided in the Amended and Restated Master
Agreement. For further clarification, any dispute under the
Amended and Restated Master Agreement shall not be considered a Dispute
for the purposes of this Agreement.
|
|
|
(xxii)
|
“Environmental Laws” mean
Governmental Requirements relating to pollution or protection of the
environment, including, without limitation, Governmental Requirements
relating to emissions, discharges, or releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or
wastes into the environment (including, without limitation, ambient air,
surface water, ground water, aquifers, land surface or subsurface strata)
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, chemicals or industrial, toxic or hazardous substances or
wastes which are applicable to the Subject Properties, the Project , the
other assets owned, controlled or managed by Operator which are used on or
in connection with the Subject Properties, the Ancillary Property Rights
or the Project or to the activities of Operator on or in connection with
the Subject Properties, the Ancillary Property Rights or the
Project.
|
- 3
-
|
|
(xxiii)
|
“Force Majeure” has the
meaning set forth in Section 7(g).
|
|
|
(xxiv)
|
“Fundamental Process
Change” means a material change in the process circuit of the
Project consisting of an addition of equipment or the reconfiguration of
existing equipment for the purposes of recovering additional minerals, as
by-products or co-products or a similar change in the processing method by
which copper is produced, provided, however, that
a Fundamental Process Change shall not include changes in reagents,
changes in grinding rates or media, the addition, elimination,
reconfiguration or modification of pumping or piping or other flotation or
support equipment, changes in concentrate grade or tailings targets, or
the replacement of mill equipment, which are in any case implemented in
the ordinary course of business, a shut-down of mining operations
generally, or any change to the metallurgical process that is necessary or
desirable to facilitate compliance with any Governmental Requirement,
including any Environmental Law.
|
|
|
(xxv)
|
“Governmental Authority”
means the government of Chile or any state, provincial, territorial,
divisional, county, regional, city or other political subdivision of Chile
and any entity, court, arbitrator or arbitration panel, agency,
department, commission, board, bureau or regulatory authority or other
instrumentality of any of them exercising executive, legislative,
judicial, regulatory or administrative functions that exercises valid
jurisdiction, including over the Project, the Ancillary Property Rights or
the Subject Properties.
|
|
|
(xxvi)
|
“Governmental
Requirement” means any law, statute, code, ordinance, treaty,
order, rule, regulation, judgment, ruling, decree, injunction, franchise,
permit, certificate, license, authorization, approval or other direction
or requirement of any Governmental
Authority.
|
|
|
(xxvii)
|
“ICC” has the meaning set
forth in Section 7(b)(ii).
|
|
|
(xxviii)
|
“Irrevocable Mandate”
means the Irrevocable Mandate executed between Royal Gold and Operator by
means of a public deed granted on the date
hereof.
|
- 4
-
|
|
(xxix)
|
“Lien” means, as to any
property or asset owned or held by a Person, any mortgage, deed of trust,
lien, pledge, charge, security interest, preferential right, assignment,
option, production payment or royalty (which for greater certainty
excludes any Metal Sales Contract), Avío or other encumbrance in, on or
to, or any interest or title of any vendor, lessor, purchaser or other
secured party to, or interest or title of any Person under any conditional
sale or other title retention agreement or capital lease with respect to,
such property or asset, the signing of any mortgage, deed of trust,
pledge, charge, security agreement, assignment or similar instrument with
respect to such property or asset, or the signing or filing of a financing
statement with respect to such property or asset which names such Person
as debtor, or the signing of any security agreement authorizing any other
party as the secured party thereunder to file any financing statement with
respect to such property or asset.
|
|
(xxx)
|
“Losses” has the meaning
set forth in Section 7(e)(i).
|
|
|
(xxxi)
|
“Material Adverse Effect”
means any change, effect, event, or occurrence that, either individually
or in the aggregate, is, or would reasonably be expected to be, material
and adverse to the Project, or the business, properties, assets,
liabilities (contingent or otherwise), condition (financial or otherwise),
capitalization, operations or results of operations of Operator, each
either considered as a whole or collectively in their entirety, as the
case may be, other than any change, effect, event or occurrence in or
relating to:
|
|
|
(A)
|
changes
in general political, economic or financial conditions, whether domestic
or international in either case, including changes or disruptions in
securities, currency exchange, real property, labour or commodities
markets (including without limitation gold or copper prices), except to
the extent that such changes adversely affect the Project or the business,
properties, assets, liabilities (contingent or otherwise), condition
(financial or otherwise), capitalization, operations or results of
operations of Operator, as the case may be, in a manner distinct from and
with a materially disproportionate effect than it affects other operators
of a similar business in Chile;
|
|
|
(B)
|
acts
of God, any outbreak or escalation of hostilities, declared or undeclared
acts of war or terrorism or civil unrest, except to the extent that such
acts of God, hostilities, war, terrorism or civil unrest adversely affect
the Project or the business, properties, assets, liabilities (contingent
or otherwise), condition (financial or otherwise), capitalization,
operations or results of operations of Operator, as the case may be, in a
manner distinct from and with a materially disproportionate effect than it
affects other operators of a similar business in
Chile;
|
- 5
-
|
|
(C)
|
changes
in applicable law or changes in generally accepted accounting principles,
except to the extent that such changes in applicable law or changes in
generally accepted accounting principles affect the Project or the
business, properties, assets, liabilities (contingent or otherwise),
condition (financial or otherwise), capitalization, operations or results
of operations of Operator, as the case may be, in a manner distinct from
and with a materially disproportionate effect than it affects other
operators of a similar business in Chile;
or
|
|
|
(D)
|
changes
due to disruption of power, labour, utilities, water, supply and
transportation systems, except to the extent that such changes affect the
Project or the business, properties, assets, liabilities (contingent or
otherwise), condition (financial or otherwise), capitalization, operations
or results of operations of Operator, as the case may be, in a manner
distinct from and with a materially disproportionate effect than it
affects other operators of a similar business in
Chile.
|
|
(xxxii)
|
“Materials” has the
meaning set forth in Section 6(i).
|
|
|
(xxxiii)
|
“Material Agreements”
mean all Metal Sales Contracts, and all other material contracts,
agreements, leases, instruments and other material binding commitments and
undertakings of Operator necessary for the development and operation of
the Project.
|
|
|
(xxxiv)
|
“Metal Sales Contract”
means any contract between Operator and any smelter, refiner or other
processor or purchaser for the sale, refining or other beneficiation of
Subject Minerals in any form, including concentrates, that have been
produced from the Subject
Properties.
|
|
|
(xxxv)
|
“Mining Properties” mean
the exploration and exploitation mining concessions set forth in Section
1(d).
|
|
|
(xxxvi)
|
“Net Reference Price” has
the meaning set forth in Section
3(f).
|
|
|
(xxxvii)
|
“Operator” has the
meaning set forth in the introductory paragraph of this
Agreement.
|
|
|
(xxxviii)
|
“Overlapping Third-Party
Concession” and “Overlapping Third-Party
Concessions” has the meaning set forth in Section
1(i).
|
|
(xxxix)
|
“Parties” mean Operator
and Royal Gold.
|
|
|
(xl)
|
“Payable Factor” means
for gold contained in copper concentrate, the then effective gold payable
percentage in the Metal Sales Contract governing sales of such copper
concentrate.
|
|
(xli)
|
“Payable Subject
Minerals” has the meaning set forth in Section
3(b).
|
- 6
-
|
|
(xlii)
|
“Person” means an
individual, partnership, corporation (including a business trust), joint
venture, limited liability company or other entity, or a Governmental
Authority.
|
|
(xliii)
|
“Purchase Price” has the
meaning set forth in Section 2(b).
|
|
|
(xliv)
|
“Project” has the meaning
set forth in Recital A to this
Agreement.
|
|
|
(xlv)
|
“Project Studies” mean
all feasibility studies and all geological, reserve, engineering,
metallurgical and financial data and evaluations of the Project, the
Ancillary Property Rights and the Subject Properties prepared by or for
the benefit of Operator or otherwise in the possession and control of
Operator which would reasonably be expected to be material to Royal Gold
and made available to Royal Gold prior to April 3,
2009.
|
|
(xlvi)
|
“Quarterly Adjustment”
has the meaning set forth in Section
4(c).
|
|
|
(xlvii)
|
“Recovery Test Completion
Date” means the date on which the Operator has demonstrated to the
satisfaction of Royal Gold, acting reasonably, a metallurgical recovery
rate of at least 61% of the gold contained in ore milled over any period
of 90 consecutive days, determined in accordance with Schedule A,
which period shall not commence until at least 180 days following initial
mill start-up. This Schedule A,
which is duly signed by the appearing Parties, is part of the instrument
herein and is recorded at the end of the registry of the Notary who
legalizes this public deed, under the same number of the
same.
|
|
|
(xlviii)
|
“Reference Price” has the
meaning set forth in Section 3(d).
|
|
|
(xlix)
|
“Representatives” has
the meaning set forth in Section
5(e).
|
|
|
(l)
|
“Royal Gold” has the
meaning set forth in the introductory paragraph of this
Agreement.
|
|
|
(li)
|
“Royal Gold Common Stock”
means shares of Royal Gold’s common stock having a par value $0.01 per
share.
|
|
(lii)
|
“Royalty” has the meaning
set forth in Section 3(a).
|
|
(liii)
|
“Royalty Statement” has
the meaning set forth in Section
4(b).
|
|
|
(liv)
|
“Shaded Area” means the
area shaded with dotted-lines on the map in Part I of Schedule
B.
|
|
|
(lv)
|
“Shaded Area Boundary”
means the boundary around the area shaded with dotted-lines on the map in
Part I of Schedule B
described by the Universal Transverse Mercator Coordinates in Part
II(b) of Schedule
B.
|
- 7
-
|
(lvi)
|
“Share Portion” has the
meaning set forth in Section 2(b).
|
|
|
(lvii)
|
“Subject Minerals” mean
all gold mined and beneficiated from the Subject Properties and recovered
in whatever form, including in concentrates, based on the actual
metallurgical recovery rate, provided, however, that
during the period between:
|
|
(A)
|
the
date which is six months after the first introduction of ore to the mill;
and
|
|
(B)
|
the
Recovery Test Completion Date,
|
the
amount of Subject Minerals shall be determined using a metallurgical recovery
rate of 61% of the gold contained in ore milled, regardless of the actual
metallurgical recovery rate. For the avoidance of doubt, as an
example of the manner of the determination of the Subject Minerals during this
period prior to the Recovery Test Completion Date and as illustration of the
intent of the Parties with respect to such determination:
If there
are 1,000 xxxx ounces of gold contained in the ore milled during a calendar
month which is more than six months after the first introduction of ore to the
mill but before the Recovery Test Completion Date, the Subject Minerals for such
month shall be 610 xxxx ounces regardless of whether the actual metallurgical
recovery rate for such month is greater than or less than 61%. For
the purposes of the foregoing, the gold contained in ore milled shall be
calculated in accordance with Schedule
A.
and provided further, for
greater certainty, any gold contained within slimes produced from the processing
of oxide copper mineralization and associated copper cathode production from the
supergene deposit on the Subject Properties through the Operator’s SX-EW plant
will be deemed not to be Subject Minerals for the purposes of this
Agreement.
|
|
(lviii)
|
“Subject Properties”
mean: (A) the Mining Properties; and (B) any other exploitation
mining concessions that are acquired or constituted by Operator or any
Affiliate of Operator, that are or may be in the future wholly or
partially within the Universal Transverse Mercator coordinates in Part
II(b) of Schedule B,
which duly signed by the appearing Parties is part of the instrument
herein and is recorded at the end of the registry of the Notary who
legalizes this public deed, under number [_____]. Schedule B,
Part I contains a map to facilitate the visual identification of the
coordinates set forth in Schedule B,
Part II(b). In case of any discrepancy between the map in Schedule B,
Part I and the coordinates set forth in Schedule B,
Part II(b), the coordinates set forth in Schedule B,
Part II(b) shall prevail. For greater certainty the mining concessions
that meet the aforementioned requirements are or will from time to time be
part of the Mining Properties and the Subject Properties and, therefore,
are or will from time to time be subject to this Agreement, and for
further certainty exclude any exploitation mining concessions located
wholly outside the Universal Transverse Mercator coordinates in Part II(b)
of Schedule
B provided
however such Subject Properties will not include any Dayton
Concession transferred to Dayton in accordance with this Agreement and not
thereafter reacquired.
|
- 8
-
|
|
(lix)
|
“Subsidiary” means any
corporation, association or other business entity more than 50% of each
class of equity or voting securities of which is owned, directly or
indirectly, by any Person.
|
|
|
(lx)
|
“Taxes” mean all present
or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by or on behalf of any
Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
|
|
|
(lxi)
|
“Transfer” has the
meaning set forth in Section
6(o)(i).
|
|
(b)
|
In
this Agreement:
|
|
|
(i)
|
unless
the context otherwise clearly requires, (A) references to the plural
include the singular, and references to the singular include the plural;
(B) the words “include,” “includes,” and “including” do not limit
the preceding terms or words and shall be deemed to be followed by the
words “without
limitation”; (C) the terms “hereof,” “herein,” “hereunder,” “hereto,” and similar
terms refer to this entire Agreement and not to any particular provision
of this Agreement; (D) “or” is used in the
inclusive sense of “and/or”; (E) if a word
or phrase is defined, then its other grammatical or derivative forms have
a corresponding meaning; (F) unless otherwise specified, the terms “day” and “days” mean and refer to
calendar day(s); (G) the terms “business day” and “business days” mean and
refer to any day other than a Saturday, Sunday, federal statutory holiday
in the United States of America, or statutory holiday in Chile; and (H) if
any action, including a payment hereunder, is required to be taken
pursuant to this Agreement on or by a specified date that is not a
business day, the action is valid if taken on or by the next business
day.
|
|
|
(ii)
|
unless
otherwise specified, all references to articles, sections, and exhibits
are to the Articles, Sections, and Exhibits of this
Agreement;
|
|
|
(iii)
|
the
headings of the Sections of this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement; and
|
- 9
-
|
|
(iv)
|
except
where otherwise expressly provided, all monetary amounts are stated and
shall be paid in the currency of the United States of
America.
|
(c)
This
Agreement shall be construed according to its fair meaning, taken as a whole, as
if the Parties had prepared it jointly, not as if prepared by one of the
Parties.
(d)
Operator
owns the following exploitation mining concessions:
|
|
1.
|
Exploitation
mining concession named “Aconcagua”, the measurement minute of which is
registered on page 507 number 86 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
2.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 616 number 107 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
3.
|
Exploitation
mining concession named “Aguada” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
4.
|
Exploitation
mining concessions named “Aldo 1 to 50” the measurement minute of which is
registered on page 441 number 79 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
5.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 242 number 48 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
|
|
|
6.
|
Exploitation
mining concessions named “Xxxxx 1 to 15” the measurement minute of which
is registered on page 260 number 52 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 714, number 120 of the
cited Registry and Registrar of
1996;
|
|
|
7.
|
Exploitation
mining concessions named “Antofagasta 1 to 2” the measurement minute of
which is registered on page 536 number 92 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
- 10
-
|
|
8.
|
Exploitation
mining concessions named “Antonio 1 to 5”; “Antonio 16”; and
“Antonio 17” (of the group named “Antonio 1 to 17”) the measurement minute
of which is registered on page 275 number 54 of the Property Registry of
the Andacollo Custodian of Mines of the year 1996. The ownership of
Operator over this mining concession is registered on page 714, number 120
of the cited Registry and Registrar of
1996;
|
|
|
9.
|
Exploitation
mining concessions named “Antonio 1 to 17” (of the group named “Antonio 1
to 23”) the measurement minute of which is registered on page 37 number 20
of the Property Registry of the Andacollo Custodian of Mines of the year
2009. The ownership of Operator over this mining concession is registered
on page 44, number 21 of the cited Registry and Registrar of
2009;
|
|
|
10.
|
Exploitation
mining concession named “Arica” the measurement minute of which is
registered on page 527 number 90 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
11.
|
Exploitation
mining concession named “Atacama” the measurement minute of which is
registered on page 517 number 88 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
12.
|
Exploitation
mining concessions named “Xxxxxx 1 to 2” the measurement minute of which
is registered on page 31 number 17 of the Property Registry of the
Andacollo Custodian of Mines of the year 2009. The ownership of Operator
over this mining concession is registered on page 34, number 18 of the
cited Registry and Registrar of
2009;
|
|
|
13.
|
Exploitation
mining concessions named “Xxxxxx Xxxxxx 1 to 2” the measurement minute of
which is registered on page 34 number 10 of the Property Registry of the
Andacollo Custodian of Mines of the year 1994. The ownership of Operator
over this mining concession is registered on page 27, number 19 of the
cited Registry and Registrar of
2003;
|
|
|
14.
|
Exploitation
mining concession named “Blanquita” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
- 11
-
|
|
15.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of
1996;
|
|
|
16.
|
Exploitation
mining concession named “Xxxxxx Xxxx” the measurement minute of which is
registered on page 321 number 62 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
17.
|
Exploitation
mining concessions named “Chifute 1 to 8” the measurement minute of which
is registered on page 707 number 119 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
18.
|
Exploitation
mining concessions named “Chorrillo”, “Chorrillo Segunda” and “Chorrillo
Tercera” the measurement minute of which is registered on page 629 number
110 of the Property Registry of the Andacollo Custodian of Mines of the
year 1996. The ownership of Operator over this mining concession is
registered on page 718, number 121 of the cited Registry and Registrar of
1996;
|
|
|
19.
|
Exploitation
mining concessions named “Churque 1 to 85”; and “Churque 95 to 100” (of
the group named “Churque 1 to 100”) the measurement minute of which is
registered on page 287 number 55 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
|
|
|
20.
|
Exploitation
mining concessions named “Churque 1 to 4” the measurement minute of which
is registered on page 566 number 98 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
21.
|
Exploitation
mining concessions named “Churque 5 to 9” the measurement minute of which
is registered on page 255 number 51 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 714, number 120 of the
cited Registry and Registrar of
1996;
|
|
|
22.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 521 number 89 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
- 12
-
|
|
23.
