** This Exhibit contains confidential material that has
been omitted pursuant to a Confidential Treatment
Request. The omitted information has been filed
separately with the Securities and Exchange Commission.
REVISED MINING LEASE AND OPTION TO PURCHASE
This Revised Mining Lease and Option to Purchase ("Revised Lease
Agreement") made this 1st day of April 2003 (the "Effective Date"), between
Kaibab Industries, Inc., an Arizona corporation ("Kaibab Industries" or
"Lessor") of 0000 X. Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, as Lessor and Unico,
Incorporated, an Arizona corporation ("Unico" or "Lessee") of XX Xxx 000,
Xxxxxxx, Xxxxxxxxxx 00000, as Lessee.
WHEREAS, Kaibab Industries is the owner of certain mining claims more
fully described below (the "Claims");
WHEREAS, Kaibab Industries and Unico entered into that original Mining
Lease and Option to Purchase dated July 20, 2001 (the "Original Lease
Agreement") affecting the Claims and now wish to amend and revise said
Original Lease Agreement;
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Property Leased and Purchase Option. In consideration of the
covenants and agreements hereinafter expressed to be kept and performed by
Unico, Kaibab Industries hereby leases to Unico the following premises located
in Garfield County, State of Utah consisting of patented mining claims and
mill sites (if any):
The patented mining claims in the Xxxxx Mountain Mining District in
Garfield County, State of Utah, all of U.S. Survey #3002, Mineral Entry
#2103, consisting of the following: El Padre, Cuprum, Stevenite, Coney,
Bromide Lodes, and the Triume Placer, containing 83.34, acres and more
particularly described in the Deed Record Book "B" at Pages 215-220 of
the records of the Office of the County Recorder of Garfield County,
Utah, together with any interest of Kaibab Industries in any unpatented
BLM mining claims located within a two (2) mile radius of said patented
mining claims (collectively the "Leased Premises").
As additional consideration for the commitments of Lessee found herein,
Lessor hereby grants to Lessee an option to purchase all of the Claims and
mill sites (if any) as described herein (including all dumps, if any),
commencing with the Effective Date of this Revised Lease Agreement and
continuing thereafter for a period of two years. The option exercise price
shall be ** . Any net smelter returns paid by Unico to Kaibab Industries
pursuant to section 3 shall not be counted as part of the purchase price. Upon
exercise of the purchase option and payment therefore in cash or certified
funds, Lessor shall convey good and marketable title to the above described
Leased Premises to Lessee, free and clear of any liens, encumbrances,
overriding royalties, carried interests or other interests, except such as may
have arisen on account of Lessee's operation and lease of the Leased Premises.
Upon exercise of this purchase option and payment of all amounts due hereunder
by Lessee, this Revised Lease Agreement and all rights of either party thereto
shall be extinguished and Lessee shall become the fee title owner of the above
described Leased Premises.
Lessee shall give Lessor at least 10 days advance written notice of its
intention to exercise the purchase option.
Lessor has furnished Lessee with copies of (or at its option made
available for copying by Lessee) all maps, drawings, reports and any available
mine history, showing the location of drill holes, drifts driven, stockpiles,
blocked out reserves, probable and or possible reserve estimates, assays,
assay reports, development and other data, as is reasonably available to
Lessor. Lessee agrees to return any and all such information to Lessor as
soon as copied or within 30 days. Lessor has furnished Lessee copies of
drilling reports on the property at the time of signing of the Original Lease
Agreement, which shall be returned to Lessor as provided above. At any
termination of this Revised Lease Agreement, Lessee agrees to furnish any
similar data or information as to its development of the Claims to Lessor on
the same basis. Lessee agrees to accept the property "as is" and to indemnify
and hold Lessor harmless for any damages incurred by Lessor arising out of
damage to property or the personal injury or death of the employees or agents
of Lessee, or any other person where such damage arises on account of or in
connection with the use, operation or development of the property by Lessee.
