LETTER AGREEMENT DATED FEBRUARY 15, 2007 BETWEEN PARK-PREMIER MINING COMPANY AND TALISKER REALTY LIMITED
EXHIBIT
10.24
LETTER
AGREEMENT DATED FEBRUARY 15, 2007 BETWEEN
PARK-PREMIER
MINING COMPANY AND TALISKER REALTY LIMITED
(Project
“A”: Approximately 303.1 Acres)
February
15, 2007
This
Letter Agreement (“Agreement”)
memorializes the agreement of the undersigned, Park Premier Mining Company,
a
Utah corporation, f/k/a Xxxxxxxx Mining Company, a/k/a Park Premier Properties;
and Park Xxxxxxxx Mining Company, a Utah corporation, as their respective
interests may appear (collectively, “Seller"), to sell to Talisker Realty
Limited or assigns (“Buyer”) all right, title and interest in and to
approximately 303.1 acres of land in Wasatch County, Utah, as described more
particularly in Exhibit “A” attached hereto; together with all rights and
appurtenances related thereto (collectively, the “Sale Property”), upon the
terms, conditions, and covenants contained herein. Buyer and Seller
are sometimes called the "Parties"; and the Buyer's acquisition of the Sale
Property is sometimes called the "Acquisition".
The
purchase and sale of the Sale
Property shall occur based on the following terms and conditions:
A. BASIC
TRANSACTION
Seller
shall sell and Buyer shall
purchase “AS-IS,” except as otherwise expressly provided in this Agreement, the
Sale Property at the Closing. Within five (5) calendar days of execution of
this
Agreement by the Parties, this Agreement shall be ratified by the Seller's
Board
of Directors. Thereafter, the Closing shall occur within three (3)
calendar days of ratification of this Agreement by at least a majority of the
Seller's Shareholders and satisfaction of the conditions below. Buyer
shall not assume any liabilities associated with the Sale Property unless agreed
in writing by the Parties, and subject to the Seller’s representations and
warranties below, Buyer shall release Seller from all post-Closing liabilities
associated with the Sale Property. The obligation of the Seller to close this
agreement is subject to the satisfaction, at or prior to the Closing, of the
following conditions: (a) Seller and Ranch 248 LLC or assigns, and associated
third parties shall have entered into and delivered copies of Letter Agreements
(Project “B,” and Project “C”: Approximately 30 Acres) mutually acceptable to
the parties thereto; and (b) the directors and shareholders of Seller shall
have
approved and ratified this Agreement and Project “C” as described
above.
B. PURCHASE
PRICE
The
Purchase Price of the Sale Property
is $7,000,000 payable by Buyer to Seller as follows:
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$3,250,000
in cash, payable at Closing;
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$3,750,000
within two years of Closing, payable by means of a lot exchange as
set
forth in the attached Addendum.
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C. OTHER
TERMS
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Seller
Warranties and
Representations: Seller
represents that Seller has fee title to the Property and will convey
good
and marketable title to Buyer at Closing by Special Warranty Deed,
free
from any encumbrances except those approved by Buyer. Seller
agrees to be responsible for taxes related to the Property prior
to
Closing. Seller will cause to be paid by Closing all mortgages,
trust deeds, judgments, mechanic's liens, damages, claims, tax liens
and
warrants involving the Property which are not removed in the Title
Policy
delivered at Closing, and will indemnify and hold Buyer harmless
from and
against such to the extent related to any events and/or ownership
of the
Property prior to Closing. Seller disclaims, and makes no representation
or warranty with respect to water or water rights including, without
limitation, the ability of the Property to participate in, or purchase
water rights from any water
district.
