AMENDED AND RESTATED GUARANTY
Exhibit
4.5
AMENDED
AND RESTATED GUARANTY
GUARANTY (the “Guaranty”),
dated as of July 10, 2008, by Xxxxxxx Gold Producers, Incorporated, a Colorado
corporation, and Xxxxxx Xxxxx Mining Corporation, a Minnesota corporation, with
an address of each with an address of 900 IDS Center, 00 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 (each a “Guarantor”, and collectively with any
other party executing this Guaranty, the “Guarantors”), in favor of Platinum
Long Term Growth V, LLC, a Delaware limited liability company, with an office at
000 Xxxx 00xx Xxxxxx,
00xx
Xxxxx, Xxx Xxxx, XX 00000 (the “Secured Party”).
WHEREAS, the Xxxxxxx Gold Producers, a
wholly owned subsidiary of Wits Basin Precious Minerals Inc. (the “Borrower”)
has previously issued a Guaranty dated February 11, 2008 in favor of the Secured
Party in accordance with a certain senior secured convertible note, dated as of
February 11, 2008 (the “Original Note”), executed by the Borrower, and certain
related agreements between the Borrower and the Secured Party (collectively, as
amended, restated, or extended from time to time, the “Loan Documents”), the
Secured Party has agreed to loan to the Borrower up to One Million Twenty
Thousand Dollars ($1,020,000) (the “Original Loan”); and
WHEREAS, pursuant to the Loan
Documents, the Guarantors, as wholly owned subsidiaries of the Borrower, are
obligated to guaranty the obligations of the Borrower, and have accordingly
agreed to enter into this Amended and Restated Guaranty; and
WHEREAS, the Guarantors are affiliates
of the Borrower; and
WHEREAS, the Secured Party will extend
another loan to the Borrower on or about the date hereof in the principal amount
of One Hundred Ten Thousand Dollars ($110,000) (the referred to as the
“Additional Loan”, and, together with the Original Loan, referred to as the
“Loans”) which Additional Loan will be evidenced by an additional note of the
Borrower (the “Additional Note” and together with the Original Note, referred to
as the “Notes”);
WHEREAS, in connection with the
Additional Loan, the Guarantors will amend and restate the Guaranty in favor of
the Secured Party;
WHEREAS,
the obligation of the Secured Party to continue to extend the Loans is
conditioned, among other things, upon Guarantors executing and delivering this
Guaranty; and
WHEREAS, the aforesaid Loans will be
beneficial to the Guarantors inasmuch as the proceeds of the Loans to the
Borrower will indirectly benefit the Guarantors;
NOW, THEREFORE, in order to induce the
Secured Party to make the Loans to the Borrower pursuant to the Loan Documents,
and for other good and valuable consideration, the receipt of which is hereby
acknowledged by each of the Guarantors, the Guarantors hereby agree as
follows:
1. Guaranty of Payment and
Performance. The Guarantors hereby jointly and severally
guarantee to the Secured Party the full and punctual payment when due (whether
at maturity, by acceleration or otherwise), and the performance, of all
liabilities, agreements and other obligations of the Borrower to the Secured
Party, whether direct or indirect, absolute or contingent, due or to become due,
secured or unsecured, now existing or hereafter arising or acquired (whether by
way of discount, letter of credit, lease, loan, overdraft or otherwise),
including without limitation all obligations under the Notes (collectively, the
“Obligations”). This Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and performance of the
Obligations and not of their collectbility only and is in no way conditioned
upon any requirement that the Secured Party first attempt to collect any of the
Obligations from the Borrower or resort to any security or other means of
obtaining their payment. Should the Borrower default in the payment
or performance of any of the Obligations, the obligations of each Guarantor
hereunder shall become immediately due and payable to the Secured Party, without
demand or notice of any nature, all of which are expressly waived by each
Guarantor. Payments by each Guarantor hereunder may be required by
the Secured Party on any number of occasions.
2. Guarantors’ Agreement to
Pay. Each Guarantor further agrees, as the principal obligor
and not as a guarantor only, to pay to the Secured Party, on demand, all
reasonable costs and expenses (including court costs and reasonable legal
expenses) incurred or expended by the Secured Party in connection with
enforcement of this Guaranty, together with interest on amounts recoverable
under this Guaranty from the time such amounts become due under this Guaranty
until payment, at the rate per annum equal to the default rate set forth in the
Notes; provided that if such interest exceeds the maximum amount permitted to be
paid under applicable law, then such interest shall be reduced to such maximum
permitted amount.