Lessee shall carry at its own cost a combined single limit commercial
general liability form policy of insurance in the amount of at lease ONE
MILLION DOLLARS ($1,000,000.00) indemnifying and holding Lessor and Lessee
harmless from and against all claims for injuries and death sustained by
persons or damage to property on the Leased Premises. Lessee will also pay
for property casualty insurance insuring the improvements on the Leased
Premises in an amount sufficient to repair or replace the buildings and
improvements on the Leased Premises, if destroyed or damaged. Lessee will
provide Lessor with proper certificate documentation providing evidence that
Lessee has obtained all required insurance coverage, including but not limited
to Worker's Compensation insurance for its employees and business. Such
insurance policies shall name Lessor as an additional insured, shall provide
for thirty (30) days notice to Lessor before cancellation, and such policies
or certificates thereof shall be delivered to Lessor by April 30, 2003.
Lessor agrees, warrants and represents that its board of directors has
taken all action necessary to enter into this Revised Lease Agreement and that
shareholder approval of this Revised Lease Agreement is not necessary. Lessor
further agrees, warrants and represents that neither the execution of this
document nor the exercise of the purchase option by Lessee would result in the
disposition of all or substantially all of the assets of Lessor so as to
require shareholder approval under applicable state law. Further, Lessor
agrees, warrants and represents that in the event any shareholder of Lessor
threatens to contest or contests, by court action or otherwise, the grant or
validity of the Lease Agreement or the grant, validity or exercise of the
purchase option thereunder, in any manner, that Lessor will indemnify and hold
harmless Lessee from any and all damages, costs and attorneys fees it may
suffer as a result of such contest and Lessor agrees to use its best efforts
to obtain any shareholder approval or consent which may be determined to be
required.
2. Term; Assignment. Unico shall hold the Leased Premises for the
purpose of mining all kinds of minerals and ores for a period of two (2) years
from the date of this Revised Lease Agreement (the "Effective Date" ), unless
the Revised Lease Agreement is sooner terminated under any provision contained
herein. Each party, with the prior written consent of the other, which consent
shall not be unreasonably withheld, shall have the power to assign or sublet
this Revised Lease Agreement or any interest hereunder. Notwithstanding the
Effective Date, Unico shall have reasonable access to the Leased Premises
prior to the Effective Date to prepare work plans and complete preliminary
preparations.
3. Duties of Lessee; Payments to Kaibab Industries. Unico agrees to
perform all work in a thorough and workmanlike manner, to keep underground
workings securely timbered, drained, and clear of loose rock and rubbish, to
properly dispose of loose rock outside the mine, to comply with all mining and
environmental laws, rules and regulations, to keep accurate accounts, to
render necessary statements to Kaibab Industries on a monthly basis showing
the amount and character of production, and to pay to Kaibab Industries, or
its designated agent, as rental for the leased Claims, a five percent (5%) net
smelter return upon all ore taken from the Leased Premises during the term of
this Revised Lease Agreement. Net smelter return payments shall be adjusted to
provide for payment of the actual cost of transportation from the mine to the
receiving plant or smelter, and less any assaying, weighing, treatment and
special sampling charges. Net smelter return payments by Unico shall be made
to Kaibab Industries at the above address, or its designated agent or bank by
the 15th of the month next succeeding the calendar month during which Unico
shall have received payment for such shipment. Unico's obligation to pay net
smelter return upon ore taken from the Leased Premises during the term of this
Revised Lease Agreement shall survive termination or expiration of this
Revised Lease Agreement. Unico shall conduct resource definition and an
induced polarization geophysical survey of the property. All data gathered by
Unico concerning the Property during the term of this Agreement shall be
shared with Kaibab Industries within 30 days of the end of the month during
which such data was produced. Unico shall carry its own worker's compensation
and liability insurance.
4. Mine Plan and Minimum Production Requirements. Unico agrees to
implement, during the term of this Revised Lease Agreement, the Proposed Mine
Plan dated October, 2002 by W. Xxx Xxxxxxx for the Bromide Basin Mines (the
"Mine Plan"). Unico's activities, pursuant to the Mine Plan, shall be limited
to underground mining of the present working improvements at the Bromide,
Cresent Creek and Xxxxxxx & Xxxxxx Claims. No new adit shall be driven at the
Xxxxxxx & Xxxxxx Claim without the prior written consent of Lessor. Unico
agrees that there will be no surface mining or bulk mining on the Leased
Premises. Unico shall conduct its activities in such a manner that no more
than five (5) acres of surface area at the leased premises are disturbed.
