Exhibit 10.2



 


FIRST AMENDMENT TO

REINSTATEMENT OF AGREEMENT AND PLAN OF MERGER


This First Amendment to Reinstatement of Agreement and Plan of Merger (this
"Amendment") is dated as of June 20, 2003, by and among Capital Growth Partners
LLC, a Utah limited liability company (the "Purchaser"), United Park City Mines
Company, a Delaware corporation (together with its Subsidiaries, the "Company"),
Loeb Investors Co. XL, a New York partnership ("Seller" or "Loeb"),
and CGP Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of the
Purchaser ("Merger Subsidiary").


 


Recitals


A. The Purchaser, the Company, Merger Subsidiary and Loeb are parties to the
Reinstatement of Agreement and Plan of Merger dated as of May 12, 2003 (the
"Reinstatement Agreement"). 


B. In accordance with Section 18 of the Reinstatement Agreement, the parties thereto
hereby amend the Reinstatement Agreement as provided herein. Capitalized terms not
otherwise defined herein shall have the meanings ascribed to such terms in the
Reinstatement Agreement.


 


Agreement


Purchaser, Merger Subsidiary, Seller and the Company, intending to be legally bound,
for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, agree as follows:




  	Amendments to Section 3 of Reinstatement Agreement. The following new
    Sections 3(g), (h), (i) and (j) are hereby inserted following Section 3(f) of the
    Reinstatement Agreement:


  
    "(g) Section 7.01(e) of the Merger Agreement is amended to read in its entirety as
    follows:

    
      
        
          
            "(e) by the Company or the Seller in the event that at least three (3) business
            days prior to the Merger Closing, the Company or the Seller has received a Superior Offer
            and the Board of Directors of the Company determines, in the exercise of its business
            judgment, to accept the Superior Offer; provided, however, Purchaser shall have two
            (2) business days to match or beat such Superior Offer;"

          

        

      

    

    (h) Section 7.03 of the Merger Agreement is amended to read in its entirety as follows:

    
      
        
          
            "If (i) this Agreement shall have been validly terminated by the Company or the
            Seller pursuant to Section 7.01(e) and (ii) the Shares are purchased (or cancelled in a
            merger transaction) or all, or substantially all, of the Company’s assets are sold
            pursuant to the Superior Offer, the Purchaser shall be paid an amount equal to its actual
            out of pocket fees and costs not to exceed $2.5 million, which amount shall be paid pro
            rata by all stockholders of the Company out of the consideration received pursuant to the
            consummated Superior Offer. Additionally, Seller shall also return to Purchaser
            Seller’s pro rata portion of the Purchaser Payments (i.e., $1,886,649) and the
            Reinstatement Payment (i.e., $300,000) upon the close of the Superior Offer."

          

        

      

    

    (i) Section 10.18 of the Merger Agreement is amended by adding the following new
    subsection (f):

    
      
        
          
            "(f) The following definitions from the Purchase Agreement, for purposes of this
            Agreement, shall be amended in their entirety to read as follows:

            ‘Superior Offer’ means an Acquisition Proposal that the Board of Directors of
            the Company determines, in the exercise of its business judgment, is a credible cash
            offer, with a deposit appropriate under the circumstances, from a reputable entity in an
            amount that materially exceeds the Purchaser’s offer of $21 per share that can be
            closed at the same time as the Merger Closing without contingencies, accompanied by
            evidence of substantial present net worth and capability to close such as financial
            statements, commitments from reputable financial institutions for any required financing
            and a history of transactions closed.

            ‘Acquisition Proposal’ means any proposal to (i) acquire the Company or all
            of its shares of outstanding stock, (ii) acquire all, or substantially all, of the
            Company’s assets or (iii) merge, consolidate or engage in a similar corporate
            transaction with respect to the Company."

          

        

      

    

    (j) The text of Section 5.07 of the Merger Agreement is hereby deleted in its entirety
    and replaced by the text of Section 6.4(b) of the Purchase Agreement."

  





2.  Acknowledgment of Settlement. 



(a) The parties hereto acknowledge that a Memorandum of Understanding in connection
with the potential settlement of an action now pending in the Third Judicial District
Court in and for Summit County, Utah entitled Pennsylvania Avenue Partners, LLC v.
United Park City Mines Co., et al., Case No. 030500337 (the "Action") has
been executed by the parties to such Action. The Purchaser and Seller have consented to
such settlement provisions.


(b) The parties hereto acknowledge that in connection with the settlement of the
Action, the defendants have agreed to pay up to $105,000 for the expenses incurred by
plaintiff (attorneys fees and other related costs). Additionally, the parties hereto
acknowledge that the defendants incurred significant expense in defending the Action
(attorneys fees and other related costs). Upon the Merger Closing, Purchaser agrees to pay
half of all such costs and expenses incurred by defendants in defending and settling the
Action with the remaining amount to be included as part of the "Stockholder
Expenses" (as such term is defined in the Company’s information statement filed
on June 5, 2003 with the Securities and Exchange Commission).