3. Unlimited
Guaranty. The liability of each Guarantor hereunder shall be
unlimited.
4. Waivers by Guarantors; Secured
Party’s Freedom to Act. Each Guarantor agrees that the
Obligations will be paid and performed strictly in accordance with their
respective terms regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Secured Party with respect thereto. Each Guarantor waives
presentment, demand, protest, notice of acceptance, notice of Obligations
incurred and all other notices of any kind, all defenses which may be available
to Borrower by virtue of any valuation, stay, moratorium law or other similar
law now or hereafter in effect, any right to require the marshalling of assets
of the Borrower, and all suretyship defenses generally. Without limiting the
generality of the foregoing, each Guarantor agrees to the provisions of any
instrument evidencing, securing or otherwise executed in connection with any
Obligation and agrees that the obligations of each Guarantor hereunder shall not
be released or discharged, in whole or in part, or otherwise affected by
(i) the failure of the Secured Party to assert any claim or demand or to
enforce any right or remedy against the Borrower; (ii) any extensions or
renewals of any Obligation; (iii) any rescissions, waivers, amendments or
modifications of any of the terms or provisions of any agreement evidencing,
securing or otherwise executed in connection with any Obligation; (iv) the
substitution or release of any entity primarily or secondarily liable for any
Obligation; (v) the adequacy of any rights the Secured Party may have
against any collateral or other means of obtaining repayment of the Obligations;
(vi) the impairment of any collateral securing the Obligations, including
without limitation the failure to perfect or preserve any rights the Secured
Party might have in such collateral or the substitution, exchange, surrender,
release, loss or destruction of any such collateral; or (vii) any other act
or omission which might in any manner or to any extent vary the risk of any
Guarantor or otherwise operate as a release or discharge of any other Guarantor,
all of which may be done without notice to any Guarantor.
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5. Unenforceability of Obligations
Against Borrower. If for any reason the Borrower has no legal
existence or is under no legal obligation to discharge any of the Obligations,
or if any of the Obligations have become irrecoverable from the Borrower by
operation of law or for any other reason, this Guaranty shall nevertheless be
binding on each Guarantor to the same extent as if each Guarantor at all times
had been the principal obligor on all such Obligations. In the event that
acceleration of the time for payment of the Obligations is stayed upon the
insolvency, bankruptcy or reorganization of the Borrower, or for any other
reason, all such amounts otherwise subject to acceleration under the terms of
any agreement evidencing, securing or otherwise executed in connection with any
Obligation shall be immediately due and payable by each Guarantor.
6. Subrogation;
Subordination. Until the payment and performance in full of
all Obligations and any and all obligations of the Borrower to any affiliate of
the Secured Party, no Guarantor shall exercise any rights against the Borrower
arising as a result of payment by any Guarantor hereunder, by way of subrogation
or otherwise, and will not prove any claim in competition with the Secured Party
or its affiliates in respect of any payment hereunder in bankruptcy or
insolvency proceedings of any nature; no Guarantor will claim any set-off or
counterclaim against the Borrower in respect of any liability of any Guarantor
to the Borrower; and each Guarantor waives any benefit of and any right to
participate in any collateral which may be held by the Secured Party or any such
affiliate. The payment of any amounts due with respect to any
indebtedness of the Borrower now or hereafter held by any Guarantor is hereby
subordinated to the prior payment in full of the Obligations. Each
Guarantor agrees that after the occurrence of any default in the payment or
performance of the Obligations, after the expiration of any applicable cure
period, it will not demand, xxx for or otherwise attempt to collect after such
time any such indebtedness of the Borrower to such Guarantor until the
Obligations shall have been paid in full. If, notwithstanding the foregoing
sentence, any Guarantor shall collect, enforce or receive any amounts in respect
of such indebtedness, such amounts shall be collected, enforced and received by
such Guarantor as trustee for the Secured Party and be paid over to the Secured
Party on account of the Obligations without affecting in any manner the
liability of any Guarantor under the other provisions of this
Guaranty.
