exv10w2



 





EXHIBIT
10.2




Execution Version




FIRST AMENDMENT TO THE

BRIDGE FINANCE FACILITY AGREEMENT



THIS
FIRST AMENDMENT TO THE BRIDGE FINANCE FACILITY AGREEMENT (this
“Amendment”) is dated July 30, 2007




BETWEEN:





BATTLE MOUNTAIN GOLD EXPLORATION

CORP. AND BMGX (BARBADOS) CORPORATION

as Borrowers



OF THE FIRST PART




AND:





ROYAL GOLD, INC.

as Bridge Lender



OF THE SECOND PART



WHEREAS Borrowers and Bridge Lender are parties to that certain Bridge Finance Facility Agreement
dated for reference March 28, 2007 (the “Credit Facility”; capitalized terms used herein and not
otherwise defined herein having the definitions provided therefor in the Credit Facility);



WHEREAS Bridge Lender, Royal Battle Mountain, Inc., and Battle Mountain are parties to the
Agreement and Plan of Merger, originally dated as of April 17, 2007, which is to be amended and
restated simultaneously with this Amendment to the Credit Facility; and



WHEREAS Borrowers and Bridge Lender desire to enter into this Amendment, which amends the Credit
Facility by (i) extending the Final Maturity Date from March 28, 2008 to June 6, 2008 and (ii)
specifying the date upon which the Bridge Lender must provide notice in the event it elects to
convert any or all amounts due to it under the Credit Facility into common stock of Battle
Mountain.



NOW THEREFORE in consideration of the mutual covenants and agreements herein set forth and other
good and valuable consideration, the receipt and sufficiency whereof is hereby acknowledged, the
parties agree as follows:










 



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	1.	 	AMENDMENTS TO CREDIT FACILITY.






	 	(a)	 	The text of section 1.1(30) shall be deleted in its entirety and replaced by
the following:
	 
	 	 	 	(30) “Final Maturity Date” means June 6, 2008.
	 
	 	(b)	 	The text of section 1.1(59) shall be deleted in its entirety and replaced by
the following:
	 
	 	 	 	(59) “Merger Agreement” means the Amended and Restated Agreement and Plan of
Merger dated of even date herewith, by and among Royal Gold, Royal Battle
Mountain, Inc. and Battle Mountain.
	 
	 	(c)	 	The text of section 2.3 shall be deleted in its entirety and replaced by the
following:
	 
	 	 	 	At any time during the term of this Credit Facility, the Bridge Lender shall
have the right to convert all or any portion of the Obligations into shares of
Battle Mountain common stock at a conversion price equal to $.60 per share;
provided that, the Bridge Lender must provide written notice on or before
April 4, 2008 of its election to convert pursuant to this section 2.3.




2. REPRESENTATIONS AND WARRANTIES. To induce Bridge Lender to enter into this Amendment, each of
the Borrowers represents and warrants as follows, acknowledges that the Bridge Lender is relying
thereon in entering into this Amendment, agrees that no investigation at any time made by or on
behalf of the Bridge Lender shall diminish in any respect whatsoever its right to rely thereon, and
agrees that all representations and warranties shall be valid and effective as of the date when
given or deemed to have been given and to such extent shall survive the execution and delivery of
this Amendment and the provision of the Credit Facility:





	 	(a)	 	DUE AUTHORIZATION. The execution, delivery and performance of this
Amendment has been duly authorized by all requisite corporate action on the part of
Borrowers, this Amendment has been duly executed and delivered by Borrowers and this
Amendment constitutes a valid and binding agreement of Borrowers, enforceable against
Borrowers in accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency or other similar laws relating to the enforcement of
creditors’ rights generally and by general equitable principles.
	 
	 	(b)	 	NO DEFAULT. Immediately before and after giving effect to this
Amendment and the consummation of the transactions contemplated hereby, no Default or
Event of Default is in existence.










 



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	 	(c)	 	BRING-DOWN. The warranties and representations of Borrowers contained
in the Credit Facility and the Credit Facility Documents are true and correct in all
material respects as of the date hereof, with the same effect as though made on such
date, except to the extent that such warranties and representations expressly relate to
an earlier date, in which case such representations and warranties were true and
correct in all material respects as of such earlier date.






