LOAN AGREEMENT BETWEEN PARK-PREMIER MINING COMPANY AND ROBERT W. DUNLAP DATED JANUARY 11, 2007
EXHIBIT
10.22
LOAN
AGREEMENT BETWEEN PARK-PREMIER MINING COMPANY
AND
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ DATED JANUARY 11, 2007
L
o a n A g r e e m e n t
Loan
Agreement (“Agreement”), dated
effective as of January 11, 2007 is by and between Park-Premier Mining Company,
a Utah corporation (“Borrower”), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Lender"). The
undersigned parties hereby agree as follows.
A
r t i c l e I - D e f i n i t i o n
s
Section
1.1 Definitions. The following terms defined in this Article
shall have the meanings specified for all purposes of this
Agreement:
a. “Account,”
“Account Debtor,” “Chattel Paper,” “Commercial Tort Claim,” “Deposit Account,”
“Document,” “Equipment,” “General Intangible,” “Goods,” “Instrument,”
“Investment Property,” “Inventory,” “Letter of Credit Right,” “Payment
Intangible,” “Proceeds,” “Promissory Note,” “Software,” and “Supporting
Obligation,” have the respective meanings assigned to such terms in the
UCC.
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b.
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“Lender”
means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and his successors and
assigns.
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c. “Collateral”
means all of Borrower’s assets (including, but not limited to, the following
types or items of property), whether now owned or hereafter acquired by Borrower
and wheresoever located, and all other collateral of any type that may now
or
hereafter be provided by Borrower to Lender to secure the Obligations or any
part thereof:
i. all
Accounts;
ii. all
Chattel Paper;
iii. all
choses in action, and Commercial Tort Claims to the extent that contractually
subrogated rights are not involved;
iv. all
Equipment (including, but not limited to all equipment, machinery, furniture,
and furnishings);
v. all
General Intangibles (including, but not limited to, all Payment Intangibles,
Software, patents, patent applications, trademarks, trademark applications,
tradenames, trade secrets, goodwill, copyrights, registrations, licenses,
franchises, customer lists, tax refund claims, claims against carriers and
shippers, guarantee claims, contracts rights, security interests, security
deposits and any rights to indemnification) each to the extent that
contractually subrogated rights are not involved;
vi. all
real property and leases of real property and related buildings; improvements;
fixtures; hereditaments; appurtenances; water, mineral and
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other
rights; easements; licenses, privileges and assets of any kind, each subject
to
the provisions of their respective instruments;
vii. all
supporting obligations related to any of the foregoing property including,
but
not limited to, all guaranties, security interests, liens, deeds of trust,
mortgages and assignments of leases and rents guarantying or securing any
obligations owed to Borrower;
viii. all
additions and accessions to, replacements and substitutions for, proceeds and
products of the foregoing, including, but not limited to, all insurance proceeds
pertaining to any of the foregoing property each subject to the provisions
of
their respective instruments; and
ix. all
books and records relating to Borrower's business operations or any of the
foregoing.
d. "Loan"
or "Loans” include, but are not limited to, the Revolver defined in Section II
below, and shall include all principal, interest, fees and any other obligation
in any form, however created, arising or evidenced by Borrower to Lender,
hereafter created.
e. “Loan
Agreements" mean, collectively, this Agreement and all notes, guarantees,
security agreements, UCC financing statements, and other agreements, documents
and instruments now or at any time hereafter executed and/or delivered by
Borrower in connection with this Agreement, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
f. “Obligations”
mean any and all Loans and all other obligations, liabilities and indebtedness
of every kind, nature and description owing by Borrower to Lender and/or its
affiliates, including principal, interest, charges, fees, costs and expenses,
however evidenced, whether as principal, surety, endorser, guarantor or
otherwise, whether arising under this Agreement or otherwise, hereafter arising,
whether arising before, during or after the commencement of any case with
respect to Borrower under the United States Bankruptcy Code or any similar
statute (including the payment of interest and other amounts which would accrue
and become due but for the commencement of such case, whether or not such
amounts are allowed or allowable in whole or in part in such case), whether
direct or indirect, absolute or contingent, joint or several, due or not due,
primary or secondary, liquidated or unliquidated, secured or unsecured, and
however acquired by Lender.
g. “Person”
means any individual, sole proprietorship, partnership, corporation, business
trust, joint stock company, trust, unincorporated organization, association,
limited liability company, institution, public benefit corporation, joint
venture, entity or government, or any other form of recognized person under
applicable law (whether Federal, state, county, city, municipal or otherwise,
including any instrumentality, division, agency, body or department
thereof).
