Unassociated Document


    Montana
      Tunnels Mining, Inc.

    P.O.
      Box 176

    Jefferson
      City, Montana 59638

    


    


    January 8,
      2007

    


    


    Via
      E-Mail and FedEx

    


    Elkhorn
      Tunnels, LLC

    320
      West
      Main Street

    Aspen,
      Colorado 81611

    Attention:
      Patrick Imeson, Managing Director

    


    
      	 	
              Re:

            	
              Third
                Amendment to Mine Development and Operating Agreement (“Third
                Amendment”)

            


    

    


    Dear
      Pat:

    


    This
      letter will confirm the agreement reached between Elkhorn Tunnels, LLC
      (“Elkhorn”) and Montana Tunnels Mining, Inc. (“MTM”) to amend, effective as of
      December 31, 2006, certain provisions of that Mine Development and Operating
      Agreement between MTM and Elkhorn dated July 28, 2006, as amended by that
      letter agreement dated October 6, 2006, and further amended by that letter
      agreement dated November 30, 2006 (collectively, the “Mine Development
      Agreement”), with respect to the timing of Elkhorn’s funding of its Initial
      Contribution and the completion of that Initial Contribution (as defined in
      the
      Mine Development Agreement). Elkhorn has informed MTM that it will complete
      the
      full funding of its Initial Contribution, and the parties desire to confirm
      that
      obligation by amending the Mine Development Agreement and by Elkhorn executing
      a
      promissory note to evidence its obligation to complete the full funding of
      its
      Initial Contribution, all as set forth below. 

     

    1.  The
      parties hereby agree that, pursuant to cash contributions made prior to December
      31, 2006, and by execution and delivery of the Note (as defined in paragraph
      3
      below), Elkhorn has made its full Initial Contribution. The parties hereby
      confirm and agree that as of the effective date of this Third Amendment, Elkhorn
      had funded a total of $9,270,000 towards its Initial Contribution. Subsequent
      to
      December 31, 2006, Elkhorn funded an additional $1,730,000 towards its Initial
      Contribution. The parties hereby agree that notwithstanding any of the
      provisions of the Mine Development Agreement to the contrary, Elkhorn shall
      not
      have the option to terminate the Mine Development Agreement pursuant to
      Subsection 5.2(a), or to elect to reduce its Initial Contribution pursuant
      to Subsection 5.2(c), but instead agrees to fully fund its Initial
      Contribution. Notwithstanding the fact that Elkhorn has made its full Initial
      Contribution, Elkhorn and MTM agree that the Earn-In Period shall continue
      and
      MTM shall have no obligation to make any of the conveyances described in Section
      3.4 of the Mine Development Agreement until such time as Elkhorn has fully
      funded its Initial Contribution as set forth in this Third
      Amendment.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
          Elkhorn
            Tunnels, LLC

          Attention:
            Patrick Imeson, Managing Director

          January 8,
            2007

          Page
            2 

        

      

    

     

    2.  Elkhorn
      agrees that, notwithstanding the provisions of the Mine Development Agreement
      that require it to fully fund its Initial Contribution not later than
      January 31, 2007, it shall fully fund its Initial Contribution, in
      accordance with the procedures set forth in the Mine Development Agreement,
      as
      amended hereby, not later than 5:00 p.m. Mountain time on January 17,
      2007. In addition, Elkhorn agrees that it shall pay to MTM all amounts of
      principal and interest owed to MTM under the November 30, 2006 letter
      agreement not later than 5:00 p.m. Mountain time on January 17,
      2007. 

     

    3.  To
      evidence Elkhorn’s obligation to fully fund its Initial Contribution not later
      than 5:00 p.m. Mountain time on January 17, 2007, Elkhorn agrees,
      simultaneously with the execution of this Third Amendment, to execute a
      promissory note in favor of MTM, in the form set forth as Exhibit A
      attached hereto (the “Note”). 

     

    4.  Elkhorn
      and MTM agree that if Elkhorn fails to fully fund its Initial Contribution
      by
      5:00 p.m. Mountain time on January 17, 2007, then, in addition to any
      remedies provided for in the Note and this Third Amendment, and notwithstanding
      the provisions of Article XI of the Mine Development Agreement, or any other
      provisions of the Mine Development Agreement, to the contrary, Elkhorn shall
      not
      be entitled to any distributions of Net Cash Flow or Products, until such time
      as it has paid in full all principal and interest due under the
      Note.

     

    5.  Elkhorn
      and MTM agree that if Elkhorn fails to pay all amounts of principal and interest
      due under the Note by 5:00 p.m. Mountain time on February 17, 2007, then the
      provisions of Section 11.1(b) of the Mine Development Agreement shall be amended
      as of 5:00 p.m. Mountain time or February 17, 2007, without any further action
      being required by either party, so that Elkhorn shall no longer be entitled
      to a
      disproportionate share of Net Cash Flow as provided therein, but shall only
      be
      entitled to fifty percent (50%) of such cash flow, only after it has fully
      paid
      all principal and interest due under the Note.