Unico shall pay any and all costs incurred by Unico or Lessor in the nature of
penalties, damages, reclamation costs or other costs or expenses if five (5)
or more acres of the Leased Premises surface area are disturbed. No jigging
or other on site processing of ore shall occur on the Leased Premises without
Lessor's prior written consent. Unico agrees to develop the mine to access
the Bromide vein by extending the El Padre Tunnel during the first year (April
1st to March 31st) of the term of this Agreement. Unico agrees to produce a
minimum of 2500 ounces of gold (or to pay Lessor a net smelter return
equivalent to the amount that would have been paid if Unico had produced 2500
ounces of gold) during the first year, and to produce a minimum of 5000 ounces
of gold during the second year, of the term of this Revised Lease Agreement
5. Right of Access. Kaibab Industries or its designated
representative shall have the right at any time and without prior notice to
enter upon the Leased Premises to inspect the same and take samples therefrom,
and to use the Leased Premises for non-mining activities, so long as Lessor's
activities do not unreasonably disrupt or interfere with Lessee's operations
on, or deny Lessee's quiet enjoyment of, the Lease Premises. Kaibab
Industries or its designated representative shall have the right, upon
reasonable notice, to enter upon the mill site at Unico's Deer Trail Mine (to
verify that there has been no commingling of ores as described in Section 10),
and Lessee will render to Lessor reasonable assistance in its power in so
doing. Kaibab Industries shall also have the right, upon reasonable notice, to
review and make copies of the books and records of Unico which relate to this
Revised Lease Agreement.
6. Taxes and Assessments. Unico agrees to pay when due all taxes and
assessments levied against the Leased Premises on account of the production of
ore under this Revised Lease Agreement. All assessment work shall be performed
and affidavits of labor recorded by Lessee in due time as may be required by
law, with copies provided to Lessor at the time any such documents are
recorded. To the extent that Lessee's operating expenditures on the Leased
Premises exceed the minimum required to qualify for assessment work on any
unpatented claims (if any) included in the Leased Premises, the excess may be
reported by Lessor to qualify as assessment work on its contiguous unpatented
claims (if any) as permitted by law.
7. Default by Lessee. Unico agrees that in case of its failure in any
substantial respect to keep and fulfill any one or more of the covenants or
agreements herein or its failure to pay any net smelter returns due Kaibab
Industries, or payments due on that Equipment Purchase Agreement between the
parties dated April 1, 2003, Lessor may declare Lessee to be in default. Upon
any default by Lessee, Lessor shall give Lessee written notice of such default
and Lessee shall have thirty days (30 days) thereafter to correct such
default. In the event said default remains uncorrected after said thirty (30)
days, this Revised Lease Agreement shall terminate. Upon expiration or
termination of this Revised Lease Agreement, for any reason other than the
exercise of the purchase option by Lessee, Lessee shall have a period of 30
days in which to remove any and all of its own mining equipment being used in
operating the Leased Premises or transporting ore from such operations;
Lessee shall post any required reclamation bond and complete any and all
reclamation activities required by federal, state or local law within said 30
days, or as soon thereafter as possible; and Lessee agrees to surrender and
deliver to Lessor quiet and peaceable possession of the Leased Premises.
In the event that a default occurs due to Lessee's failure to pay to
Lessor any net smelter returns due to the Lessor, then Lessee shall continue
to be liable to pay all delinquent net smelter returns to Lessor, regardless
of whether Lessor terminates this Lease.
In the event that a default occurs due to Lessee's failure to meet the
minimum production requirements specified in Section 4 of this Revised Lease
Agreement, then Lessor's exclusive remedy shall be to terminate this Revised
Lease Agreement. In no event shall Lessee be required to pay to Lessor the
value of any net smelter returns that Lessor would have received if the
minimum production requirements had been met, or any other damages due to
Lessee's failure to meet minimum production requirements.
8. Successors and Assigns. All covenants and agreements contained
herein shall extend to and be binding upon the heirs, legal representatives,
successors, and assigns of the parties.