|
Exploitation
mining concessions named “Cobre Xxxxxx 1 to 6” (of the group
named “Cobre Xxxxxx 1 to 10”) the measurement minute of which is
registered on page 15 number 9 of the Property Registry of the Andacollo
Custodian of Mines of the year 1997. The ownership of Operator over this
mining concession is registered on page 106, number 61 of the cited
Registry and Registrar of 2006;
|
|
|
24.
|
Exploitation
mining concession named “Compañia” the measurement minute of which is
registered on page 331 number 67 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
25.
|
Exploitation
mining concessions named “Complemento 1 to 10” the measurement minute of
which is registered on page 266 number 53 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 714, number 120 of the
cited Registry and Registrar of
1996;
|
|
|
26.
|
Exploitation
mining concession named “Xxxxxxxx” the measurement minute of which is
registered on page 623 number 109 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
27.
|
Exploitation
mining concession named “Coquimbana” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
28.
|
Exploitation
mining concession named “Coquimbo” the measurement minute of which is
registered on page 319 number 61 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
29.
|
Exploitation
mining concession named “Culebron” the measurement minute of which is
registered on page 562 number 97 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
- 13
-
|
|
30.
|
Exploitation
mining concession named “Desempeño” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of
1996;
|
|
|
31.
|
Exploitation
mining concession named “El Toro” the measurement minute of which is
registered on page 582 number 102 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
32.
|
Exploitation
mining concession named “Emmita” the measurement minute of which is
registered on page 329 number 66 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
33.
|
Exploitation
mining concessions named “Xxxxxxxxxxx 1 to 5” (of the group named
“Xxxxxxxxxxx 1 to 10”) the measurement minute of which is registered on
page 83 number 17 of the Property Registry of the Andacollo Custodian of
Mines of the year 1996. The ownership of Operator over this mining
concession is registered on page 718, number 121 of the cited Registry and
Registrar of 1996;
|
|
|
34.
|
Exploitation
mining concessions named “Xxxxxxxxxxx 6 to 10” (of the group named
“Xxxxxxxxxxx 1 to 10”) the measurement minute of which is registered on
page 83 number 17 of the Property Registry of the Andacollo Custodian of
Mines of the year 1996. The ownership of Operator over this mining
concession is registered on page 714, number 120 of the cited Registry and
Registrar of 1996;
|
|
|
35.
|
Exploitation
mining concessions named “Escondida 1 to 2” the measurement minute of
which is registered on page 633 number 111 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
36.
|
Exploitation
mining concession named “Xxxxx” the measurement minute of which is
registered on page 185 number 35 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
37.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 149 number 29 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
- 14
-
|
|
38.
|
Exploitation
mining concession named “Guanaco” the measurement minute of which is
registered on page 333 number 68 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
39.
|
Exploitation
mining concessions named “Hermosa 1 to 3” the measurement minute of which
is registered on page 120 number 24 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
40.
|
Exploitation
mining concession named “Hermosa” the measurement minute of which is
registered on page 179 number 34 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
41.
|
Exploitation
mining concession named “Huamachuco” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
42.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 327 number 65 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
43.
|
Exploitation
mining concession named “Invierno” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
44.
|
Exploitation
mining concession named “Las Dos Coloradas” the measurement minute of
which is registered on page 315 number 59 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
- 15
-
|
|
45.
|
Exploitation
mining concession named “Xxxxx” the measurement minute of which is
registered on page 237 number 47 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
|
|
|
46.
|
Exploitation
mining concession named “Limari” the measurement minute of which is
registered on page 541 number 93 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
47.
|
Exploitation
mining concession named “Los Angeles” the measurement minute of which is
registered on page 733 number 122 and on page 795 number 130, both of the
Property Registry of the Andacollo Custodian of Mines of the year 1996.
The ownership of Operator over this mining concession is registered on
page 718, number 121 of the cited Registry and Registrar of
1996;
|
|
|
48.
|
Exploitation
mining concessions named “Los Veneros 88”; “Los Veneros 89”; “Los Veneros
94 to 97; “Los Veneros 101 to 105”; “Los Veneros 108 to 110”; and “Los
Veneros 113” (of the group named “Los Veneros 1 to 114”),the measurement
minute of which is registered on page 10 number 4 of the Property Registry
of the Andacollo Custodian of Mines of the year 2007. The ownership of
Operator over this mining concession is registered on page 10, number 4 of
the cited Registry and Registrar of
2007;
|
|
|
49.
|
Exploitation
mining concessions named “Louisiana”, “Clarin”, “Alabama”, “Xxxx”,
“Colorada”, “Demasia”, “Florida”, “Tennesee” and “Xxxxx” the measurement
minute of which is registered on page 74 number 15 of the Property
Registry of the Andacollo Custodian of Mines of the year 1996. The
ownership of Operator over this mining concession is registered on page
718, number 121 of the cited Registry and Registrar of
1996;
|
|
|
50.
|
Exploitation
mining concessions named “Xxx 1 to 4”,(of the group named “Xxx 1 to 6”)
the measurement minute of which is registered on page 619 number 108 of
the Property Registry of the Andacollo Custodian of Mines of the year
1996. The ownership of Operator over this mining concession is registered
on page 718, number 121 of the cited Registry and Registrar of
1996;
|
|
|
51.
|
Exploitation
mining concession named “Xxxxxxxxx” the measurement minute of which is
registered on page 499 number 84 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
- 16
-
|
|
52.
|
Exploitation
mining concession named “Xxxxx Xxxxxx” the measurement minute of which is
registered on page 317 number 60 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of
1996;
|
|
|
53.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 231 number 46 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
54.
|
Exploitation
mining concession named “Xxxxxx Primera” the measurement minute of which
is registered on page 335 number 69 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
55.
|
Exploitation
mining concession named “Xxxxxx Segunda” the measurement minute of which
is registered on page 750 number 124 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
56.
|
Exploitation
mining concession named “Xxxxxx” the measurement minute of which is
registered on page 614 number 106 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
57.
|
Exploitation
mining concessions named “Nanita 8”; “Nanita 12”; “Nanita 24 to 27”;
“Nanita 33 to 46”; and “Nanita 51 to 65” (of the group named “Nanita 1 to
65”) the measurement minute of which is registered on page 39 number 13 of
the Property Registry of the Andacollo Custodian of Mines of the year
1996. The ownership of Operator over this mining concession is registered
on page 718, number 121 of the cited Registry and Registrar of
1996;
|
|
|
58.
|
Exploitation
mining concession named “Negrita” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
59.
|
Exploitation
mining concessions named “Nelly 1 to 5” the measurement minute of which is
registered on page 304 number 56 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
|
- 17
-
|
|
60.
|
Exploitation
mining concession named “Ohio” the measurement minute of which is
registered on page 521 number 89 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
61.
|
Exploitation
mining concession named “Otoño” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
62.
|
Exploitation
mining concession named “Pelargonia” the measurement minute of which is
registered on page 557 number 96 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
63.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 325 number 64 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
64.
|
Exploitation
mining concession named “Poderosa” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
65.
|
Exploitation
mining concession named “Preciosa” the measurement minute of which is
registered on page 217 number 41 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
66.
|
Exploitation
mining concession named “Primavera” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
- 18
-
|
|
67.
|
Exploitation
mining concession named “Protectora” the measurement minute of which is
registered on page 219 number 42 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of
1996;
|
|
|
68.
|
Exploitation
mining concession named “Xxxxxxxxx” the measurement minute of which is
registered on page 221 number 43 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
69.
|
Exploitation
mining concession named “Reforma” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
70.
|
Exploitation
mining concession named “Relleno” the measurement minute of which is
registered on page 173 number 33 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
71.
|
Exploitation
mining concession named “Resguardo” the measurement minute of which is
registered on page 311 number 57 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
72.
|
Exploitation
mining concessions named “Rio Elqui Uno 6”; “Río Elqui Uno 7”; and “Rio
Elqui Uno 9 to 33” (of the group named “Río Elqui Uno 1 to 33”), the
measurement minute of which is registered on page 1160 number 229 of the
Property Registry of the Andacollo Custodian of Mines of the year 1996.
The ownership of Operator over this mining concession is registered on
page 1160, number 229 of the cited Registry and Registrar of
1996;
|
|
|
73.
|
Exploitation
mining concessions named “Rio Elqui Dos 1 to 4”; “Río Elqui Dos 8 to 13”;
and “Río Xxxxx Xxx 00 to 95” (of the group named “Río Elqui Dos 1 to 95”)
the measurement minute of which is registered on page 1169 number 230 of
the Property Registry of the Andacollo Custodian of Mines of the year
1996. The ownership of Operator over this mining concession is registered
on page 1169, number 230 of the cited Registry and Registrar of
1996;
|
- 19
-
|
|
74.
|
Exploitation
mining concessions named “Rio Elqui Tres 2 to 53” (of the group named “Río
Elqui Tres 1 to 53”) the measurement minute of which is registered on page
769 number 127 of the Property Registry of the Andacollo Custodian of
Mines of the year 1996. The ownership of Operator over this mining
concession is registered on page 769, number 127 of the cited Registry and
Registrar of 1996;
|
|
|
75.
|
Exploitation
mining concessions named “Rio Limari Dos 1 to 11” the measurement minute
of which is registered on page 788 number 129 of the Property Registry of
the Andacollo Custodian of Mines of the year 1996. The ownership of
Operator over this mining concession is registered on page 788, number 129
of the cited Registry and Registrar of
1996;
|
|
|
76.
|
Exploitation
mining concessions named “Rio Limari Tres 1 to 70” the measurement minute
of which is registered on page 1178 number 231 of the Property Registry of
the Andacollo Custodian of Mines of the year 1996. The ownership of
Operator over this mining concession is registered on page 1178, number
231 of the cited Registry and Registrar of
1996;
|
|
|
77.
|
Exploitation
mining concessions named “Rio Limari Cuatro 1 to 82” the measurement
minute of which is registered on page 779 number 128 of the Property
Registry of the Andacollo Custodian of Mines of the year 1996. The
ownership of Operator over this mining concession is registered on page
779, number 128 of the cited Registry and Registrar of
1996;
|
|
|
78.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 223 number 44 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
79.
|
Exploitation
mining concession named “Rojo Dos” the measurement minute of which is
registered on page 454 number 80 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
80.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
81.
|
Exploitation
mining concessions named “Xxxxxxx 62 to 67”; and “Xxxxxxx 89” (of the
group named “Xxxxxxx 1 to 89”) the measurement minute of which is
registered on page 598 number 105 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
- 20
-
|
|
82.
|
Exploitation
mining concession named “Xxxxxxx 66” the measurement minute of which is
registered on page 70 number 14 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
83.
|
Exploitation
mining concessions named “Xxxxxxx 130 to 138” the measurement minute of
which is registered on page 34 number 12 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
84.
|
Exploitation
mining concessions named “Xxxxxxx 181” and “Xxxxxxx 183” (of the group
named “Xxxxxxx 171 to 185”) the measurement minute of which is registered
on page 586 number 103 of the Property Registry of the Andacollo Custodian
of Mines of the year 1996. The ownership of Operator over this mining
concession is registered on page 718, number 121 of the cited Registry and
Registrar of 1996;
|
|
|
85.
|
Exploitation
mining concessions named “Xxxxxxx 186 to 188” and “Xxxxxxx 193” (of the
group named “Xxxxxxx 186 to 193”) the measurement minute of which is
registered on page 591 number 104 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
86.
|
Exploitation
mining concession named “Xxxxxxx 194” the measurement minute of which is
registered on page 80 number 16 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
87.
|
Exploitation
mining concession named “San Xxxx” the measurement minute of which is
registered on page 733 number 122, page 755 number 125 and page 795 number
130, of the Property Registry of the Andacollo Custodian of Mines of the
year 1996. The ownership of Operator over this mining concession is
registered on page 718, number 121 of the cited Registry and Registrar of
1996;
|
|
|
88.
|
Exploitation
mining concession named “San Xxxxxxx” the measurement minute of which is
registered on page 323 number 63 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
- 21
-
|
|
89.
|
Exploitation
mining concession named “San Xxxxxx” the measurement minute of which is
registered on page 578 number 101 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
90.
|
Exploitation
mining concession named “San Xxxxx” the measurement minute of which is
registered on page 574 number 100 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
91.
|
Exploitation
mining concession named “Xxxxxx 1” and “Xxxxxx 3” (of the group named
“Xxxxxx 1 to 3”) the measurement minute of which is registered on page 387
number 74 of the Property Registry of the Andacollo Custodian of Mines of
the year 1996. The ownership of Operator over these mining concessions is
registered on page 718, number 121 of the cited Registry and Registrar of
1996;
|
|
|
92.
|
Exploitation
mining concession named “Sandro” the measurement minute of which is
registered on page 247 number 49 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
|
|
|
93.
|
Exploitation
mining concession named “Sebastopol” the measurement minute of which is
registered on page 120 number 24 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
94.
|
Exploitation
mining concession named “Xxxxxxx” the measurement minute of which is
registered on page 191 number 36 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 714, number 120 of the cited
Registry and Registrar of 1996;
|
|
|
95.
|
Exploitation
mining concession named “Xxxxx Primera” the measurement minute of which is
registered on page 200 number 38 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
96.
|
Exploitation
mining concession named “Xxxxx Segunda” the measurement minute of which is
registered on page 206 number 39 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
- 22
-
|
|
97.
|
Exploitation
mining concession named “Xxxxx Tercera” the measurement minute of which is
registered on page 212 number 40 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
98.
|
Exploitation
mining concession named “Sussy Primera” the measurement minute of which is
registered on page 108 number 22 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
99.
|
Exploitation
mining concession named “Tarapaca” the measurement minute of which is
registered on page 570 number 99 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
100.
|
Exploitation
mining concession named “Xxxxxxxx 1” the measurement minute of which is
registered on page 531 number 91 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
101.
|
Exploitation
mining concession named “Veranito 1” the measurement minute of which is
registered on page 659 number 116 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
102.
|
Exploitation
mining concession named “Verde Bajo” the measurement minute of which is
registered on page 313 number 58 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
|
|
103.
|
Exploitation
mining concessions named “Viejo 1 to 4” the measurement minute of which is
registered on page 546 number 94 of the Property Registry of the Andacollo
Custodian of Mines of the year 1996. The ownership of Operator over this
mining concession is registered on page 718, number 121 of the cited
Registry and Registrar of 1996;
|
- 23
-
|
|
104.
|
Exploitation
mining concessions named “Zapallo 1 to 3” the measurement minute of which
is registered on page 552 number 95 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 718, number 121 of the
cited Registry and Registrar of
1996;
|
|
|
105.
|
Exploitation
mining concessions named “Xxxxxxxxx 1 to 3” the measurement minute of
which is registered on page 19 number 12 of the Property Registry of the
Andacollo Custodian of Mines of the year 2004. The ownership of Operator
over these mining concessions is registered on page 19, number 05 of the
cited Registry and Registrar of
2009;
|
|
|
106.
|
Exploitation
mining concessions named “Fuerza 4 to 6”; “Fuerza 8”; “Fuerza 9”; “Fuerza
11 to 13”; “Fuerza 16 to 18”; and “Fuerza 22 to 24” (of the group named
“Fuerza 1 to 24”) the measurement minute of which is registered on page
109 number 62 of the Property Registry of the Andacollo Custodian of Mines
of the year 2003. The ownership of Operator over this mining
concession is registered on page 21, number 7 of the cited Registry and
Registrar of 2009;
|
|
|
107.
|
Exploitation
mining concessions named “Milla 1 to 10” the measurement minute of which
is registered on page 91 number 59 of the Property Registry of the
Andacollo Custodian of Mines of the year 2003. The ownership of Operator
over this mining concession is registered on page 22, number 8 of the
cited Registry and Registrar of
2009;
|
|
|
108.
|
Exploitation
mining concessions named “Nuevo Mexico 5”; “Nuevo Mexico 10”; and “Nuevo
Mexico 29” (of the group named “Nuevo Mexico 1 to 37”) the measurement
minute of which is registered on page 9 number 9 of the Property Registry
of the Andacollo Custodian of Mines of the year 2004. The ownership of
Operator over this mining concession is registered on page 26, number 12
of the cited Registry and Registrar of
2009;
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|
|
109.
|
Exploitation
mining concessions named “Osorno 1 to 8” the measurement minute of which
is registered on page 1098 number 213 of the Property Registry of the
Andacollo Custodian of Mines of the year 1996. The ownership of Operator
over this mining concession is registered on page 27, number 13 of the
cited Registry and Registrar of
2009;
|
|
|
110.
|
Exploitation
mining concession named “Recife 1” the measurement minute of which is
registered on page 104 number 61 of the Property Registry of the Andacollo
Custodian of Mines of the year 2003. The ownership of Operator over this
mining concession is registered on page 23, number 9 of the cited Registry
and Registrar of 2009;
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- 24
-
|
|
111.
|
Exploitation
mining concessions named “Remanso 1 to 30” the measurement minute of which
is registered on page 97 number 60 of the Property Registry of the
Andacollo Custodian of Mines of the year 2003. The ownership of Operator
over this mining concession is registered on page 24, number 10 of the
cited Registry and Registrar of
2009;
|
|
|
112.
|
Exploitation
mining concessions named “Xxxx 1 to 15” the measurement minute of which is
registered on page 250 number 55 of the Property Registry of the Andacollo
Custodian of Mines of the year 1997. The ownership of Operator over these
mining concessions is registered on page 90, number 58 of the cited
Registry and Registrar of 2003; and
|
|
|
113.
|
Exploitation
mining concessions named “Xxxx Segunda 1 to 41” the measurement minute of
which is registered on page 232 number 53 of the Property Registry of the
Andacollo Custodian of Mines of the year 1997. The ownership of Operator
over these mining concessions is registered on page 28, number 14 of the
cited Registry and Registrar of
2009.
|
(e) Notwithstanding
any other provision of this Agreement and even if a Dayton Concession falls
wholly or partially within the Shaded Area, the Dayton Concessions will not be
subject to the mortgages and prohibitions of this Agreement and will not be
Mining Properties or Subject Properties provided, however, that
if:
|
|
(i)
|
a
Dayton Concession falls wholly or partially within the Shaded Area and is
reacquired by Operator or any Affiliate of Operator; such Dayton
Concession shall be subject to the mortgages and prohibitions of this
Agreement and shall be part of the Mining Properties and Subject
Properties; or
|
|
|
(ii)
|
a
Dayton Concession has not been transferred to Dayton on or before March
31, 2010 such Dayton Concession shall be subject to the mortgages and
prohibitions of this Agreement and shall be part of the Mining Properties
and Subject Properties until such time as the Dayton Concession is
transferred to Dayton.
|
(f) The
Parties shall amend this Agreement, to add to the list of Mining Properties
described in Section 1(d) any:
|
|
(i)
|
Dayton
Concession reacquired in accordance with Section 1(e)(i);
or
|
|
|
(ii)
|
Dayton
Concession not transferred on or prior to March 31, 2010 in accordance
with Section 1(e)(ii).
|
Furthermore,
Operator shall comply with the undertakings set forth in Section 6(j)(iii) of
this Agreement, as applicable.