     

    6.  
      In the
      event of any inconsistency between the terms and conditions of the Mine
      Development Agreement and the terms and conditions of this Third Amendment,
      the
      terms and conditions of this Third Amendment shall prevail. Any capitalized
      terms used but not defined herein shall have the meaning ascribed to them in
      the
      Mine Development Agreement. 

     

    7.  Elkhorn
      and MTM agree that, amended as set forth above, all of the terms and conditions
      of the Mine Development Agreement remain in full force and effect; provided
      that a default under the Note shall not reduce or impair the rights of Elkhorn
      as a Participant except as expressly set forth herein, and provided
further that by its execution and delivery of this Third Amendment,
      MTM
      does not waive any of its rights and remedies under the terms and conditions
      of
      the November 30, 2006 letter agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
          Elkhorn
            Tunnels, LLC

          Attention:
            Patrick Imeson, Managing Director

          January 8,
            2007

          Page
            3

        



    

    To
      confirm Elkhorn’s agreement with the foregoing, please arrange for the execution
      of duplicate originals of this letter agreement in the space provided below,
      and
      return one fully executed original to me

     

    Yours
      very truly,

    


    


    ____________________________

    R. David
      Russell

    President

    Montana
      Tunnels Mining, Inc.

    


    Accepted
      and agreed to on this

    8th
      day
      of January, 2007 by

    Elkhorn
      Tunnels, LLC

    


    


    


    By:
      __________________________________

                 
      Patrick J. Imeson

                 
      Managing Director

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    Exhibit
      A

    


    PROMISSORY
      NOTE

    


    


    
      	
              US$3,730,000

            	
              Effective
                December 31, 2006 

            


    

    


    FOR
      VALUE
      RECEIVED, the receipt and sufficiency of which are hereby acknowledged, the
      undersigned, ELKHORN TUNNELS, LLC (“Borrower”), whose address is 320 West Main
      Street, Aspen, Colorado 81611, promises to pay to the order of MONTANA TUNNELS
      MINING, INC. (“MTM”), whose address is P.O. Box 176, Jefferson City, Missouri
      59638, in accordance with the terms and conditions of that Mine Development
      and
      Operating Agreement between Borrower and MTM dated July 28, 2006, as
      amended by (i) that letter agreement dated October 6, 2006,
      (ii) that letter agreement dated November 30, 2006, and
      (iii) that letter agreement (the "Letter Agreement") effective as of
      December 31, 2006 (collectively, the “Mine Development Agreement”), the
      principal sum of Three Million Seven Hundred Thirty Thousand Dollars
      ($3,730,000.00), less any amounts advanced by Borrower subsequent to
      December 31, 2006 towards the Initial Contribution as described in the
      Letter Agreement, with interest thereon payable as specified in this
      Note.

    


    Principal
      and Interest. Interest
      shall accrue on the unpaid principal balance from and after 5:00 p.m. Mountain
      time on January 17, 2007 at an annual rate of twenty-four percent (24.0%)
      (the "Interest Rate"), and shall be calculated on the actual days outstanding
      over a 365-day year.

     

    Payment
      and Maturity Dates.
      Principal and interest shall be payable, without deduction or offset of any
      kind, and without notice, as follows:

     

    The
      principal amount shall be reduced by the amount of any payments made by Borrower
      to MTM pursuant to the provisions of Subsection 5.1(b)(i) of the Mine
      Development Agreement on or before January 17, 2007. The entire amount of
      unpaid principal shall be payable to MTM in accordance with the provisions
      of
      the Mine Development Agreement, and shall be paid not later than 5:00 p.m.
      Mountain time on January 17, 2007. Interest shall begin accruing and become
      payable only if any of the principal remains unpaid as of 5:00 p.m.
      Mountain time on January 17, 2007. 

     

    All
      payments of principal and interest of this Note are payable only in lawful
      money
      of the United States of America, at such place as the holder hereof may
      designate in writing from time to time. Upon written request of MTM, Borrower
      agrees to make all payments by electronic transfer of funds or other form of
      currently available funds acceptable to MTM. Payments made by check will not
      be
      deemed made until good funds for such check are received by MTM or the servicing
      agent.

    


    Prepayment.
      Pursuant
      to and in accordance with the terms and conditions of the Mine Development
      Agreement only, Borrower may prepay this Note without premium, penalty, or
      other
      charge or cost. Any such prepayment shall not postpone the due date of any
      subsequent payments or change the amount of such payments.

     

    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

    Default,
      Acceleration, and Foreclosure.
      Time is
      of the essence of this Note. Upon failure to (a) pay any sum on or before the
      date such sum becomes due, or (b) to perform or comply with any of the covenants
      or agreements contained herein or in any instrument securing payment of this
      Note, which failure in any event continues beyond the expiration of any
      applicable notice, cure or grace period, then such shall constitute a default
      under this Note ("Default"), and, at the option of the holder hereof, the entire
      debt then remaining unpaid at once shall become due and payable without notice
      and MTM may pursue all rights and remedies available under this Note, subject
      to
      and consistent with the terms and conditions set forth in the Mine Development
      Agreement, or any instrument securing payment of this Note, at law or in equity.
      A
      default
      hereunder shall be a general obligation of the Borrower and shall not reduce
      or
      impair the status of or rights and obligations of the Borrower as a Participant
      (as defined in the Mine Development Agreement) except as set forth in the Letter
      Agreement.

