Third Purchase Agreement Amendment

This Third Purchase Agreement Amendment (this “Amendment”) dated as of June 21, 2019, is entered into by and between Tonogold Resources, Inc., a Delaware corporation (“Tonogold”), and Comstock Mining Inc., a Nevada corporation ( “Comstock”).

WHEREAS, Tonogold and Comstock entered into that certain Option Agreement, dated October 3, 2017 (the “Option Agreement”);

WHEREAS, Tonogold and Comstock entered into that certain Membership Interest Purchase Agreement, dated as of January 24, 2019, as amended by the Purchase Agreement Amendment dated April 30, 2019, and the Second Purchase Agreement Amendment dated May 22, 2019 (the “Purchase Agreement”);

WHEREAS, pursuant to the Purchase Agreement, Tonogold has the right to change the Termination Date to July 26, 2019, and August 30, 2019, subject to making additional non-refundable deposits of $1,000,000 to Comstock by June 21, 2019, and July 26, 2019, respectively;

WHEREAS, Tonogold desires to deliver certain cash consideration and shares of preferred stock in lieu of such additional non-refundable deposits, payable to Comstock by June 28, 2019, and July 26, 2019; and

WHEREAS, capitalized terms used herein but not defined herein shall have the meanings ascribed to such terms in the Purchase Agreement.

NOW, THEREFORE in consideration of the mutual covenants and agreements herein and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged by the parties, the parties agree as follows:

(a)Comstock hereby agrees that the current Termination Date of June 21^st 2019 is hereby changed to no later than June 28^th 2019, with the understanding that Tonogold will wire funds received by them for the cash deposit options in paragraph 1(b) to Comstock within 24 hours of receipt.

(b)Tonogold may delay Closing (as such term is defined, and subject to the terms and conditions set forth in the Purchase Agreement) to as late as July 26, 2019, by either:

Participating Non-Cumulative Perpetual Preferred Stock of Tonogold (the “Shares”) with a stated value of $250,000 that is not applicable to the Purchase Price, with the Shares delivered to Comstock as soon as practicable, but in no event later than July 18^th 2019; or

(c)If the Closing (as such term is defined, and subject to the terms and conditions set forth in the Purchase Agreement) does not occur on or prior to July 26, 2019, Tonogold may further delay Closing until August 30, 2019, by either:

(d) Tonogold shall include with each additional deposit, whether or not accompanied by an extension fee in Shares notice, the additional cost of interest incurred by Comstock, as defined in section 1(d) of the Purchase Agreement Amendment dated April 30, 2019 (the “Incremental Interest”), payable in cash. Alternately, Tonogold can choose to pay the estimated Incremental Interest for the entire period from May 31, 2019 through August 30, 2019, in Shares, by issuing an irrevocable notice to deliver Shares with a stated value of $165,000, to be issued as soon as practicable, but in no event later than July 18, 2019. For purposes of clarity, Tonogold continues to be responsible for timely reimbursing expenses enumerated in the Purchase Agreement as invoiced by Comstock, including those previously invoiced through May 31, 2019.

(e)The Shares shall have substantially identical terms as Tonogold’s Series D Convertible Junior Participating Non-Cumulative Perpetual Preferred Stock, except that the Shares shall have a conversion price that is the lowest of (i) $0.10 per share, (ii) the 20-day volume weighted closing price of Tonogold common shares immediately prior to conversion, or (iii) Tonogold’s initial public offering price per common share. For purposes of clarity, any extension fee paid with Shares will not apply to the Closing Cash Consideration, which shall

remain $11.5 million less the amount of cash deposits made prior to the Closing (as defined in the Purchase Agreement).