- 25
-
(g) Notwithstanding
any other provision of this Agreement and even if a Dayton Concession falls
wholly or partially within the Shaded Area, if a Dayton Concession is subject to
the mortgages and prohibitions set forth in this Agreement in accordance with
Section 1(e)(ii) herein and it shall be transferred to Dayton, Royal Gold shall
consent to the transfer, and the release and cancellation of any mortgages and
prohibitions in respect of such Dayton Concession under this Agreement, and such
Dayton Concession, upon the transfer to Dayton and the release and cancellation
of any mortgages and prohibitions shall not be subject to the mortgages and
prohibitions of this Agreement and shall not be Mining Properties or Subject
Properties for the purposes herein.
(h) The
Parties undertake to grant or execute all such further agreements, deeds, public
or private instruments, or documents and do all such further actions as may be
necessary to:
|
|
(i)
|
consent
to and permit the transfer to Dayton of any Dayton Concession free and
clear of any Liens (including the Royalty and the mortgages and
prohibitions evidenced in this
Agreement);
|
|
|
(ii)
|
release
and cancel any mortgages and prohibitions in respect of any such Dayton
Concession under this Agreement;
and
|
|
|
(iii)
|
amend,
to the extent necessary this Agreement on or after the date hereof to give
effect to these matters.
|
(i) Operator
and Royal Gold acknowledge and agree that some of the exploitation mining
concessions described in Section 1(d) that are located wholly or partially
within the Circular Boundary and the Shaded Area Boundary overlap or are
overlapped by exploitation mining concessions owned by third parties (each an
“Overlapping Third-Party
Concession” and collectively, the “Overlapping Third-Party
Concessions”). Operator represents and warrants to Royal Gold that the
Overlapping Third-Party Concessions do not currently impact nor are they
expected to impact in the future the activities or operations of the Project,
except where such impact could not reasonably be expected to have a Material
Adverse Effect.
(j) Royal
Gold and Operator acknowledge and agree that the rights and obligations of the
Parties under this Agreement shall be exercised in such a way that the Dayton
Concessions to be Transferred or are Transferred by Operator to Dayton pursuant
to the Dayton Agreement, may be exploited by Dayton as if there were no
overlapping between such Dayton Concessions and those mining concessions owned
by Operator or an Affiliate of Operator; provided that in no event
shall those Dayton Concessions affect: (i) the exploitation mining concessions
wholly or partially located within the Circular Boundary; or (ii) the
exploitation mining concessions that the Operator or any Affiliate of Operator
now or in the future exploits as part of the Project wholly or partially within
the Shaded Area Boundary and outside the Circular Boundary.
- 26
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2. Purchase and Sale of the
Royalty.
(a) Operator
hereby grants, sells, assigns, transfers and conveys to Royal Gold, and Royal
Gold purchases from Operator, the Royalty free and clear of any Lien (other than
any Lien created by this Agreement) in accordance with and subject to the terms
and conditions set forth in this Agreement. This sale, assignment and
transfer is subject to the satisfaction or waiver of the conditions precedent
for effectiveness (condiciones
suspensivas) set forth herein and in Schedule C (the
“Condiciones
Suspensivas”), including but not limited to the registration of the
mortgage and prohibitions mentioned under Sections 6(p) and 6(q) and the payment
to Operator of the Purchase Price mentioned hereto below. This Schedule C, duly
signed by the appearing Parties, is part of the instrument herein and is
recorded at the end of the registry of the Notary who legalizes this public
deed, under the same number of the same. This Agreement and any
registration, guarantee, security interest (caución), or annotation
related thereto, including those relating to the mortgage and prohibitions
mentioned under Sections 6(p) and 6(q), will terminate immediately, ipso facto, without the need
of any declaration, judicial or otherwise, further action from, or document
executed by, any of the Parties, if the Condiciones Suspensivas have not been
satisfied or waived on or before February 16, 2010, which circumstance for all
legal purposes will be demonstrated solely by the lack of execution by the
Parties of a public deed granted on this same Notarial Office on or
before February 16, 2010, leaving record of the satisfaction or waiver of the
Condiciones Suspensivas, and expressly waiving their right to request the
termination (resolución) of the sale of
the Royalty, as provided in articles 1489 and 1873 of the Chilean Civil Code
(the “Deed of
Release”). If this Agreement has terminated as provided above,
(i) Operator will be entitled to request to Royal Gold’s Agent, as provided in
the Irrevocable Mandate, to execute on behalf of Royal Gold and together with
Operator, a public deed whereby it is declared that this Agreement has
terminated because the Condiciones Suspensivas have failed, and including any
provision considered necessary or desirable to request the cancellation of the
registrations eventually made as provided herein (the “Deed of Cancellation”) and
(ii) Royal Gold will be entitled to request to Operator’s Agent, as provided in
the Irrevocable Mandate, to execute on behalf of Operator and together with
Royal Gold a Deed of Cancellation.
In
accordance with article 1813 of the Chilean Civil Code, the Parties hereby
expressly state that the Royalty is an aleatory payment (pago aleatorio) contingent on
the proceeds obtained from the exploitation of the Subject Properties and thus
the sale of the same is not subject to the condition that such proceeds
exist. The Royalty shall be calculated in accordance with Section 3
below.
(b) The
purchase price for the Royalty shall be paid on the Closing Date as follows: (i)
by issuing and delivering to Operator 1,204,136 shares of Royal Gold Common
Stock (the “Share
Portion”) and which number of shares shall be adjusted on or prior to the
Closing Date as provided in Schedule D herein,
which duly signed by the appearing Parties is part of the instrument herein and
is recorded at the end of the registry of the Notary who legalizes this public
deed, under the same number of the same; and (ii) by paying $217,942,500.00 in
cash or immediately available funds (the “Cash Portion” and together
with Share Portion, the “Purchase Price”), by means of
an electronic transfer of funds in that exact amount. Upon payment of
the Purchase Price and satisfaction or waiver of the other Condiciones
Suspensivas, the Parties shall execute the Deed of Release which for greater
clarity will be on the date the last of the Condiciones Suspensivas has been
satisfied or waived.
(c) As
used in this Agreement, “Closing Date” means the later
of the date:
|
|
(i)
|
to
be designated by Royal Gold, which date shall be no later than the fifth
business day after Royal Gold and its Chilean counsel have received, to
their reasonable satisfaction:
|
- 27
-
|
|
(A)
|
for
each of the Mining Properties, the following certificates from the
relevant Mining Register: (X) mortgages and encumbrances, (Y)
interdictions and prohibitions, and (Z) ownership;
and
|
|
|
(B)
|
authorized
copies of the registrations made evidencing the mortgages and grant of
prohibition under this Agreement;
|
|
|
(ii)
|
that
is mutually agreed to in writing by the Parties;
and
|
|
|
(iii)
|
that
is ten business days after the date designated by Royal Gold pursuant to
Section 2(c)(i) or mutually agreed by the Parties pursuant to Section
2(c)(ii), as the case may be; provided that Operator
has delivered written notice to Royal Gold pursuant to Section
2(a)(viii)(A) of Schedule C, and
Royal Gold has delivered written notice to Operator of its intention to
postpone the Closing Date by ten business
days,
|
provided, however that each
of the other Condiciones Suspensivas (other than the conditions which by their
nature are to be satisfied at the closing, but subject to the satisfaction or
waiver of each of such conditions) shall have been satisfied or waived as of the
designated or agreed date.
3. Royalty.
(a) As
used in this Agreement, the “Royalty” means an interest in
the Subject Minerals when produced from the Subject Properties granted by
Operator to Royal Gold free and clear of any Lien (other than any Lien created
by this Agreement) and determined and payable as provided in this
Agreement. The Royalty shall be calculated each month, adjusted each
calendar quarter, and shall be equal to the product obtained by multiplying (i)
the Payable Subject Minerals by (ii) the Applicable Rate and then multiplying
the resulting product by (iii) the Net Reference Price.
(b) As
used in this Agreement, “Payable Subject Minerals”
mean, the number of xxxx ounces of Subject Minerals shipped during a calendar
month to a smelter, refiner, other processor or purchaser multiplied by the
Payable Factor.
(c) As
used in this Agreement, “Applicable Rate” means 75%
until such time as the cumulative Payable Subject Minerals under this Agreement
after the Closing Date is equal to 910,000 xxxx ounces and 50%
thereafter.
(d) As
used in this Agreement, “Reference Price” means the
monthly average of the daily official London Bullion Market afternoon quotations
for gold quoted in dollars per ounce and calculated to two decimal places as
reported by the London Bullion Market Association. If the London
Bullion Market Association ceases to publish such quotations for gold, the
Reference Price shall be determined by mutual agreement between the Parties,
acting reasonably, and if such agreement cannot be reached within five business
days of the London Bullion Market Association ceasing to publish the price for
gold by arbitration in accordance with Section 7(b) of this
Agreement.
- 28
-
(e) As
used in this Agreement, “Allowable Refining Charge”
means (i) for purposes of the calculation of the Royalty under Section 4(a), the
lesser of (A) $6.00 per payable xxxx ounce of gold for the month or (B) the
weighted average refining charge per payable xxxx ounce of gold for the month in
the applicable Metals Sales Contracts, and (ii) for purposes of the calculation
of the Quarterly Adjustment to the Royalty under Section 4(c), the lesser of (A)
$6.00 per payable xxxx ounce of gold for the quarter or (B) the weighted average
refining charge per payable xxxx ounce of gold for the quarter in the applicable
Metals Sales Contracts.
(f) As
used in this Agreement, “Net
Reference Price” means (i) the Reference Price minus (ii) the Allowable
Refining Charge.
4. Time and Manner of Payment
of the Royalty.
(a) Beginning
in the calendar month in which copper concentrate produced from the Subject
Properties is first shipped to any smelter, refiner or other processor or
purchaser, the Royalty shall be computed, accrued and paid, if applicable, on a
monthly basis within 15 days after the end of each calendar
month. Notwithstanding the foregoing, Operator shall be required to
pay at that time only that percentage of the Royalty due in respect of any
Subject Minerals that is equal to the percentage of the payment that Operator
has received or has been credited with payment for the sale or disposition of
such Subject Minerals at that time under the Metal Sales Contract; provided, however, that
Operator shall bear all risk of loss of material in the event of a loss in
transit of any Subject Minerals shipped to any third party smelter, refiner or
other processor or purchaser under any Metal Sales Contract and the Royalty
shall be paid solely from, and at the time of, the Operator’s receipt of
insurance benefits paid in respect of such loss.
For the
avoidance of doubt, as an example of the manner of the determination of the
timing of the Royalty and as illustration of the intent of the Parties with
respect to such determination:
If copper
concentrate is shipped on February 15, and Operator has received or been
credited with payment of 85% of the net smelter return during the month of
February, Royal Gold shall receive 85% of the Royalty based on the Payable
Subject Minerals in such shipment on March 15, or the next business day
following thereafter if March 15 is not a business day. If Operator
has received or been credited with payment of the remaining 15% of the net
smelter return payable on April 15, Royal Gold shall receive the remaining 15%
of the Royalty based on the Payable Subject Minerals in such shipment on May 15
or the next business day following thereafter if May 15 is not a business
day.
(b) Each
Royalty paid by Operator to Royal Gold shall be accompanied by a statement
(“Royalty Statement”) in
reasonable detail sufficient to allow Royal Gold to determine the method of
computation of such Royalty and the accuracy thereof. Each Royalty
Statement shall include the number of xxxx ounces of Subject Minerals shipped to
a smelter, refiner, other processor or purchaser during the applicable calendar
month, and the Payable Subject Minerals, Payable Factor, Applicable Rate,
Reference Price and Allowable Refining Charge then in effect, as well as any
other pertinent information, in sufficient detail to explain the calculation of
the Royalty.
- 29
-
(c) Within
15 days of the end
of each calendar quarter (March 31, June 30, September 30 and December 31),
Operator will reconcile, on an aggregate basis, any adjustments (up or down) to
the Royalty Statements as may be necessary for such quarter to reflect the
difference between the Royalty, as calculated and paid on a monthly basis, and
the Royalty calculated for such quarter, reflecting (i) the Allowable Refining
Charges calculated for such calendar quarter, (ii) any adjustments to the weight
or grade of the concentrate made pursuant to any Metal Sales Contract during
such quarter and (iii) to the extent that the average Payable Factor for such
calendar quarter is less than 90.6%, to increase the Royalty in respect of such
calendar quarter to reflect a deemed Payable Factor of 90.6% (each a “Quarterly Adjustment”). In
the event the Quarterly Adjustment reflects a balance owing to Royal Gold, the
Operator shall provide written notice to Royal Gold of the amount of such
underpayment and will pay such Quarterly Adjustment in accordance with Section
4(a) of this Agreement. In the event the Quarterly Adjustment
reflects an overpayment to Royal Gold, the Operator shall provide written notice
to Royal Gold of the amount of such overpayment and shall be entitled to deduct
such amount of the Quarterly Adjustment from any Royalties owing to Royal
Gold.
(d) Royal
Gold, at its sole election and expense, shall have the right to perform audits
of Operator’s accounts relating to the Royalty Statements. Any such
inspection shall be for a reasonable length of time during regular business
hours, at a mutually convenient time, upon at least 10 business days’ prior
written notice by Royal Gold, subject at all times to the workplace rules and
supervision of Operator, and provided that any rights of access do not interfere
with any exploration, development, mining or milling activities conducted on the
Subject Properties. Each Royalty Statement shall be final and binding
on Operator and not subject to subsequent modification by Operator, except to
the extent necessary to account for a final settlement made by a smelter or
refinery in respect of a provisional payment that was previously included in the
calculation of a Royalty as set forth in a Quarterly
Adjustment. Notwithstanding the foregoing, Royal Gold may by written
notice to Operator delivered within one year after the receipt of a Royalty
Statement object to a payment of the Royalty to which such Royalty Statement
relates. Such notice shall specify the basis for the objection in
reasonable detail. Subject to Section 7(b), Operator shall be
required to account for any deficit in the payment of such Royalty which was the
subject of such objection. For greater certainty, if it is determined
by agreement of the Parties or by arbitration that any Royalty has not been
properly paid in full, Operator shall make the balance of such Royalty owing
within 10 days of
such agreement or arbitral award.
(e) Except
to the extent that Royal Gold has exercised its right to take all or a portion
of the Royalty in kind pursuant to Section 4(f), all payments of the Royalty
shall be made in United States dollars by wire transfer in immediately available
funds to Royal Gold on or before the due date at an account designated by Royal
Gold and communicated to Operator at least five days prior to the due
date.
- 30
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(f) To
the extent that physical gold is made available to Operator in the case of gold
recovered from concentrate, Royal Gold may elect, upon 15 days’ written notice
to Operator prior to the first day of the first calendar month for which such
election shall be effective, to take all or a portion of the Royalty in kind by
physical delivery of the refined gold. During any period in
which Royal Gold has elected to take the Royalty for gold in kind, Operator
shall make the refined gold bullion available to Royal Gold at the place where
the bullion has been refined on the date for payment of the
Royalty. The bullion shall be in the form in which Operator sells or
otherwise disposes of the same. Operator shall provide at least 10
days’ prior notice to Royal Gold of the name and location of the refinery or
smelter and the date or dates on which the bullion will be available to Royal
Gold.
5. General Covenants Regarding
the Royalty.
(a) Hedging Transactions:
Futures, Options and Other Trading. No profits or losses
resulting from any hedging agreements, commodity futures trading, option
trading, metals trading, gold loan forward sale, option, swap, price collar of
fixing contract off-take agreement or any combination thereof, and any other
similar transactions by Operator shall be subject to the Royalty and all such
transactions by Operator, and any profits or losses associated therewith, shall
be solely for the account of Operator engaging in such transactions and shall
not be included in the calculation of the Royalty.
(b) Commingling. Operator shall be entitled to
commingle Subject Minerals and minerals from any other properties during the
production, milling (concentrating), refining, minting or further processing of
Subject Minerals. Before any Subject Minerals produced from any of
the Subject Properties are commingled with minerals from other properties, the
Subject Minerals shall be weighed, measured, sampled and analyzed in accordance
with sound mining and metallurgical practices and in accordance with a written
plan in reasonable detail previously submitted to Royal Gold so that quantities of
gold and the Royalty can be reasonably and accurately
determined. Representative samples of the Subject Minerals produced
from the Subject Properties shall be retained by Operator and assays (including
moisture and penalty substances) and other appropriate analyses of these samples
shall be made before commingling to determine metal, commercial minerals, and
other appropriate content. Detailed records shall be kept by Operator
showing measures, moisture, assays of metal, commercial minerals, and other
appropriate mineral content of Subject Minerals produced from the Subject
Properties, and copies of all such records shall be provided to Royal Gold on a
contemporaneous basis. From this information, Operator shall
determine the amount of the Royalty due and payable to Royal Gold from the
Subject Minerals produced from the Subject Properties that are to be commingled
with minerals from other properties. If Royal Gold does not object in
respect of a payment of the Royalty within the period for objection specified in
Section 4(d), Operator may dispose of the measurement and sampling materials and
data required to be kept and produced by this Section 5(b).