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Seller
Disclosures: No later than ten days following
execution of this Agreement, Seller shall provide to Buyer the following
(“collectively, "Seller Disclosures"): (a) a current commitment for
a
policy of title insurance issued by Coalition Title Agency; (b) a
copy of
any leases and rental agreements now in effect, if any, with regard
to the
Property; (c) a copy of written notices of any claims or conditions
concerning the Property, if any, including without
limitation, any relating to environmental conditions; and (d)
any documents, surveys or studies in Seller’s possession concerning the
Property. Within three days of receipt of the Seller
Disclosures, Buyer may (i) terminate this Agreement based on any
material
condition adversely affecting the Property, as identified in the
Seller
Disclosures, or (ii) give Seller with written notice of unmerchantability
of title or of any other unsatisfactory title condition shown by
the title
documents. If Seller receives notice of unmerchantability of
title or any other unsatisfactory title conditions, Seller shall
use
reasonable efforts to correct said items and shall bear any nominal
expense to correct the same prior to Closing. If such
unsatisfactory title conditions are not corrected on or before Closing
to
Buyer’s satisfaction, this Agreement shall then terminate; provided,
however, Buyer may, by written notice received by Seller, on or before
Closing, waive objection to such items and proceed to
Closing. Upon such waiver and notwithstanding any other
provision of this Agreement to the contrary, all of
Seller’s
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obligations
as to any such waived conditions shall be deemed discharged and
satisfied,
and Seller shall be deemed released by Buyer from any and
all claims in connection
therewith.
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1031
Exchange: If
requested by a Party, the other Party agrees to cooperate with the
other
Party in effectuating a tax-deferred exchange in accordance with
IRC
Section 1031 relative to either the Sale Property or the Exchange
Property, which exchange may result in the assignment of such Party's
interest in this Agreement to an exchange intermediary. In no
event shall the cooperating Party be obligated
to: (a) take title to any replacement property that is not
the subject of this Agreement; (b) incur any obligation,
indebtedness, liability, cost or expense as a result of cooperation
to
effect that exchange; (c) act as a qualified intermediary for any
deferred like-kind exchange; or (d) agree to any extension of the
Closing Date. The exchanging Party agrees to indemnify , defend
and hold harmless the cooperating Party from and against any and
all
claims, suits, proceedings, liabilities, damages, losses, costs and
expenses including, without limitation, reasonable attorneys' fees
and
disbursements in any way connected with the cooperation with the
effort to
effect such an exchange.
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D. COSTS
The Buyer and Sellers are responsible for their respective costs and expenses
incurred at any time in connection with pursuing or consummating the
Acquisition. Notwithstanding the foregoing, Seller shall be
responsible for the title insurance premium for an Owner’s Policy of Title
Insurance in the full amount of the Purchase Price. Each Party shall
be responsible for one half of the Closing costs, with items such as property
taxes to be pro-rated as of the Closing.
E. MISCELLANEOUS
1 Counterparts. This
Agreement may be executed in one or more counterparts, each of which will
be
deemed to be an original copy and all of which, when taken together, will
be
deemed to constitute one and the same agreement.
2 Binding
Effect. Upon execution of this Agreement, the purchase
and sale of the Sale Property shall occur in accordance with the terms and
conditions of this Agreement.
3 Confidentiality. The
Parties shall at all times keep the terms and conditions of this Agreement,
the
attached Addendum and the transaction involving the purchase and sale of
the
Sale Property strictly confidential, and shall not disclose such outside
their
respective organizations except that the Parties may disclose such to any
party
providing
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financing
or professional services to it or its affiliates, or as required by law either
through mandatory legal process or in disclosures required of public companies.
Each Party shall cause its members, officers, employees, agents, representatives
and affiliates to abide by the provisions of this Paragraph 3. or as may
be
required by law
4 Governing
Law; Jurisdiction; Costs. This Agreement shall be
construed in accordance with and governed by the laws of the State of
Utah. In the event of any dispute related to this Agreement or the
Property, (i) any formal action shall be commenced and maintained in federal
and/or state courts located in Utah, and (ii) the prevailing party shall
be
entitled to all costs and expenses related thereto, including attorney’s
fees.
5 Commissions. Each
party represents and warrants that no broker or finder has acted directly
or
indirectly for it in connection with this Agreement, and no broker or finder
is
entitled to any brokerage or finder’s fee or other commission in connection with
the transactions contemplated herein.
The
captions and headings of this Agreement are for convenience and reference
only,
and do not affect the construction or interpretation of any of its
provisions. In this Agreement the singular includes the plural, the
plural the singular, and the use of any gender is applicable to all
genders. This Agreement shall not be assigned without the prior
written consent of the parties hereto, such consent not to be unreasonably
withheld.
