GUARANTY AND AGREEMENT IN SUPPORT OF SOMITA FUNDING AGREEMENT
Exhibit 10.1
GUARANTY AND AGREEMENT
IN SUPPORT OF SOMITA FUNDING AGREEMENT
IN SUPPORT OF SOMITA FUNDING AGREEMENT
This GUARANTY AND AGREEMENT IN SUPPORT OF SOMITA FUNDING AGREEMENT (this “Agreement”)
dated as of February 22, 2006, is from HIGH RIVER GOLD MINES LTD., a corporation formed under the
laws of Canada (“High River”) to and for the benefit of ROYAL GOLD, INC., a Delaware
corporation (“Royal Gold”).
Recitals
A. Société des Mines de Taparko, also known as SOMITA, SA, a société anonyme formed under the
laws of the Republic of Burkina Faso (“Somita”) and Royal Gold entered into a Funding
Agreement dated as of December 1, 2005 (the “Original Funding Agreement”), as amended by
First Amendment to Funding Agreement dated as of February 8, 2006 (the “First Amendment”),
and as further amended and restated by Amended and Restated Funding Agreement dated as of February
22, 2006 (as so amended and restated, the “Funding Agreement”). Pursuant to the Funding
Agreement Royal Gold has agreed to provide funding to Somita in the amount of U.S. $35,000,000 to
be used in the development of the Taparko — Bouroum Project (defined below) in the Republic of
Burkina Faso.
B. As consideration for the funding to be provided pursuant to the Funding Agreement, Somita
has executed a Conveyance of Production Payments (PP1 and PP2) (the “Production Payment
Conveyance”) and a Conveyance of Tail Royalty and Grant of Milling Fee (the “Tail Royalty
Conveyance”), both dated as of February 22, 2006 and both in favor of Royal Gold (collectively,
the “Conveyances”).
C. High River is the indirect owner of 90% of the issued and outstanding shares of Somita,
through its subsidiary High River Gold Mines (West Africa) Ltd., a corporation formed under the
laws of the Cayman Islands (“Shareholder”). The Government of the Republic of Burkina Faso
is the owner of the remaining 10% of the issued and outstanding shares of Somita.
D. Prior to the date of this Agreement, Royal Gold has provided Somita the amount of
$9,414,000 under the First Tranche pursuant to the terms and conditions of the Original Funding
Agreement, as amended by the First Amendment.
E. It is a condition precedent to Royal Gold’s obligation to disburse the Second Tranche under
the Funding Agreement that High River shall execute and deliver to Royal Gold an undertaking by
High River to assure completion of the Taparko — Bouroum Project, to assure proper application of
the funds provided by Royal Gold in accordance with the Funding Agreement and the other Funding
Documents, to contribute capital to Somita or obtain other financing of the Taparko — Bouroum
Project in the event of a shortfall prior to completion, to assure payment of amounts that have
become due and payable under the Conveyances, and such other matters as are set forth herein.
F. The board of directors of High River has determined that (i) High River will derive
substantial direct and indirect benefit from the transactions contemplated by the Funding Agreement
and the documents related thereto, (ii) Somita’s ability to continue to obtain the
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funding from Royal Gold under the Funding Agreement is important to the financial success of Somita
and High River, (iii) High River will derive economic benefit from the financial success of Somita,
and (iv) it is in the best interests of High River, and necessary and convenient to the conduct,
promotion and attainment of the business of High River, for High River to support the obligations
of Somita under the Funding Agreement and the documents related thereto.
G. This Agreement is executed and delivered to Royal Gold by High River to induce Royal Gold
to disburse the Second Tranche and each subsequent Tranche to Somita under the Funding Agreement
and in satisfaction of a condition precedent to Royal Gold providing such funding. High River
acknowledges and agrees that Royal Gold would not provide the funding to Somita under the Funding
Agreement unless High River executed and delivered this Agreement.