	3.	 	MISCELLANEOUS.






	 	(a)	 	EXPENSES. Each party to this Amendment shall be liable for their own
costs and expenses incurred in connection herewith.
	 
	 	(b)	 	GOVERNING LAW.






(1) Governing Law. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Nevada.




(2) Submission to Jurisdiction. Each party hereby irrevocably submits to
the jurisdiction of the courts of State of Nevada and Colorado in any action
or proceeding arising out of or relating to this Amendment and hereby
irrevocably agrees that all claims in respect of any such action or
proceeding may be heard and determined in such courts. Each party hereby
irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding. Each party 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.




(3) Non-Exclusive. Nothing in this section 3(b) shall affect the right of
any party to serve legal process in any other manner permitted by Law or
affect the right of a party to bring any action or proceeding against
another party or its property in the courts of other jurisdictions.




(4) Trial by Jury. Each of the parties hereto, to the fullest extent
permitted by Law, hereby waives its rights to a trial by jury.




	 	(c)	 	COUNTERPARTS. This Amendment may be executed in counterparts, each of
which shall be deemed an original and all of which, taken together, shall constitute
one and the same instrument, and may be delivered by a party by facsimile or similar
means of recorded communication.










 



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	(d)	 	SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and shall
inure to the sole benefit of Borrowers and Bridge Lender and their respective
successors and assigns in compliance with section 9.8 of the Credit Facility.
	 
	(e)	 	SEVERABILITY. The provisions of this Amendment are intended to be
severable. If any provision of this Amendment shall be held invalid or unenforceable in
whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other jurisdiction or the
remaining provisions hereof in any jurisdiction.
	 
	(f)	 	FURTHER ASSURANCES. Each party to this Amendment shall do and perform
or cause to be done and performed all such further acts and things and shall execute
and deliver all such other agreements, certificates, instruments and documents as the
other parties hereto may reasonably request in order to carry out the intent and
accomplish the purposes of this Amendment and the consummation of the transactions
contemplated hereby.
	 
	(g)	 	CONTINUATION OF CREDIT FACILITY. Notwithstanding anything contained
herein, the terms of this Amendment are not intended to and do not serve to effect a
novation as to the Credit Facility. The parties hereto expressly do not intend to
extinguish the Credit Facility. Instead, it is the express intention of the parties
hereto to reaffirm the indebtedness created under the Credit Facility which is
evidenced by the Note and secured by the Collateral. The Credit Facility as amended
hereby and each of the Credit Facility Documents remain in full force and effect.
	 
	(h)	 	CONSTRUCTION. Borrowers acknowledge that they have been represented by
their own legal counsel in connection with the Credit Facility Documents and this
Amendment, that they have exercised independent judgment with respect to the Credit
Facility Documents and this Amendment, and that they have not relied on the Bridge
Lender or its counsel for any advice with respect to the Credit Facility Documents or
this Amendment.
	 
	(i)	 	CREDIT FACILITY DOCUMENT. This Amendment shall constitute a Credit
Facility Document.





(execution page follows)










 







IN WITNESS WHEREOF the parties have caused this Amendment to be executed by their respective
officers thereunto duly authorized, as of the date first above written.




	 	 	 	 	 	 	 
	 	 	BORROWERS:
	 
	 	 	 	 	 	 
	 	 	BATTLE MOUNTAIN GOLD EXPLORATION CORP.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark Kucher	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Mark Kucher	 	 
	 

	 	Title:
	 	Chairman, Chief Executive Officer and President	 	 
	 
	 	 	 	 	 	 
	 	 	BMGX (BARBADOS) CORPORATION
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Mark Kucher	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Mark Kucher	 	 
	 

	 	Title:
	 	Chairman, Chief Executive Officer and President	 	 
	 
	 	 	 	 	 	 
	 	 	BRIDGE LENDER:
	 
	 	 	 	 	 	 
	 	 	ROYAL GOLD, INC.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tony Jensen	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Tony Jensen	 	 
	 

	 	Title:
	 	President and Chief Executive Officer	 	 






Signature Page to First Amendment to Bridge Finance Facility Agreement