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Park
Xxxxxxxx Mining Company
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By:
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/s/ Xxxxxx X. Xxxxxx
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Its:
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President
2/21/07
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Talisker
Realty Limited
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By:
/s/ Xxxxxx X.
Xxxxxx
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By:
/s/ Xxxxx X.
Xxxxx
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Its:
President
2/21/07
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Its:
Authorized / Signing Officer
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Addendum
to Letter Agreement Dated February 15, 2007
between
Talisker
Realty Limited and its Assigns, as Buyer, and
Park
Premier Mining Co., and Park Xxxxxxxx Mining Co.
This
Addendum forms a part of the
Agreement, and describes the methodology and details related to payment of
that
portion of the Purchase Price listed in section B 2 of the Agreement, such
portion being the amount of $3,750,000.00 (the
“Remainder”). Capitalized terms used in this Addendum shall have the
definitions ascribed to them in the Agreement unless otherwise expressly defined
herein.
1. Payment
by Means of Land Swap; Lot Selection. The Remainder shall be paid
to Seller in the form of a land swap consisting of conveyances to Seller of
unimproved, platted, single family lots (“Lots”) located in Wasatch County,
Utah, within the project known as Tuhaye, as described on Exhibit “A” attached
hereto and incorporated in this Agreement. For purposes of this land
swap, included in the definition of Tuhaye is the Sale Property, and the
property identified in Project “B” and Project “C,” as defined in Letters of
Intent dated as of the date hereof and attached hereto as Exhibit “B”
(collectively, the “Lot Inventory Property”). At Closing, Seller shall designate
a Seller’s Representative for purposes of selecting Lots as described
below. The Lots shall be selected by Seller’s Representative,
delivered to Seller, and credited against the Remainder, as
follows:
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a.
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Commencing
at and for a period of 24 months following Closing (the "Selection
Period), and subject to the limitations of this subparagraph "a"
and the
provisions of Paragraph 2, below, the Seller’s Representative shall select
Lots having a combined “Value” (determined as described below) of at least
$3,500,000 but not more than $4,000,000 from among the then existing
inventory of Lots that have been priced and released to the general
public
for purchase or for formal reservation, and that are either not then
under
contract or reservation, or that are under contract or reservation
pursuant to a non-arms-length contract or reservation that is at
least six
months old and that is with a person or entity controlled by
Buyer. In the event that (i) plats have not been recorded on
the Lot Inventory Property within the Selection Period such that
Seller is
unable to select all of the Lots Seller is entitled to select hereunder,
and (ii) Seller has in fact not selected all of the Lots Seller is
entitled to select hereunder, then the Selection Period shall be
extended
up to an additional 36 months until the plats referred to in event
(i)
above have been filed or until event (ii) above has
occurred. Lots may be selected by Buyer individually or as a
series at any time, and from time to time, within the Selection
Period. For purposes of determining Value and the amount to be
credited against the Remainder at the time such selected Lots are
conveyed
to Seller, said Value shall be the retail prices for such lots as
published at
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the
time such Lots are selected by Seller. Such retail prices shall
be established by Buyer during the ordinary course of business
and in a
manner not designed or
intended
to discriminate against Seller. Seller’s Lot selection rights
shall be exercised by written notice to Buyer and shall be
effective only
when such notice is actually received
by Buyer.
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b.
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Each
Lot selected by Seller's Representative under subparagraph “a”, above,
shall be conveyed to Seller (jointly or severally, as designated
by
Seller) by Special Warranty Deed on a date identified by Seller (the
“Conveyance Date”), provided that such Lot is evidenced by a recorded plat
on or before the conveyance date identified by Seller. Subject
to Xxxxxxxxx 0, xxxxx, the cumulative Value of all Lots conveyed
to Seller
hereunder shall not exceed
$4,000,000.
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c.
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Buyer
represents that as of the Conveyance Date, the transferor will have
fee
title to the conveyed Lot(s) and will convey good and marketable
title to
Seller at the closing thereon free from any encumbrances except those
approved by Seller. Buyer shall cause said transferor to be
responsible for taxes, assessments and charges related to the Lot
prior to
the Conveyance Date. Buyer will cause to be paid by the
Conveyance Date all mortgages, trust deeds, judgments, mechanic's
liens,
damages, claims, tax liens and warrants involving the Property which
are
not removed in the Title Policy delivered on the Conveyance Date,
and will
indemnify and hold Seller harmless from and against such to the extent
related to any events and/or ownership of the Lots prior to the Conveyance
Date.
