Dated: as of March 1,
2007
SECTION
1 . Definitions .
The following terms have the following meanings unless otherwise
specified herein:
“
Bankruptcy Code ” shall mean the United States
Bankruptcy Code, and any amendments thereto (Title 11, United
States Code).
“
Borrower ” shall mean Royal Gold Chile Limitada, a
Chilean limited liability company.
“
Business Day ” shall mean any day except a Saturday,
Sunday or other day on which commercial banks in New York City are
authorized by law to close.
“
Claims ” shall mean each “claim” as that
term is defined under Section 101(5) of Bankruptcy
Code.
“
Collateral ” shall mean any property which directly or
indirectly secures payment or performance of any of the Liabilities
or Obligations.
“
Dollars ” shall mean the lawful currency of the United
States.
“
Guarantor ” shall mean Royal Gold, Inc., a Delaware
corporation.
“
Guarantee ” shall mean this Guarantee.
“
Lender ” shall mean HSBC Bank USA, National
Association, its successors and assigns, and any Person acting as
agent or nominee for HSBC Bank USA, National Association and any
corporation or other entity which is owned or controlled directly
or indirectly by, or is under common control with HSBC Bank USA,
National Association , and/or HSBC Holdings plc.
“
Liabilities ” shall mean any and all indebtedness,
obligations (whether monetary or non-monetary) and liabilities of
Guarantor to Lender under this Guarantee, and all Claims
thereon.
“ Loan
Agreement ” shall mean that certain Term Loan Agreement,
of even date herewith, among Borrower and HSBC Bank USA, National
Association.
“
Obligations ” shall mean any and all indebtedness,
obligations and liabilities of the Borrower to Lender under the
Loan Agreement and related promissory note, and all Claims of
Lender against the Borrower, now existing or hereafter arising
under the Loan Agreement and related promissory note, in each case,
whether absolute or contingent, secured or unsecured, matured or
not matured, monetary or non-monetary, arising out of contract or
tort, liquidated or unliquidated, arising by operation of law or
otherwise and all extensions, renewals, refundings, replacements
and modifications of any of the foregoing.
“
Person ” shall mean any natural person, corporation,
limited liability company, partnership, trust, government or other
association or legal entity.
“
United States ” means the United States of
America.
SECTION
2 . Scope of
Guarantee . In consideration of any extension of credit or
other financial accommodation heretofore, now or hereafter made by
Lender to or for the account of the Borrower, whether voluntary or
obligatory, Guarantor hereby absolutely, irrevocably and
unconditionally guarantees, as primary obligor and not merely as
surety, to Lender the prompt and complete payment and performance
when due (whether at stated maturity, upon demand, by required
prepayment, acceleration, or otherwise) of
all Obligations
and the performance of each of the Borrower’s covenants and
obligations under all loan agreements, documents and instruments
evidencing or relating to any Obligations or under which any
Obligations may have been issued, created, assumed, suffered
involuntarily, or guaranteed, and the prompt and complete payment
of all fees and expenses incurred in collecting or enforcing the
same, including fees and reasonable expenses of legal counsel, as
more fully set forth below, all of which conclusively shall be
deemed to have been incurred in reliance upon this Guarantee, as if
each of the foregoing were the direct and primary legal
responsibility of Guarantor and not the Borrower.
SECTION
3 . Reinstatement
. If after receipt of any payment of, or of Collateral applied (or
intended to be applied) to the payment of, all or any part of the
Obligations, Lender is for any reason compelled to surrender or
voluntarily surrenders, such payment or Collateral to any person,
(a) because such payment or application of Collateral is or
may be avoided, invalidated, declared fraudulent, set aside,
determined to be void or voidable as a preference, fraudulent
conveyance, impermissible setoff or a diversion of trust funds; or
(b) for any other reason, including without limitation
(i) any judgment, decree or order of any Court or
administrative body having jurisdiction over Lender or any of its
property, or (ii) any settlement or compromise of any such
claim effected by Lender with any such claimant (including the
Borrower), then the Obligations or part thereof intended to be
satisfied shall be reinstated and continue and this Guarantee shall
continue in full force as if such payment or Collateral had not
been received by Lender, notwithstanding any revocation thereof or
the cancellation of any note or other instrument evidencing any
Obligation or otherwise; and Guarantor shall be liable to pay to
Lender, and hereby does indemnify Lender and hold Lender harmless
for, the amount of such payment or Collateral so surrendered and
all expenses (including all attorneys’ fees, court costs and
expenses attributable thereto) incurred by Lender in the defense of
any claim made against Lender that any payment or Collateral
received by Lender in respect of all or any part of the Obligations
must be surrendered. The provisions of this Section 3 shall
survive the termination of this Guarantee, and any satisfaction and
discharge of the Borrower by virtue of any payment, court order or
any federal or state law.
