Attached files
EXHIBIT
10.66
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION (TOGETHER, THE “SECURITIES
LAWS”) AND MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED OR
ENCUMBERED IN THE ABSENCE OF COMPLIANCE WITH SUCH SECURITIES LAWS AND UNTIL THE
ISSUER THEREOF SHALL HAVE RECEIVED AN OPINION FROM COUNSEL REASONABLY ACCEPTABLE
TO IT THAT THE PROPOSED DISPOSITION WILL NOT VIOLATE ANY APPLICABLE SECURITIES
LAWS.
SECURED PROMISSORY
NOTE
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US$5,000,000
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December
14, 2009
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FOR VALUE
RECEIVED, Wits Basin Precious Minerals Inc., a corporation organized and
existing under the laws of the State of Minnesota (the “Company”), hereby
unconditionally promises to pay to Kenglo One Ltd., or its successors and
assigns (the “Holder”),
on or before February 14, 2011 (the “Maturity Date”), the principal
sum of Five Million U.S. Dollars (US$5,000,000.00) (the “Principal”).
This
Secured Promissory Note (“Note”) is issued pursuant to
the terms of that certain Loan Agreement dated as of December 14, 2009 by
and between the Company and Holder (the “Loan Agreement”), in
consideration of a loan by Holder to the Company of
US$4,000,000. This Note shall be deemed to be issued with an original
issue discount of US$1,000,000, and no additional interest shall accrue on the
Principal hereunder. Capitalized terms used herein and not otherwise
defined shall have the meanings given to them in the Loan
Agreement.
1. Payment. All
payments of Principal on this Note shall be made at such place as the Holder
shall designate to the Company in writing. If any payment of
Principal on this Note is due on a day that is not a Business Day, such payment
shall be due on the next succeeding Business Day. “Business Day”
means any day other than a Saturday, Sunday or legal holiday in the State of
Minnesota.
2. Prepayment. This
Note may be prepaid in cash or other immediately available funds, in whole or in
part by the Company at any time and from time to time, without premium or
penalty. At Holder’s option, any payments on this Note shall be
applied first to pay Holder for all costs of collection of any kind, including
reasonable attorneys’ fees and expenses, and thereafter to the payment of
Principal.
3. Security. The
full and timely payment of this Note shall be secured pursuant to the terms of
that certain Security Agreement dated of even date herewith by and between
Issuer and Holder.
4. Events of
Default. The occurrence of any of the following events shall
constitute a “Event of
Default” under this Note: (a) the Company fails to pay any
monetary obligation under this Note when due in accordance with the terms
hereof; (b) the Company fails to cure a default in the payment of any
indebtedness for borrowed money exceeding $50,000 owing to any other entity or
person within the cure period, if any, applicable to such default and the
default shall not have been waived in writing; (c) the occurrence of any
violation under any document related to the Company’s indebtedness to China
Gold, including, without limitation, any loan agreement, note or security
agreement; (d) any representation or warranty set forth herein or in the Loan
Agreement or any other Transaction Document shall be untrue in any material
respect on the date as of which the facts set forth are stated or certified;
(e) the Company violates any provision of a Transaction Document; (f) the
Company shall generally fail to pay or admit in writing its inability to pay its
debts as they become due; or the Company shall apply for, consent to, or
acquiesce in the appointment of a trustee, receiver or other custodian for
itself or any of its property, or make a general assignment composition, or
similar device for the benefit of its creditors; or a trustee, receiver or other
custodian shall otherwise be appointed for the Company or any of its assets; an
attachment or receivership of assets or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy or insolvency law,
or any dissolution or liquidation proceeding shall be commenced by or against
the Company; or the Company shall take any corporate action to authorize, or in
furtherance of any item set forth in subsection (f) hereof; or (g) the Company’s
dissolution or liquidation.
5. Remedies. Upon
any Event of Default, Holder may without further notice declare the entire
unpaid Principal sum of this Note immediately due and payable; Holder’s failure
to declare the entire unpaid Principal sum of this Note immediately due and
payable shall not constitute a waiver by Holder of its right to so declare at
any other time; Holder may employ an attorney to enforce its rights and remedies
hereunder and the Company hereby agrees to pay Holder’s reasonable attorneys’
fees and other reasonable expenses incurred by Holder in exercising any of
Holder’s rights and remedies upon an Event of Default; and/or Holder’s rights
and remedies provided hereunder shall be cumulative and concurrent with all
other remedies provided by law or in equity and may be pursued singly,
successively or together in Holder’s sole discretion; and Holder’s failure to
exercise any such right or remedy shall not be a waiver or release of such
rights or remedies or the right to exercise any of them at another
time.
6. Transferability. This
Note shall not be transferable, except in compliance with all applicable state
and federal securities laws, regulations and orders, and with all other
applicable laws, regulations and orders. Holder shall not transfer
any right, title or interest in this Note without the prior written consent of
the Company, which consent shall not be unreasonably
withheld; provided, however, that this Note may be sold or
transferred to an Affiliate (as defined under Regulation D promulgated under the
Securities Act of 1933, as amended (the “Securities Act”)) of the
Holder without the prior written consent of the Company provided that (i) such
assignee is an accredited investor within the meaning of the Securities Act,
(ii) the Holder has given prior written notice to the Company.
7. Waiver. The
Company hereby waives presentment for payment, notice of nonpayment, protest,
notice of protest and all other notices, filing of suit and diligence in
collecting the amounts due under this Note and agrees that the Holder shall not
be required first to initiate any suit or exhaust its remedies against any other
person or parties in order to enforce payment of this Note. No waiver
of any right or remedy of the Holder under this Note shall be valid unless in a
writing executed by the Holder and any such waiver shall be effective only in
the specific instance and for the specific purpose given. All rights
and remedies of the Holder of this Note shall be cumulative and may be exercised
singly, concurrently or successively.
8. Notices. Any
notice required or permitted to be given hereunder shall be given by the Company
to the Holder or the Holder to the Company in accordance with the Loan
Agreement.
9. Severability. If
any provision in this Note is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Note will remain in full
force and effect. Any provision of this Note held invalid or unenforceable only
in part or degree will remain in full force and effect to the extent not held
invalid or unenforceable.
10. Governing
Law. This Note will be governed by the laws of the State of
Minnesota without regard to conflicts of laws principles.
11. Parties in
Interest. The terms and conditions of this Note shall inure to
the benefit of and be binding upon the respective successors and assigns of the
parties.
12. Section Headings,
Construction. The headings of Sections in this Note are
provided for convenience only and will not affect its construction or
interpretation. All references to “Section” or “Sections” refer to
the corresponding Section or Sections of this Note unless otherwise
specified. All words used in this Note will be construed to be of
such gender or number as the circumstances require. Unless otherwise expressly
provided, the words “hereof” and “hereunder” and similar references refer to
this Note in its entirety and not to any specific section or subsection
hereof.
13. Miscellaneous
Provisions. This Note may not be changed orally, but only by
an agreement in writing and signed by the Holder and the
Company. This Note is subject to the terms, conditions and provisions
of the Loan Agreement.
IN
WITNESS WHEREOF, the Company has executed and delivered this Note as of the date
first stated above.
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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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