Royalties and Royalty Transactions

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1 Royalties and Royalty Transactions Presented by Joseph J. Perkins Mining Agreements 101 March 27, 2018 Introduction Types of Royalties 1

2 TYPES OF MINERAL ROYALTIES Net Smelter Returns - Payable in cash - Payable in kind at the refiner Net Proceeds (Net Profits) In-kind royalty on placer gold 3 Introduction Types of Royalty Interests 2

3 TYPES OF ROYALTY INTERESTS Royalty retained by a landowner (claimowner) under a mining lease landowner royalty Royalty granted by landowner (claimowner) to a non-operator (or reserved by the landowner when she conveys a mineral property in fee to another) nonparticipating royalty - Might be perpetual (or will last at least as long as claims remain in good standing) - Anti-washout clause or law might apply 5 ROYALTY INTERESTS (CONT.) - Landowner (claimowner) may be obligated to maintain claims in good standing indefinitely and to offer to convey claims to royalty owner instead of abandoning them - Streaming payment (discussed below) typically is a nonparticipating royalty 6 3

4 ROYALTY INTERESTS (CONT.) Royalty granted by lessee to a non-operator (or reserved by lessee when she assigns the lease to another) overriding royalty - Lasts only as long as the lease remains in effect - But sometimes anti-washout clause or law might save the ORRI (such that it burdens later leases) 7 TYPES OF ROYALTY INTERESTS Production payment either a nonparticipating royalty or an overriding royalty, payable until a certain quantity of resources has been produced, or a certain amount of cash has been realized from a certain percentage of resources, whereupon it expires - Non-recourse financing, especially of a purchase 8 4

5 Key aspects of Royalty Interests KEY ASPECTS OF ROYALTY INTERESTS No right to conduct mining, or to tell operator how it should be mining But: - Duty of care typically is owed by lessee or operator to royalty owners ( prudent operator ) 10 5

6 KEY ASPECTS (CONT.) - Express covenants often must be satisfied by operator E.g., recordkeeping from drilling to assaying to blasting to extracting to weighing to commingling to processing to shipping to disposition 11 KEY ASPECTS (CONT.) - Implied covenants might need to be satisfied by operator Duty to fully develop Duty to market 12 6

7 KEY ASPECTS (CONT.) - But beware: Express disclaimers of implied covenants AS ( No covenant is implied in a conveyance of real estate, whether the conveyance contains special covenants or not ) 13 KEY ASPECTS (CONT.) - You cannot disclaim implied covenant of good faith. See AS ( The parties to every contract have a duty to act fairly and in good faith in the performance and enforcement of the contract) - Royalty owners typically have robust inspection and robust audit rights (but not forever) 14 7

8 Net Smelter Returns NET SMELTER RETURNS X% of Net Smelter Returns on Minerals produced from [or extracted and removed from] the Property, where - Net Smelter Returns means Gross Proceeds less Allowable Deductions 16 8

9 NET SMELTER RETURNS (CONT.) Calculation issues - Gross proceeds Actual proceeds or deemed proceeds? Metal products marketability Metal prices Markets Monthly averages Used in sliding scale royalties to determine % payable Used to determine value of production 17 NET SMELTER RETURNS (CONT.) Calculation issues (cont.) - Allowable deductions essentially, all costs incurred beyond the property Shipping; insurance Smelting and refining Marketing Note: Costs incurred at facilities of operator or affiliates cannot exceed arm s length costs 18 9

10 NET SMELTER RETURNS (CONT.) Payment issues and risks - Payable in cash - Payable in kind at the refiner Can you get a security interest in asextracted collateral to protect your right to payment? 19 Net Proceeds (Net Profits) 10

11 NET PROCEEDS X% of the Net Proceeds realized by Operator on Minerals produced from [or extracted and removed from] the Property or 21 NET PROCEEDS X% of the Net Proceeds realized by Operator on Minerals produced from [or extracted and removed from] the Property before Operator has recovered out of Net Proceeds all Costs incurred prior to Commencement of Commercial Production, plus interest thereon at % per year, compounded quarterly on April 1, July 1, October 1, and January 1 on the unrecovered balance until fully recovered, and Y% of Net Proceeds thereafter 22 11

12 NET PROCEEDS (CONT.) Calculation issues Gross proceeds same issues as above Allowable deductions All operating costs on and beyond the property How are costs of depreciable or amortizable assets treated? 23 In-kind royalty on clean placer gold 12

13 IN-KIND PLACER ROYALTY Clean placer gold = whatever comes out of the jig or off the table No right to conduct mining, or to tell operator how it should be mining But: - Duty of care typically is owed by lessee or operator to royalty owners ( prudent operator ) 25 IN-KIND PLACER ROYALTY (CONT.) Royalty owner typically has inspection rights - Notice of place and time of cleanups - Duty of safekeeping - Notice of place and time for distribution and payment of royalty Procedures for paying royalty in kind - Clean placer gold larger than No. 4 mesh (opening of 4.75 mm) (nuggets) - Clean placer gold smaller than No. 4 mesh 26 13

14 Royalty transactions ROYALTY TRANSACTIONS Purchase and Sale Agreements reserving a royalty typically lowers the purchase price while preserving some upside for the seller Mining Leases the reserved royalty of the landowner (claimowner) is typically the primary compensation to the landowner - There may be advance royalties - Lessee may want buy-down or buy-out option 28 14

15 ROYALTY TRANSACTIONS (CONT.) Royalties granted in exchange for financing - Parties know what size burden the property can bear - Can lower the cost of borrowing - Might be non-recourse or limited recourse - Can provide a significant upside to the royalty purchaser 29 ROYALTY TRANSACTIONS (CONT.) Post-severance transactions i.e., what can I do with my royalty to make some money now? - Sell royalty to 3P for its NPV in cash - Contribute royalty to a new entity and sell shares in the entity - Contribute or sell royalty to a royalty corporation (one that has royalties on other producing properties) in exchange for shares in that entity 30 15

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