9. Termination. Lessee may, at any time, surrender and terminate this
Revised Lease Agreement upon giving to Lessor sixty (60) days notice in
writing and paying all net smelter returns owing through the effective date of
termination. The parties may also terminate this Revised Lease Agreement by
mutual agreement. This Revised Lease Agreement shall terminate two (2) years
from the Effective Date or upon exercise of the purchase option and payment of
the purchase price by Lessee. Lessor may terminate this Revised Lease
Agreement as described in paragraph 7 above or otherwise as permitted by law.
If this Revised Lease Agreement is terminated for any reason other than
Lessee's exercise of the option granted herein, Lessee shall record a release
of the Notice of Interest in a form satisfactory to Lessor. Should Lessee
fail to record the release as herein required, Lessee hereby appoints Lessor
as Lessee's attorney-in-fact to execute and record such release of Notice of
Interest, and the execution and recordation by Lessor of the release of Notice
of Interest shall have the same validity and effect as if said document had
been executed and recorded by Lessee.
In the event Lessee acquires any interest in any other claims located
within one mile of the Leased Premises ("Nearby Claims") during the term of
this Revised Lease Agreement, and in the event Lessee does not exercise the
purchase option described in Section 1, then upon the termination of this
Revised Lease Agreement, Lessee's interest in all such Nearby Claims shall be
transferred to Lessor without Lessor being required to make any payments to
Lessee therefor.
10. No Commingling of Ores. Unico agrees to keep all of the ore removed
from the Leased Premises separate from ore removed from the Deer Trail Mine
and all other mines that may be operated by Unico to the future. Unico will
take steps to assure that there is no commingling of ores, so that Unico's
performance under this Revised Lease Agreement can be accurately measured and
any amounts to become due and owing to Kaibab Industries under this Revised
Lease Agreement in the future can be accurately computed.
11. Compliance with Laws. All operations of Lessee shall be conducted so
as to comply with the laws of the State of Utah and with all statutes, rules,
regulations, orders, and requirements of federal authorities and Lessee agrees
to indemnify and hold harmless Lessor for any obligations, liens or similar
liabilities arising as a result of the operations of Lessee and constituting a
lien or obligation against the Leased Premises. The parties understand and
agree that the mine is an underground mine and that no significant reclamation
of the mine site is anticipated following normal mining procedures on the
Claims. Lessor is not aware of any notice of non-compliance from any
governmental agency regarding the property. Each party to this Revised Lease
Agreement shall be responsible for any environmental, pollution, reclamation
or aesthetic requirements or liability legitimately made or assessed by a
governmental entity attributable to each party's respective period of
occupancy and operation of the Claims. To the extent permitted by law, Lessee
shall be entitled to any depletion allowance on the property as a result of
its mining activities. If Lessee exercises its option to purchase, Lessee
shall be responsible for any environmental, pollution, reclamation, or
aesthetic requirements related to the property, which arise on or after the
Effective Date of the Original Lease Agreement, and Lessee shall defend and
hold Lessor harmless from and against any claim, liability or expense,
including assessment or remediation costs, arising out of any such
environmental, pollution, reclamation, or aesthetic requirements.
12. Force Majeure. If either party hereto shall be delayed or
prevented from the performance of any act required hereunder by reason of
acts of God, strikes, lockouts, labor troubles, civil disorder, inability to
procure materials, restrictive governmental laws or regulations or other cause
without fault and beyond the control of the party obligated (financial
inability excepted), performance of such act shall be excused for the period
of delay and the period for the performance of any such act shall be extended
for a period equivalent to the period of such delay; provided, however,
nothing in this Paragraph 12 shall excuse Lessee from the prompt payment of
any amount due hereunder, and the term of this Revised Lease Agreement shall
not be extended by any such delay.
13. Entire Agreement; Governing Law. This Revised Lease Agreement
replaces and supercedes that Original Lease Agreement between the parties
dated July 20, 2001. This Revised Lease Agreement contains the entire
agreement between the parties hereto and any amendments thereto shall be in
writing. This Revised Lease Agreement shall be governed and construed under
the laws of the State of Utah.
EXECUTED as of the date first above written.
LESSEE: LESSOR:
UNICO, INCORPORATED KAIBAB INDUSTRIES, INC.
By: /s/ Xxx X Xxxxx By: /s/ Xxxxxx Xxxxxxx
Its: CEO Its: President
