Exhibit 10.3
TO: Royal Gold, Inc.
RE: Funding Agreement dated as of the date hereof (as supplemented, amended or
otherwise modified or restated from time to time, the "FUNDING AGREEMENT")
between Societe des Mines de Taparko ("Debtor") and Royal Gold, Inc.
Guarantee dated as of the date hereof (as supplemented, amended or
otherwise modified from time to time, the "GUARANTEE") by the undersigned
("Guarantor") in favour of Royal Gold, Inc. in respect of the present and
future indebtedness, liabilities and obligations of Debtor to Royal Gold,
Inc.
PLEDGE OF SECURITIES
OBLIGATIONS SECURED
1. In consideration of Royal Gold, Inc. (the "SECURED PARTY") dealing with or
extending credit for the benefit of Debtor, an indirectly owned subsidiary of
Guarantor, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Guarantor, the Guarantor
hereby enters into this Agreement with the Secured Party as security for the
payment and performance of all Obligations (as hereinafter defined). Insofar as
it affects personal property located in Ontario, this Agreement is governed by
the PPSA.
DEFINITIONS AND INTERPRETATION
2. In this Agreement, the following words shall, unless otherwise provided, have
the meanings set out below:
"BUSINESS DAY" means a day, other than a Saturday, Sunday or statutory
holiday in the Province of Ontario;
"CHARGED SECURITIES" means all Securities of the Guarantor charged pursuant
to Section 9 of this Agreement;
"COLLATERAL" means all Securities and other property and assets of the
Guarantor and the Proceeds thereof charged pursuant to Section 9 of this
Agreement;
"MONEY" means a medium of exchange authorized or adopted by the Parliament
of Canada as part of the currency of Canada or by a foreign government as
part of its currency;
"OBLIGATIONS" means all present and future indebtedness, liabilities and
obligations, direct or indirect, matured or unmatured, joint or several,
absolute or contingent, of the Guarantor to the Secured Party arising
pursuant to or in respect of the Guarantee including, without limitation,
any liability of the Guarantor arising in respect of any xxxx of exchange
issued, accepted or endorsed by the Guarantor of which the Secured Party is
the holder;
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership or other entity;
2.
"PPSA" means the Personal Property Security Act (Ontario), as amended from
time to time, and any statute substituted therefor and any amendments
thereto;
"PROCEEDS" means identifiable or traceable personal or real property in any
form derived directly or indirectly from any dealing with any of the
Collateral or the proceeds therefrom;
"SECURITY" means a document that is,
(a) issued in bearer, order or registered form,
(b) of a type commonly dealt in upon securities exchanges or markets or
commonly recognized in any area in which it is issued or dealt in as a
medium for investment,
(c) one of a class or series or by its terms is divisible into a class or
series of documents, and
(d) evidence of a share, participation or other interest in property or in
an enterprise or is evidence of an obligation of the issuer,
and includes an uncertificated security within the meaning of Part VI
(Investment Securities) of the Business Corporations Act (Ontario).
"SECURITY INTEREST" means the interest in the Collateral created in favour
of the Secured Party by this Agreement that secures or is intended to
secure payment or performance by the Guarantor of the Obligations.
3. The headings in this Agreement are included for convenience of reference
only, and shall not constitute a part of this Agreement for any other purpose.
4. In construing this Agreement, terms herein shall have the same meaning as
defined in the PPSA, unless the context otherwise requires. The word
"GUARANTOr", the personal pronoun "IT" or "ITS" and any verb relating thereto
and used therewith shall be read and construed as required by and in accordance
with the context in which such words are used. The term "SUCCESSORS" shall
include, without limiting its meaning, any corporation resulting from the
amalgamation of a corporation with another corporation. Where the context so
requires, a word importing the singular shall include the plural and vice versa
and a word importing gender shall include all genders.
