AGREEMENT
Exhibit
10.4
AGREEMENT
THIS AGREEMENT (the
"Agreement") is made and entered into as of March 15th, 2008 (the "Effective
Date"), jointly and severally by and among UNITED MINE SERVICES, INC., an
idaho Corporation of 000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxx 00000, and
(hereinafter "UMS"), and Xxxxx
Xxxx and Xxxx Xxxxxxx,
co-owners of Coeur d'Alene Contract Mining LLC, X.X. Xxx 0000 Xxxxxxxxx,
Xxxxx, 00000 (hereinafter "CCM").
RECITALS
WHEREAS, CCM has an existing
contract with U.S. Silver to provide contract labor at the Galena Mine;
and
WHEREAS, UMS desires to assume
from CCM, and the Sellers desire to grant the assumption, the contract with U.S.
Silver, upon the terms and subject to the contingencies and conditions set forth
herein.
NOW, THEREFORE, in
consideration of the respective representations, warranties, agreements, and
conditions hereinafter set forth, and other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
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1
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Assumption of
Contract.
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1.1 Effective
March 15th, 2008 (the "Closing Date") and upon the terms and subject to the
conditions of this Agreement, UMS shall assume the contract CCM has with U.S.
Silver.
1.2 UMS
agrees to pay CCM 75 percent of the profits from the contract for a period of
one year (March 15, 2000 through March 15, 2009).
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1.3
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UMS
agrees to make a payment to CCM of $200,000 on or before
the
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Closing
Date. The payment will be deducted from the profit percentage.
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2
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Representations
and Warranties of UMS.UMS hereby represents
and
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warrants
to CCM as follows:
2.1 Organization,
Standing and Corporate Power. UMS, jointly and severally,
is an ldaho Corporation duly organized, validly existing and in good standing in
the State of Idaho, and has sufficient assets and sources of funds from which to
operate the Galena Mine contract.
2.2 Compliance
with Applicable Laws. UMS, jointly and
severally, is in compliance with all laws, regulations, rules and governmental
orders applicable to it.
2.3 Litigation. UMS,
jointly and severally, is not subject to any judgment, injunction, order or
arbitration decision, and there is no litigation or administrative proceeding
pending against UMS.
2.4 Employment. Upon
Closing, UMS agrees to hire CCM's employees to execute the Galena Mine contract.
UMS agrees to hire the owners of CCM, Xxxx Xxxxxxx and Xxxxx Xxxx, at an annual
salary of $100,000. UMS agrees to issue Xxxxxxx and Xxxx 337,500 founders shares
apiece of UMS common stock.
3. Representations
and Warranties of CCM. CCM,
jointly and severally, hereby represents and warrants to UMS as
follows:
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3.1
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Organization,
Standing and Corporate Power. CCM is
a
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limited
liability company duly organized, validly existing and in good standing in the
State of Idaho.
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3.2
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Capital
Structure. CCM has two members, Xxxx
Xxxxxxx and
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Xxxxx
Xxxx, and they are equal members in CCM.
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3.3
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Capacity:
Authority. CCM has full legal capacity
to execute
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this
Agreement and consummate the transaction contemplated hereby and
thereby.
3.4 Compliance
with Applicable Laws. CCM is in
compliance with all laws, regulations, rules and governmental orders applicable
to it.
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3.5
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Litigation. CCM
is not subject to any judgment,
injunction,
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order or
arbitration decision, and there is no litigation or administrative proceeding
pending or threatened against CCM.
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4.
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Actions
to Occur At Closing.
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4.1 CCM's
Deliveries. On
the Closing Date, CCM shall execute for delivery, as provided below, the
following:
a. Contract
Records. Any
and all Galena Mine contract records or documents.
b.
Documentation. Any
and all further documentation necessary to complete this contract
assumption.
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4.2
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UMS's
Deliveries. On
the Closing Date, UMS will execute
for
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delivery or perform the
following:
a. Documentation. Any
and all documentation necessary
to
complete this contract assumption.
b. Release. The
release of CCM from any and all personal guaranties to suppliers or vendors,
effective upon Closing.
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5.
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Indemnification
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5.1 lndemnification
by CCM. CCM
hereby agrees to indemnify, hold harmless, protect, and defend UMS from and
against any and all claims, causes of action, liabilities, losses, costs, taxes,
damages, whether foreseeable or unforeseeable, arising out of this agreement and
prior to the date of this Agreement. CCM shall indemnify UMS in respect of, and
hold UMS harmless against damages incurred or suffered by UMS or any affiliate
thereof resulting from, relating to or constituting:
a. any
breach, as of the date of this Agreement or as of the Effective Date, of any
representation or warranty of CCM contained in this Agreement, or any other
agreement or instrument furnished by CCM to UMS pursuant to this Agreement;
or
b. any
failure to perform any covenant or agreement of CCM contained in this Agreement,
or any agreement or instrument furnished by CCM to UMS pursuant to this
Agreement.