H. This Agreement is the document referred to as “Guaranty II” in the Funding Agreement.
Agreement
THEREFORE, in consideration of Royal Gold’s providing funding as set forth in the Funding
Agreement, and the benefits to be derived therefrom by High River, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, High River agrees as
follows:
1. Definitions. Reference is hereby made to the Funding Agreement for all purposes.
All terms used in this Agreement that are defined in the Funding Agreement and not otherwise
defined herein shall have the same meanings when used herein. As used herein, terms defined above
in the recitals shall have the meanings indicated above, and the following terms shall have the
following meanings:
“Bouroum Lands” means all of the land included in the Bouroum Permit, being
approximately 11.7 square kilometers, which land is more particularly described in Schedule A
attached hereto.
“Bouroum Permit” means Decree No. 2005-342/PRES/PM/MCE/MFB issued by the Government of
the Republic of Burkina Faso on June 21, 2005.
“Obligations” means the obligations of High River and Somita described in Sections 2,
3 and 4 collectively.
“Pledge Agreement” means the Pledge Agreement dated as of February 22, 2006 among High
River Gold Mines (International) Ltd. (“International”), Shareholder and Royal Gold.
“Taparko — Bouroum Project” means development and exploitation of the Taparko Lands
and the Bouroum Lands for production of gold and associated precious metals, including construction
of a mine, support facilities and the Taparko Processing Facility.
“Taparko Lands” means that portion of the land included in the Taparko Permit that is
more particularly described in Schedule B hereto, being approximately 34.7 square kilometers out of
the total 666.5 square kilometers included in such permit.
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“Taparko Mining Convention” means the mining investment convention signed by High
River and the Minister for Energy and Mines on behalf of the Republic of Burkina Faso on December
15, 1995.
“Taparko Permit” means Decree No. 2004-329/PRES/PM/MCE/MFB/MEDE/MECV issued by the
Government of the Republic of Burkina Faso on August 6, 2004.
“Taparko Processing Facility” means the CIL processing facility to be constructed by
Grantor on or adjacent to the Taparko Lands, capable of milling and processing at least 1,000,000
tonnes of ore per year.
2. Completion Guarantee. High River unconditionally and absolutely guarantees to
Royal Gold the due and punctual performance and observance by Somita, Shareholder and International
of all of the terms, covenants, provisions and agreements contained in the Funding Agreement and
the other Funding Documents executed in connection therewith or contemplated thereby pertaining to
the obligations of Somita, Shareholder and International with respect to Project Completion of the
Taparko — Bouroum Project. Without limiting the generality of the foregoing, High River agrees:
(a) to perform, complete, and pay for the construction of the Taparko — Bouroum Project in
accordance with the Funding Agreement and the Development Plan, as the Development Plan has been or
may be modified or amended from time to time, within the time period allotted therefor and to pay
all costs of said construction and all costs associated therewith, if Somita shall fail to perform
or complete such work;
(b) to reimburse Royal Gold for all costs and expenses incurred by Royal Gold in exercising
any and all of its rights and remedies in connection with a default by Somita in failing to achieve
Project Completion as set forth in the Funding Agreement and the Development Plan;
(c) to reimburse Royal Gold for any and all of the Funding that is not applied by Somita as
required to be applied pursuant to the Funding Agreement and the other Funding Documents;
(d) if Project Completion is not achieved by September 30, 2007, to reimburse any and all of
the Funding made by Royal Gold prior to such date, unless Royal Gold shall have elected to
foreclose on the shares of Somita or Shareholder prior to such date;
(e) if any mechanic’s or materialman’s or similar liens should be filed, or should attach,
with respect to any of the property included in the Taparko — Bouroum Project by reason of the
construction undertaken pursuant to the Funding Agreement, cause the removal of such liens within
30 days after the filing or recording thereof;
(f) to pay the legitimate costs and fees of all contractors, engineers and others employed by
Somita if said costs and fees are not paid by Somita; and
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(g) to pay all of Royal Gold’s costs and expenses, including, without limitation, attorneys’
fees, incurred in the enforcement of this Agreement and the provisions of the Funding Documents
covered by this Agreement.