 


3.  Amendment to Section 7 of Reinstatement Agreement. Section 7 of the
Reinstatement Agreement is amended to read in its entirety as follows:



  
    "Closing. The Merger Closing will take place within 31 days (such 31 day
    period, the "Appeal Period") following the day on which a judgment and order of
    dismissal with prejudice is entered by the court in connection with the Action, upon four
    (4) business days prior written notice delivered to Purchaser by or on behalf of the
    Company on or after June 30, 2003, or such earlier date as the parties may agree (the
    "Closing Notice"). The parties hereto recognize that time is of the essence.
    Purchaser may extend the date of Closing by seven (7) business days from the date set
    forth in the Closing Notice. Any Closing Notice received by Purchaser shall be effective
    (i) on the date of receipt if received prior to 12:00 PM (noon) New York City time on a
    business day or (ii) on the next following business day if received on a business day
    after 12:00 PM (noon) New York City time or on a day that is not a business day. Notice by
    facsimile shall be permitted and shall be deemed received upon confirmation of the
    applicable facsimile being sent. The Merger Closing will take place at the offices of Van
    Cott Bagley Cornwall & McCarthy, 50 South Main Street, Suite 1600, Salt Lake City,
    Utah 84144, or such other place as the parties may agree. Notwithstanding the foregoing,
    any of the Company, the Purchaser or the Seller may terminate this Reinstatement Agreement
    if the Merger Closing does not occur on or before August 7, 2003 by delivering notice of
    cancellation following such date, so long as such notice of cancellation is delivered
    prior to the delivery of the Closing Notice. Notwithstanding the foregoing, in the event
    that an appeal or notice of objection to the above referenced order (or otherwise related
    to the Action) is filed with the court or other applicable authority, any party hereto may
    terminate this Reinstatement Agreement. Additionally, in the event that a stockholder (or
    representative thereof) timely objects to the settlement of the Action set forth in the
    related Notice of Settlement and complies with the requirements of such Notice of
    Settlement, and said objection is not withdrawn, any party hereto may extend the date of
    Closing to seven (7) calendar days following the end of the Appeal Period, it being
    understood that any extension pursuant to this sentence shall be in lieu of, and not in
    addition to, any extension permitted pursuant to the third sentence of this Section
    7."

  




 


4.  Financing Agreement. The following new Section 2(E) is hereby
inserted following Section 2(D) of the form Financing Agreement attached to the
Reinstatement Agreement as Exhibit A:



  
    (E) Reference is hereby made to that certain Agreement and Covenant of Cooperation to
    be executed by and among the Company, Blue Ledge Corporation, Mountain Developments I,
    Inc., Empire Mountain Village, LLC, CIBC WMC Inc., JDI Park City, L.L.C. and the Seller
    (the "Covenant Agreement"). CGP and UPK hereby covenant and agree to take all
    actions necessary (including, without limitation, making all necessary applications and
    other requests of all applicable city commissions, agencies and public officials of Park
    City or otherwise) to cause the allocation of the "Maximum Unit Equivalents" and
    the "Maximum Residential Units" for the "Remainder Property" to be
    allocated in such a manner that the "Loeb Parcel" will be allocated at least
    80,000 "Saleable Square Feet" and not thereafter reduced (each such quoted term
    having the meaning ascribed to it in the Covenant Agreement). In the event that less than
    80,000 Saleable Square Feet at any point in time are allocated to the Loeb Parcel, within
    10 business days of Loeb’s request, UPK and CGP agree to grant additional security
    (consisting of marketable property) for the repayment of the Note in an amount such that
    the total security is marketable property with an aggregate loan to value ratio of 1.5 to
    1 (as such additional security required to achieve such an aggregate loan to value ratio
    is reasonably determined by Loeb).

  




 


5.  Continuation of Reinstatement Agreement. Except as the provisions
thereof may be amended or suspended hereby, the Reinstatement Agreement shall remain in
full force and effect.


 


6.  Governing Law. This Amendment shall be construed in accordance
with, and governed in all respects by, the laws of the State of Delaware (without giving
effect to principles of conflicts of law).


 


7.  Counterparts. This Amendment may be signed in counterparts, all of
which together shall constitute one and the same instrument. The parties hereto may
provide signatures to this Amendment by facsimile, and such facsimile signatures shall be
deemed to be the same as original signatures.


* * *


IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Reinstatement Agreement to be duly executed by their duly authorized representatives as of
the day and year first above written.



  
    
      
        CAPITAL GROWTH PARTNERS LLC, by Talisker Mountain Developments, Inc.,

        as Manager

        By: /s/
                       

        Name: 

        Title: 

         

        CGP ACQUISITION, INC.

        By: /s/
                             

        Name: 

        Title: 

         

        UNITED PARK CITY MINES COMPANY

        By: /s/ Hank Rothwell

        Name: Hank Rothwell

        Title: President

         

        LOEB INVESTORS CO. XL

        By: /s/ Joseph S. Leser

        Name: Joseph S. Lesser

        Title: Managing Partner