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h. “Applicable
Interest Rate” means twelve percent (12%) per annum.
i. “UCC”
means the Utah Uniform Commercial Code as in effect from time to
time.
A
r t i c l e I I – t h e L o a n
s
Section
2.1 Revolver. Subject to the terms and conditions set forth in
this Agreement and the other Loan Agreements, Lender hereby provides Borrower
with a revolving line of credit (the “Revolver”), whereby Lender may, in it is
sole discretion, make advances to Borrower. Lender may elect to not make
advances to Borrower for any reason or no reason. One or more
advances by Lender shall not constitute an agreement, express or implied, to
make further advances. The Revolver is terminable at will by Lender
(the “Termination Date”).
a. Payments. Payments
of principal, interest and any other amounts owing on the Revolver shall be
in
paid accordance with the promissory notes executed by Borrower from time to
time
to evidence the Revolver.
b. Interest. Interest
on the unpaid principal of the Loans shall be calculated at an annual rate
equal
to the Applicable Interest Rate, in effect from time to time, on the basis
of
the actual number of days elapsed in a year of 360 Days, and shall change as
and
when the Applicable Interest Rate may change.
c. Purpose. The
Revolver can be used for the following purposes only: short-term working
capital.
d. Collateral. The
Revolver shall upon Lender’s election be secured by a valid, enforceable, first
priority security interest in the Collateral. Lender’s right to
security interests in the Collateral shall not be deemed to have been waived
if
Lender does not insist upon their creation and perfection contemporaneous with
this Agreement; Lender reserves his right to do so at any time subsequent to
this Agreement whether before, at or after maturity or
default. Lender further reserves his right to require execution of
the security interests by Borrower to be held by Lender and perfected in his
sole discretion. When requested by Lender, Lender’s right to security interests
in the Collateral shall be created by deeds of trust, security agreements,
UCC
financing statements, and any other collateral documents deemed necessary or
advisable by Lender in his sole discretion, each in form satisfactory to Lender,
duly executed by Borrower. Hereafter, Borrower shall from time to
time execute and deliver to Lender such other documents in form and substance
satisfactory to Lender, and perform such other acts, as Lender may request,
to
perfect and maintain valid, enforceable, first priority security interests
in
the Collateral.
Section
2.2 Fees. Borrower shall pay Lender a
non-refundable facility fee in the amount of five percent (5%) of each
Loan. So long as Borrower is not in default of
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any
of
its obligations under the Loan Agreements or under any other obligation to
Lender, Lender waives payment and collection of the fees for the Loans. All
fees
are due and payable by Borrower to Lender in the event of a default under the
Loan Agreements.
Section
2.3 Prepayment. Subject to the terms and conditions
of this Agreement, Borrower shall have the right to repay Loans in part or
in
whole at any time without penalty; however, any prepayment must be accompanied
by payment of all accrued interest then due.
Section
2.4 Conditions Precedent. Any Loan hereunder
shall be subject to the delivery to Lender, in form and substance satisfactory
to Lender, of any documents required by Lender which may include, but are not
limited to promissory notes, deeds of trust, security agreements, financing
statements, guarantees and other Loan Agreements necessary to confirm, continue
or create the Obligations and/or any liens and security interests in favor
of
Lender.
A
r t i c l e I I I – C o v e n a n t s o
f B o r r o w e r
Section
3.1 Affirmative Covenants. So long as
Borrower may have Loans outstanding or committed hereunder and until performance
of all other obligations of Borrower required hereunder, Borrower shall permit
or cause to permit Lender at any reasonable time to have access to the books
and
records of Borrower, and to inspect or otherwise check the properties of
Borrower.