Notwithstanding the foregoing and for greater certainty, High River’s obligations as set forth in
this provision, other than accrued and unpaid or unperformed obligations, shall automatically
terminate and be of no further force and effect immediately upon Project Completion. Project
Completion shall be determined in accordance with the Funding Agreement.
3. Agreement to Contribute to Capital or Arrange Additional Financing. High River
unconditionally and absolutely guarantees that Somita will have sufficient funds, in addition to
the Funding, to achieve Project Completion on the schedule set forth in the Funding Agreement, and
in support thereof, High River shall, if at any time prior to Project Completion there is a
reasonable likelihood of a shortfall in the capital of Somita that could result in the failure of
Somita to achieve Project Completion for whatever reason on the time schedule set forth in the
Funding Agreement, High River shall promptly cause Shareholder to contribute equity to Somita, or
shall arrange other funding or financing for Somita, sufficient in amount to cover any such
perceived shortfall. Notwithstanding the foregoing and for greater certainty, High River’s
obligations as set forth in this provision, other than accrued and unpaid or unperformed
obligations, shall automatically terminate and be of no further force and effect immediately upon
Project Completion. Project Completion shall be determined in accordance with the Funding
Agreement.
4. Guaranty of Payments Under the Conveyances. High River unconditionally and
absolutely guarantees the full and prompt payment when due, in lawful money of the United States,
all amounts earned and payable under the Conveyances, except to the extent (a) a refiner under a
Refining Contract has expressly agreed to make such payments directly to Royal Gold, or (b) payment
is rendered impossible due to an event or action by the Government of the Republic of Burkina Faso
beyond Somita’s control. The obligations of High River set forth in this paragraph shall continue
after Project Completion.
5. Obligations Absolute. The obligations of High River hereunder are primary,
absolute and unconditional and are intended as a continuing guaranty of payment and performance by
High River. The right of recovery against High River shall exist notwithstanding any right or
power of Somita or anyone else to assert any claim or defense as to the genuineness, regularity,
validity or enforceability of any of the Obligations, any collateral security therefor, any
guaranty thereof or the Funding Agreement, the Conveyances or the Pledge. This is a guaranty of
payment and not of collection, and Royal Gold shall not be required to take any action against
Somita or resort to any other security given for the performance of Somita’s obligations as a
precondition to the obligations of High River hereunder.
6. No Impairment of Liability. High River agrees that its liability hereunder will
not be released, reduced, impaired or affected by any one or more of the following events:
(a) Royal Gold’s obtaining collateral from Somita or any other person to secure payment or
performance of the Funding Agreement or the Conveyances;
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(b) the assumption of liability by any other person (whether as guarantor or otherwise) for
payment or performance under the Funding Agreement or the Conveyances;
(c) the release, surrender, exchange, loss, termination, waiver or other discharge of any
collateral securing payment or performance under the Funding Agreement or the Conveyances;
(d) the subordination, relinquishment or discharge of Royal Gold’s rights relating to the
Funding Agreement, the Conveyances or the Pledge Agreement or any collateral described therein;
(e) the foreclosure upon any collateral given to secure any liability of Somita by judicial or
non-judicial sale;
(f) the loss or impairment of any right of subrogation of the High River;
(g) the full or partial release from liability of Somita or any other person now or hereafter
liable for payment or performance under the Funding Agreement or the Conveyances;
(h) the insolvency, bankruptcy, reorganization, discharge, waiver or other exoneration of
Somita or any other person now or hereafter liable for payment or performance under the Funding
Agreement or the Conveyances;
(i) the modification or amendment from time to time of the Funding Agreement or the
Conveyances or of the terms of the Funding Agreement or the Conveyances;
(j) the failure, delay, waiver or refusal by Royal Gold to exercise any right or remedy held
by Royal Gold under the Funding Agreement, the Conveyances or the Pledge Agreement;
(k) the sale, encumbrance, transfer or other modification of the ownership of Somita or
Somita’s assets, or the change in the financial condition or management of the Somita;
(l) the invalidity, unenforceability or insufficiency of the Funding Agreement, the
Conveyances or the Pledge Agreement or any collateral securing payment or performance thereunder;
or
(m) the failure of the High River to receive notice of any one or more of the foregoing
actions or events.
