Attached files
EXHIBIT
10.74
WITS
BASIN PRECIOUS MINERALS INC.
Amended
and Restated
10%
Senior Secured Promissory Note
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Issuance Date:
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December 17, 2009
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Principal Amount:
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$110,000
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For value
received, WITS BASIN PRECIOUS MINERALS INC., a Minnesota corporation (the “Maker”), hereby
promises to pay to the order of China Gold, LLC, a Kansas limited liability
company with an address of 4520 Main Street, Suite 1650, Kansas City, MO 64111
(together with its successors, representatives, and permitted assigns, the
“Holder”), in
accordance with the terms hereinafter provided, the principal amount of ONE
HUNDRED AND TEN THOUSAND DOLLARS ($110,000), together with interest
thereon.
All
payments under or pursuant to this Note shall be made in United States Dollars
in immediately available funds to the Holder at the address of the Holder first
set forth above or at such other place as the Holder may designate from time to
time in writing to the Maker or by wire transfer of funds to the Holder’s
account, as requested by the Holder. The outstanding principal
balance of this Note, together with all accrued and unpaid interest from the
Original Issuance Date, shall be due and payable in full on February 15, 2010
(the “Maturity
Date”) or at such earlier time as provided herein as provided
herein.
This Note
was originally issued on July 10, 2008 (the “Original Issuance
Date”) and governed pursuant to the terms of that certain Note and
Warrant Purchase Agreement, dated as of February 11, 2008 (the “Purchase Agreement”),
by and between the Maker and the Holder, as a successor-in-interest to Platinum
Long Term Growth V, LLC, a Delaware limited liability company (“Platinum”), pursuant
to an assignment and transfer of this Note, the Purchase Agreement and other
Transaction Documents completed on or around April 17, 2009, and is amended and
restated hereby to reflect an extension of the Maturity Date (as defined below)
from October 8, 2008 to February 15, 2010. Holder has delivered the
original version of the Note to Maker marked “cancelled” on or prior to the date
hereof, and agrees that such original Note shall no longer have any force or
effect.
ARTICLE
I
PAYMENT
Section
1.1 Interest. Beginning
on the Original Issuance Date, the outstanding principal balance of this Note
shall bear interest, in arrears, at a rate per annum equal to ten percent (10%),
payable in cash on the Maturity Date. Interest shall be computed on
the basis of a 360-day year of twelve (12) 30-day months, shall compound monthly
and shall accrue commencing on the Issuance Date. Furthermore, upon
the occurrence of an Event of Default (as defined in Section 2.1 hereof), the
Maker will pay interest to the Holder, payable on demand, on the outstanding
principal balance of and unpaid interest on the Note from the date of the Event
of Default until such Event of Default is cured at the rate of the lesser of
eighteen percent (18%) and the maximum applicable legal rate per
annum.
1
Section
1.2 Payment of Principal;
Prepayment. The Principal Amount hereof shall be paid in
full on the earliest of (i) the Maturity Date, (ii) the due date of any
mandatory prepayment as set forth herein, or (iii) upon acceleration of this
Note in accordance with the terms hereof. Any amount of principal repaid
hereunder may not be reborrowed. The Maker may prepay all or any
portion of the principal amount of this Note upon not less than two (2) business
days’ prior written notice to the Holder without premium or
penalty.
Section
1.3 Security
Agreement. The obligations of the Maker hereunder are secured
by, among other things, a continuing security interest in certain assets of the
Maker and certain of its subsidiaries pursuant to the terms of that certain
Second Amended and Restated Security Agreement (the “Security Agreement”)
dated on or around December 17, 2009 by and between Holder, Maker, Hunter Bates
Mining Corporation (“Hunter Bates”) and
Gregory Gold Producers, Inc. (“Gregory Gold”) and
that certain Third Amended and Restated Pledge Agreement (the “Pledge Agreement”)
dated on or around December 17, 2009 by and between Holder, Maker, Hunter Bates
and Gregory Gold.
Section
1.4 Payment on Non-Business
Days. Whenever any payment to be made shall be due on a
Saturday, Sunday or a public holiday under the laws of the State of New York,
such payment may be due on the next succeeding business day and such next
succeeding day shall be included in the calculation of the amount of accrued
interest payable on such date.