Section
3.2 Negative Covenants. So long as Borrower may
have Loans outstanding hereunder and until payment in full and performance
of
all other obligations of Borrower, Borrower shall not, without the consent
of
Lender, which consent may be withheld for any reason or no reason: create,
incur
or permit to exist any lien, security interest or other encumbrance upon any
of
its properties or assets; pledge, lien, encumber its assets except those
currently encumbered or pledged as of the date of this Loan Agreement including,
without limitation, the February 15, 2007 Letter Agreement with Talisker Realty
Limited and the February 15, 2007 Letter Agreement with Ranch 248,
LLC.
A
r t i c l e I V – E v e n t s o f
D e f a u l t
Section
4.1 Events of Default. The occurrence of any of
the following events shall be an “Event of Default:”
a. Non-Payment. Any
payment of principal or interest on any Obligation shall not be made when
due;
b. Misrepresentation. Any
representation or warranty made by Borrower in connection with the execution
and
delivery of this Agreement, proves to be at any time incorrect in any material
respect;
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c. Loan
Agreements Default. Borrower shall fail to perform or observe any
term, covenant or agreement contained in the Loan Agreements;
d. Maturity
Non-Payment. Any obligation of Borrower for the payment of any
Loan is not made at maturity, whether by acceleration or otherwise, or is
declared to be due and payable prior to the stated maturity thereof by reason
of
default or other violation of the terms thereof;
▇. ▇▇▇▇,
Levy. There occurs the issuance of a notice of lien, levy
assessment, injunction or attachment against any portion of Borrower’s
property;
f. Judgment. Any
judgment or judgments not covered by acknowledged insurance coverage are
rendered or judgment liens filed against Borrower;
g. Bankruptcy,
Insolvency. Borrower shall:
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i.
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Apply
for, consent to or suffer the appointment of, or the taking of possession
by, a receiver, custodian, trustee, liquidator or similar fiduciary
of
itself or of all or a substantial part of its
property,
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ii.
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Make
a general assignment for the benefit of
creditors,
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iii.
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Commence
a voluntary case under any state or federal Bankruptcy laws (as now
or
hereafter in effect),
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iv.
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Be
adjudicated a Bankrupt or
insolvent,
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v.
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File
a petition seeking to take advantage of any other law providing for
the
relief of debtors,
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vi.
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Acquiesce
to, or fail to have dismissed, within thirty (30) days, any petition
filed
against it in any involuntary case under such Bankruptcy
laws,
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vii.
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Take
any action for the purpose of effectuating any of the foregoing,
or
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viii.
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Borrower
shall admit in writing its inability, or be generally unable, to
pay its
debts as they become due or cease operations of its present
business.
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h. Security
Interest. Any securing interest in favor of Lender with respect
to the Collateral for any reason ceases to be or is not a valid, enforceable,
perfected lien having a first priority interest;
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i. Default/Other
Agreements. A default of the obligations of Borrower under any
other agreement to which Borrower is a party, including without limitation
other
agreements and promissory notes with Lender, shall occur;
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j.
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Change
of Control. Any change of control of Borrower shall
occur;
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k. Material
Provision. Any material provision of this Agreement shall, for
any reason, cease to be valid and binding on Borrower, or Borrower shall so
claim in writing to Lender;
l.
Seizure of Collateral. Any portion of the Collateral shall be
seized or taken by someone other than Lender;
m. Adverse
Change. A material adverse change occurs in Borrower’s financial
condition, or Lender believes the prospect of payment or performance of this
Note is impaired; or
n. Insecurity. Lender
in good faith believes itself insecure.
Section
4.2 Remedies. Upon the occurrence of an Event
of Default, Lender may declare the principal balance, together with accrued
interest thereon, to be immediately due and payable, and the same shall
forthwith become immediately due and payable without presentment, protest,
notice or demand of any kind, all of which are hereby expressly waived by
Borrower. Upon any such Event of Default, Lender may proceed with
each and every remedy provided for it in this Agreement, any other Loan
Agreements or other instrument executed in connection with the Loans, and may
pursue any other remedy available to Lender, whether in law or equity, to
enforce collection of all sums due and owing to Lender, all of such rights
and
remedies being cumulative and not exclusive of all rights and remedies which
Lender has or may have against Borrower.