5.2 lndemnification
by the UMS. UMS
hereby agrees to idemnify, hold harmless, protect, and defend CCM, its agents,
representatives, attorneys, officers and directors from and against any and all
claims, causes of action, liabilities, losses, costs, taxes, damages, whether
foreseeable or unforeseeable, arising out of this agreement and after the date
of this Agreement. UMS shall further indemnify CCM in respect of, and hold it
harmless against, any and all damages incurred or suffered by CCM resulting
from, relating to or constituting:
a. any
breach, as of the date of this Agreement or as of the Closing Date, of any
representation or warranty of UMS contained in this Agreement or any other
agreement or instrument furnished by UMS to CCM pursuant to this
Agreement;
b. any
failure to perform any covenant or agreement of UMS contained in this Agreement
or any other agreement or instrument furnished by UMS to CCM pursuant to this
Agreement.
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6.
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Cooperation. UMS and CCM agree to
cooperate fully with one another in
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taking
any actions necessary or helpful to accomplish the transactions contemplated
hereby.
7. Costs and
Expenses. UMS is
responsible for it's own Attorney fees and other related costs. CCM is
responsible for its own Attorney fees and other related costs. No cost shall be
paid by the other party without proper notice and proper
acceptance.
8. Parties
in Interest; Assignment.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors, assigns, and transferees. No
party may voluntarily or involuntarily assign its or their interest under this
Agreement without the prior written consent of the other party
hereto.
9. Amendment. No amendment, waiver of
compliance with any provision or
condition
hereof or consent pursuant to this Agreement shall be effective unless evidence
by an instrument in writing signed by the party against whom enforcement of any
waiver, amendment or consent is sought.
10. Governing
Law. This
Agreement shall be construed in accordance with and governed by the internal law
of the State of Idaho (without reference to its rules as to conflicts of
law).
11. Notice. All notices, requests,
consents, waivers and other communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been given if
transmitted by facsimile, upon acknowledgment of receipt thereof in writing by
facsimile or otherwise; if personally delivered, upon delivery or refusal of
delivery; if mailed by registered or certified United States mail, return
receipt requested, postage prepaid, upon delivery or refusal of delivery; or if
sent by a nationally recognized overnight delivery service, upon delivery or
refusal of delivery. All notices, consents, waivers or other communications
required or permitted to be given hereunder shall be addressed to the respective
party to whom such notice, consent, waiver or other communication relates at the
following addresses:
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To
CCM:
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Xxxx
Xxxxxxx, Xxxxx Xxxx
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CDA
Contract Mining LLC
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Xxxx
Xxxxxx Xxx 0000
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Xxxxxxxxx,
XX 00000
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To
UMS:
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Attn.
Xxxx Xxxxxxx
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X.X.
Xxx 000
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Xxxxxxxxx
Xxxxx 00000
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12. Counterparts.
This Agreement may be executed in one or more counterparts, each of which will
be deemed an original and all of which together will constitute one and the same
instrument.
13. Entire
Agreement. This
Agreement and the exhibits hereto embody the entire agreement and understanding
of the parties hereto and supersede any and all prior agreements, arrangements
and understandings relating to the matters provided for herein.
14. Attornev's
Fees. In the
event of any breach of this Agreement, the party responsible for the breach
agrees to pay reasonable attorney's fees and costs, including, but not limited
to the costs of service of notices incurred by the other party. The prevailing
party in any suit instituted arising out of this Agreement shall be entitled to
receive reasonable attorney's fees and costs incurred in such suit or
proceedings.
15. Arbitration
of Disputes. Any
controversy or claim arising out of or relating to this Agreement, or the actual
or alleged breach hereof, or arising out of or relating to the rights or duties
or obligations of the parties inter se in any capacity respecting any matter
that could be asserted in a dispute by way of cross-complaint or counterclaim,
shall be settled by exclusive and binding arbitration, by a single arbitrator
conducted in a UMS-designated location in accordance with, and by an arbitrator
appointed pursuant to, the Rules of the American Arbitration Association
applicable to the type of dispute in question in effect at the time, and
judgment upon the award rendered pursuant thereto may be entered in any court
having jurisdiction thereof, and all sights or remedies of the parties, or any
of them, to the contrary are hereby expressly waived except the right to obtain
preliminary injunctive relief pending the commencement of arbitration of the
disputed matters. Notwithstanding any provision of the aforesaid Rules or
Statutes to the contrary, the refusal or failure of any party to appear at or
participate in any hearing or other portion of any arbitration proceeding
pursuant to this paragraph shall not prevent any such hearing or proceeding from
going forward, and the Arbitrator is empowered to make a decision or render an
award, or both, ex parte, which shall be binding on such party as fully as
though such party had fully participated in such hearing or proceeding. As
provided in Paragraph 14, the prevailing party in any
arbitration
proceeding
pursuant to this paragraph shall be entitled to an award for such party's
expenses and attorneys' fees in connection therewith, and the cost of conducting
the arbitration proceeding shall be borne by the losing party.
IN WITNESS WHEREOF, UMS and
CCM have caused this
Agreement to be signed, all as of the date first written above.
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UMS:
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CCM:
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United
Mines Services, Inc
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Xxxx
Xxxxxxx and Xxxxx Xxxx
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XXXX
XXXXXXX
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XXXX
XXXXXXX
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Xxxx
Xxxxxxx
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Xxxx
Xxxxxxx
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XXXXX
XXXX
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Xxxxx
Xxxx
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