(c) Books and
Records. Operator shall keep true and accurate books and
records of all of its operations and activities under this Agreement or which
would affect any Royalty under this Agreement. Such books and records
shall be kept in accordance with generally accepted accounting principles
consistently applied. Operator shall keep for a period of not less
than three years, all records and information relating to the calculation and
payment of the Royalty, including accurate records of tonnage, volume of
production, analyses of products, weight, moisture, assays of pay metal content,
refining charges and other related records and information.
- 31
-
(d) Reports. Operator
shall deliver to Royal Gold or make available to Royal Gold on a secure
website:
|
|
(i)
|
Monthly
construction, operating and exploration reports for all activities on the
Subject Properties, copies of all metallurgical results received from any
smelter, refiner, other processor or purchaser in respect of Subject
Minerals;
|
|
|
(ii)
|
Annual
reports of mineral reserves and resources for the Subject Properties as
and when calculated from time to time but no less frequently than December
31 of such year and such reports shall be delivered to Royal Gold within
two months following such date of
estimation;
|
|
|
(iii)
|
A
list of all material engineering and economic studies or reports related
to the Project, including all material amendments or revisions to Project
Studies, as and when prepared, and if requested by Royal Gold a copy of
any or all such reports and studies, in paper and electronic format as
requested by Royal Gold;
|
|
|
(iv)
|
A
copy of the annual budget for operations on the Subject Properties,
production forecasts and life of mine plan, and all material updates or
revisions to any of them, as and when
prepared;
|
|
|
(v)
|
A
copy of all new Metal Sales Contracts and any amendment to an existing
Metal Sales Contract;
|
|
|
(vi)
|
Prompt
notice of any material event pertaining to the Project or the Subject
Properties, including any material event of Force Majeure, legal or
administrative proceedings, disputes under any Metal Sales Contract,
notice of a violation of any Governmental Requirement, any event,
development or occurrence that has or is reasonably likely to have a
Material Adverse Effect on Operator, or any actual or threatened
withdrawal or cancellation of any material Approval;
and
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(vii)
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Advance
notice of any proposed Fundamental Process
Change.
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Notwithstanding
this Sections 5(d), Operator shall have no obligation to provide any Person to
act as a qualified person in respect of, provide qualified person consents or
certificates in respect of or otherwise certify for or on behalf of Royal Gold,
any mineral reserve and resource statements, reports, press releases or other
documentation of any kind.
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(e) Inspections. At
any reasonable time during normal business hours and from time to time, on
reasonable prior notice, Operator shall permit Royal Gold acting through its
officers, employees and representatives (the “Representatives”), acting
reasonably and at their own expense, to review, examine and make copies of and
abstracts from the books and records of Operator referred to in Section 5(c) and
to visit and inspect the properties of Operator (including the Subject
Properties, the Ancillary Property Rights and all improvements thereto and
operations thereon) and to discuss the operations, technical findings, affairs,
finances and accounts of Operator and other matters affecting Operator and its
properties with the officers of Operator (the “Confidential
Information”). To the extent permitted under the Metal Sales
Contracts, Royal Gold and its Representatives shall also have the right to be
present or to be represented at any smelter, refinery or other processing
facility at which the weighing, sampling and assaying of metals and the
calculation of the Royalty will be determined and any information or
documentation obtained from those visits or investigations shall also be
considered part of the Confidential Information. Operator shall not
be responsible for injuries to or damages suffered by Royal Gold or its
Representatives while visiting the properties of the Operator (including the
Subject Properties) unless such injuries or damages are caused or contributed to
by the gross negligence or willful misconduct of Operator or its
representatives. Royal Gold and its Representatives shall not permit
their activities permitted by this Section 5(e) to unreasonably interfere with
the business and operations of Operator and its properties, including the
Project site, or at any mill or processor at which Subject Minerals may be
processed, and agree that such inspections shall be subject to the
confidentiality provisions of this Agreement. Such site inspection
activities shall also be subject to supervision of Operator, conducted in
compliance with Governmental Requirements and Operator’s safety and workplace
rules and procedures. Royal Gold and its Representative shall
diligently complete any audit or other examination permitted
hereunder.
6. Additional Covenants of the
Parties.
(a) Maintenance of
Insurance. Operator will maintain, with financially sound and
reputable insurance companies, property, liability, business interruption,
construction and other insurance covering Operator and its operations, the
Project, the Ancillary Property Rights and the Subject Properties and covering
at least such risks, liabilities, damages and loss as are usually insured
against at mining operations of similar size and scope in Chile.
(b) Preservation of Existence,
Etc. Operator shall preserve and maintain its existence,
rights, franchises and privileges in the jurisdiction of its incorporation or
formation; and, Operator will maintain the qualifications required in view of
its business and operations or the ownership of its
properties. Operator shall not, except with 60 days’ prior
written notice to Royal Gold and as provided in Section 6(o)(ii) of this
Agreement, as applicable, liquidate or dissolve, or enter into any
consolidation, amalgamation or merger, or enter into any partnership, joint
venture or other combination where such combination involves a contribution by
Operator of all or substantially all of its assets, or sell, lease or dispose of
its business or assets as a whole or in an amount which constitutes
substantially all of such assets, or sell, lease or dispose of all or
substantially all of the Subject Properties or the Ancillary Property Rights, or
enter into any agreement with respect to the foregoing or agree to do or
undertake any of the foregoing.
(c) Maintenance of the
Project. Operator shall not, directly or indirectly, except
with 60 days’ prior written notice to Royal Gold, abandon, delay, forego or stop
the exploration, development, construction or operation of the Project, or
abandon, relinquish, terminate or allow the termination of any claim, lease,
title or interest within or forming part of the Subject Properties or the
Ancillary Property Rights, or abandon, relinquish, terminate or, to the extent
it is within Operator’s control, allow the termination of any Approval necessary
for the development, construction or operation of the Project, except for
cessation of operations under care and maintenance, as a result of a Force
Majeure, pursuant to any Governmental Requirement or to protect life, limb or
property.
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(d) Notice of Default or
Insolvency Proceedings. Operator shall furnish to Royal Gold
as soon as possible and in any event within three business days after the
occurrence of any material breach of any covenant, agreement or obligation of
Operator under this Agreement, written notice setting forth the details of such
breach, and the action that Operator proposes to take with respect
thereto. Operator shall also furnish to Royal Gold immediate written
notice if either: (i) Operator or any of its shareholders or Subsidiaries
commence a voluntary case under any applicable bankruptcy, insolvency or similar
law now or hereafter in effect; (ii) Operator or any of its shareholders or
Subsidiaries consent to the entry of an order for relief in an involuntary case
under any such law or to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or other similar official
of any substantial part of its assets; (iii) Operator or any of its shareholders
or Subsidiaries make a general assignment for the benefit of creditors; (iv)
Operator or any of its shareholders or Subsidiaries takes corporate or other
action in furtherance of any of the foregoing; or (v) entry is made against
Operator or any of its shareholders or Subsidiaries of a judgment, decree or
order for relief affecting a substantial part of any of their assets by a court
of competent jurisdiction in an involuntary case commenced under any applicable
bankruptcy, insolvency or other similar law of any jurisdiction now or hereafter
in effect.
(e) Material
Agreements. Operator shall comply with the terms and
conditions of each of the Material Agreements, except where any non-compliance
could not reasonably be expected to cause a default under such Material
Agreement or have a Material Adverse Effect.
(f) Confidentiality. Royal
Gold shall not, and shall cause its Representatives not to, without the express
written consent of Operator, which consent shall not be unreasonably withheld or
delayed, disclose any non-public data or information concerning Operator’s
operations or the Subject Properties or otherwise obtained under this Agreement;
or otherwise issue any press releases concerning operations or the Subject
Properties; provided,
however, that Royal Gold may disclose any data or information obtained
under or in connection with this Agreement without the consent of Operator: (i)
if required to be made for compliance with any law, regulation or a requirement
or order of a court having jurisdiction over Royal Gold or its Affiliates,
provided that Royal Gold shall disclose only such data or information as, in the
opinion of its counsel, is required to be disclosed and provided further that Royal
Gold shall promptly notify Operator in writing to permit Operator to have the
opportunity to provide comments on the disclosure and to contest or seek to
obtain an injunction or protective order or other remedy restricting the
disclosure of such information; (ii) if required by Royal Gold’s securities
exchanges or securities regulatory authority, provided that Royal Gold shall
promptly notify Operator in writing to permit Operator to have the opportunity
to provide comments on the disclosure; (iii) to any of Royal Gold’s
Representatives; (iv) to any third party to whom Royal Gold, in good faith,
anticipates selling or assigning any portion of Royal Gold’s interest hereunder;
or (v) to a prospective lender to whom any portion of Royal Gold’s interest
hereunder is proposed to be granted as security; provided further that Royal Gold will
(A) retain the Confidential Information in confidence and will only disclose it
to those Representatives or third parties in the case of clauses (iii) through
(v) above, on a need to know basis where those Representatives or third parties
have been informed of and agree to be bound by the terms of this Section 6(f) as
if those Representatives or third parties were party to this Agreement; (B)
ensure that proper and secure storage is provided for the Confidential
Information; (C) not use any such Confidential Information for its own use or
benefit, except for the purpose of enforcing its rights under this Agreement or
for the purposes stated in this Section 6(f); and (D) ensure that none of its
Representatives or third parties to which access has been granted to
Confidential Information as provided herein, does any act or thing which, if
done by Royal Gold, would constitute a breach of the undertakings contained in
this Agreement.
- 34
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(g) Compliance with
Law.
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(i)
|
Operator
shall at all times comply in all material respects with all applicable
Governmental Requirement relating to Operator’s operations on or with
respect to the Subject Properties and the Ancillary Property Rights,
including but not limited to Environmental Laws; provided, however,
Operator shall have the right to contest any of the same if such contest
does not jeopardize title to or its operations on the Subject Properties,
the Ancillary Property Rights or Royal Gold’s rights under this
Agreement.
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(ii)
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Operator
shall timely and fully perform in all material respects all environmental
protection and reclamation activities required on or with respect to the
Subject Properties and the Ancillary Property
Rights.
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(h) Stockpiling. Except
pursuant to a Metal Sales Contract, Operator shall be entitled to stockpile,
store or place ores or mined rock containing minerals produced from the Project
in any locations owned, leased or otherwise controlled by Operator or its
Affiliates, on or off the Project site, provided when such location
is not owned by Operator or its Affiliates, it has first secured from the
property owner where such stockpiling, storage or placement is to occur a
written agreement, in recordable form, that provides that Royal Gold’s rights to
the Royalty on such Subject Minerals shall be preserved. Such
agreement shall provide that (i) Royal Gold’s rights pursuant to this Agreement
shall continue in full force and effect with respect to such Subject Mineral;
(ii) Royal Gold’s rights in and to such Subject Minerals shall be the same as if
the Subject Minerals were situated on the Subject Properties; (iii) Royal Gold’s
rights to such Subject Minerals in the stockpiled material shall take precedence
over the rights of the property owner (and/or of such property owner’s
creditors) to the stockpiled material; and (iv) the stockpiling agreement shall
be irrevocable as long as the Subject Minerals from the Subject Properties, or
any part thereof, remain on the property not part of the Subject
Properties.
(i) Tailings and
Residues. All tailings, residues, waste rock, spoiled xxxxx
materials, and other waste materials (collectively “Materials”) resulting from
Operator’s operations and activities on the Subject Properties after the Closing
Date shall be the sole property of Operator, but shall remain subject to the
Royalty should the processing or reprocessing or use of Materials, as the case
may be, in the future result in the production of Subject
Minerals. Notwithstanding the foregoing, Operator shall have the
right to sell or otherwise dispose of Materials from the Subject Properties in
an arms’ length transaction with a third party, and to commingle the same with
Materials from other properties. In the event Materials produced
after the Closing Date from the Subject Properties are processed, reprocessed or
used: (i) the amount of Materials on which the Royalty is payable shall be
determined using the best engineering and technical practices then available,
and (ii) if such Materials are sold or otherwise disposed of to a third party,
the Royalty shall only be payable to the extent that the proceeds or credit
received by Operator from the sale or other disposition of such Materials exceed
the direct costs of processing the Materials for sale or disposition and the
costs of transportation borne by Operator in connection with such sale or
disposition.
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(j) Title Maintenance and Taxes;
Abandonment; Granting of Mortgages and Prohibitions; Conversion and Exchange
Rights.
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(i)
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Operator
shall maintain, preserve, protect and defend, at its own expense, its
ownership of and title to the Subject Properties and the Ancillary
Property Rights, including, paying when due all patentes, annual fees,
Taxes, Liens and assessments, and doing all other things and making all
other payments necessary or appropriate to maintain the ownership, right,
title and interest of Operator and Royal Gold, respectively, in the
Subject Properties, the Ancillary Property Rights and under this
Agreement.
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(ii)
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If
Operator intends to abandon all or any portion of the Subject Properties
(“Abandonment
Property”), Operator shall give 60 days’ written notice of such
intention in advance of the proposed date of abandonment to Royal Gold,
and Royal Gold shall have the right, but not the obligation, to have
Operator assign or transfer such Abandonment Property to Royal Gold, for a
purchase price of $10.00 per Abandonment Property to be paid to
Operator. If Operator reacquires any interest in any portion of
the mining concessions covered by the Abandonment Property at any time,
the production of Subject Minerals from such ground shall be subject to
the Royalty and this Agreement.
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(iii)
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Operator
undertakes to constitute or cause the constitution of a first degree
mortgage and prohibitions, in the terms set forth in Sections 6(p) and
6(q) of this Agreement, respectively,
on:
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(A)
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any
exploitation mining concessions to be acquired or constituted by Operator
or any Affiliate of Operator in the future and located wholly or partially
within the Shaded Area;
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(B)
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any
Dayton Concession wholly or partially within the Shaded Area, which has
been transferred to Dayton, but then in the future, is reacquired by
Operator or any Affiliate of Operator in accordance with Section 1(e)(i)
of this Agreement; and
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(C)
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any
Dayton Concession wholly or partially within the Shaded Area, which has
not been transferred on or prior to March 31, 2010 in accordance with
Section 1(e)(ii) of this
Agreement.
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Operator
shall notify Royal Gold in writing of the acquisition or constitution of the
exploitation mining concessions referred to above, when applicable, within 60
days from the respective date of the acquisition public deed or the registration
of the title and survey, as applicable. In the case of those exploitation mining
concessions described in paragraphs (A) and (B) of this Section 6(j)(iii),
Operator shall enter into, or cause the entering into of, the corresponding
public deeds for the constitution of mortgages and prohibitions within 90 days
from the date of such acquisition public deed or registration of the title and
the survey. In the case of those exploitation mining concessions
described in paragraph (C) of this Section 6(j)(iii), Operator shall enter into,
or cause the entering into of, the corresponding public deeds for constitution
of mortgages and prohibitions no later than May 31, 2010.
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(iv)
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The
rights of Royal Gold with respect to the Subject Properties shall not be
adversely affected by any conversion of the exploration concessions into
exploitation concessions or any other form of tenure or mineral or surface
interest, and the Royalty and this Agreement shall remain in full force
and effect with respect to each property or interest resulting from any
such conversion.
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(k) Marketing.
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(i)
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Operator
shall not amend or modify the terms of any Metal Sales Contract that is in
effect on the date of this Agreement to include, or enter any new Metal
Sales Contract that contains, any provisions that would prejudice the
economic interest of Royal Gold under this Agreement and not be typically
contained in arms’ length contracts for smelting, refining or other
processing of copper concentrates, as the case may be, without the prior
written consent of Royal Gold, not to be unreasonably
withheld.
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(ii)
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Operator
(A) shall comply at all times in all material respects with all agreements
between Operator and any third party smelter, refiner, other processor or
purchaser relating to Subject Minerals produced from the Subject
Properties and (B) except pursuant Section 6(o)(ii), shall not assign any
of its rights or interests under any such agreement without the prior
written consent of Royal Gold, not to be unreasonably
withheld. Operator shall promptly notify Royal Gold of any
material dispute arising under any such
agreement.
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(iii)
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Operator
shall not sell ore from the Project, to any third party, nor recover gold
from the Project in a form other than in concentrate, without the prior
written consent of Royal Gold.
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(l) Fundamental Process
Changes. If Operator wishes to implement a Fundamental Process Change
that reasonably would be expected to result in an adverse impact on the economic
interest of Royal Gold under this Agreement in excess of $750,000 in any 12
month period, Operator and Royal Gold will negotiate in good faith an equitable
adjustment to the entitlement of Royal Gold hereunder, which adjustment shall
have effect from the date on which such Fundamental Process Change is
instituted. If such equitable adjustment cannot be settled by
negotiation within 60 days of the institution of the Fundamental Process Change,
the appropriate adjustment shall be determined by arbitration pursuant to
Section 7(b). The arbitration panel shall be instructed to adjust the
entitlement of Royal Gold hereunder such that the Royalty payable to Royal Gold
after the institution of the Fundamental Process Change will be equivalent to
the Royalty that it would have been entitled to had the Fundamental Process
Change not been instituted.
(m) Operations.
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(i)
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Operator
shall engage solely in the business of developing and operating the
Subject Properties and the Project and other prospective mineral
properties, and in activities incidental thereto, in accordance with good
mining industry practices.
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(ii)
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Operator
shall conduct all operations on or that affect the Subject Properties and
the Ancillary Property Rights in a good, workmanlike, safe and efficient
manner. Operator shall use all commercially reasonable efforts to
diligently (A) pursue completion of construction and completion of the
Project and to cause such construction and completion to occur in
accordance with the schedules in the Project Studies and consistent with
prudent development practices; (B) construct and complete the mill,
plant, physical facilities and infrastructure for the Project in
accordance with the most recent schedules in the Project Studies and
consistent with prudent development practices; and (C) develop,
operate and manage the Project in all material respects in accordance with
the Governmental Requirements, the Approvals, and in accordance with the
most recent schedules in the Project Studies and consistent with prudent
development practices. Operator shall promptly notify Royal
Gold of any material revision, modification, supplement or amendment to,
or change of work order affecting the
Project.