5. If one or more of the provisions contained herein shall be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
6. In the event that any day, on or before which any action is required to be
taken hereunder, is not a Business Day, then such action shall be required to be
taken on or before the first Business Day thereafter.
7. The Secured Party may in writing (and not otherwise) waive any breach by the
Guarantor of any provision of this Agreement or any default by the Guarantor in
the observance or performance of any provision of this Agreement; provided
always that no waiver by the Secured Party shall extend to or be taken in any
manner whatsoever to affect any subsequent breach or default, whether of the
same or a different nature, or the rights resulting therefrom.
3.
8. This Agreement shall be construed in accordance with and governed by the laws
of the Province of Ontario. For the purpose of legal proceedings, this Agreement
shall be deemed to have been made in the said Province and to be performed
therein and the courts of that Province shall have jurisdiction over all
disputes which may arise under this Agreement. The Guarantor hereby irrevocably
and unconditionally submits to the non-exclusive jurisdiction of such courts,
provided always that nothing herein shall prevent the Secured Party from
proceeding at its election against the Guarantor in the courts of any other
province, country or jurisdiction.
CREATION OF SECURITY INTEREST
9. The Guarantor hereby pledges, grants, mortgages, charges, hypothecates,
transfers assigns and creates to the Secured Party and grants to and in favour
of the Secured Party a security interest in the following:
(a) 12,015,000 common shares in the capital stock of Pelangio Mines Inc.
and 1,790,941 common shares in the capital stock of Intrepid Minerals
Corporation; and
(b) all Proceeds derived directly or indirectly from any dealing with the
foregoing.
REGISTRATION OF CHARGED SECURITIES
10. With respect to any Charged Securities in certificated form, the
certificates representing such Charged Securities may remain registered in the
name of the Guarantor, and the Guarantor shall at the option of the Secured
Party either duly endorse such certificates in blank for transfer or execute
stock powers of attorney in respect thereof; in either case with signatures
guaranteed and with all documentation being in form and substance satisfactory
to the Secured Party and any transfer agent appointed from time to time in
respect of the Charged Securities. With respect to any Charged Securities in
uncertificated form evidenced in the records of a clearing agency or custodian
or a nominee of either, the Guarantor shall cause the Security Interest to be
recorded in the records of such clearing agency, custodian, or nominee in a
manner which will satisfy the Secured Party that the Security Interest in such
Charged Securities has been perfected by possession. Notwithstanding the
foregoing, at any time and from time to time upon request by the Secured Party,
the Guarantor shall cause any or all of the Charged Securities to be registered
in the name of the Secured Party or its nominee, and the Secured Party is hereby
appointed the irrevocable attorney of the Guarantor with full power of
substitution to cause any or all of the Charged Securities to be registered in
the name of the Secured Party or its nominee.
FURTHER DESCRIPTION OF COLLATERAL
11. Without limiting the generality of the description of Collateral as set out
in section 9, for greater certainty the Collateral shall include all present and
future Securities described in any schedule now or hereafter attached hereto.
The Guarantor agrees to promptly inform the Secured Party in writing of the
acquisition by the Guarantor of any securities which are received in
substitution for, as stock dividends on, or as Proceeds of any Charged
Securities, and the Guarantor hereby irrevocably constitutes and appoints the
Secured Party or any officer thereof as its true and lawful attorney, with full
power of substitution, to attach additional schedules to this Agreement from
time to time to identify any such additional Securities which are so intended by
the parties to be subject to the Security Interest.
ATTACHMENT
12. The parties acknowledge that value has been given, the Guarantor has rights
in the Collateral and the parties have not agreed to postpone the time for
attachment of the Security Interest.
4.
VOTING RIGHTS
13. Until the Secured Party makes demand pursuant to the Guarantee, the
Guarantor shall be entitled to exercise all voting rights attached to the
Charged Securities and give consents, waivers and ratifications in respect
thereof; provided, however, that no vote shall be cast or consent, waiver or
ratification given or action taken which may materially adversely affect the
interests of the Secured Party or the value of the Charged Securities or which
would impose any restriction on the transferability of any of the Charged
Securities.