     

    Default.
      In the
      event of Default, Borrower promises to pay interest on the remaining principal
      balance of this Note together with all sums due and owing under the Note then
      outstanding at the Interest Rate, and any interest so accruing shall be paid
      at
      the time of and as a condition precedent to the curing of any default under
      any
      statutory right to cure. 

     

    Remedies
      Cumulative.
      The
      rights or remedies of MTM as provided in this Note and any instrument securing
      payment of this Note shall be cumulative and concurrent and may be pursued
      singly, successively, or together against the Borrower, at the sole discretion
      of MTM. The failure to exercise any such right or remedy shall in no event
      be
      construed as a waiver or release of such rights or remedies or the right to
      exercise them at any later time.

     

    Forbearance.
      Any
      forbearance of MTM in exercising any right or remedy under this Note, or
      otherwise afforded by applicable law, shall not be a waiver of or preclude
      the
      exercise of any right or remedy. The acceptance by MTM of payment of any sum
      payable hereunder after the due date of such payment shall not be a waiver
      of
      MTM's right to either to require prompt payment when due of all other sums
      payable hereunder or to declare a default for failure to make prompt payment.
      No
      delay or omission on the part of MTM in exercising any right hereunder shall
      operate as a waiver of such right or of any other right under this
      Note.

     

    Borrower's
      Waivers.
      Borrower
      and any sureties, guarantors and endorsers (severally each called a "Surety")
      waive all requirements as to diligence, notice, demand, presentment for payment,
      protest and notice of dishonor, and expressly agree that this Note, or any
      payment hereunder, may be extended from time to time without in any way
      affecting the liability of the Borrower and each Surety hereof. 

     

    Preferential
      Payment.
      Borrower
      agrees that to the extent Borrower or any Surety makes any payment to MTM in
      connection with the indebtedness evidenced by this Note, and all or any part
      of
      such payment is subsequently invalidated, declared to be fraudulent or
      preferential, set aside or required to be repaid by MTM or paid over to a
      trustee, receiver or any other entity, whether under any bankruptcy act or
      otherwise (any such payment is hereinafter referred to as a "Preferential
      Payment"), then the indebtedness of Borrower under this Note shall continue
      or
      shall be reinstated, as the case may be, and, to the extent of such payment
      or
      repayment by MTM, the indebtedness evidenced by this Note or part thereof
      intended to be satisfied by such Preferential Payment shall be revived and
      continued in full force and effect as if said Preferential Payment had not
      been
      made.

     

    
      
        
        

      

      
        A-2

        
          

        

      

      
        
        

      

    

    Governing
      Law; Jurisdiction.
      This
      Note is to be governed by and construed and interpreted in accordance with
      the
      laws of Colorado, without giving effect to principles of conflict. Without
      limiting the right of MTM to bring any action or proceeding against Borrower
      or
      any Surety or against any property of Borrower or any Surety (an "Action")
      arising out of or relating to this Note or any indebtedness evidenced hereby
      in
      the courts of other jurisdictions, Borrower and each Surety hereby irrevocably
      submit to the jurisdiction, process and venue of any Colorado State or Federal
      court sitting in Denver, Colorado, and hereby irrevocably agree that any Action
      may be heard and determined in such Colorado State court or in such Federal
      court. Borrower and all Sureties each hereby irrevocably waives, to the fullest
      extent it may effectively do so, the defenses of lack of jurisdiction over
      any
      person, inconvenient forum or improper venue, to the maintenance of any Action
      in any jurisdiction.

     

    Binding
      Effect.
      This
      Note shall be binding upon Borrower and its successors and assigns and shall
      inure to the benefit of MTM, and any subsequent holders of this Note, and their
      successors and assigns.

     

    Attorneys'
      Fees and Costs.
      Borrower
      promises to pay all reasonable attorneys' fees and costs incurred by MTM in
      connection with any Default hereunder and in any proceeding brought to enforce
      any of the provisions of this Note.

     

    Interpretation
      and Incorporation.
      As used
      in this Note, the term "MTM" shall include each subsequent transferee and/or
      owner of this Note, whether taking by endorsement or otherwise. As used in
      this
      Note, the word "include(s)" means "include(s), without limitation," and the
      word
      "including" means "including, but not limited to."

     

    IN
      WITNESS WHEREOF, Borrower has duly executed this Note effective as of the day
      and year first above written.

    


    


    ELKHORN
      TUNNELS, LLC

    


    


    


    By:
      _______________________________ 

    Name:  Patrick
      J. Imeson

    Title:    Managing
      Director

    


    
      
        
        

      

      
        A-3