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(iii)
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Operator
shall diligently pursue all Approvals necessary for the development,
construction, operation and closure of the Project that have not been
obtained prior to the date of this Agreement. Operator shall
maintain in full force and effect, and diligently comply, in all material
respects with the terms and conditions of all Approvals necessary for the
development, construction and operation of the Project which have been
obtained and Operator shall diligently enforce, maintain and protect the
rights and interests granted to it in connection with such Approvals.
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(iv)
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Operator
shall not consider the economic effect of the Royalty in any resource or
reserve determination, mine planning or mine development, or in any
studies, analyses or decision regarding the nature or location of the ore
to be mined or the sequence of mining operations on the Subject
Properties.
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(v)
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All
decisions concerning methods, the extent, times, procedures and techniques
of any (A) exploration, development and mining related to the Project, (B)
leaching, milling, processing or extraction treatment and (C) materials to
be introduced on or to the Project or produced therefrom, and all
decisions concerning the sale or other disposition of concentrate from the
Project, shall be made by Operator, acting reasonably and in accordance
with accepted mining industry practices in the
circumstances.
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(vi)
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Except
as expressly set forth in this Agreement, Operator shall retain sole
discretion with respect to the operation of the
Project.
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(vii)
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Except
as expressly set forth in this Agreement, Operator shall not be
responsible for or obliged to make any payment of Royalty for Subject
Minerals, or Subject Minerals’ value, lost in any mining or processing of
Subject Minerals conducted in accordance with accepted mining and milling
practices.
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(viii)
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Operator
shall not be required to mine Subject Minerals if it has determined,
acting reasonably, that exploitation of the Project is not, at the
relevant time, economically
feasible.
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(n) Covenants Running with the
Subject Properties. The Royalty and Royal Gold’s interests provided in
this Agreement shall attach to (i) any amendments, relocations, adjustments,
resurvey, additional locations of any existing mining claims or concessions or
conversions of any mining claims or concessions comprising the Subject
Properties, and any extralateral rights claimed by Operator pertaining to any
interests within the Subject Properties, and (ii) to any renewal, amendment or
other modification or extensions of any leases of any real property interests
now existing or hereafter arising comprising the Subject
Properties. The Royalty is an interest in the Subject Minerals and
unless and until terminated as herein provided, and shall be applicable to
Operator and its transferees, successors and assignees of the Subject Properties
or any portion thereof and shall represent an interest in minerals in
place.
(o) Assignment.
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(i)
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Royal
Gold may transfer, sell, assign, lease, convey, mortgage, pledge or
otherwise dispose of or encumber (“Transfer”) all or any
portion of the Royalty or its interest under this Agreement (A) to an
Affiliate by providing 10 days’ prior written notice to Operator and (B)
to any Person who is not an Affiliate by providing 60 days’ prior written
notice to Operator. Before any direct or indirect Transfer by Royal Gold
of all or any portion of the Royalty or its interest under this Agreement
shall become effective or relieve Royal Gold of its obligations under this
Agreement, Royal Gold shall first have delivered to Operator a written
undertaking, executed by public deed in form and substance satisfactory to
Operator, acting reasonably, by the Person receiving the interest subject
to the Transfer and enforceable by Operator, that it will be bound by the
terms and conditions of this Agreement and any amendments hereto with
respect to the interest subject to the Transfer. If Royal Gold
Transfers a portion of the Royalty, then Royal Gold and all such
transferees must agree to common administrative procedures for payment,
audit rights and notice under this
Agreement.
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(ii)
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Operator
may only Transfer an interest in this Agreement, the Project, the Subject
Properties or the Ancillary Property Rights to a Person that has or will
have immediately following the Transfer the financial wherewithal and
either has or will have immediately following the Transfer the technical
wherewithal or has engaged a Person with the technical wherewithal, to
assume all of Operator’s obligations under this
Agreement. Operator shall not, directly or indirectly, except
with 60 days’ prior written notice to Royal Gold, Transfer, or enter into
any agreement to Transfer, all or any portion of its interest in this
Agreement, the Project, the Subject Properties or the Ancillary Property
Rights. No direct or indirect Transfer of all or any portion of
Operator’s interest in this Agreement, the Project, the Subject Properties
or the Ancillary Property Rights (including, but not limited to, any
Transfer by merger, consolidation, amalgamation, liquidation, dissolution
or otherwise by operation of law), shall become effective or relieve
Operator of its obligations under this Agreement, including its liability
for payment of the Royalty under this Agreement, unless Operator shall
first have delivered to Royal Gold a written undertaking, executed by
public deed in form and substance satisfactory to Royal Gold, acting
reasonably, by the Person receiving the interest subject to the Transfer
and enforceable by Royal Gold, that it will be bound by the terms and
conditions of this Agreement and any amendments hereto with respect to the
interest subject to the Transfer.
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(iii)
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This
Agreement shall inure to the benefit of and shall be binding on and
enforceable by the Parties and, where the context so permits, their
respective permitted successors and permitted
assigns.
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(p) Grant of
Mortgage. With the purpose of warranting the complete and
timely performance of each and all of the obligations undertaken herein by
Operator, Mr. _______ on behalf of Operator constitutes herein a first degree
mortgage on the Mining Properties in favor of Royal Gold. The Parties
state that the mortgage created is to warrant to Royal Gold the complete, full
and timely performance of each and all of Operator’s obligations, including but
not limited to payment of the Royalty. Mr._________, on behalf of
Royal Gold, accepts herein the constitution of the above mortgage.
The
mortgages created herein are subject to the satisfaction or waiver of each of
the Condiciones Suspensivas, which satisfaction or waiver shall be conclusively
determined by the execution by both Parties of the Deed of
Release.
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Operator
leaves testimony that the mortgage granted above has been authorized by the
Extraordinary Shareholders Meeting recorded on the public deed dated March 30,
2009 granted before the Notary Public of Xxxxxxxx Xxxxx Xxxxxx Xxxxxxx Toledo
(repertory number 6,958).
(q) Grant of
Prohibition. With the purpose of warranting the complete and
timely performance of each and all of the obligations undertaken herein by
Operator, Mr. _______ on behalf of Operator hereby grants
prohibition:
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|
(i)
|
to
sign any type of Avío with respect to all or any of the Mining Properties,
without the prior written consent of Royal Gold;
and
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(ii)
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to
Transfer, directly or indirectly, all or any portion of the Mining
Properties, without the prior written consent of Royal Gold unless: (A)
transferee has the financial wherewithal or will have the financial
wherewithal immediately following the Transfer and either has the
technical wherewithal or has engaged a Person with the technical
wherewithal, to assume all of Operator’s obligations under this Agreement;
(B) Operator gives 60 days written notice to Royal Gold prior to the
Transfer; and (C) Operator has delivered to Royal Gold a written
undertaking, executed by public deed in form and substance satisfactory to
Royal Gold, acting reasonably, by the transferee and enforceable by Royal
Gold, that it will be bound by the terms and conditions of this
Agreement.
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Mr.
_________, on behalf of Royal Gold accepts herein the creation of the above
described prohibitions and hereby authorizes Operator to grant any Liens (other
than Liens that constitute Avíos, which are addressed in Section 6(q)(i)) over
the Subject Properties and Ancillary Property Rights if the same are reasonably
required by financiers of the Project in connection with bona fide financings in
order to provide new or additional funding for the exploration, development,
construction or operation of the Project, which Operator, acting reasonably,
considers necessary or desirable to that effect. Royal Gold shall
execute all acts or contracts in form and substance agreed to by the Parties,
acting reasonably, required to execute and register, if applicable, such Liens
(other than Liens that constitute Avíos, which are addressed in Section
6(q)(i)).
7. Miscellaneous.
(a) Governing
Law. This Agreement is to be governed by and construed under
the laws of Chile, without giving effect to those principles of conflicts of
laws that might otherwise require application of the laws of any other
jurisdiction.
(b) Dispute
Resolution.
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(i)
|
The
Parties shall use reasonable commercial efforts to resolve any
controversies, disputes or claims arising under this Agreement, including
those arising out of a written objection made by Royal Gold to any Royalty
Statement concerning any Royalty delivered to it pursuant to Section 4(b).
If for any reason any Dispute arising out of this Agreement is not
resolved by negotiation and agreement within 30 days after the delivery of
a written notice of Dispute, the Dispute shall be determined by
arbitration as provided in this Section
7(b).
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(ii)
|
All
Disputes shall be referred to and finally resolved by arbitration under
the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The number of
arbitrators shall be three. The place of Arbitration shall be Santiago,
Chile. The language of the Arbitration shall be Spanish. Judgment may be
entered upon an award in any court of competent
jurisdiction.
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(iii)
|
The
Party referring a Dispute to arbitration hereunder shall appoint an
arbitrator in the arbitration petition and the respondent Party shall
appoint an arbitrator in its response. If within 30 days after the date of
the arbitration petition, the respondent has not appointed an arbitrator,
such arbitrator shall be appointed by the ICC. Within 30 days of their
appointment, the two arbitrators so appointed shall appoint a third
arbitrator who shall preside over the arbitration panel. If the two
arbitrators cannot agree on a third arbitrator within such 30 day period,
the third arbitrator shall be appointed by the
ICC.
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(iv)
|
Notwithstanding
the provisions of Section 7(b)(i), the arbitral tribunal shall have the
power to grant interim measures of protection, but, without derogating
from the commitment to arbitrate or the power of the arbitral tribunal to
grant such measures, it shall not be inconsistent with this Agreement for
a party to apply to a court of competent jurisdiction for an interim
measure of protection pending the commencement or completion of
arbitration.
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(v)
|
In
any arbitration, or in any court proceeding authorized to be taken under
this Agreement, the arbitral tribunal or the court, as the case may be,
shall in addition to any other relief, be entitled to make an award or
enter a judgment, as the case may be, for reasonable attorney’s fees and
disbursements, including experts witness fees, and any other costs of the
proceeding. The arbitration panel may only award damages as provided for
under the terms of this Agreement and in no event may punitive,
consequential or special damages be
awarded.
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(vi)
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If
contemporaneous Disputes arise under this Agreement, a single arbitration
may be commenced in respect of the
Disputes.
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(c) Notices. Unless
otherwise provided in this Agreement, any notice or other correspondence
required or permitted by this Agreement shall be deemed to have been properly
given or delivered when made in writing and hand-delivered to the Party to whom
directed, or when given by facsimile transmission, with all necessary delivery
charges fully prepaid (or in the case of a facsimile, upon confirmation of
receipt), and addressed to the Party to whom directed at the following
address:
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If to
Operator:
Compañía
Minera Xxxx Xxxxxx de Andacollo
c/o Teck
Operaciones Mineras Chile Ltda.
Xxxxxxx
Xxxxxxxx 0000, Xxxx 00
Xxx
Xxxxxx, Xxxxxxxx, Xxxxx
Attention:
Xxxxxxxxx Xxxxxxxx
Facsimile: (00-0) 000-0000
with a
copy, which shall not constitute notice, to:
Xxxxxx
Xxxxxx Xxxxxxx LLP
1200
Waterfront Centre
000
Xxxxxxx Xxxxxx, X.X. Xxx 00000
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx, X0X 0X0 Xxxxxx
Attention: Xxxx
X. Xxxxxxxx
Facsimile: (000)
000-0000
with a
copy, which shall not constitute notice, to:
Xxxxx y
Cía. Ltda.
Xxxxxxxxxx
000, xxxx 00
Xxxxxxxx,
Xxxxx
Attention: Xxxxxx
Xxxxxxx G.
Facsimile: (000)
000-0000
If to
Royal Gold:
Royal
Gold, Inc.
0000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000-0000 XXX
Attention: Vice
President and General Counsel
Facsimile: (000)
000-0000
with a
copy, which shall not constitute notice, to:
Xxxxx
& Xxxxxxx L.L.P.
One Xxxxx
Center
0000
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000 XXX
Attention: Xxxx
Xxxxxx, Esq.
Facsimile: (000)
000-0000
- 43
-
with a copy, which shall not constitute
notice, to:
Urenda,
Rencoret, Xxxxxx y Xxxx
Xxxx.
Xxxxxx Xxxxx 0000, Xxxxx 00
Xxx
Xxxxxx
Xxxxxxxx,
Xxxxx
Attention:
Xxxxxx Xxxxxx
Facsimile:
(000) 000-0000
Any Party
may change its address for the purpose of notices or communications by
furnishing notice thereof to the other Party in the manner provided in this
Section 7(c).
(d) Survival. All
covenants, agreements, representations, warranties and indemnities made under
this Agreement shall survive the execution and delivery of this Agreement and
shall survive the Closing Date.
(e) Indemnification.
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(i)
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Subject
to Section 7(e)(iii), Operator agrees to indemnify Royal Gold from and
against, and to hold Royal Gold harmless from any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever (collectively “Losses”) which may at
any time be imposed on, incurred by or asserted against Royal Gold in any
way relating to or arising out of (A) any breach by Operator or any
misrepresentation or inaccuracy of any representation or warranty of
Operator contained in this Agreement or in any public deed registered
pursuant hereto; (B) any breach or non-performance by Operator of any
covenant or agreement to be performed by Operator contained in this
Agreement or in any public deed registered pursuant hereto; (C) the
failure of Operator to comply with any Governmental Requirement, including
any Environmental Laws or Approvals relating to environmental protection
and reclamation obligations, with respect to the Subject Properties or the
Ancillary Property Rights; and (D) the physical environmental condition of
the Subject Properties or the Ancillary Property Rights and matters of
health or safety related to the Subject Properties or the Ancillary
Property Rights or any action or claim brought with respect to
either.
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(ii)
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Subject
to Section 7(e)(iii), Royal Gold agrees to indemnify Operator from and
against, and to hold Operator harmless from, any and all Losses which may
at any time be imposed on, incurred by or asserted against Operator in any
way relating to or arising out of (A) any breach by Royal Gold or any
misrepresentation or inaccuracy of any representation or warranty of Royal
Gold contained in this Agreement or in any public deed registered pursuant
hereto; and (B) any breach or non-performance by Royal Gold of
any covenant or agreement to be performed by Royal Gold contained in this
Agreement or in any public deed registered pursuant
hereto.
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- 44
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(iii)
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In
no event will either Party be liable to the other Party for any lost
profits (excluding moratorium damages) or incidental, indirect,
speculative, consequential, special, punitive, or exemplary damages of any
kind (whether based in contract, tort, including negligence, strict
liability, fraud, or otherwise, or statutes, regulations, or any other
theory) arising out of or in connection with this Agreement, even if
advised of such potential
damages.
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(f) Further
Assurances. The Parties shall from time to time execute all
such further instruments and documents and do all such further actions as may be
necessary to effectuate the purposes of this Agreement.
(g) Force
Majeure. The obligations of Operator in respect of the
development, construction, and operation of the Project and shipment of copper
concentrate to any smelter, refiner or other processor or purchaser under any
Metal Sales Contract shall be suspended to the extent and for the period that
performance is prevented by any cause, whether foreseeable or unforeseeable,
beyond its reasonable control (except for lack of funds), including, without
limitation, labour disputes (however arising and whether employee demands are
reasonable or within the power of the parties to grant); acts of God; laws,
regulations, orders, proclamations, instructions or requests of any government
or governmental entity; judgments or orders of any court; inability to obtain on
reasonably acceptable terms any public or private license, permit or other
authorization; curtailment or suspension of activities to remedy or avoid an
actual or alleged, present or prospective violation of federal, territorial or
local environmental standards; acts of war, whether declared or undeclared;
riot, civil strife, insurrection or rebellion; fire, explosion, earthquake,
storm, flood, sink holes, drought or other adverse weather conditions; delay or
failure by suppliers or transporters of materials, machinery, equipment,
supplies, utilities or services; accidents; breakdown of equipment, machinery or
facilities; or any other cause whether similar or dissimilar to the foregoing
beyond the reasonable control of Operator (“Force
Majeure”). Operator shall promptly give notice to Royal Gold
of the suspension of performance, stating therein the nature of the suspension,
the reasons therefore, and the expected duration thereof. Operator
shall resume performance as soon as reasonably possible. Except as
expressly set forth in Sections 7(g) and 6(c), the obligations of Operator under
this Agreement, including, but not limited to, the obligation to make a payment
of Royalty when due, shall not be affected by any Force Majeure.
(h) No
Partnership. Nothing in this Agreement shall be construed to
create, expressly or by implication, a joint venture, mining partnership,
commercial partnership, or other partnership of any kind or as imposing upon any
Party any partnership duty, obligation or liability or any fiduciary duty,
obligation or liability to any other Party hereto.
(i) Business
Opportunity. Except as expressly provided in this Agreement,
each Party shall have the right independently to engage in and receive full
benefits from its business activities, whether or not competitive with the other
Party, without consulting the other Party.
(j) Time of the
Essence. Time is of the essence in this
Agreement.
- 45
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(k) Entire
Agreement. This Agreement, together with the Schedules and
Exhibits attached hereto are the complete expression of the entire agreement of
the Parties, and no oral promise, statement or representation not contained
herein shall be binding on the Parties unless reduced to writing and signed by
the Parties.
(l) Waiver and
Amendment. This Agreement may not be amended, modified or
changed; nor shall any wavier of any provision hereof be effective, except by
means of a written instrument that has been executed by the Party or Parties to
be bound.
(m) Taxes.
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(i)
|
If
any Taxes are required by applicable law to be deducted from or in respect
of any amounts payable to Royal Gold
hereunder:
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(A)
|
Royal
Gold will receive an amount equal to the sum it would have received if
such deduction had not been made less the amount of such
deduction;
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(B)
|
Operator
will make such deductions; and
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(C)
|
Operator
will pay the full amount deducted to the relevant taxing authority in
accordance with applicable law and Operator will promptly furnish to Royal
Gold written proof of such payment.
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(ii)
|
If
Operator fails to pay any Taxes when due to the appropriate taxing
authority, Operator will indemnify Royal Gold for any incremental Taxes
that may become payable by Royal Gold as a result of any such
failure.
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(iii)
|
Operator
shall be responsible for and shall pay when due any excise Taxes (goods
and services Taxes), stamp duties, sales and use Taxes and similar Taxes
and any registration fees payable in respect of the sale and transfer of
the Royalty to Royal Gold and imposed or collected by any Governmental
Authority.