All such rights of the Guarantor to vote and give consents, waivers and
ratifications hereunder shall cease immediately upon the Secured Party making
demand pursuant to the Guarantee.
DEALING WITH INCOME AND PROCEEDS
14. Upon the Secured Party making demand pursuant to the Guarantee, all
dividends, interest and other income in respect of Collateral and all Proceeds
received by the Guarantor in respect of Collateral shall be received by the
Guarantor as trustee for the Secured Party and shall forthwith be paid over to
the Secured Party, to be applied against the Obligations or, at the option of
the Secured Party, to be held as additional security for the Obligations.
REPRESENTATIONS AND WARRANTIES
15. The Guarantor hereby represents and warrants to the Secured Party as follows
and acknowledges that the Secured Party is relying upon such representations and
warranties in its present and future dealings with the Guarantor and the
Obligations:
(a) the Guarantor has the capacity and authority to incur the Obligations,
create the Security Interest and observe and perform all its
obligations under this Agreement;
(b) the execution and delivery of this Agreement and the performance by
the Guarantor of its obligations hereunder have been duly authorized
by all necessary proceedings;
(c) except for the Security Interest, the Collateral is owned by the
Guarantor free from any mortgage, lien, charge, encumbrance, pledge,
security interest or other claim whatsoever; and
(d) the chief executive office of the Guarantor is located at the address
of the Guarantor set out on the signing page of this Agreement.
COVENANTS
16. The Guarantor covenants and agrees with the Secured Party as follows:
(a) it will not, without the Secured Party's prior written consent, sell,
exchange, transfer, assign, lend, charge, pledge, encumber or
otherwise dispose of or deal in any way with the Collateral or any
interest therein save and except to the Secured Party hereunder, or
enter into any agreement or undertaking to do so;
(b) it will do, make, execute and deliver such further and other
assignments, transfers, deeds, security agreements and other documents
as may be required by the Secured Party to
5.
grant to the Secured Party the Security Interest with the priority
intended hereby and generally to accomplish the intention of this
Agreement;
(c) it will pay all reasonable expenses, including solicitors' and
receivers' fees and disbursements, incurred by the Secured Party or
its agents in connection with the preparation, perfection,
preservation and enforcement of this Agreement; including all
reasonable expenses incurred by the Secured Party or such agents in
dealing with other creditors of the Guarantor in connection with the
establishment and confirmation of the priority of the Security
Interest; all of which expenses shall be payable by the Guarantor
forthwith upon demand by the Secured Party and shall form part of the
Obligations;
(d) it will pay when due any and all calls, subscription monies and other
amounts payable on or in respect of any Collateral and, if the
Guarantor fails to do so, the Secured Party may (but shall not be
obligated to) do so and, if the Secured Party does so, the Guarantor
shall, upon demand by the Secured Party, reimburse the Secured Party
for such payment and the Secured Party may debit any account or
accounts of the Guarantor with such amount; and
(e) it will, unless otherwise agreed by the Secured Party in writing,
cause all tangible Collateral to be situated at the Denver, Colorado
offices of the Secured Party at all times including when the Security
Interest attaches to such tangible Collateral.
ENFORCEMENT
17. The Security Interest shall become enforceable immediately upon demand by
the Secured party pursuant to the Guarantee.