High River specifically acknowledges and agrees that Royal Gold may, at its option without notice
to or further consent of High River, take any of the foregoing actions and that if Royal Gold
elects to take any of the foregoing actions or any of the foregoing events occur, that such actions
or events shall in no way reduce, affect, impair or limit the liability of High River hereunder.
7. Waivers by High River. High River hereby expressly waives (a) demand for payment,
notice of nonpayment or nonperformance; (b) notice of the existence or creation of all or any part
of the Obligations; (c) notice of demand, advertisement or notice of time or place of
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sale of any collateral securing any of the Obligations; (d) all presentments, demands for
performance, notices of nonperformance, protests and all other notices whatsoever; (e) any right to
require Royal Gold to proceed against Somita or any security held in relation to the Obligations or
to pursue any other right or remedy in Royal Gold’s power; (f) any right to contest the enforcement
of this Agreement by virtue of any statute of limitations or other law varying the terms of this
Agreement; (g) any other defense available to High River at law or in equity; or (h) the rights to
interpose counterclaims or set offs of any kind or description in any litigation arising under this
Agreement.
8. Waiver of Subrogation. High River hereby irrevocably waives any claims or other
rights which it may now or hereafter acquire against Somita that arise from the existence or
performance of High River’s obligations under this Agreement, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy Royal Gold has against Somita or any collateral which Royal Gold
now or hereafter acquires, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, by any payment made hereunder or otherwise including, without
limitation, the right to take or receive from Somita, directly or indirectly, in cash or other
property or setoff or in any other manner, payment or security on account of such claim or other
rights.
9. Representations and Warranties. High River hereby represents and warrants to Royal
Gold as follows:
(a) High River is a corporation duly organized, validly existing and in good standing under
the federal laws of Canada, having all powers required to carry on business and enter into and
carry out the transactions contemplated hereby. High River is duly qualified, in good standing,
and authorized to do business in all jurisdictions wherein the character of the properties owned or
held by it or the nature of the business transacted by it makes such qualification necessary,
except where the failure to so qualify could not have a Material Adverse Effect.
(b) High River has the requisite power to own and operate its properties, to carry on business
and to execute, deliver, and perform this Agreement and each of the other Funding Documents to
which it is or will be a party. High River has duly taken all action necessary to authorize the
execution and delivery by it of the Funding Documents to which it is a party and to authorize the
consummation of the transactions contemplated thereby and the performance of its obligations
thereunder.
(c) The execution and delivery by High River of this Agreement and the other Funding Documents
to which it is a party, the performance of its obligations hereunder and thereunder and the
consummation of the transactions contemplated hereby and thereby, do not and will not (i) conflict
with any provision of (A) any Law applicable to High River or its business, (B) its organizational
documents, or (C) any material agreement, judgment, license, order or permit applicable to or
binding upon it or to which its assets are subject, (ii) result in the acceleration of any
Indebtedness owed by it, or (iii) result in or require the creation of any Lien upon any assets or
properties owned by it except as expressly contemplated or permitted in this Agreement or the other
Funding Documents. Except as expressly contemplated in this Agreement or the other Funding
Documents, no permit, consent, approval, authorization or order
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of, and no notice to or filing with, any Tribunal or third party is required (x) in connection with
the execution, delivery or performance of this Agreement or any other Funding Documents to which it
is a party, or (y) to consummate any transactions contemplated by this Agreement or any other
Funding Documents to which it is a party.
(d) This Agreement is, and the other Funding Documents to which High River is a party, when
duly executed and delivered will be, legal, valid and binding obligations of High River,
enforceable in accordance with their terms except as such enforcement may be limited by bankruptcy,
insolvency or similar Laws of general application relating to the enforcement of creditors’ rights,
and subject to the qualifications that equitable remedies may only be granted in the discretion of
a court of competent jurisdiction and that rights of indemnity, contribution and waiver of
contribution may be limited under applicable law.