ARTICLE
II
EVENTS OF
DEFAULT; REMEDIES
Section
2.1 Events of
Default. The occurrence of any of the following events shall
be an “Event of
Default” under this Note:
(a) any
default in the payment of (1) the principal amount hereunder when due, or (2)
interest on, or liquidated damages in respect of, this Note, within three (3)
business days after the same shall become due and payable (whether on the
Maturity Date or by acceleration or otherwise); or
(b) the
Maker shall fail to observe or perform any other covenant or agreement contained
in this Note, which failure is not cured, if possible to cure, within 3 business
days after notice of such default sent by the Holder; or
(c) default
shall be made in the performance or observance of any material covenant,
condition or agreement contained in the Purchase Agreement or any other
Transaction Document (as defined in said Purchase
Agreement); or
(d) any
material representation or warranty made by the Maker herein or in the Purchase
Agreement or any Transaction Document shall prove to have been false or
incorrect or breached in a material respect on the date as of which made;
or
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(e) the
Maker shall (A) default in any payment of any amount or amounts of principal of
or interest on any indebtedness (other than the indebtedness hereunder) the
aggregate principal amount of which Indebtedness is in excess of $200,000 or (B) default in the
observance or performance of any other agreement or condition relating to any
indebtedness, that, in the aggregate, exceeds $200,000, or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders or beneficiary or
beneficiaries of such indebtedness to cause with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity;
or
(f) the
Maker shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of itself or of all
or a substantial part of its property or assets, (ii) make a general assignment
for the benefit of its creditors, (iii) commence a voluntary case under the
United States Bankruptcy Code (as now or hereafter in effect) or under the
comparable laws of any jurisdiction (foreign or domestic), (iv) file a petition
seeking to take advantage of any bankruptcy, insolvency, moratorium,
reorganization or other similar law affecting the enforcement of creditors’
rights generally, (v) acquiesce in writing to any petition filed against it in
an involuntary case under United States Bankruptcy Code (as now or hereafter in
effect) or under the comparable laws of any jurisdiction (foreign or domestic),
(vi) issue a notice of bankruptcy or winding down of its operations or issue a
press release regarding same, or (vii) take any action under the laws of any
jurisdiction (foreign or domestic) analogous to any of the foregoing;
or
(g) a
proceeding or case shall be commenced in respect of the Maker, without its
application or consent, in any court of competent jurisdiction, seeking (i) the
liquidation, reorganization, moratorium, dissolution, winding up, or composition
or readjustment of its debts, (ii) the appointment of a trustee, receiver,
custodian, liquidator or the like of it or of all or any substantial part of its
assets in connection with the liquidation or dissolution of the Maker or (iii)
similar relief in respect of it under any law providing for the relief of
debtors, and such proceeding or case described in clause (i), (ii) or (iii)
shall continue undismissed, or unstayed and in effect, for a period of thirty
(30) days or any order for relief shall be entered in an involuntary case under
United States Bankruptcy Code (as now or hereafter in effect) or under the
comparable laws of any jurisdiction (foreign or domestic) against the Maker or
action under the laws of any jurisdiction (foreign or domestic) analogous to any
of the foregoing shall be taken with respect to the Maker and shall continue
undismissed, or unstayed and in effect for a period of thirty (30)
days.
Section
2.2 Remedies Upon An Event of
Default. If an Event of Default shall have occurred and shall
be continuing, the Holder of this Note may, at any time, at its option, declare
the entire unpaid principal balance of this Note, together with all interest
accrued hereon, due and payable, and thereupon, the same shall be accelerated
and so due and payable, without presentment, demand, protest, or notice, all of
which are hereby expressly unconditionally and irrevocably waived by the
Maker. Upon an Event of Default, the Holder may proceed to exercise
all rights and remedies against any and all collateral pledged to the Holder as
security for this Note, including all collateral pledged under the Security
Agreement. The remedies provided in this Note shall be cumulative and
in addition to all other remedies available under this Note, at law or in equity
(including, without limitation, a decree of specific performance and/or other
injunctive relief), no remedy contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy and nothing herein
shall limit a holder’s right to pursue actual damages for any failure by the
Maker to comply with the terms of this Note.
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ARTICLE
III
MISCELLANEOUS
Section
3.1 Notices. Any
notice, demand, request, waiver or other communication required or permitted to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery, telecopy or facsimile at the address or number designated in the
Purchase Agreement (if delivered on a business day during normal business hours
where such notice is to be received), or the first business day following such
delivery (if delivered other than on a business day during normal business hours
where such notice is to be received) or (b) on the second business day following
the date of mailing by express courier service, fully prepaid, addressed to such
address, or upon actual receipt of such mailing, whichever shall first
occur.
