exh10-23.htm


     

    
      

      

    

     

     

     

     

     

     

     

     

     

     

    EXHIBIT
      10.23

     

    PROMISSORY
      NOTE ISSUED TO ROBERT W. DUNLAP

    DATED
      JANUARY 11, 2007

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    P
      r o m i s s o r y   N o t e

    


    $30,000.00                                                January
      11, 2007

    


    FOR
      VALUE RECEIVED, Park-Premier Mining
      Company, a Utah Corporation (“Borrower”), promises to pay to the order of Robert
      W. Dunlap, or his assigns (“Lender”), at 32391 Horseshoe Drive, Evergreen,
      Colorado 80439, or at such other place as the holder or holders hereof may
      from
      time to time designate in writing, in lawful money of the United States of
      America,  the principal sum of Thirty Thousand and no/100 Dollars
      ($30,000.00) (“Principal Balance”), together with interest on the Principal
      Balance outstanding from time to time from the date of this Note, to and
      including the Maturity Date, at the rate hereinafter specified, on the unpaid
      Principal Balance outstanding from time to time as disbursed in accordance
      with
      the terms and conditions of a  Loan Agreement of even date herewith
      between Borrower and Lender (the  “Loan Agreement”).

    


    1.           Interest
      Rate.  The Principal Balance shall bear interest at the rate
      of twelve percent (12%) per annum (the “Applicable Interest Rate”).

    


    2.           Payment.  The
      outstanding Principal Balance and all unpaid, accrued interest thereon, shall
      be
      due and payable on demand. If not sooner paid, the entire Principal Balance,
      and
      all unpaid, accrued interest thereon, shall be due and payable in full on
      December 31, 2007 (“Maturity Date”).  Unless otherwise agreed or
      required by applicable law, payments will be applied first to accrued unpaid
      interest, then to principal, and any remaining amount to any unpaid collection
      costs. The annual interest rate for this Note is computed on a 365/360 basis;
      that is, by applying the ratio of the annual interest rate over a year of 360
      days, multiplied by the outstanding principal balance, multiplied by the actual
      number of days the principal balance is outstanding. Borrower will pay Lender
      at
      Lender’s address shown above or at such other place as Lender may designate in
      writing.

    


    3.           Late
      Payments.  If any payment of the Principal Balance or
      interest on this Note or other sum due hereunder or under the Other Loan
      Documents (defined below) is not paid within fifteen (15) days of when due,
      the
      Applicable Interest Rate shall increase to the greater of: (a) six percent
      (6%)
      in excess of the “prime rate” announced in the Western Edition of the Wall
      Street Journal under “Money Rates,” as it may change from time to time, and (b)
      the then Applicable Interest Rate (the “Default Rate”).

    


    4.           Pre
      Payment. Borrower agrees that all loan fees and other prepaid finance
      charges are earned fully as of the date of the loan and will not be subject
      to
      refund upon early payment (whether voluntary or as a result of default), except
      as otherwise required by law.  Except for the foregoing, Borrower may
      pay without penalty all or a portion of the amount owed earlier than it is
      due.
      Early payments will not, unless agreed to by Lender in writing, relieve Borrower
      of Borrower’s obligation to continue to make payments as required in this
      Promissory Note. Rather, early payments will reduce the Principal Balance
      due.  Borrower agrees not to send Lender payments marked “paid in
      full,” “without recourse,” or similar language.  If Borrower sends
      such a payment, Lender may accept it without losing any of Lender’s rights under
      this Note, and Borrower will remain obligated to pay any further amount owed
      to
      Lender.

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    5.           Interest
      after Default. Upon default, including failure to pay upon final
      maturity, Lender, at its option, may, if permitted under applicable law,
      increase the Applicable Interest Rate on this Note the Default
      Rate.  The Default Rate will not exceed the maximum rate permitted by
      applicable law.  Notwithstanding any provision contained herein to the
      contrary, or in any instrument securing or referring to this Note, the total
      liability of the Borrower for payments in the nature of interest hereunder
      or
      thereunder shall not exceed interest at the

    


    maximum
      rate permitted by the laws of the State of Utah, if any, and any amount paid
      as
      interest in excess of said maximum rate shall not be deemed to be a payment
      of
      interest, but shall be applied to the reduction of the Principal Balance owing
      hereunder or, at Lender’s option, be refunded to the Borrower.