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(iv)
|
For
greater certainty, Operator shall be entitled to deduct all amounts owing
for Taxes as required by applicable law without grossing up any payment to
Royal Gold in respect thereof, including but not limited to the Royalty
made under this Agreement.
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(n) No Brokers or
Commissions. Each of the Parties acknowledges, agrees and
represents and warrants to the other Parties that it has not engaged any broker,
agent or other intermediary to act on its behalf on connection with the
transactions contemplated by this Agreement and that it is not aware of any
current or possible future claim for any brokerage, agency or finder's fee or
commission in connection with the transactions contemplated by this Agreement
and that if any such claim should arise through, or under, or by virtue of any
action taken by any party, such Party shall indemnify and hold harmless the
others in respect thereof.
- 46
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(o) Term. This
Agreement shall be in effect for 50 years from the date hereof.
(p) Appearing
Parties. The appearing Parties grant sufficient power to Xx.
Xxxxxx Xxxxxx Xxxxx, national identity card Nº 7.051.727-2 and Xx. Xxxxxx
Xxxxxxx Xxxxxxxxx, national identity card N° 7.018.916-K to jointly
perform all acts and execute all public or private instruments that are
necessary to clarify, rectify or complement this deed, in relation to the
description of the Mining Properties, for the adequate registration of this
title, the mortgage and prohibitions, being also authorized to either jointly or
separately make the necessary annotations on the original deed and request the
required inscriptions, registrations and sub-inscriptions from the corresponding
Mines Registrars.
(q) Legalization and
Registration. The bearer of a notarized copy of this deed is entitled to
request and execute all the registrations, sub registrations and notations that
might be necessary in the corresponding Mining Registry.
(r) Legal Capacity. The
legal capacity of Mr._________________ to represent Royal Gold Inc. is evidenced
in __________________. The legal capacity of Mr._______________to represent
Compañía Minera Xxxx Xxxxxx de Andacollo is evidenced in
_________________.
- 47
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SCHEDULE
A
Metallurgical Recovery
Rate
The
metallurgical gold recovery rate will be calculated as a percentage by dividing
the Gold In Concentrate by the Gold In Feed. The terms and
methodology necessary for determining the metallurgical gold recovery rate are
described below:
Concentrator Feed
Tonnage – The weight of ore fed to the concentrator will be measured by a
calibrated weighbridge “weightometer” on the conveyor feeding the primary
grinding mill. The calibration of the weightometer will be checked
monthly. This weightometer measures the wet weight of ore entering
the concentrator. Daily samples of the mill feed will be taken from
the feed conveyor to determine the moisture content. The dry feed
weight to the concentrator will be calculated from the measured wet weight
corrected for the measured moisture content. Concentrator Feed
Tonnage for a particular time period will be the cumulative sum of the daily dry
feed weights for that period of time.
Concentrate Tonnage –
The weight of concentrate will be based on weighing and sampling the concentrate
haulage trucks as they are dispatched from the mine. The wet concentrate weight
will be the difference between the tare weight of the truck before loading and
loaded weight. Each truck will be sampled by taking 9 probe samples distributed
over the top of the load. The samples from each lot of approximately
10 trucks will be combined to form a lot. The sample will be blended,
sub-sampled and sent to the on-site assay laboratory for moisture and metals
analysis. The dry concentrate weight will be calculated from the
measured wet weight corrected for the measured moisture
content. Concentrate Tonnage for a particular time period will be the
cumulative sum of the daily dry concentrate weights for that period of
time.
Tailings Tonnage –
The weight of tailings will be based on the daily metallurgical balance which
utilizes the Concentrator Feed Tonnage and the shift feed, concentrate and
tailings assays to calculate the concentrate and tailings
tonnages. Tailings Tonnage for a particular time period will be the
cumulative sum of the daily dry tailings weights for that period of
time.
Gold In Feed –
Regular and representative samples of the concentrator feed will be obtained
from the primary cyclone overflow (flotation feed) at timed intervals and the
samples will be composited as a 12 hour shift sample. The feed sample
will be dried and assayed in the site assay lab. The average daily
feed assays will be multiplied by the corresponding daily Concentrator Feed
Tonnage to arrive at daily Gold In Feed. The Gold In Feed for a
particular time period will be the cumulative sum of the daily amounts of Gold
In Feed for that period of time.
Gold in Tailings
–Regular and representative samples of the tailings will be obtained at timed
intervals and the various samples will be composited as a 12 hour shift
sample. The tailings sample will be filtered and dried and assayed in
the site assay lab. The average daily tailing assays will be
multiplied by the corresponding daily Tailings Tonnage to arrive at daily Gold
In Tailings. The Gold In Tailings for a particular time period will
be the cumulative sum of the daily amounts of Gold In Tailings for that period
of time.
A-1
Gold in Concentrate –
The gold content of the concentrate will be based on weighing and sampling the
concentrate haulage trucks as they are dispatched from the mine. Each
truck will be sampled by taking 9 probe samples distributed over the top of the
load. The samples from each lot of approximately 10 trucks will be
combined to form a lot. The sample will be blended, sub-sampled,
dried and assayed for gold in the on-site assay laboratory. The truck
lot concentrate assays will be multiplied by the corresponding dry Concentrate
Tonnage to arrive at the Gold In Concentrate for that lot. The Gold
In Concentrate for a particular time period will be the cumulative sum of the
truck lots of Gold In Concentrate for that period of time.
Metallurgical
reconciliations will be made to insure Gold In Feed equals the sum of Gold In
Concentrate plus Gold In Tails. The cumulative daily metallurgical
balance will be reconciled back to the measured concentrate tonnage on a monthly
basis with appropriate adjustments for inventory. On a reasonable
periodic basis, Gold In Concentrate and Concentrate Tonnage will be reconciled
to settled smelter receipts for such comparable period to ensure site
measurements are accurate and representative.
A-2
SCHEDULE
B
Description of Areas Covered
by Mining Properties
Part I –
Map
(Attached)
B-1
SCHEDULE
B
Description of Areas Covered
by Mining Properties
Part II – Universal
Transverse Mercator Coordinates
(a) UTM
Coordinates – Circular Boundary: (Attached)
(b) UTM
Coordinates – Shaded Area Boundary: (Attached)
B-2
SCHEDULE
C
Condiciones
Suspensivas
The sale,
assignment and transfer of the Royalty contemplated by this Agreement is subject
to each of the Condiciones Suspensivas set forth in Section 2(a) and Section
2(b) below being satisfied or waived on or prior to the Closing Date
(notwithstanding this Agreement may terminate prior to the Closing Date as
provided in Section 2(a) of the same). After the Closing, this Schedule C shall
cease to have any further force or legal effect.
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1.
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Certain Defined Terms
and Construction.
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(a)
Capitalized terms used, but not otherwise
defined, in this Schedule C shall have
the meanings otherwise given to them in this Agreement for purposes of this
Schedule
C. If a capitalized term is defined in both this Agreement and
in this Schedule
C, the meaning assigned to such capitalized term in this Schedule C shall
govern for purpose of this Schedule
C. The definitions set forth below (i) shall be used only for
this Schedule C
and not otherwise in connection with this Agreement (unless expressly referenced
elsewhere), and (ii) are not intended to, and do not, amend the definitions in
this Agreement.
(b)
As used in this Schedule C, the
following capitalized terms shall have the following meanings:
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(i)
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“Affiliate” means, with
respect to any Person, any Person that directly, or indirectly through one
or more intermediaries, controls, is controlled by or is under common
control with such Person.
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(ii)
|
“Approvals” mean any
authorizations, licenses, permits, consents, waivers, grant notices,
approvals, rulings, orders, certifications, exemptions, filings,
variances, decrees, registrations, or other action, whether written or
oral, of, by, from or on behalf of any Governmental Authority or any other
third party, together with all easements, rights-of-way and other rights
to access or use property.
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(iii)
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“Closing” means closing
of the Transactions contemplated by this Agreement and the Amended and
Restated Master Agreement,
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(iv)
|
“Closing Time” means
10:00 am local time in Santiago, Chile on the Closing
Date.
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(v)
|
“Environmental Laws” mean
Governmental Requirements relating to pollution or protection of the
environment, including, without limitation, Governmental Requirements
relating to emissions, discharges, releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
environment (including, without limitation, ambient air, surface water,
ground water, aquifers, land surface or subsurface strata) or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or wastes which are
applicable to the Subject Properties, the Project , the other assets
owned, controlled or managed by Operator which are used on or in
connection with the Subject Properties, the Ancillary Property Rights or
the Project or to the activities of Operator on or in connection with the
Subject Properties, the Ancillary Property Rights or the
Project.
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C-1
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(vi)
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“Governmental Authority”
means (A) with respect to Operator, the government of Chile or of any
state, provincial, territorial, divisional, county, regional, city or
other political subdivision of Chile and any entity, court, arbitrator or
arbitration panel, agency, department, commission, board, bureau or
regulatory authority or other instrumentality of any of them exercising
executive, legislative, judicial, regulatory or administrative functions
that exercises valid jurisdiction, including over the Project, the
Ancillary Property Rights or the Subject Properties; and (B) with respect
to Royal Gold, the government of any nation, state, provincial,
territorial, divisional, county, regional, city or other political
subdivision thereof and any entity, court, arbitrator or arbitration
panel, agency, department, commission, board, bureau or regulatory
authority or other instrumentality of any of them exercising executive,
legislative, judicial, regulatory or administrative functions that
exercises valid jurisdiction.
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(vii)
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“Governmental
Requirements” mean any law, statute, code, ordinance, treaty,
order, rule, regulation, judgment, ruling, decree, injunction, franchise,
permit, certificate, license, authorization, approval or other direction
or requirement of any Governmental
Authority.
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(viii)
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“Material Adverse Effect”
means with respect to Operator, any change, effect, event, or occurrence
that, either individually or in the aggregate, is, or would reasonably be
expected to be, material and adverse to the Project, or the business,
properties, assets, liabilities (contingent or otherwise), condition
(financial or otherwise), capitalization, operations or results of
operations of Operator, each either considered as a whole or collectively
in their entirety, as the case may be, other than any change, effect,
event or occurrence in or relating
to:
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(A)
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changes
in general political, economic or financial conditions, whether domestic
or international in either case, including changes or disruptions in
securities, currency exchange, real property, labour or commodities
markets (including without limitation gold or copper prices), except to
the extent that such changes adversely affect the Project or the business,
properties, assets, liabilities (contingent or otherwise), condition
(financial or otherwise), capitalization, operations or results of
operations of Operator, as the case may be, in a manner distinct from and
with a materially disproportionate effect than it affects other operators
of a similar business in Chile;
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C-2
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(B)
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acts
of God, any outbreak or escalation of hostilities, declared or undeclared
acts of war or terrorism or civil unrest, except to the extent that such
acts of God, hostilities, war, terrorism or civil unrest adversely affect
the Project or the business, properties, assets, liabilities (contingent
or otherwise), condition (financial or otherwise), capitalization,
operations or results of operations of Operator, as the case may be, in a
manner distinct from and with a materially disproportionate effect than it
affects other operators of a similar business in
Chile;
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(C)
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changes
in applicable law or changes in generally accepted accounting principles,
except to the extent that such changes in applicable law or changes in
generally accepted accounting principles affect the Project or the
business, properties, assets, liabilities (contingent or otherwise),
condition (financial or otherwise), capitalization, operations or results
of operations of Operator, as the case may be, in a manner distinct from
and with a materially disproportionate effect than it affects other
operators of a similar business in
Chile;
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(D)
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changes
due to disruption of power, labour, utilities, water, supply and
transportation systems, except to the extent that such changes affect the
Project or the business, properties, assets, liabilities (contingent or
otherwise), condition (financial or otherwise), capitalization, operations
or results of operations of Operator, as the case may be, in a manner
distinct from and with a materially disproportionate effect than it
affects other operators of a similar business in
Chile;
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(E)
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the
announcement or pendency of the transactions contemplated by the Amended
and Restated Master Agreement or other communication by Royal Gold,
Operator or any of their Affiliates of its plans or intentions with
respect to the Project or any elements of the Project, specifically;
or
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(F)
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the
consummation of the transactions contemplated by the Amended and Restated
Master Agreement or any actions by Royal Gold, Operator or their
Affiliates taken pursuant to or in light of the Amended and Restated
Master Agreement.
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With
respect to Royal Gold, any change, effect, event, or occurrence that, either
individually or in the aggregate, is, or would reasonably be expected to be,
material and adverse to the business, properties, assets, liabilities
(contingent or otherwise), condition (financial or otherwise), capitalization,
operations or results of operations of Royal Gold and its Subsidiaries (taken
together as a whole), each either considered as a whole or collectively in their
entirety, as the case may be, other than any change, effect, event or occurrence
in or relating to:
C-3
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(A)
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changes
in general political, economic or financial conditions, whether domestic
or international in either case, including changes or disruptions in
securities, currency exchange, real property, labour or commodities
markets (including without limitation gold prices), except to the extent
that such changes adversely affect the business, properties, assets,
liabilities (contingent or otherwise), condition (financial or otherwise),
capitalization, operations or results of operations of Royal Gold and its
Subsidiaries (taken together as a whole), as the case may be, in a manner
distinct from and with a materially disproportionate effect than it
affects other companies of a similar size operating in the industry in
which Royal Gold and its Subsidiaries
operate;
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(B)
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acts
of God, any outbreak or escalation of hostilities, declared or undeclared
acts of war or terrorism or civil unrest, except to the extent that such
acts of God, hostilities, war, terrorism or civil unrest adversely affect
the business, properties, assets, liabilities (contingent or otherwise),
condition (financial or otherwise), capitalization, operations or results
of operations of Royal Gold and its Subsidiaries (taken together as a
whole), as the case may be, in a manner distinct from and with a
materially disproportionate effect than it affects other companies of a
similar size operating in the industry in which Royal Gold and its
Subsidiaries operate;
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(C)
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changes
in applicable law or changes in generally accepted accounting principles,
except to the extent that such changes in applicable law or changes in
generally accepted accounting principles affect the business, properties,
assets, liabilities (contingent or otherwise), condition (financial or
otherwise), capitalization, operations or results of operations of Royal
Gold and its Subsidiaries (taken together as a whole), as the case may be,
in a manner distinct from and with a materially disproportionate effect
than it affects other companies of a similar size operating in the
industry in which Royal Gold and its Subsidiaries
operate;
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(D)
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the
announcement or pendency of the transactions contemplated by the Amended
and Restated Master Agreement or other communication by Royal Gold,
Operator or any of their Affiliates of its plans or intentions with
respect to the Project or any elements of the Project,
specifically;
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C-4
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(E)
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the
consummation of the transactions contemplated by the Amended and Restated
Master Agreement or any actions by Royal Gold, Operator or their
Affiliates taken pursuant to or in light of the Amended and Restated
Master Agreement; or
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(F)
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any
change in the market price or trading volume of any of the securities of
Royal Gold.
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(ix)
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“Person” means an
individual, partnership, corporation (including a business trust), joint
venture, limited liability company or other legal entity, or a
Governmental Authority.
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(x)
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“Registration Rights
Agreement” means the Registration Rights Agreement to be executed
by Royal Gold and Operator on the Closing
Date.
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(xi)
|
“Registration Statement”
means a registration statement under the Securities Act pursuant to which
the shares of Royal Gold Common Stock that constitute the Share Portion
(as defined in Schedule D of
this Agreement) have been issued.
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(xii)
|
“Securities Act” means
the United States Securities Act of 1933, as
amended.
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(xiii)
|
“Subsidiary” means any
corporation, association or other business entity more than 50% of each
class of equity or voting securities of which is owned, directly or
indirectly, by any Person.
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(xiv)
|
“Transactions” mean the
granting, selling, assignment, transferring and conveying to Royal Gold
by, and purchasing by Royal Gold from, Operator, of the Royalty free and
clear of any Lien (other than any Lien created by this Agreement), in
accordance with and subject to the terms and conditions set forth in the
Amended and Restated Master
Agreement.
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2.
|
Condiciones
Suspensivas.