Section
3.2 Governing Law; Consent to
Forum. This Note shall be governed by the laws of the State of
Kansas without giving effect to any choice of law rules thereof; provided,
however, that if any of the collateral securing the Indebtedness shall be
located in any jurisdiction other than Kansas, the laws of such jurisdiction
shall govern the method, manner and procedure for foreclosure of Holder’s
security interest, lien or mortgage upon such collateral and the enforcement of
Holder’s other remedies in respect of such collateral to the extent that the
laws of such jurisdiction are different from or inconsistent with the laws of
Kansas. AS PART OF THE CONSIDERATION FOR NEW VALUE THIS DAY RECEIVED,
ISSUER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE COURT LOCATED WITHIN
JOHNSON COUNTY, KANSAS OR FEDERAL COURT IN THE DISTRICT OF KANSAS, AND WAIVES
PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY CERTIFIED OR REGISTERED MAIL AND SERVICE SO MADE
SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. ISSUER
WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST
IT AS PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE. ISSUER FURTHER AGREES NOT TO ASSERT AGAINST
HOLDER (EXCEPT BY WAY OF A DEFENSE OR COUNTERCLAIM IN A PROCEEDING INITIATED BY
HOLDER) ANY CLAIM OR OTHER ASSERTION OF LIABILITY WITH RESPECT TO THIS NOTE, THE
OTHER INVESTMENT DOCUMENTS, HOLDER’S CONDUCT OR OTHERWISE IN ANY JURISDICTION
OTHER THAN THE FOREGOING JURISDICTIONS.
Section
3.3 Headings. Article
and section headings in this Note are included herein for purposes of
convenience of reference only and shall not constitute a part of this Note for
any other purpose.
Section
3.4 Binding Effect;
Amendments. The obligations of the Maker and the Holder set
forth herein shall be binding upon the successors and assigns of each such
party. This Note may not be modified or amended in any manner except
in writing executed by the Maker and the Holder.
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Section
3.5 Failure or Indulgence Not
Waiver. No failure or delay on the part of the Holder in the
exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege.
Section
3.6 Maker Waivers; Dispute
Resolution. Except as otherwise specifically provided herein,
the Maker and all others that may become liable for all or any part of the
obligations evidenced by this Note, hereby waive presentment, demand, notice of
nonpayment, protest and all other demands’ and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, and do hereby
consent to any number of renewals of extensions of the time or payment hereof
and agree that any such renewals or extensions may be made without notice to any
such persons and without affecting their liability herein and do further consent
to the release of any person liable hereon, all without affecting the liability
of the other persons, firms or Maker liable for the payment of this Note, AND DO
HEREBY WAIVE TRIAL BY JURY.
(a) No
delay or omission on the part of the Holder in exercising its rights under this
Note, or course of conduct relating hereto, shall operate as a waiver of such
rights or any other right of the Holder, nor shall any waiver by the Holder of
any such right or rights on any one occasion be deemed a waiver of the same
right or rights on any future occasion.
(b) THE
MAKER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A
COMMERCIAL TRANSACTION, AND TO THE EXTENT ALLOWED BY APPLICABLE LAW, HEREBY
WAIVES ITS RIGHT TO NOTICE AND HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY
WHICH THE HOLDER OR ITS SUCCESSORS OR ASSIGNS MAY DESIRE TO USE.
Section
3.7 Fees and
Expenses. Upon execution of this Note, the Maker shall reimburse
the Holder for reasonable and actual legal fees incurred by the Holder in the
drafting and negotiation of this Note (which amount may be withheld by the
Holder from amounts to be delivered to the Maker in connection with the issuance
of this Note). The Maker will pay on demand all costs of collection
and attorneys’ fees paid or incurred by the Holder in enforcing the obligations
of the Maker. The Borrower represents and warrants that this Note is
the legal, valid and binding obligation of the Borrower, enforceable in
accordance with its terms.
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IN WITNESS WHEREOF, the Maker
has caused this Note to be duly executed by its duly authorized officer as of
the date first above indicated.
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WITS
BASIN PRECIOUS MINERALS INC.
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By:
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/s/ Stephen D. King
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Name:
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Stephen D. King
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Title:
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Chief Executive
Officer
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