REMEDIES
18. Upon the Security Interest becoming enforceable, in addition to any other
remedies available at law or equity or contained in any other agreement between
the Guarantor and the Secured Party, the Secured Party may:
(a) obtain, by any method permitted by law, possession of any Charged
Securities which it does not then already hold;
(b) realize upon, collect, sell, transfer, assign, give options to
purchase, or otherwise dispose of and deal with the Collateral or any
part thereof;
(c) notify any parties obligated in respect of any Proceeds to make
payment thereof to the Secured Party;
(d) exercise all voting rights attached to the Charged Securities (whether
or not registered in the name of the Secured Party or its nominee) and
give or withhold all consents, waivers and ratifications in respect
thereof and otherwise act with respect thereto as though it were the
absolute owner thereof;
(e) exercise any and all rights of conversion, exchange, subscription or
any other rights, privileges or options pertaining to any of the
Charged Securities as if it were the absolute owner thereof including,
without limitation, the right to exchange at its discretion any and
all of the Charged Securities upon the merger, consolidation,
reorganization,
6.
recapitalization or other readjustment of any issuer thereof, or upon
the exercise by any issuer of any right, privilege or option
pertaining to any of the Charged Securities, and in connection
therewith, to deposit and deliver any of the Charged Securities with
any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as it may determine,
all without liability except to account for property actually received
by it;
(f) comply with any limitation or restriction in connection with any
proposed sale or other disposition of the Charged Securities as may be
necessary in order to comply with applicable law or regulation or any
policy imposed by any stock exchange, securities commission or other
governmental or regulatory authority or official, and the Guarantor
further agrees that such compliance shall not result in such sale
being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Secured Party be liable or
accountable to the Guarantor for any discount in the sale price of the
Charged Securities which may be given by reason of the fact that such
Charged Securities are sold in compliance with any such limitation or
restriction; and
(g) file proofs of claim and other documents in order to have the claims
of the Secured Party lodged in any bankruptcy, winding-up, or other
judicial proceeding relating to the Guarantor.
FAILURE OF SECURED PARTY TO EXERCISE REMEDIES
19. The Secured Party shall not be liable for any delay or failure to enforce
any remedies available to it or to institute any proceedings for such purposes.
COMBINATION OF ACCOUNTS AND SET-OFF
20. The Secured Party may debit any account of the Guarantor with any and all
Obligations, combine accounts or set off any amount now or hereinafter owing by
the Secured Party to the Guarantor against any Obligations, in order to reduce
the Obligations.
APPLICATION OF PAYMENTS AND LIABILITY FOR DEFICIENCY
21. All monies received by the Secured Party in respect of the Obligations and
in respect of the enforcement of the Security Interest may be held by the
Secured Party as security for the Obligations or applied by the Secured Party to
reduce Obligations in such manner as the Secured Party may determine in its
discretion, and the Secured Party may at any time apply or change any such
appropriation of such payments or monies and apply them to such other part or
parts of the Obligations as the Secured Party may determine in its discretion.
The Guarantor shall remain liable to the Secured Party for any deficiency; and
any surplus funds realized after the satisfaction of all Obligations shall be
paid in accordance with applicable law.
STANDARDS OF SALE
22. (a) The Guarantor acknowledges that the Charged Securities are of a type
customarily sold on a recognized market, and accordingly the Guarantor
agrees that in connection with any enforcement of the Security
Interest, the Secured Party may sell the Charged Securities pursuant
to this agreement on a recognized market without notice to the
Guarantor.
7.
(b) The Guarantor and the Secured Party acknowledge that any sale of
Charged Securities must occur in compliance with the relevant
provisions of the Securities Act (Ontario), as amended from time to
time and any statute substituted therefor and any amendments thereto
and, as may otherwise be applicable, corresponding legislation in
other jurisdictions ("SECURITIES LAWS"), and that the Secured Party
shall not be obliged to effect a public sale of the Charged Securities
and may sell the Charged Securities pursuant to one or more private
trades to a restricted group of purchasers who may be obliged to
agree, among other things, to acquire the Charged Securities as
principal and to comply with certain resale restrictions. The Secured
Party shall be under no obligation to delay a sale of such Charged
Securities for any period of time in order to permit the issuer
thereof or any other person to qualify such Charged Securities for
public sale under applicable Securities Laws. The Secured Party shall
be under no obligation to sell the Charged Securities as a "control
block" or at a premium to the "market price", as defined under
applicable Securities Laws. The Guarantor acknowledges that any
private sale may be at prices and on other terms which may be less
favourable than a public sale or a control block sale; and the
Guarantor agrees that any such sale shall not, solely by reason of its
being a private sale, be deemed to have been made otherwise than in a
commercially reasonable manner. Upon the Security Interest becoming
enforceable, the Guarantor consents, and agrees to use reasonable
efforts to cause the issuer of such Charged Securities to consent, to
the disclosure by the Secured Party to the public generally and to any
prospective purchaser of the Charged Securities of any information
relating to the Charged Securities, whether or not such information
may be considered confidential at such time.
