exh10-26.htm


     

    
      

      

    

     

     

     

     

     

     

     

     

     

     

    EXHIBIT
      10.26

     

    LETTER
      AGREEMENT DATED FEBRUARY 15, 2007 BETWEEN

    PARK-PREMIER
      MINING COMPANY AND RANCH 248 LLC

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    LETTER
      AGREEMENT

    (Project
      “C” Joint Venture: Approximately 30 Acres)

    


    February
      15, 2007

     

    This
      Letter Agreement (“Agreement”)
      memorializes the agreement of the undersigned, Park Premier Mining Company,
      a
      Utah corporation, f/k/a Cummings Mining Company, a/k/a Park Premier Properties
      (“Seller”), to enter into a joint venture with Ranch 248 LLC or its designee
      (“Ranch 248”) with respect to the development and sale of all of Seller’s right,
      title and interest in and to approximately 30 acres of land in Wasatch County,
      Utah, as described more particularly in Exhibit “A” attached hereto (the
“Property”), upon the terms, conditions, and covenants contained
      herein.  Ranch 248 and Seller are sometimes called the
      "Parties".

    


    The
      joint venture involving the
      development and sale of the Property shall occur based on the following terms
      and conditions:

    


    A.           BASIC
      TRANSACTION

    


    1.           Formation
      of Joint Venture.  Within five (5) calendar days of
      execution of this Agreement by the Parties, this Agreement shall be ratified
      by
      Seller's Board of Directors.  Thereafter 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 (the “Formation Date”),
      the Parties shall form a mutually-acceptable joint-venture entity (e.g., limited
      liability company) domiciled in Utah (the “Joint Venture Entity”) for the sole
      purpose of developing and selling the Property, including the construction
      of
      homes thereon (the “Project”), and shall prepare and execute a definitive joint
      venture agreement and/or charter documents (e.g., an operating agreement) that
      reflect the terms and conditions of this Letter Agreement (collectively,
“Definitive JV Agreement”). The obligation of Seller to close this agreement and
      consummate formation of the Joint Venture Entity on the Formation Date is
      subject to the satisfaction, at or prior to the Formation Date, of the following
      conditions:(a) Seller, associated third parties and Talisker Realty Limited
      or
      assigns shall have entered into and delivered copies of Letter Agreements
      (Project “B,” and Project “A”: Approximately 303.1 Acres) mutually acceptable to
      the parties thereto; and (b) the directors and shareholders of Seller shall
      have
      approved and ratified this Agreement and Project “A” as described
      above.

    


    2.           Ownership
      and Management of Joint Venture Entity.  The Joint
      Venture Entity shall be owned equally by Seller and Ranch 248, and shall be
      managed and operated by three managers consisting of two selected by Ranch
      248
      or its designee under this Agreement, and one selected by Seller (collectively,
      the “Managers”) in accordance with standards generally applicable to real estate
      developers in the area; provided, however, that the mutual consent 

     

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

       

      of
        Seller
        and Talisker shall be required for any and all of the following: (i)
        dissolution, termination, merger or consolidation of the Joint Venture Entity;
        (ii) termination of this Agreement or the Definitive JV Agreement, except
        as
        otherwise provided herein or therein; (iii) any bulk sales of Joint Venture
        Entity assets outside the ordinary course of business, or the sale, transfer
        or
        conveyance of substantially all of the Joint Venture Entity’s assets outside the
        ordinary course of business; (iv)  entry into the Joint Venture Entity
        of any new member or owner (e.g., member, partner, shareholder); (v) the
        transfer or sale of any ownership or membership interest in the Joint Venture
        Entity (other than transfers to affiliates that control, are controlled by,
        or
        are under common control with, the transferring Party); (vi) borrowing money
        outside the ordinary course of business from banks, other lending institutions,
        or the Members, and in connection therewith, encumbering and granting security
        interests in the assets of the Joint Venture Entity outside the ordinary
        course
        of business to secure payments of the borrowed sum; (vii) to pay or cause
        to be
        paid compensation to any Member or the Managers outside the ordinary course
        of
        business or other than as expressly set forth herein, and (viii) to increase
        the
        number of, or replace the managers of the Joint Venture Entity, except for
        a
        Member’s right to replace its own designated Manager or Managers.  No
        member of the Joint Venture Entity may sell any portion of their ownership
        or
        membership interest therein for a period of four (4) years following the
        Formation Date.  Thereafter, if a member receives a bona-fide written
        offer to purchase its interest, such member shall provide the other member
        with
        written notice of the offer together with a copy of the offer, and the other
        member shall have the right for a period of sixty (60) days after receipt
        of
        such notice to elect to purchase the interest on the same terms and conditions
        as those contained in the offer.  If the other member fails to make
        such election within said time period, then the selling member may consummate
        the purchase and sale of its membership interest pursuant to the terms and
        conditions of such offer.