    


    6.           Security.  This
      Note may at Lender’s option be secured by a first Deed of Trust and Security
      Agreement (herein called the First Deed of Trust) encumbering certain real
      property identified in the First Deed of Trust.  This Note may also at
      Lender’s option be secured by the following instruments, together with all other
      documents (collectively referred to herein as the Other Loan Documents):
      Assignment of Leases and Rents, Security Agreement,  UCC-1 Financing
      Statement, Environmental Indemnity Agreement,   Loan Agreement,
      Collateral Assignment of Agreements, Licenses and Permits, 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.

    


    7.           Default. Each
      of the following shall constitute an event of default (Event of Default) under
      this Note:

    


    a.           Payment
      Default.  Borrower fails to make any payment when due under this
      Note.

    


    b.           Other
      Defaults.  Borrower fails to comply with or to perform any other
      term, obligation, covenant or condition contained in this Note, the Loan
      Agreement, or in any of the related documents, or to comply with or to perform
      any term, obligation, covenant or condition contained in any other agreement
      or
      promissory note between Lender and Borrower.

    


    c.           
      Default in Favor of Third Parties. Borrower or any Grantor defaults under
      any loan, extension of credit, security agreement, purchase or sales agreement,
      or any other agreement, in favor of any other creditor or person that may
      materially affect any of Borrower’s property or Borrower’s ability to repay this
      Note or perform Borrower’s obligations under this Note or any of the related
      documents.

    


    d.           False
      Statements.  Any warranty, representation or statement made or
      furnished to Lender by Borrower or on Borrower’s behalf under this Note or the
      related documents is false or misleading in any material respect, either now
      or
      at the time made or furnished or becomes false or misleading at any time
      thereafter.

    


    e.           Death
      or Insolvency. The dissolution of Borrower (regardless of whether election
      to continue is made), any member withdraws from Borrower, or any other
      termination of Borrower’s existence as a going business or the death of any
      member, the 

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

      insolvency
        of Borrower, the appointment of a receiver for any part of Borrower’s property,
        any assignment for the benefit of creditors, any type of creditor workout,
        or
        the commencement of any proceeding under any bankruptcy or insolvency laws
        by or
        against Borrower.

    

    


    f.           
      Creditor or Forfeiture Proceedings.  Commencement of foreclosure
      or forfeiture proceedings, whether by judicial proceeding, self-help,
      repossession or any other method, by any creditor of Borrower or by any
      governmental agency against any collateral securing the loan.  This
      includes a garnishment of any of Borrower’s accounts, including deposit
      accounts, with Lender. However, this Event of Default shall not apply if there
      is a good faith dispute by Borrower as to the validity or reasonableness of
      the
      claim which is the basis of the creditor or forfeiture proceeding and if
      Borrower gives Lender written notice of the creditor or forfeiture proceeding
      and deposits with Lender monies or a surety bond for the creditor or forfeiture
      proceeding, in an amount determined by Lender, in its sole discretion, as being
      an adequate reserve or bond for the dispute.

    g.           Events
      Affecting Guarantor.  Any of the preceding events occurs with
      respect to any Guarantor of any of the indebtedness or any Guarantor dies or
      becomes incompetent, or revokes or disputes the validity of, or liability under,
      any guaranty of the indebtedness evidenced by this Note. In the event of a
      death, Lender, at its option, may, but shall not be required to, permit the
      Guarantor’s estate to assume unconditionally the obligations arising under the
      guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event
      of
      Default.

    


    h.           
      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.

    


    i.           
      Insecurity.  Lender in good faith believes itself
      insecure.

    


    j.           
      Cure Provisions.  If any default, other than a default in payment,
      is curable and if Borrower has not been given a notice of a breach of the same
      provision of this Note within the preceding twelve (12) months, it may be cured
      (and no event of default will have occurred) if Borrower, after receiving
      written notice from Lender demanding cure of such default: (1) cures the default
      within twenty (20) days; or (2) if the cure requires more than twenty (20)
      days,
      immediately initiates steps which Lender deems in Lender’s sole discretion to be
      sufficient to cure the default and thereafter continues and completes all
      reasonable and necessary steps sufficient to produce compliance as soon as
      reasonably practical.