(e) High River has heretofore delivered to Royal Gold true, correct and complete copies of
financial statements of High River as of December 31, 2005 (the “HRG Financial
Statements”). The HRG Financial Statements fairly present in all material respects High
River’s consolidated financial position at the respective dates thereof and the consolidated
results of High River’s operations and consolidated cash flows for the respective periods thereof
subject, in the case of the unaudited financial statements of High River, to year-end adjustments
and matters that would be disclosed in financial statement notes. Since the date of the most
recent annual HRG Financial Statements of High River, no Material Adverse Effect has occurred. All
HRG Financial Statements were prepared in accordance with Canadian GAAP except, with respect to the
unaudited financial statements of High River, subject to year-end adjustments and matters that
would be disclosed in financial statement notes.
(f) High River is not in default in the payment when due of any principal of or interest on
any of its indebtedness in excess of $100,000 in the aggregate (other than indebtedness the
validity of which is being contested in good faith by appropriate proceedings and for which
adequate reserves with respect thereto are maintained on the books of High River in accordance with
Canadian GAAP), and no event specified in any note, agreement, indenture or other document
evidencing or relating to any such indebtedness has occurred that has caused, or (with the giving
of any notice or the lapse of time or both) would permit the holder or holders of such indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, such indebtedness to become
due, or to be prepaid in full (whether by redemption, purchase, offer to purchase or otherwise),
prior to its stated maturity.
(g) No certificate, statement or other written information (taken as a whole) delivered
herewith or heretofore by High River to Royal Gold in connection with the negotiation of this
Agreement or in connection with any transaction contemplated hereby contains, and no certificate,
statement or other written information (taken as a whole) delivered hereafter by any High River to
Royal Gold will contain, any untrue statement of a material fact or omits to state any material
fact known to a Responsible Officer of High River (other than industry-wide risks normally
associated with the types of businesses conducted by High River) necessary to make the statements
contained herein or therein not materially misleading as of the date made or deemed made. There
are no statements or conclusions in any Project Engineer report which, to the knowledge of any
Responsible Officer of High River, are based upon or include misleading information or fail to take
into account material information regarding the matters reported
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therein, it being understood that each Project Engineer report is necessarily based upon
professional opinions, estimates and projections and that High River does not warrant that such
opinions, estimates and projections will ultimately prove to have been accurate.
(h) There are no actions, suits or legal, equitable, arbitrative or administrative proceedings
pending, or to the knowledge of a Responsible Officer of High River threatened in writing, against
High River before any Tribunal that could cause a Material Adverse Effect, and there are no
outstanding judgments, injunctions, writs, rulings or orders by any such Tribunal against High
River that could cause a Material Adverse Effect.
(i) Upon giving effect to the execution of the other Funding Documents to which High River is
a party and the consummation of the transactions contemplated hereby and thereby (i) High River
will be solvent (as such term is used in applicable bankruptcy, liquidation, receivership,
insolvency or similar Laws), and the sum of High River’s absolute and contingent liabilities,
including the Obligations or guarantees thereof, shall not exceed the fair market value of High
River’s assets, and (ii) High River’s capital will be adequate for the businesses in which High
River is engaged and intends to be engaged. High River has not incurred (whether hereunder, under
the other Funding Documents to which it is a party or otherwise), nor does High River intend to
incur, or believe that it will incur, debts that will be beyond its ability to pay as such debts
mature.
(j) High River is not in default in the performance of any of its covenants and agreements
contained herein or in any other Funding Document to which it is a party. No event has occurred
and is continuing that constitutes a Default.
(k) Somita has all rights as a party under the Taparko Mining Convention indirectly through
High River as a party as if Somita had been a signatory to such document.