    

     

    3.           Conveyance
      of Property.  Within three (3) business days of the
      Formation Date (the “Contribution Date” or "Closing"), Seller shall convey the
      Property “AS-IS,” except as otherwise expressly provided in this Agreement, to
      the Joint Venture by Special Warranty Deed.  For purposes of this
      Agreement and the transactions contemplated hereunder, the Property shall be
      deemed to have a Property Value of $3,500,000.  At Closing, Seller may
      file a deed of trust, collateral assignment of agreements, permits and licenses,
      assignment of rents and profits, and security agreement (collectively, the
“Deed
      of Trust”) in the amount of the Property Value. Seller agrees the lien of its
      Deed of Trust will be subject, subordinate, junior and inferior in all respects
      to the liens evidenced by and the payments due under or in connection with
      any
      construction loan or permanent financing provided, obtained or secured in
      connection with development of the Property. At the request of such lenders
      and
      without further consideration, Seller agrees to execute, deliver and record
      such
      other documents, and take such other action to confirm and effectuate the
      foregoing.

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    
 

    4.           Ranch
      248 Responsibilities.  Ranch 248 shall have the
      following responsibilities on behalf of and in relation to the operation and
      management of the Joint Venture Entity: (i) as soon as practicable following
      Closing but not later than 18 months following Closing, create a business &
development plan that specifies development timing parameters and that is
      consistent with the look and feel of Talisker residential developments in the
      vicinity of the Project, and that addresses material aspects of the Project
      including land planning, design, imaging, marketing, budgeting and sales; (ii)
      submit the Project to Wasatch County for approvals and permitting within 18
      months following Closing; (iii) as soon as practicable following receipt of
      such
      approvals and permits, commence construction of the Project, and diligently
      proceed in good faith and complete all construction and development work in
      accordance with the business plan & development plan through to Project
      completion; (iv)
      cause the Joint Venture Entity to pay all direct and indirect costs (as
      determined in accordance with GAAP) related to the construction, development
      and
      sale of the Project, including sales and marketing costs; (v) arrange financing
      for the Project at rates substantially the same as those then paid by Ranch
      248
      or its affiliates to its commercial lenders; and (vi) advance to the Joint
      Venture Entity, as a Special Capital Contribution, any funds necessary to
      complete the Project in the event the proceeds of such financing are
      insufficient.  In no event shall Seller have any obligation to fund
      the costs or expenses of the Joint Venture Entity or the Project.  The
      schedule described in (i), (ii) and (iii), above, may be amended by the
      unanimous consent of the Managers, which shall be granted if Ranch 248 has
      diligently and in good faith carried out the Project to that point, and if
      either a force majeure event or other good cause exists for relief from the
      schedule, which relief must be sought by Ranch 248 at or about the time of
      the
      causal event.

    


    5.           Ranch
      248 Compensation.  Ranch 248 shall be compensated for
      the Ranch 248 Responsibilities (described above) as follows:

    


    a.           A
      Construction Management Fee equal to five percent (5%) of the hard and soft
      costs associated with the improvement and development of the underlying
      Property, but excluding the direct costs associated with the construction of
      homes themselves thereon (referenced in 5(b), below), the cost of the
      acquisition of the Property, any above-market construction costs charged by
      a
      Talisker construction entity for improvement and development of the Property,
      and the cost of Talisker Club membership, such fee to be paid as described
      below.  Ranch 248 and the Joint Venture Entity shall not enter into
      any above market construction contracts involving the development of the
      Property with any Talisker-affiliated person or entity.

    


    b.           A
      Construction Development Fee equal to eight percent (8%) of the hard and soft
      costs associated with the construction of the homes themselves, but excluding
      the acquisition costs of the Property, the costs referenced in Subsection 5(a)
      above, any above-market construction costs 

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

       

      charged
        by a Talisker construction entity for improvement and development of the
        Property, and the cost of Talisker Club membership, such fee to be paid as
        described below.

    

     

    c.           A
      Talisker Branding Fee of eighteen percent (18%) of the actual retail sales
      price
      (excluding broker commissions and the cost of the associated Talisker Club
      membership) of all lots, parcels, homes and improvements sold in connection
      with
      the Project, such Branding Fee to be paid as described below.  Neither
      owner of the Joint Venture Entity shall be obligated to pay any capital
      contributions, special assessments or other proceeds to the Joint Venture Entity
      for purposes of allowing the Joint Venture Entity to pay the Branding Fee as
      described herein.