Section
4.3 No Waiver. No delay or failure of Lender
in the exercise of any right or remedy provided for hereunder shall be deemed
a
waiver of the right by Lender and no exercise or partial exercise or waiver
of
any right or remedy shall be deemed a waiver of any further exercise of such
right or remedy or any other right or remedy that Lender may
have. The enforcement of any rights of Lender as to any security for
the Loans shall not affect the rights of Lender to enforce payment of the Loans
and to recover judgment for any portion thereof remaining unpaid. The
rights and remedies herein expressed are cumulative and not exclusive of any
right or remedy that Lender shall otherwise have.
A
r t i c l e V - M i s c e l l a n e o u
s
Section
5.1 Modification/Waiver Validity. No
modification or waiver of any provision of this Agreement shall in any event
be
effective unless the same shall be in writing and then such a waiver or consent
shall be effective only in the specific instance and for the purposes for which
it was given. No notice or demand on
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Borrower
in any case shall entitle it to any other or further notice or demand in similar
or other circumstances.
Section
5.2 Costs and Expenses. Borrower agrees to
pay all reasonable costs and expenses, including without limitation, reasonable
attorneys fees, incurred by Lender in connection with preparation, negotiation
and closing of this Agreement and the other Loan Agreements. So long
as Borrower is not in default of any of its obligations under the Loan
Agreements or under any other obligation to Lender, Lender waives payment and
collection of such costs and expenses. Borrower agrees to pay all costs and
expenses, including without limitation, reasonable attorneys and experts fees,
incurred by Lender in connection with the enforcement of any provision of this
Agreement or the other Loan Agreements, and the collection of the Loans or
the
foreclosure or realization upon any security therefor.
Section
5.3 Indemnity. Borrower shall
indemnify, defend and hold Lender and its respective officers, directors,
affiliates, employees and agents harmless from and against any and all claims,
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature whatsoever (including,
without limitations, fees and disbursements of counsel) which may be imposed
on,
incurred by, or asserted against Lender in any litigation, proceeding or
investigation instituted or conducted by any governmental agency or
instrumentality or any other Person with respect to any aspect of, or any
transaction contemplated by, or referred to in, or any matter related to, this
Agreement or the other Loan Agreements, whether or not Lender is a party
thereto.
Section
5.4 Binding Effect. This Agreement shall
inure to the benefit of, and shall be binding upon, the respective successors
and permitted assigns of the parties hereto. Borrower shall have no
right to assign any of its or obligations or rights hereunder with the prior
written consent of Lender. This Agreement, the other Loan Agreements,
and the other instruments executed and delivered pursuant hereto, constitute
the
entire Agreement between the parties with respect to the matters contemplated
herein, and may be amended only by writing signed on behalf of each
party.
Section
5.5 Jurisdiction and Venue. Any
judicial proceeding brought by or against Borrower with respect to this
Agreement or any of the Obligations shall be brought in the any court of
competent jurisdiction in the State of Utah, or the United States District
Court
for the District of Utah, and, by execution and delivery of this Agreement,
Borrower accepts for itself and in connection with its properties, generally
and
unconditionally, the non-exclusive jurisdiction of the aforesaid courts, and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with this Agreement. Borrower waives any objection to jurisdiction
and venue of any action instituted hereunder and shall not assert any defense
based on lack of jurisdiction or venue or based upon forum non
conveniens.
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Section
5.6 Governing Law. This Agreement and
the rights and obligations of the parties hereunder shall be construed and
interpreted in accordance with the laws of the State of Utah without application
of its conflict or choice of law principles.
Section
5.7 Waiver of Jury Trial. Borrower and
Lender hereby waive any right each may have to a jury trial in the event of
litigation concerning the Loans, this Agreement, or any other Loan
Agreement.
Park-Premier
Mining Company
By: /s/
▇▇▇▇
▇▇▇
▇▇▇▇
▇▇▇, Vice President
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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