SECTION
4 . Waiver .
Guarantor hereby waives (a) notice of acceptance of this
Guarantee and all notice of the creation, extension or accrual of
any of the Obligations; (b) promptness, diligence, presentment,
demand for payment, notice of dishonor, and protest; (c) notice of
any other nature whatsoever, except for notices specifically
provided for in this Guarantee or which may not be waived under
applicable law; (d) any requirement that Lender take any
action whatsoever against the Borrower or any other party or file
any claim in the event of Bankruptcy of the Borrower; or
(e) failure to protect, preserve or resort to any Collateral
or to exercise or enforce Lender’s rights under any other
guaranties of or security for the Obligations; and Guarantor
further agrees that this Guarantee will not be discharged (subject
to the provisions contained in Section 10) except by complete
performance of all Obligations of the Borrower and the Liabilities
of Guarantor hereunder.
SECTION
5 . Consent .
Guarantor hereby consents that from time to time, and without
further notice to or consent of Guarantor, Lender may take any or
all of the following actions without diminishing, releasing or
otherwise affecting the liability of Guarantor to pay and perform
under this Guarantee: (a) extend, renew, modify, compromise,
settle or release the Obligations (including without limitation any
increase or decrease in the interest rate); (b) release or
compromise any liability of any party or parties with respect to
Obligations; (c) release its security interest in any or all
of the Collateral or exchange, surrender, or otherwise deal with
the Collateral as Lender may determine; or (d) exercise or
refrain from exercising any right or remedy of Lender against any
person or property.
SECTION
6 . Guarantee
Absolute . The Guarantor acknowledges that this Guarantee and
the Guarantor’s obligations under this Guarantee are and
shall at all times continue to be absolute and unconditional in all
respects, and shall at all times be valid and enforceable
irrespective of any other agreements or circumstances of any nature
whatsoever which might otherwise constitute a defense to this
Guarantee and the obligations of the Guarantor under this Guarantee
or the obligations of any other person or party (including, without
limitation, the Borrower) relating to this Guarantee, the
Liabilities or the Obligations irrespective of any lack of
validity, regularity or enforceability of the Obligations or any
note, instrument or agreement evidencing the same or relating
thereto, the acceptance of additional guarantees or collateral or
the termination, by operation of law or otherwise, of the liability
of anyone with respect to the
2
Obligations, or
any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Borrower.
SECTION
7 . WAIVER OF
SUBROGATION . NOTWITHSTANDING ANY PAYMENT OR PAYMENTS
MADE BY GUARANTOR HEREUNDER, OR ANY SETOFF BY LENDER OR APPLICATION
BY LENDER OF ANY COLLATERAL OR OF ANY CREDITS OR CLAIMS, GUARANTOR
WILL NOT ASSERT OR EXERCISE ANY RIGHTS OF LENDER OR GUARANTOR
AGAINST THE BORROWER TO RECOVER THE AMOUNT OF ANY PAYMENT MADE BY
GUARANTOR TO LENDER, BY SETOFF, APPLICATION OF ANY COLLATERAL OR
OTHERWISE, HEREUNDER OR UNDER ANY OTHER GUARANTEE OR OTHER
AGREEMENT BY WAY OF SUBROGATION, REIMBURSEMENT, CONTRIBUTION,
INDEMNITY, OR OTHERWISE ARISING BY CONTRACT OR OPERATION OF LAW,
AND GUARANTOR SHALL HAVE NO RIGHT OF RECOURSE TO OR ANY CLAIM
AGAINST ANY ASSETS OR PROPERTY OF THE BORROWER, ALL OF SUCH RIGHTS
BEING HEREIN EXPRESSLY WAIVED BY GUARANTOR UNLESS AND UNTIL ALL OF
THE OBLIGATIONS OF THE BORROWER HAVE BEEN SATISFIED IN FULL. If
there is more than one Guarantor, each Guarantor agrees not to seek
contribution from any other Guarantor until all the Obligations
shall have been paid in full. If any amount shall nevertheless be
paid to a Guarantor by Borrower or another Guarantor such amount
shall be held in trust for the benefit of Lender and shall
forthwith be paid to Lender to be credited and applied to the
Obligations, whether matured or unmatured. The provisions of this
Section 7 shall survive the termination of this Guarantee, and
any satisfaction and discharge of the Borrower by virtue of any
payment, court order or any federal or state law.
SECTION
8 . Expenses .
Guarantor hereby agrees to pay any and all expenses incurred by
Lender in enforcing any rights under this Guarantee or in defending
any of its rights or any amounts received hereunder. Without
limiting the foregoing, Guarantor agrees that whenever any attorney
is used by Lender to obtain payment hereunder, to advise it as to
its rights, to adjudicate the rights of the parties hereunder or
for the defense of any of its rights or amounts received hereunder,
Lender shall be entitled to recover all reasonable a
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