10. Affirmative Covenants. High River hereby warrants, covenants and agrees that
until performance of the Obligations, unless Royal Gold shall have previously agreed otherwise:
(a) Until Project Completion, High River shall notify Royal Gold, not later than five (5)
Business Days after any Responsible Officer of High River has knowledge thereof, stating that such
notice is being given pursuant to this Agreement, of:
(i) a determination by a Responsible Officer that a Material Adverse Effect affecting
High River has occurred,
(ii) the occurrence of any Default,
(iii) the acceleration of the maturity of any indebtedness owed by High River under
any indenture, mortgage, agreement, contract or other instrument to which High River is a
party or by which High River or any of its properties are bound, in each case, relating to
indebtedness is excess of $100,000 and that would permit the lender to accelerate such
indebtedness, and
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(iv) the filing of any suit or proceeding, or the assertion in writing of a claim
against High River or with respect to High River’s properties in which an adverse decision
could have a Material Adverse Effect on High River.
Each notice pursuant to this section shall be accompanied by a statement of a Responsible Officer
of High River setting forth details of the occurrence referred to therein and stating what action,
if any, High River has taken or proposes to take with respect thereto. High River will also notify
Royal Gold in writing at least twenty Business Days prior to the date that it changes its name or
the location of its executive offices or principal place of business.
(b) After Project Completion and until satisfaction of the PP1 and PP2 Obligations, High River
shall deliver to Royal Gold a certificate of a Responsible Officer of High River by the end of each
calendar quarter, stating that to the best of his knowledge none of the events specified in (i)
through (iv) of Section 10(a) above has occurred or, if the same has occurred, setting forth
details of such occurrence and stating what action, if any, High River has taken or proposes to
take with respect thereto.
(c) High River will maintain and preserve its existence and its rights and franchises in full
force and effect and will qualify to do business in all jurisdictions where required by applicable
Law, except where the failure so to qualify could have a Material Adverse Effect on High River.
(d) Until Project Completion, High River shall, and shall cause Shareholder, International and
Somita to, promptly cure any defects, errors or omissions in the execution and delivery of the
Funding Documents and, upon notice, take such other action and immediately execute and deliver to
Royal Gold all such other and further instruments as may be reasonably required or desired by Royal
Gold from time to time in compliance with the covenants and agreements made in this Agreement and
the other Funding Documents.
(e) High River shall maintain the Taparko Mining Convention in force and effect and shall
perform all of its obligations thereunder and enforce all of its rights thereunder on behalf of
itself and in trust for Somita.
(f) Until Project Completion, High River will not voluntarily or involuntarily transfer title
to any of its material assets without fair consideration or take any other action or suffer the
same to be done, if such action could have a Material Adverse Effect on High River’s ability to
fulfill its obligations to Royal Gold hereunder.
11. Amendments. No provision or term of this Agreement may be amended, modified,
revoked, supplemented, waived or otherwise changed except by a written instrument duly executed by
High River and Royal Gold and designated as an amendment, supplement or waiver.
12. Agreement Reinstated. This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of any of the
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Obligations is rescinded or must otherwise be restored or returned by Royal Gold, all as though
such payment had not been made.
13. Notices. Any notice, election, report or other correspondence required or
permitted hereunder shall be in writing and shall be deemed sufficiently given or furnished if
delivered by personal delivery, by facsimile or other electronic transmission, or by delivery
service with proof of delivery, to each of the parties at its address below (unless changed by
similar notice in writing given by the party whose address is to be changed):
If to High River:
High River Gold Mines Ltd.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: President
Facsimile: (000) 000-0000
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: President
Facsimile: (000) 000-0000
with a copy to Xxxxxxx Xxxxx & Xxxxxxxxx LLP:
Xxxxxxx Xxxxx & Xxxxxxxxx LLP
2100 Scotia Plaza, 00 Xxxx Xxxxxx X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
2100 Scotia Plaza, 00 Xxxx Xxxxxx X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
If to Royal Gold:
Royal Gold, Inc.
0000 Xxxxxxx Xx.
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: President
Facsimile Number: 000-000-0000
0000 Xxxxxxx Xx.
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: President
Facsimile Number: 000-000-0000
Any such notice or communication shall be deemed to have been given (a) in the case of personal
delivery or delivery service, as of the date of first attempted delivery during normal business
hours at the address provided herein, (b) in the case of facsimile, upon receipt, or (c) in the
case of other electronic transmission, upon acknowledgment of receipt by the recipient within
twenty-four (24) hours of first attempted delivery.