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(a) Conditions of Closing in
Favor of Operator. The following conditions are for the exclusive benefit
of Operator:
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(i)
|
Representations and
Warranties. The representations and warranties of Royal
Gold contained in the Amended and Restated Master Agreement shall be true
and correct in all respects on and as of the Closing Date with the same
force and effect as though such representations and warranties had been
made at and as of the Closing Date (except for any representation and
warranty made as of specific date, which shall have been true and correct
as of such date), provided, however that
for purposes of determining the accuracy of the representations and
warranties of Royal Gold contained in the Amended and Restated Master
Agreement which have “Material Adverse Effect” qualifications and other
“material” and “materiality” qualifications limiting the scope of the
representations and warranties of Royal Gold contained in the Amended and
Restated Master Agreement or the scope of the defined terms used in the
representations and warranties of Royal Gold contained in the Amended and
Restated Master Agreement,
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C-5
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(A)
|
all
“Material Adverse Effect” qualifications and other “material” and
“materiality” qualifications limiting the scope of the representations and
warranties of Royal Gold contained in the Amended and Restated Master
Agreement shall be disregarded;
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(B)
|
all
“Material Adverse Effect” qualifications and other “material” and
“materiality” qualifications limiting the scope of the defined terms used
in the representations and warranties of Royal Gold contained in the
Amended and Restated Master Agreement shall be disregarded;
and
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(C)
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any
inaccuracies in such representations and warranties of Royal Gold will be
disregarded if such inaccuracies considered collectively do not
constitute, and would not reasonably be expected to have or result in, a
Material Adverse Effect on Royal
Gold;
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(ii)
|
Covenants. All
of the terms, covenants, obligations and conditions of the Amended and
Restated Master Agreement to be performed, observed or complied with by
Royal Gold on or before the Closing Date shall have been duly performed,
observed or complied with by Royal
Gold;
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(iii)
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No Orders or
Proceedings. No injunction or restraining order or other
decision, ruling or order of any Governmental Authority of competent
jurisdiction being in effect which prohibits, restrains, materially limits
or imposes material adverse conditions on, the Transactions contemplated
by the Amended and Restated Master Agreement and no action or proceeding
having been instituted or remaining pending or having been threatened and
not resolved before any such Governmental Authority to restrain, prohibit,
materially limit or impose material adverse conditions on such
contemplated Transactions);
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|
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(iv)
|
Governmental and Other
Approvals. Any Approvals by any Governmental
Authorities, shareholders of Royal Gold or any other third parties
required to consummate the Transactions contemplated by the Amended and
Restated Master Agreement under any applicable Governmental Requirements
or otherwise shall have been obtained and shall remain in full force and
effect as of the Closing Date;
|
C-6
|
|
(v)
|
Registration
Statement. The appropriate Registration Statement
relating to the shares of Royal Gold Common Stock that constitute the
Share Portion (as defined in Schedule D of
this Agreement) shall have become effective under the Securities Act and
shall not be the subject of any stop order or proceeding seeking a stop
order;
|
|
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(vi)
|
Listing. NASDAQ
Global Select Market and the Toronto Stock Exchange shall have
conditionally agreed to list the shares of Royal Gold Common Stock that
constitute the Share Portion (as defined in Schedule D of
this Agreement), subject to receipt of ordinary course post-closing
filings;
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|
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(vii)
|
[Intentionally
deleted];
|
|
|
(viii)
|
Approvals Under
Environmental Laws. As of the Closing Date (but not upon a
postponed Closing Date, if Royal Gold has elected to postpone the Closing
Date by ten business days in accordance with Section 2(c)(iii)), no
material Approval under any Environmental Laws, which is necessary for the
construction or operation of the Project, will be either: (x) withdrawn or
threatened to be withdrawn by any Governmental Authority; or (y)
challenged or threatened to be challenged by any Person on non-frivolous
grounds; provided
that (A) Operator has provided written notice to Royal Gold prior
to such proposed Closing Date describing in reasonable detail the factual
circumstances giving rise to the condition set out in this Section
2(a)(viii) not having been met and (B) Royal Gold has not on or prior to
the Closing Time irrevocably waived its right to indemnity pursuant to
Section 9(f)(i)(E) of the Amended and Restated Master Agreement by written
notice to Operator. For purposes of greater certainty, if Royal
Gold has waived its right to indemnity pursuant to Section 9(f)(i)(E) of
the Amended and Restated Master Agreement, the Closing condition set forth
in this Section 2(a)(viii) shall be deemed to be waived by Operator
subject to the Closing occurring;
and
|
|
|
(ix)
|
Deliveries. Royal
Gold shall have delivered, or caused to be delivered, the following to
Operator:
|
|
|
(A)
|
a
certificate of Royal Gold, dated as of the Closing Date, executed by an
authorized senior officer of Royal Gold, certifying that certifying the
conditions set forth in Section 6(a)(i) (Representations and Warranties)
and Section 6(a)(ii) (Covenants) of the Amended and Restated Master
Agreement have been duly satisfied;
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(B)
|
evidence
by the relevant notary public that this Agreement has been executed by
Royal Gold and recorded into the Notary’s registry (repertorio);
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|
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(C)
|
[Intentionally
deleted];
|
C-7
|
|
(D)
|
a
duly executed Registration Rights Agreement, in the form attached as Exhibit E to
the Amended and Restated Master
Agreement;
|
|
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(E)
|
legal
opinions of Xxxxx & Xxxxxxx L.L.P. and Urenda, Rencoret, Xxxxxx y
Xxxx, Abogados, counsel to Royal Gold dated as of the Closing Date, in the
forms attached as Exhibits G-1 and
G-2 of the Amended and Restated Master
Agreement;
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|
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(F)
|
payment
of the Cash Portion, in cash or other immediately available funds, by wire
transfer, in accordance with the written instructions of
Operator;
|
|
|
(G)
|
the
number of shares of Royal Gold Common Stock equal to the Share Portion of
the Purchase Price shall be deposited in a dematerialized form by Royal
Gold's transfer agent on behalf of Royal Gold to the account of Operator
or its nominee as Operator may request by written notice to Royal Gold at
least two business days prior to the Closing Date and Operator shall have
received written confirmation of such deposit to its account or the
account of its nominee as directed;
and
|
|
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(H)
|
certified
copies of resolutions of the directors of Royal Gold approving the
Transactions contemplated by the Amended and Restated Master Agreement and
the execution and delivery of the Amended and Restated Master Agreement
and all documents, instruments and agreements required to be executed and
delivered by Royal Gold pursuant to the Amended and Restated Master
Agreement and the performance by Royal Gold of its rights and obligations
thereunder.
|
(b) Conditions of Closing in
Favor of Royal Gold. The following conditions are for the
exclusive benefit of Royal Gold:
|
|
(i)
|
Representations and
Warranties. The representations and warranties of
Operator contained in the Amended and Restated Master Agreement shall be
true and correct in all respects on and as of the Closing Date with the
same force and effect as though such representations and warranties had
been made at and as of the Closing Date (except for any representation and
warranty made as of specific date, which shall have been true and correct
as of such date), provided, however that
for purposes of determining the accuracy of the representations and
warranties of Operator contained in the Amended and Restated Master
Agreement which have “Material Adverse Effect” qualifications and other
“material” and “materiality” qualifications limiting the scope of the
representations and warranties of Operator contained in the Amended and
Restated Master Agreement or the scope of the defined terms used in the
representations and warranties of Operator contained in the Amended and
Restated Master Agreement,
|
C-8
|
|
(A)
|
all
“Material Adverse Effect” qualifications and other “material” and
“materiality” qualifications limiting the scope of the representations and
warranties of Operator contained in the Amended and Restated Master
Agreement shall be disregarded;
|
|
|
(B)
|
all
“Material Adverse Effect” qualifications and other “material” and
“materiality” qualifications limiting the scope of the defined terms used
in the representations and warranties of Operator contained in the Amended
and Restated Master Agreement shall be disregarded;
and
|
|
|
(C)
|
any
inaccuracies in such representations and warranties of Operator will be
disregarded if such inaccuracies considered collectively do not
constitute, and would not reasonably be expected to have or result in, a
Material Adverse Effect on
Operator;
|
|
|
(ii)
|
Covenants. All
of the terms, covenants, obligations and conditions of the Amended and
Restated Master Agreement to be performed, observed or complied with by
Operator on or before the Closing Date shall have been duly performed,
observed or complied with by
Operator;
|
|
|
(ii)
|
No Orders or
Proceedings. No injunction or restraining order or other
decision, ruling or order of any Governmental Authority of competent
jurisdiction being in effect which prohibits, restrains, materially limits
or imposes material adverse conditions on, the Transactions contemplated
by the Amended and Restated Master Agreement and no action or proceeding
having been instituted or remaining pending or having been threatened and
not resolved before any such Governmental Authority to restrain, prohibit,
materially limit or impose material adverse conditions on such
contemplated Transactions;
|
|
|
(iii)
|
Governmental and Other
Approvals. Any Approvals by any Governmental
Authorities, shareholders of Operator or any other third parties required
to consummate the Transactions contemplated by the Amended and Restated
Master Agreement under any applicable Governmental Requirements or
otherwise shall have been obtained and shall remain in full force and
effect as of the Closing Date;
|
|
|
(iv)
|
Registration
Statement. The appropriate Registration Statement
relating to the shares of Royal Gold Common Stock that constitute the
Share Portion (as defined in Schedule D of
this Agreement) shall have become effective under the Securities Act and
shall not be the subject of any stop order or proceeding seeking a stop
order;
|
C-9
|
|
(v)
|
[Intentionally
deleted]
|
|
|
(vi)
|
Financial
Commitments. Royal Gold shall be entitled to draw down all advances
under Royal Gold’s committed credit facilities existing as of the date of
the Amended and Restated Master Agreement that Royal Gold needs in order
to pay the Initial Cash Portion (as defined in Schedule D of
this Agreement) and consummate the Transactions contemplated by the
Amended and Restated Master
Agreement;
|
|
|
(vii)
|
Committed Metals Sales
Contracts. Operator shall have entered into committed
Metal Sales Contracts on terms consistent with industry practice for the
sale of a minimum of 255,000 tonnes of copper concentrate per annum for a
period of not less than three years, and such Metals Sales Contracts shall
not have been terminated;
|
|
|
(viii)
|
[Intentionally
deleted]
|
|
|
(ix)
|
Approvals Under
Environmental Laws. As of the Closing Date, no material Approval
under any Environmental Laws, which is necessary for the construction or
operation of the Project, will be either: (x) withdrawn or threatened to
be withdrawn by any Governmental Authority; or (y) challenged or
threatened to be challenged by any Person;
and
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|
|
(x)
|
Deliveries. Operator
shall have delivered, or caused to be delivered, the following to Royal
Gold:
|
|
|
(A)
|
a
certificate of Operator dated as of the Closing Date, executed by an
authorized senior officer of Operator, certifying that the conditions set
forth in Section 6(b)(i) (Representations and Warranties) and Section
6(b)(ii) (Covenants) of the Amended and Restated Master Agreement have
been duly satisfied;
|
|
|
(B)
|
evidence
by the relevant notary public that this Agreement has been executed by
Operator and recorded into the Notary’s registry (repertorio) and
authorized copies of the due registration and certificates evidencing the
due registration of the mortgages and grant of prohibition under this
Agreement from the Mining Registry evidencing that no Liens have been made with
respect to the Subject Properties, other than those in favor of Royal Gold
or as set forth on Schedule
3(h) of the Amended and Restated
Master Agreement;
|
|
|
(C)
|
[Intentionally
deleted];
|
|
|
(D)
|
a
duly executed Registration Rights
Agreement;
|
C-10
|
|
(E)
|
a
legal opinion of Xxxxx y Cia., counsel to Operator, dated as of the
Closing Date, in the form attached as Exhibit F to
the Amended and Restated Master
Agreement;
|
|
|
(F)
|
certified
copies of resolutions of the directors and shareholders of Operator
approving the Transactions contemplated by the Amended and Restated Master
Agreement and the execution and delivery of the Amended and Restated
Master Agreement and all documents, instruments and agreements required to
be executed and delivered by Operator pursuant to the Amended and Restated
Master Agreement and the performance by Operator of its rights and
obligations thereunder;
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|
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(G)
|
copies
of the Metal Sales Contracts satisfying the requirements set forth in
Section 6(b)(viii) of the Amended and Restated Master
Agreement;
|
|
|
(H)
|
[Intentionally Deleted];
and
|
|
|
(I)
|
such
other transfers, assignments and other documentation in form and substance
agreed to by the Parties, acting reasonably, required to carry out the
Transactions contemplated by the Amended and Restated Master
Agreement.
|
C-11
SCHEDULE
D
Adjustment
Provisions
The
following provisions shall be used to calculate the adjustments, if any, to the
Share Portion to be delivered to Operator pursuant to Section 2(b) of this
Agreement. After the Closing Date, this Schedule D shall
cease to have any further force or legal effect.
|
1.
|
Certain Defined Terms
and Construction.
|
(a) Capitalized
terms used, but not otherwise defined, in this Schedule D shall have
the meanings otherwise given to them in this Agreement for purposes of this
Schedule
D. If a capitalized term is defined in both this Agreement and
in this Schedule
D, the meaning assigned to such capitalized term in this Schedule D shall
govern for purpose of this Schedule
D. The definitions set forth below (i) shall be used only for
this Schedule D
and not otherwise in connection with this Agreement (unless expressly referenced
elsewhere), and (ii) are not intended to, and do not, amend the definitions in
this Agreement.
(b) As
used in this Schedule
D, the following capitalized terms shall have the following
meanings:
|
|
(i)
|
“Closing” means closing
of the transactions contemplated by this Agreement and the Amended and
Restated Master Agreement;
|
|
|
(ii)
|
“Current Market Price”
means the weighted average trading price of the Royal Gold Common Stock on
the NASDAQ Global Select Market, during the ten consecutive Trading Days
ending on a date which is the fifth Trading Day before such date; provided
that the weighted average trading price shall be determined by dividing
that aggregate sale price of all Royal Gold Common Stock sold on the said
exchange, as the case may be, during the said ten consecutive Trading Days
by the total number of Royal Gold Common Stock so sold; and provided
further that, if the Royal Gold Common Stock are not listed and posted for
trading on any stock exchange in Canada or the United States or traded in
the over-the-counter market, the Current Market Price shall be determined
by the good faith judgment of the board of directors of Royal
Gold.
|
|
|
(iii)
|
“Subsidiary” means any
corporation, association or other business entity more than 50% of each
class of equity or voting securities of which is owned, directly or
indirectly, by any Person.
|
|
|
(iv)
|
“Trading Days” mean days
on which shares of Royal Gold Common Stock are traded on the NASDAQ Global
Select Market.
|
D-1
|
2.
|
Adjustment
Provisions.
|
(a) The
Share Portion shall be adjusted proportionately as necessary if, during the
period beginning on the date of this Agreement and ending on the Closing Date
(the “Intermediary
Period”), Royal Gold:
|
|
(i)
|
fixes
the record date for the issue, or issues to, all or substantially all of
the holders of Royal Gold Common Stock by way of a stock dividend or
otherwise shares of Royal Gold Common Stock or other securities of Royal
Gold or any other issuer convertible into or exchangeable for or otherwise
carrying the right to acquire Royal Gold Common Stock (the “Convertible
Securities”), other than (A) the issue from time to time of Royal
Gold Common Stock or Convertible Securities by way of stock dividend to
holders who elect to receive Royal Gold Common Stock or Convertible
Securities in lieu of cash dividends in the ordinary course or pursuant to
a dividend reinvestment plan or (B) as dividends paid in the ordinary
course; or
|
|
|
(ii)
|
subdivides
or redivides the issued and outstanding shares of Royal Gold Common Stock
into a greater number of shares of Royal Gold Common Stock;
or
|
|
|
(iii)
|
combines,
consolidates or reduces the issued and outstanding shares of Royal Gold
Common Stock into a smaller number of shares of Royal Gold Common
Stock
|
(any of
those events being herein called a “Share
Reorganization”),
effective
immediately after the record date at which the holders of Royal Gold Common
Stock are determined for the purposes of the Share Reorganization or the
effective date of the Share Reorganization if no record date is fixed, to a
number that is the product of (1) the Share Portion in effect on the record
date, or the effective date if no record date is fixed, and (2) a
fraction:
|
|
(A)
|
the
numerator of which shall be the number of Royal Gold Common Stock
outstanding after giving effect to the Share Reorganization;
and
|
|
|
(B)
|
the
denominator of which shall be the number of Royal Gold Common Stock
outstanding on the record date, or effective date if no record date is
fixed, before giving effect to the Share
Reorganization.
|
For the
purposes of determining the number of Royal Gold Common Stock outstanding at any
particular time for the purpose of this Schedule D, there
shall be included that number of Royal Gold Common Stock which would have
resulted from the conversion at that time of all outstanding Convertible
Securities.
D-2
(b) If
during the Intermediary Period, Royal Gold fixes a record date for the issuance
of rights, options or warrants to all or substantially all the holders of Royal
Gold Common Stock pursuant to which those holders are entitled to subscribe for,
purchase or otherwise acquire Royal Gold Common Stock or Convertible Securities
within a period of not more than 45 days from such record date at a price per
share, or at a conversion price per share, of less than 95% of the Current
Market Price on such record date (any such issuance being herein called a “Rights Offering” and Royal
Gold Common Stock that may be acquired on exercise of the Rights Offering, or
upon conversion of the Convertible Securities offered by the Rights Offering,
being herein called the “Offered Royal Gold Common
Stock”), the Share Portion shall be adjusted effective immediately after
the applicable record date to a Share Portion that is the product of (1) the
Share Portion in effect on the record date and (2) a fraction:
|
|
(i)
|
the
numerator of which shall be the sum of (A) the number of Royal Gold Common
Stock outstanding on the record date plus (B) the number of Offered Royal
Gold Common Stock offered pursuant to the Rights Offering or the maximum
number of Offered Royal Gold Common Stock into which the Convertible
Securities so offered pursuant to the Rights Offering may be converted, as
the case may be; and
|
|
|
(ii)
|
the
denominator of which shall be the sum
of:
|
|
|
(A)
|
the
number of Royal Gold Common Stock outstanding on the record date;
and
|
|
|
(B)
|
the
number arrived at when (I) either the product of (a) the number of Offered
Royal Gold Common Stock so offered and (b) the price at which such Offered
Royal Gold Common Stock are offered, or the product of (c) the conversion
price of the Offered Royal Gold Common Stock so offered and (d) the
maximum number of Offered Royal Gold Common Stock for or into which the
Convertible Securities so offered pursuant to the Rights Offering may be
converted, as the case may be, is divided by (II) the Current Market Price
of Royal Gold Common Stock on the record date for the Rights
Offering.
|
If by the
terms of the rights, options, or warrants referred to in this paragraph 2(b) of
this Schedule
D, there is more than one purchase, conversion or exchange price per
Offered Royal Gold Common Stock, the aggregate price of the total number of
additional Offered Royal Gold Common Stock offered for subscription or purchase,
or the aggregate conversion or exchange price of the Convertible Securities so
offered, shall be calculated for purposes of the adjustment on the basis of the
lowest purchase, conversion or exchange price per Offered Royal Gold Common
Stock, as the case may be. Any Offered Royal Gold Common Stock owned
by or held for the account of Royal Gold or a Subsidiary of Royal Gold shall be
deemed not to be outstanding for the purpose of any such computation; if all the
rights, options or warrants are not so issued or if all rights, options or
warrants are not exercised prior to the expiration thereof, the Share Portion
shall be readjusted to the Share Portion in effect immediately prior to the
record date, and the Share Portion shall be further adjusted based upon the
number of Offered Royal Gold Common Stock (or Convertible Securities that are
convertible into Offered Royal Gold Common Stock) actually delivered upon the
exercise of the rights, options or warrants, as the case may be, but subject to
any other adjustment required hereunder by reason of any event arising after
that record date.