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d.
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Within
thirty (30) days prior to the Conveyance Date, for each Lot,
Buyer shall provide to Seller the following (“collectively, "Buyer
Disclosures") with respect to the Lot(s) to be conveyed on the Conveyance
Date: (a) a current commitment for a policy of title insurance issued
by
Coalition Title Agency; (b) a copy of any leases and rental agreements
then in effect, if any, with regard to the Lot(s); (c) a copy of
written
notices of any claims or conditions concerning the Lot(s), if any,
including without limitation, any relating to environmental conditions;
and (d) any agreements, documents, surveys or studies in Buyer’s
possession concerning the Lot(s) including, without limitation, any
option
or purchase agreements. Within ten days of receipt of the Buyer
Disclosures, Seller may withdraw and reselect all or any of the Lots
selected based on any material condition adversely affecting the
Lot(s),
as identified in the Buyer
Disclosures.
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2. Lot
Selection & Remainder Reconciliation. In the event the total
of the combined Values of all Lots conveyed to Seller under Paragraph 1, above,
is less than the original amount of the Remainder, then the difference between
the
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Values
of
such Lots and the Remainder shall be paid in cash by Buyer to Seller on the
Conveyance Date for the last Lot selected hereunder. In the event the
total of the combined Values of all Lots conveyed to Seller under Paragraph
1,
above, is more than the Remainder, then the difference between said total and
the Remainder shall be paid to Buyer by Seller at the time of any conveyance
of
a Lot to Seller which causes or follows such event. The events
described in this Paragraph 2 shall, in all cases, be subject to the upper
and
lower dollar amount limit and requirement described in Paragraph 1
above.
3. Transfers
and Sales of Lots. Seller shall have the right to sell, transfer,
exchange or otherwise dispose of the Lots it acquires hereunder (a
“Disposition”); provided, however, that the sales price or the value of any
consideration received for a Disposition by Seller shall not be less than the
lesser of (a) the Value of such lot determined as described in Section 1, above,
or (b) the retail sales price of another single family lot which, in Buyer’s
reasonable discretion, is comparable to such resold Lot based on lots proximate
to the resold Lot. In connection with any attempted Disposition,
Seller may (a) list any resold Lot with its own realtors, (b) list any resold
Lot with realtors working for Buyer or any affiliate of Buyer and cooperate
with
Buyer in the manner in which such resold Lots may be included in standard
marketing materials utilized at by such realtors, or (c) offer any resold Lot
directly to any third party without the assistance of a realtor. In
no event shall Seller post signs on any Lot. Buyer shall have a right
of first refusal to be exercised within 60 days of notice from Seller with
respect to any sale or transfer by Seller of multiple Lots comprising the
majority of the Lots ultimately to be selected under Paragraph 1,
above.
4. Talisker
Club Memberships and Dues. Each Lot shall include a dormant Full
Talisker Club Membership (a “Membership”). Because the transfer of
lots hereunder to Seller are a means of acquiring the Property, no dues shall
be
assessed in connection with the Membership associated with any such lot until
the earlier of: (i) a post-Disposition owner of such lot activates the
Membership in compliance with the requirements of the Talisker Club; or (ii)
twelve months after the Disposition of such lot as permitted under the
provisions of Paragraph 3, above. Conversely, upon Disposition of any
such lot by Seller, Seller shall not be entitled to payment or recovery of
any
amount from Talisker Club related to Talisker Club membership deposits or
membership fees, and any Membership not activated as described above shall
be
forfeited.
5. Trust
Deed. The performance of Buyer’s obligations under this Addendum
shall be secured by a deed of trust (the “Performance Deed of Trust”)
encumbering the Property. The Performance Deed of Trust shall
provide, among other things, for the substitution by Buyer, at Buyer’s election,
of substitute collateral having a value equal to or greater than, the
outstanding amount of the Remainder, and for acknowledgement of Buyer's
performance of its obligations and partial releases of the Property as the
obligations secured thereby are satisfied. The form of the Trust Deed
will be agreed upon by Seller and Buyer, each acting reasonably.
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