14. Captions and Headings. The captions and headings of the various sections of this
Agreement are for convenience only, and are not to be construed as confining or limiting in any way
the scope or intent of the provisions hereof.
15. Binding Effect. This Agreement will be binding on High River and its successors
and permitted assigns, and will inure to the benefit of Royal Gold and all successors and
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permitted assigns of Royal Gold. High River consents to the assignment of all or any portion of
the rights of Royal Gold hereunder in connection with any permitted assignment of the rights of
Royal Gold under the Funding Agreement or the Conveyances with prior notice to High River.
16. Waiver. Royal Gold shall not be deemed to have waived any provision of this
Agreement unless such waiver is in writing and is signed by Royal Gold.
17. Provisions Several/Illegality. The unenforceability or invalidity of any
provision or provisions hereof shall not render any other provision or provisions herein contained
unenforceable or invalid and in lieu of each such illegal, invalid or unenforceable provision there
shall be added automatically as a part of this Agreement a provision as similar in terms to such
illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and
enforceable.
18. Choice of Law. This Agreement has been negotiated, executed and delivered in
Denver, Colorado, and is intended to be construed in accordance with the laws of the State of
Colorado.
19. Consent to Jurisdiction; Waiver of Jury Trial, etc..
(a) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NON EXCLUSIVE JURISDICTION OF, AT THE ELECTION
OF ROYAL GOLD, ANY UNITED STATES FEDERAL OR COLORADO STATE COURT SITTING IN DENVER, COLORADO
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR FOR RECOGNITION
OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN ANY SUCH COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN
THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ROYAL GOLD MAY OTHERWISE HAVE TO BRING ANY ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST HIGH RIVER OR ITS PROPERTIES IN THE COURTS
OF ANY JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN THIS SECTION 19(a). EACH OF THE
PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
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(b) HIGH RIVER HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO THE SERVICE OF
PROCESS IN ANY SUIT, ACTION OR PROCEEDING IN SAID COURTS BY THE MAILING THEREOF IN
ACCORDANCE WITH SECTION 20 OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ROYAL GOLD TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
(d) EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ANY RIGHT
IT MAY HAVE TO A TRIAL BY A JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENTS OR TRANSACTIONS
RELATING THERETO.
(e) High River represents and warrants that it has consulted with its legal counsel
regarding all waivers under this Agreement.
20. Service of Process. Service of process in any matter shall be made to High River
at the following address:
High River Gold Mines Ltd.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: President
Facsimile: (000) 000-0000
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: President
Facsimile: (000) 000-0000
with a copy to Xxxxxxx Xxxxx & Xxxxxxxxx LLP:
Xxxxxxx Xxxxx & Xxxxxxxxx LLP
2100 Scotia Plaza, 00 Xxxx Xxxxxx X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
2100 Scotia Plaza, 00 Xxxx Xxxxxx X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
High River agrees that service of process, writ, judgment, or other notice of legal process at
the address above shall be (i) deemed and held in every respect to be effective personal service
upon it and (ii) deemed sufficiently given or furnished if delivered by personal delivery, by
facsimile or other electronic transmission, or by delivery of service with proof of delivery. High
River shall maintain a presence at the address above (unless changed by similar notice in writing
given by High River) continuously at all times while High River is obligated under this Agreement
or any of the other Funding Documents to which it is a party. Nothing herein shall affect Royal
Gold’s right to serve process in any other manner permitted by applicable law.
EXECUTION
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12
This Agreement has been executed by High River on the date set forth below, to be effective as
of the date first set forth above.
| HIGH RIVER GOLD MINES LTD. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[EXECUTION PAGE TO GUARANTY AND AGREEMENT IN SUPPORT OF SOMITA FUNDING AGREEMENT]
SCHEDULE A
Description of Bouroum Lands
EXECUTION
VERSION
SCHEDULE B
Description of Taparko Lands
EXECUTION
VERSION