7. Further
Assurances. Each Guarantor agrees to do all such things and
execute all such documents, as the Secured Party may consider reasonably
necessary or desirable to give full effect to this Guaranty and to perfect and
preserve the rights and powers of the Secured Party hereunder.
8. Termination;
Reinstatement. This Guaranty shall remain in full force and
effect until the Secured Party is given written notice of each Guarantor’s
intention to discontinue this Guaranty, notwithstanding any intermediate or
temporary payment or settlement of the whole or any part of the
Obligations. No such notice shall be effective unless received and
acknowledged by an officer of the Secured Party at its head
office. No such notice shall affect any rights of the Secured Party
or of any affiliate hereunder with respect to any Obligations incurred prior to
such notice. This Guaranty shall continue to be effective or be
reinstated, notwithstanding any such notice or termination, if at any time any
payment made or value received with respect to an Obligation is rescinded or
must otherwise be returned by the Secured Party upon the insolvency, bankruptcy
or reorganization of the Borrower, or otherwise, all as though such payment had
not been made or value received.
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9. Successors and
Assigns. This Guaranty shall be jointly and severally binding
upon each Guarantor, its successors and assigns, and shall inure to the benefit
of and be enforceable by the Secured Party and its successors, transferees and
assigns. Without limiting the generality of the foregoing sentence,
the Secured Party may assign or otherwise transfer any agreement or any note
held by it evidencing, securing or otherwise executed in connection with the
Obligations, or sell participations in any interest therein, to any other person
or entity, and such other person or entity shall thereupon become vested, to the
extent set forth in the agreement evidencing such assignment, transfer or
participation, with all the rights in respect thereof granted to the Secured
Party herein.
10. Amendments and
Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by any Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Secured
Party. No failure on the part of the Secured Party to exercise, and
no delay in exercising, any right hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other
right.
12. Governing Law; Consent to
Jurisdiction. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York without
reference to its conflicts of laws provisions. Each Guarantor agrees
that any suit for the enforcement of this Guaranty may be brought in the courts
of the State of New York or any federal court sitting therein and consents to
the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon the Guarantors by mail at the address specified in
Section 11 hereof. Each Guarantor hereby waives any objection that it
may now or hereafter have to the venue of any such suit or any such court or
that such suit was brought in an inconvenient court. Any enforcement
action relating to this Guaranty may be brought by motion for summary judgment
in lieu of a complaint pursuant to Section 3213 of the New York Civil Practice
Law and Rules.
13. WAIVER
OF JURY TRIAL. EACH GUARANTOR AND, BY ITS ACCEPTANCE OF THIS GUARANTY, THE
SECURED PARTY, HEREBY WAIVES TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH
RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF: (A) THIS GUARANTY OR ANY
OTHER INSTRUMENT OR DOCUMENT DELIVERED IN CONNECTION WITH THE OBLIGATIONS;
(B) THE VALIDITY, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF; OR
(C) ANY OTHER CLAIM OR DISPUTE HOWEVER ARISING BETWEEN ANY GUARANTOR AND
THE SECURED PARTY.
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14. Certain
References. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person, persons, entity or entities may require. The
terms “herein”, “hereof” or “hereunder” or similar terms used in this Guaranty
refer to this entire Guaranty and not only to the particular provision in which
the term is used.
15. Miscellaneous. This
Guaranty, together with the Security Agreement, delivered by the Guarantors as
of the date hereof to the Secured Party, constitutes the entire agreement of the
Guarantors with respect to the matters set forth herein. The rights
and remedies herein provided are cumulative and not exclusive of any remedies
provided by law or any other agreement, and this Guaranty shall be in addition
to any other guaranty of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty
shall be equally applicable to the singular and plural, masculine, feminine and
generic forms of the terms defined.
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IN WITNESS WHEREOF, each
Guarantor has caused this Guaranty to be executed and delivered as of the date
appearing in the introductory paragraph of this Guaranty.
XXXXXXX
GOLD PRODUCERS, INCORPORATED
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By:
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/s/ Xxxx X. Xxxxx | |
Name: Xxxx X. Xxxxx | |||
Title: Chief Financial Officer | |||
XXXXXX
XXXXX MINING CORPORATION
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By:
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/s/ Xxxx X. Xxxxx | |
Name: Xxxx X. Xxxxx | |||
Title: Chief Financial Officer | |||
Signature
Page
to
Amended and Restated Guaranty
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