2.     Permits. Section 1.5 of the Purchase Agreement is hereby amended and restated in its entirety, as follows:

1.5 Permits. Comstock Mining LLC (the “Company”) currently holds a number of County, State, and Federal permits which are listed in Exhibit F (the “Permits”). These include a Storey County Special Use Permit (the “SUP”), a Right of Way granted by the US Bureau of Land Management (the “ROW”), and a Reclamation permit granted by the State of Nevada. The Parties agree: (i) that subsequent to Closing, they will work timely together, and in consultation with the relevant regulators, to either assign or bifurcate each of the Permits, as necessary, so that the Buyer retains or is granted contractual rights to the rights granted by the Permits that pertain to the Lucerne Properties, and the Seller retains all the rights granted by the Permits that pertain to the American Flat Property; and (ii) until such time as the Permits can be assigned or bifurcated, to retain the Permits in the Company, but modify them or clarify contractually so that Seller has the rights granted by the Permits to continue operations on its owned American Flat Property; or (iii) until such time as the Permits can be assigned or bifurcated, to retain the Permits in the Seller or one of its 100%-owned entities, but modify them or clarify contractually so that the Company has the rights granted by the Permits to continue operations on the Lucerne Properties; and (iv) in any case, the Parties agree that they will work to bifurcate the existing reclamation bond proportionately, or otherwise separately bond the current reclamation liability in the Lucerne Properties in the name of the Company, and bond the current reclamation liability in the American Flat Property in the name of the Seller. To clarify, until such time as the bond can be bifurcated, the Company shall reimburse Seller for all costs of maintaining the existing bond, and the Company shall at all times remain responsible for performing the required reclamation on the Lucerne Properties.

3.    Exhibits. Each of the exhibits attached hereto, hereby amend and restate such exhibits from the Purchase Agreement.

4.     No Novation. Except as amended hereby, all of the terms and conditions of the Option Agreement and the Purchase Agreement shall remain in full force and effect. Tonogold and Comstock acknowledge and agree that this Amendment is not intended to constitute, nor does it constitute, a novation, interruption, suspension of continuity, satisfaction, discharge or termination of the obligations or liabilities under the Option Agreement or the Purchase Agreement.

5.    Further Assurances. Each of Tonogold and Comstock shall, upon request from the other Party, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Amendment and the documents to be delivered hereunder.

6.     Due Execution. The execution, delivery and performance by Tonogold and Comstock of this Amendment has been duly authorized by all necessary action on the part of Tonogold and Comstock. This Amendment has been duly executed and delivered by Tonogold and Comstock.

7.     Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Amendment shall be governed by the internal laws of the State of Nevada, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Nevada or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Nevada.

8.     Venue. Each Party irrevocably submits to the exclusive jurisdiction of federal courts in the State of Nevada, for the purposes of any dispute or action arising out of this Amendment. Process in any action referred to in this Section 9 may be served on any Party anywhere in the world by national courier delivery sent to the address of such served Party set forth on the signature page of this Amendment. Each Party irrevocably and unconditionally waives any objection to the laying of venue of any action arising out of this Amendment in U.S. federal courts sitting in the State of Nevada, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action brought in any such court has been brought in an inconvenient forum. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE ACTIONS OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.

9.     Beneficiaries. This Amendment is intended for the benefit of the Parties and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.

10.     Counterparts. This Amendment may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective against an executing Party when a counterpart has been signed and delivered by such Party to another Party. This Amendment and any amendments hereto, to the extent signed and delivered by means of portable document format (“PDF”) or a facsimile machine, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person. At the request of any Party or to any such contract, each other Party hereto or thereto shall re-execute original forms thereof and deliver them to all other Parties. No Party or to any such contract shall raise the use of PDF or a facsimile machine to deliver a signature or the fact that any signature or contract was transmitted or communicated through the use of PDF or a facsimile machine as a defense to the formation of a contract and each Party forever waives any such defense.

IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first above written.

 

                                

The following patents, fee land, and unpatented mining claims are included in the Lucerne Properties, as defined in the Membership Interest Purchase Agreement, and are shown in Figures A1 and A2, below.