    


    8.         Attorney’s
      Fees - Expenses.  Lender may hire or pay someone else to help
      collect this Note if Borrower does not pay. Borrower will pay Lender that
      amount.  This includes, subject to any limits under applicable law,
      Lender’s attorneys’ fees and Lender’s legal expenses, whether or not there is a
      lawsuit, including without limitation all attorneys’ fees and legal expenses for
      bankruptcy proceedings (including efforts to modify or vacate any automatic
      stay
      or injunction), and appeals.  If not prohibited by applicable law,
      Borrower also will pay any court costs, in addition to all other sums provided
      by law.

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    9.         Jury
      Waiver. BORROWER AND LENDER HEREBY KNOWINGLY,
      VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY
      IN RESPECT OF ANY LITIGATION BASED ON THE LOAN EVIDENCED BY THIS NOTE OR ARISING
      OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE DEED OF TRUST OR THE OTHER
      LOAN DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER
      VERBAL OR WRITTEN) OR ACTION OF BORROWER OR LENDER.  THIS PROVISION IS
      A MATERIAL INDUCEMENT FOR LENDER’S MAKING OF THE LOAN EVIDENCED BY THIS NOTE AND
      SECURED BY THE DEED OF TRUST AND THE OTHER LOAN DOCUMENTS.

    


    10.           Governing
      Law.  This Note will be governed by, construed and enforced
      in accordance the laws of the State of Utah without application of its conflict
      or choice of law principles. This Note has been accepted by Lender in the State
      of Utah.

    


    11.           Financial
      Statements.  Borrower hereby agrees to provide to the Lender
      annual Business Financial Statements and Income Tax Returns as long as there
      are
      any loans outstanding to Lender.

    


    12.           Successor
      Interests.  The terms of this Note shall be binding upon
      Borrower, and upon Borrower’s successors and assigns, and shall inure to the
      benefit of Lender and his successors and assigns.


    General
      Provisions.  Lender may delay or forgo enforcing any of its
      rights or remedies under this Note without losing them.  Each
      Borrower, if more than one, understands and agrees that, with or without notice
      to Borrower, Lender may with respect to any other Borrower (a) make one or
      more additional secured or unsecured loans or otherwise extend additional
      credit; (b) alter, compromise, renew, extend, accelerate, or otherwise
      change one or more times the time for payment or other terms of any
      indebtedness, including increases and decreases of the rate of interest on
      the
      indebtedness; (c) exchange, enforce, waive, subordinate, fail or decide not
      to perfect, and release any security, with or without the substitution of new
      collateral; (d) apply such security and direct the order or manner of sale
      thereof, including without limitation, any non-judicial sale permitted by the
      terms of the controlling security agreements, as Lender in its discretion may
      determine; (e) release, substitute, agree not to sue, or deal with any one
      or more of Borrower’s sureties, endorsers, or other guarantors on any terms or
      in any manner Lender may choose; and (f) determine how, when and what
      application of payments and credits shall be made on any other indebtedness
      owing by such other Borrower.  Borrower and any other person who
      signs, guarantees or endorses this Note, to the extent allowed by law, waive
      presentment, demand for payment, and notice of dishonor.  Upon any
      change in the terms of this Note, and unless otherwise expressly stated in
      writing, no party who signs this Note, whether as maker, guarantor,
      accommodation maker or endorser, shall be released from
      liability.  All such parties agree that Lender may renew or extend
      (repeatedly and for any length of time) this loan or release any party or
      guarantor or collateral; or impair, fail to realize upon or perfect Lender’s
      security interest in the collateral; and take any other action deemed necessary
      by Lender without the consent of or notice to anyone.  All such
      parties also agree that Lender may modify this loan without the consent of
      or
      notice to anyone other than the party with whom the modification is
      made.  The obligations 

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    under
      this Note are joint and several.

    


    BORROWER:

    


    Park-Premier
      Mining Company

    


    


    


    By:    
      /s/ Jeff
      Lee                                                    


             Jeff
      Lee, Vice President