(c) The Secured Party shall be entitled to purchase for itself any or all
of the Collateral, whether in connection with a sale made under the
power of sale herein contained or pursuant to judicial proceedings or
otherwise.
DEALINGS BY SECURED PARTY
23. The Secured Party may grant extensions of time and other indulgences, take
and give up securities, accept compositions, grant releases and discharges, and
otherwise deal with the Collateral, the Guarantor, debtors of the Guarantor,
sureties of the Guarantor, and others as the Secured Party may see fit, without
prejudice to the Obligations and the rights of the Secured Party to hold and
realize upon the Security Interest. The Secured Party has no obligation to keep
Collateral or any portion thereof identifiable.
NOTICES
24. Without prejudice to any other method of giving notice, all communications
provided for or permitted hereunder shall be in writing and delivered to the
addressee pursuant to the terms of the Guarantee.
SEPARATE SECURITY
25. This Agreement and the Security Interest are in addition to and not in
substitution for any other security now or hereafter held by the Secured Party
in respect of the Guarantor, the Obligations or the Collateral.
8.
POWER OF ATTORNEY
26. The Guarantor hereby constitutes and appoints the Secured Party or any
officer thereof as its true, lawful and irrevocable attorney, with full power of
substitution, to execute all documents and take any and all actions as may be
necessary or desirable to perform any obligations of the Guarantor arising
pursuant to this Agreement, and in executing such documents and taking such
actions, to use the name of the Guarantor whenever and wherever it may be
considered necessary or expedient. This power of attorney is coupled with an
interest and may not be revoked.
ENTIRE AGREEMENT
27. This Agreement and the Guarantee including any schedules attached hereto
constitutes the entire agreement between the Guarantor and the Secured Party
relating to the subject matter hereof and no amendment to this agreement shall
be effective unless it is in writing and signed by the Guarantor and the Secured
Party. There are no representations, warranties or collateral agreements in
effect between the Guarantor and the Secured Party relating to the Security
Interest and the Collateral and possession of an executed copy of this Agreement
by the Secured Party constitutes conclusive evidence that it was executed and
delivered by the Guarantor free of all conditions.
ENUREMENT
28. This Agreement shall enure to the benefit of the Secured Party and its
successors and assigns and shall be binding on the Guarantor and the Guarantor's
successors and permitted assigns, as may be applicable. The Guarantor shall have
no right to assign any benefit which it may be entitled to hereunder without the
prior written consent of the Secured Party.
COPY OF AGREEMENT
29. The Guarantor acknowledges receipt of an executed copy of this Agreement.
[The remainder of this page has been intentionally left blank.]
9.
IN WITNESS WHEREOF this Agreement has been executed and delivered by
the Guarantor as of the 1st day of December, 2005.
HIGH RIVER GOLD MINES LTD.
By: /s/ X.X. Xxxxxx
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Name: X.X. Xxxxxx
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Title: Executive Chairman
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By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
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Title: Chief Financial Officer
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We have the authority to bind the Corporation
Guarantor's Address For Notice Purposes:
0000-000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Fax No. 000-000-0000
With a copy to:
Xxxxxxx Xxxxx & Xxxxxxxxx LLP
2100 Scotia Plaza, 00 Xxxx Xxxxxx X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxx
Fax no. 000-000-0000