D-3
(c) If
during the Intermediary Period there is a reorganization of Royal Gold not
otherwise provided for in paragraphs 2(a) and 2(b) in this Schedule D or a
consolidation, merger, arrangement, amalgamation or acquisition of Royal Gold
by, with or into another body corporate including a transaction whereby all or
substantially all of Royal Gold’s assets become the property of any other Person
through sale, lease, exchange or otherwise (any such event being herein called a
“Capital
Reorganization”), Operator, shall be entitled to receive and shall
accept, in lieu of the Share Portion to which it was theretofore entitled upon
Closing, the aggregate amount of cash and/or the aggregate number of Royal Gold
Common Stock or other securities or property of Royal Gold, or the continuing,
successor or purchasing Person, as the case may be, under the Capital
Reorganization that Operator would have been entitled to receive as a result of
the Capital Reorganization if, on the effective date thereof, Operator had been
the holder of the number of Royal Gold Common Stock to which immediately before
the transaction it was entitled. No Capital Reorganization shall be
carried into effect unless all necessary steps have been taken so that Operator
shall thereafter be entitled to receive the requisite amount of cash and/or the
number of Royal Gold Common Stock or other securities or property of Royal Gold
or of the continuing, successor or purchasing Person, as the case may be, under
the Capital Reorganization, subject to adjustment thereafter in accordance with
provisions the same, as nearly as may be possible, as those contained in this
Schedule
D.
(d) If
during the Intermediary Period Royal Gold reclassifies or otherwise changes the
issued and outstanding shares of Royal Gold Common Stock, the Share Portion
shall be adjusted effective immediately upon the reclassification becoming
effective so that if Operator thereafter shall be entitled to receive such Share
Portion as it would have received had the Share Portion been issued immediately
prior to the effective date, subject to adjustment thereafter in accordance with
provisions the same, as nearly as may reasonably be possible, as those contained
in paragraphs 2(a) through 2(c) of this Schedule
D.
(e) The
adjustments and readjustments provided for in paragraphs 2(b) through 2(d) of
this Schedule D
are cumulative and, apply (without duplication) to successive issues,
subdivisions, combinations, consolidations, distributions and any other events
that require adjustment of the Share Portion.
D-4
EXHIBIT
D
Stockholder
Agreement
(Attached)
D-1
EXHIBIT
E
Form of Registration Rights
Agreement
(Attached)
E-1
EXHIBIT
F
Form of Legal Opinion of
Xxxxx y
Cia.
(Attached)
Xxxxxxxx
de Chile, [●], 2010
Royal
Gold, Inc.
0000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000-0000 XXX
Attention: Vice
President and General Counsel
Facsimile: (000)
000-0000
Ladies
and Gentlemen:
We have
acted as special Chilean counsel to Compañía Minera Xxxx Xxxxxx de Andacollo
(before Compañía Xxxxxx Xxxxxx de Andacollo), a contractual mining company
organized under the laws of Chile (“Operator”), in
connection with:
|
|
(i)
|
the
execution and delivery of an Amended and Restated Master Agreement,
dated [●], 2010 (the “Master
Agreement”), between Royal Gold, Inc., a corporation organized
under the laws of the State of Delaware, Unites States of America (“Royal Gold”)
and the Operator; and
|
|
(ii)
|
the
execution and delivery of the other Transaction Documents (as defined
herein).
|
This
opinion is being delivered pursuant to Section 7(a)(v) of the Master Agreement.
Capitalized terms used herein and not otherwise defined herein have the meanings
assigned to such terms in the Master Agreement.
In
arriving at the opinions expressed herein, we have examined copies of the
following agreements and documents:
|
|
(1)
|
the
Master Agreement;
|
|
|
(2)
|
the
Stockholder Agreement;
|
|
|
(3)
|
the
Registration Rights Agreement;
|
|
|
(4)
|
the
Royalty Agreement (together with the Master Agreement, the Stockholder
Agreement, and the Registration Rights Agreement, the “Transaction
Documents”);
|
|
|
(5)
|
the
Irrevocable Mandate;
|
|
|
(6)
|
copy
of the minutes of the board meeting of Operator held on March 26, 2009,
passed to public deed on March 27, 2009 at the Notarial Office of Santiago
of Xxx. Xxxxx Xxxxxx Xxxxxxx
Toledo;
|
F-1
|
|
(7)
|
copy
of the public deed dated March 30, 2009 granted at the Notarial Office of
Santiago of Xxx. Xxxxx Xxxxxx Xxxxxxx Toledo, corresponding to the special
shareholders meeting of Operator held on such
date;
|
|
|
(8)
|
a
copy of Operator’s original by-laws (estatutos sociales) and
of all amendments thereto, including the registrations required by Chilean
Law (the “By-Laws”);
|
|
|
(9)
|
a
certificate issued by the Mining Registrar of Andacollo on [●], 2010
stating that there is no evidence that Operator has been dissolved;
and
|
|
|
(10)
|
copies
of the documents listed in Schedule A herein (the “Disclosure
Documents”).
|
The
opinions expressed herein are subject to the following
qualifications:
First, we
are attorneys admitted to practice in Chile and we express no opinion as to any
laws other than Chilean law. In particular, we have made no independent
investigation of the laws of the United States of America or any other state as
a basis for our opinion, and have assumed that there is nothing in any such laws
that affect our opinion.
Second,
in considering the Transaction Documents, we have assumed, without any
independent investigation or verification of any kind:
|
|
(i)
|
the
genuineness of all signatures
thereon;
|
|
|
(ii)
|
the
legal capacity of all individuals;
|
|
|
(iii)
|
the
authenticity of all documents and records presented as originals, and the
conformity with the originals of all documents and records presented as
copies;
|
|
|
(iv)
|
the
due authorization, execution and delivery of all Transaction Documents by
the parties thereto other than Operator (with respect to whom we make no
such assumption) and that each such party (other than the Operator) has
adequate power, authority and legal right to enter into each document to
which it is a party; and
|
|
|
(v)
|
that
the execution, delivery and performance of the Transaction Documents and
the consummation of the transactions contemplated thereby, do not and will
not contravene or breach, or result in a default under, or require any
consent of any person under any agreement or other document or instrument
to which any of the parties to any thereof (other than Operator in respect
of which we make no such assumption but solely with regard to provisions
of Chilean law, the By-Laws and the Disclosure Documents) is a party or by
which it is bound.
|
Based
upon the foregoing and subject to the additional qualifications expressed below,
we are of the opinion that:
1. Operator
validly exists as a contractual mining corporation and is in good standing
under the laws of Chile.
2. Operator
has the corporate power to execute, deliver and perform the Transaction
Documents and the Irrevocable Mandate. The execution, delivery and performance
by Operator of each of the Transaction Documents and the Irrevocable Mandate
have been duly authorized by all necessary corporate action of
Operator.
F-2
3. (i)
Each of the Transaction Documents has been duly executed and delivered by
Operator, and (ii) each of the Royalty Agreement and the Irrevocable
Mandate constitutes a valid and binding obligation of Operator, enforceable
against Operator in accordance with its terms (including, for avoidance of
doubt, upon fulfillment of the applicable condiciones suspensivas
provided therein), except that the enforceability of the Royalty Agreement and
the Irrevocable Mandate is subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws affecting
Operator.
4. The
execution, delivery and performance on the date hereof by Operator of the
Transaction Documents and the Irrevocable Mandate do not (i) require any
approval of its shareholders which has not been obtained, (ii) violate the
Chilean Mining Code or the By-Laws, (iii) violate any provision of
Chilean law; (iv) violate any court or administrative order, judgment or
decree listed on Schedule A attached
hereto that names the Operator and is specifically directed to it or any of its
property, or (v) breach or constitute a default under any agreement or
contract to which Operator is a party, listed on Schedule A attached
hereto.
5. No
approval or consent of, or registration or filing with, any governmental
authority is required to be obtained or made by Operator under Chilean law in
connection with the execution, delivery and performance on the date hereof by
Operator of the Transaction Documents and the Irrevocable Mandate (other than
filings necessary to be made by Operator with the Central Bank of Chile in
connection with the acquisition of the Share Portion by Operator and other than
any approvals, consents, registrations, and filings necessary for Operator to
continue to conduct its business as currently conducted).
6. The
Royalty Agreement is effective to create in favor of Royal Gold a mortgage over
the Subject Properties described in the Royalty Agreement.
The
foregoing opinion is subject to the following additional
qualifications:
(i) This
opinion speaks as of the date hereof. We expressly disclaim any responsibility
to advise you of any development or circumstance of any kind including any
change of law or fact that may occur after the date of this opinion letter even
though such development, circumstance or change may affect the legal analysis,
legal conclusions or any other matter set forth in or relating to this opinion
letter. Accordingly, any person relying on this opinion letter at any time after
the date thereof should seek the advice of its counsel as to proper application
of this opinion letter at such time.
(ii) We
are furnishing this opinion letter to and for your benefit in connection with
the above described transaction. It is not, however, to be used, circulated,
quoted or otherwise referred to for any other purpose without our prior written
consent.
Very truly yours,
·
Xxxxxx
Xxxxxxx
XXXXX
Y CIA. LTDA.
F-3
EXHIBIT
G-1
Form of Legal Opinion of
Xxxxx & Xxxxxxx L.L.P.
(Attached)
(a) Royal
Gold is validly existing and in good standing under the laws of the State of
Delaware.
(b) Royal
Gold has the corporate power to execute, deliver and perform the Agreement and
each of the other Transaction Documents. The execution, delivery and
performance by Royal Gold of the Agreement and each of the other Transaction
Documents have been duly authorized by all necessary corporate action of Royal
Gold.
(c) The
Agreement and each of the other Transaction Documents has been duly executed and
delivered by Royal Gold.
(d) The
Agreement and the Registration Rights Agreement each constitute a valid and
binding obligation of Royal Gold, enforceable against Royal Gold in accordance
with its terms, except that the enforceability of each of the Agreement and the
Registration Rights Agreement is subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws affecting Royal
Gold and that no opinion is expressed herein as to the enforceability of rights
of indemnity or contribution under Section 2.8 of the Registration Rights
Agreement.
(e) The
execution, delivery and performance on the date hereof by Royal Gold of the
Agreement and the other Transaction Documents do not (i) require any
approval of its shareholders which has not been obtained, (ii) violate the
General Corporation Law of the State of Delaware or Royal Gold’s certificate of
incorporation or by-laws, (iii) violate any provision of the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as
amended, (together “Applicable Federal
Law”), (iv) violate any court or administrative order, judgment or decree
listed on Schedule
1 attached hereto that names Royal Gold and is specifically directed to
it or any of its property, or (v) breach or constitute a default under any
agreement or contract to which Royal Gold is a party filed as an exhibit to
Royal Gold’s Annual Report on Form 10-K/A for the Fiscal Year ended June 30,
2008 (except that we express no opinion with respect any matters that would
require a mathematical calculation or a financial or accounting
determination).
(f)
No approval or consent of, or
registration or filing with, the Securities and Exchange Commission or any
Colorado governmental authority is required to be obtained or made by Royal Gold
under Applicable Federal Law or Colorado law in connection with the execution,
delivery and performance on the date hereof by Royal Gold of the Agreement and
the other Transaction Documents (other than [ ], which
approvals have been obtained and other than any approvals, consents,
registrations, and filings necessary for Royal Gold to continue to conduct its
business as currently conducted).
G-1
(g) The
shares of Royal Gold Common Stock constituting the Share Portion (the “Shares”) have been
duly authorized, and when issued in accordance with the provisions of the
Agreement, the Shares will be validly issued, fully paid and
non-assessable.
(h) The
Royal Gold Common Stock conforms as to legal matters in all material respects to
the description thereof contained in the Prospectus under the caption
“Description of Common Stock.”
(i)
No holder of outstanding shares of Royal
Gold Common Stock has any statutory preemptive right under the General
Corporation Law of the State of Delaware or Royal Gold’s certificate of
incorporation or, to our knowledge, any contractual right to subscribe for any
of the Shares.
Statement
outside of the body of the opinions: The Shares are being issued
under Royal Gold’s Registration Statement on Form S-4 (File No. [
]).
G-2
EXHIBIT
G-2
Form of Legal Opinion of
Urenda, Rencoret, Xxxxxx y Xxxx, Abogados
(Attached)
(a) The
Royalty Agreement and the Irrevocable Mandate each constitute a valid and
binding obligation of Royal Gold, enforceable against Royal Gold in accordance
with its terms (including, for avoidance of doubt, upon fulfillment of the
applicable condiciones
suspensivas provided therein), except that the enforceability of the
Royalty Agreement and the Irrevocable Mandate is subject to applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws affecting Royal Gold.
(b) The
execution, delivery and performance on the date hereof by Royal Gold of the
Agreement, the other Transaction Documents and the Irrevocable Mandate do not
violate any provision of (i) the
Chilean Mining Code or (ii) any other provision of Chilean
law.
(c) No
approval or consent of, or registration or filing with, any governmental
authority is required to be obtained or made by Royal Gold under Chilean law in
connection with the execution, delivery and performance on the date hereof by
Royal Gold of the Agreement, the other Transaction Documents and the Irrevocable
Mandate (other than any approvals, consents, registrations, and filings
necessary for Royal Gold to continue to conduct its business as currently
conducted).
G-3
EXHIBIT
H
Form of Side Letter
Agreement
(Attached)
January
[·], 2010
ROYAL
GOLD, INC.
0000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
XX 00000-0000 XXX
Attention: Vice
President and General Counsel
Facsimile: (000)
000-0000
ROYAL
GOLD CHILE LIMITADA
c/o ROYAL
GOLD, INC.
Re: Overlapping Dayton
Concessions
Dear
Sirs:
Reference
is made to (i) the Royalty Agreement by and between Royal Gold, Inc. and
Compañía Minera Xxxx Xxxxxx de Andacollo, executed by public deed granted before
the Notary Public of Santiago Xx. Xxxxxx Xxxxx Xxxxxx on January [·], 2010 (the “Royalty Agreement”)
and (ii) the Amended and Restated Master Agreement by and between the same
parties mentioned above, executed by means of a private instrument dated January
12, 2010 (the “Master
Agreement”).
Capitalized
terms used but not defined in this letter agreement (this “Letter Agreement”)
have the meanings assigned to them in the Master Agreement.
This
Letter Agreement will serve to confirm the agreement of the parties hereto as
follows:
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1.
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Operator
undertakes to constitute or cause the constitution of a first degree
mortgage and prohibitions, in the terms set forth in Clauses Sixth (p) and
Sixth (q) of the Royalty Agreement, respectively, on any Overlapping
Dayton Concession wholly or partially within the Shaded Area, which has
been transferred to Dayton, but then in the future, is reacquired by Operator or any
Affiliate of Operator.
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H-1
Operator
shall notify Royal Gold (or its authorized successor under the Royalty
Agreement) in writing of the reacquisition of any Overlapping Dayton Concession
referred to above, when applicable, within 60 days from the respective date of
the acquisition public deed and Operator shall enter into, or cause the entering
into of, the corresponding public deeds for the constitution of mortgages and
prohibitions within 90 days from the date of such acquisition public
deed.
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2.
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From
the date hereof, all the provisions contained in the Master Agreement
regarding Overlapping Dayton Concessions, in particular but not limited to
those contained in Sections 5(c)(ix), 5(c)(x), 5(c)(xi), 5(c)(xii),
5(c)(xiii) and 5(c)(xv), together with the covenants set forth in Section
1. of this Letter Agreement, shall be governed by and construed under the
laws of Chile, without giving effect to those principles of conflicts of
laws that might otherwise require application of the laws of any other
jurisdiction, and any dispute with respect to such matters shall be
governed by the provisions of Clause Seventh (b) (Dispute Resolution –
Solución de
Controversias–) of the Royalty Agreement and not the dispute
resolution provisions of the Master
Agreement.
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3.
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Section
9(d) of the Master Agreement (Assignment) is made applicable to this
Letter Agreement and is deemed to be reproduced herein in its entirety,
and any reference therein to the Agreement, shall be understood as a
reference to this Letter
Agreement.
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4.
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The
parties hereto agree that from the date Royal Gold Chile Limitada (“RG Chile”)
becomes the successor of Royal Gold under the Royalty Agreement (the
“Assignment
Date”), RG Chile will assume, from such date on, the contractual
position that until the Assignment Date corresponded to Royal Gold under
this Letter Agreement, such that each time that in this instrument a
reference is made to “Royal Gold, Inc.” or “Royal Gold”, as of the
Assignment Date said reference shall be understood to be made for all
legal purposes to Royal Gold Chile
Limitada.
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5.
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The
parties hereto also agree that no assignment of the Royalty Agreement from
RG Chile to a third party, and no subsequent assignment of the Royalty
Agreement thereafter, may take place until the corresponding assignee has
assumed the contractual position of the assignor under this Letter
Agreement and becomes bound by the
same.
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H-2
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6.
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This
Letter Agreement may not be amended or any provision hereof waived or
modified except by an instrument in writing signed by the parties
hereto. Delivery of an executed signature page of this Letter
Agreement by facsimile or other electronic image scan transmission shall
be effective as delivery of a manually executed counterpart of this Letter
Agreement. This Letter Agreement is intended to be solely for the benefit
of the parties hereto and is not intended to confer any benefits upon, or
create any rights in favor of, any person other than the parties
hereto.
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7.
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This
Letter Agreement shall be governed by, and construed in accordance with,
the laws of Chile, without giving effect to those principles of conflicts
of laws that might otherwise require application of the laws of any other
jurisdiction, and any dispute with respect to this Letter Agreement shall
be governed by the provisions of Clause Seventh (b) (Dispute Resolution –
Solución de
Controversias –) of the Royalty Agreement (and any reference
therein to the Agreement – Contrato –, shall be
understood as a reference to this Letter
Agreement).
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[signature
pages follow]
H-3
If the
foregoing correctly sets forth our understanding, please indicate your
acceptance of the terms hereof by returning to us an executed counterpart
hereof, whereupon this Letter Agreement shall become a binding agreement between
us.
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Very
truly yours,
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COMPAÑÍA
MINERA XXXX XXXXXX DE
ANDACOLLO
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By
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Name:
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Title:
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CC:
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Xxxxx
& Xxxxxxx L.L.P.
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One
Xxxxx Center
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0000
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
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Xxxxxx,
XX 00000 XXX
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Attention: Xxxx
Xxxxxx, Esq.
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Facsimile: (000)
000-0000
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H-4
Accepted
and agreed to as of
the date
first above written:
ROYAL
GOLD, INC.
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By
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Name:
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Title:
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H-5