    


    6.           Payment
      and Distribution of Joint Venture Revenues.  All
      revenues received by the Joint Venture Entity from the transfer or sale of
      homes
      or and improvements or any of its assets shall be paid and distributed as
      follows: (i) first, as required by any lender that has provided financing for
      the Project; (ii) second, to Seller in payment of the Property Value; (iii)
      third, to the repayment of any Special Capital Contribution made by Ranch 248
      under Section 4, above; (iv) fourth, to the payment of the Construction
      Management Fee, the Construction Development Fee, and then the Talisker Branding
      Fee; and (v) fifth, 50/50 to the Parties.

    


    B.           OTHER
      TERMS AND CONDITIONS

    


    
      	
               

            	
              1.

            	
              Seller
                Warranties and
                Representations. Seller
                represents that Seller has fee title to the Property and will convey
                to
                the Joint Venture Entity good and marketable title to the Property
                free
                from any options, claims, rights to purchase, or encumbrances, except
                those approved by Ranch 248.  Seller agrees to be responsible
                for taxes related to the Property prior to Contribution
                Date.  Seller will cause to be paid by the Contribution Date all
                mortgages, trust deeds, judgments, mechanic's liens, damages, claims,
                tax
                liens and warrants involving the Property which appear in the Title
                Commitment delivered to the Joint Venture Entity as of the Contribution
                Date, and will indemnify and hold the Joint Venture Entity and its
                principals harmless from and against such to the extent related to
                any
                events and/or ownership of the Property prior to the Contribution
                Date.  Seller shall fully cooperate with and support in any way
                necessary the Joint Venture Entity’s development efforts including all
                entitlement and permitting processes. 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.

            


    

    


    


    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    2.          Seller
      Disclosures.  No later than ten days following execution
      of this Agreement, Seller shall provide to Ranch 248 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 agreements, documents, surveys or studies in Seller’s possession concerning
      the Property including, without limitation, any option or purchase
      agreements.  Within three days of receipt of the Seller Disclosures,
      Ranch 248 may terminate this Agreement based on any material condition adversely
      affecting the Property, as identified in the Seller Disclosures, or give Seller
      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 bear
      any nominal expense to correct the same prior to the Contribution
      Date.  If such unsatisfactory title conditions are not corrected to
      Ranch 248’s satisfaction on or before Contribution Date, this Agreement shall
      then terminate; provided, however, Ranch 248 may, by written notice received
      by
      Seller, on or before Contribution Date, waive objection to such items, in which
      case the Property shall be deeded to the Joint Venture Entity as provided
      herein.  Upon such waiver and notwithstanding any other provision of
      this Agreement to the contrary, all of Seller’s obligations as to any such
      waived conditions shall be deemed discharged and satisfied, and Seller deemed
      released by Ranch 248 and Joint Venture Entity from any and all claims in
      connection therewith.

    


    3.          Talisker
      Club.  The purchasers or transferees of any platted
      Project lot shall be required to acquire a Talisker Club membership at the
      then
      applicable price or deposit amount.

    


    D.           COSTS

     

    Ranch
      248 and Seller are responsible
      for their respective costs and expenses incurred at any time in connection
      with
      pursuing or consummating this Agreement.  Notwithstanding the
      foregoing, Joint Venture Entity shall be responsible for the title insurance
      premium for an Owner’s Policy of Title Insurance issued to the Joint Venture
      Entity in the full amount of the Property Value.  Items such as
      property taxes and other assessments and charges shall be pro-rated between
      Seller and the Joint Venture Entity as of the Contribution Date.

     

    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

            


    

     

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    
       

      
        	
                  

              	
                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
                development and sale of the 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
                and the transactions contemplated hereunder in relation to the development
                and sale of the Property strictly confidential, and shall not disclose
                such outside their respective organizations except that Ranch 248
                may
                disclose such to any party providing financing or professional services
                to
                Ranch 248 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.

            


    

     

    
      	
              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.

            


    

    


    
      	
              6.  

            	
              General.  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.

            


    

     

     

    [SIGNATURES
      COMMENCE ON NEXT PAGE]



    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    


    


    Park Premier Mining Company

    


    


    
      	
              /s/ Robert W. Dunlap

            	 


    

    
      	
              By: 
                

            	 


    

    
      	
              Its:  
                President    2/21/07

            	 


    

    


    


    


    


    Ranch 248 LLC


    


    
      	
               /s/ David J. Smith

            	 


    

    
      	
              By:

            	 


    

    
      	
              Its: 
                Authorized Signing Officer

            	 


    

    


     

     

     

     

     

     

     

     

     

     

    7