EXHIBIT 10.125 SECOND AMENDMENT OF SALE AND PURCHASE AGREEMENT
(Xxxxxxx Camp Mine)
THIS SECOND AMENDMENT OF SALE AND PURCHASE AGREEMENT is made
by and among ARIMETCO, INC., a Nevada corporation, ("ARIMETCO" or
"SELLER"); and SUMMO USA CORPORATION, a Colorado corporation
("SUMMO"), whose address is 0000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000.
RECITALS
A. ARIMETCO and SUMMO entered into a certain Sale and
Purchase Agreement (the "Agreement") executed September 15, 1998,
effective September 18, 1998.
B. ARIMETCO and SUMMO entered into a certain Amendment of
Sale and Purchase Agreement (the "Amendment") executed January
19, 1999, effective February 24, 1999.
X. XXXXX has paid ARIMETCO $240,000 pursuant to the first
and second payment items of Section 2.5(a) of the Agreement.
D. Subject to Bankruptcy Court approval, ARIMETCO and SUMMO
desire to further amend the Agreement in certain particulars.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and conditions contained in this Second
Amendment, and subject to Bankruptcy court approval, the parties
agree as follows:
1. Effective Date of Amendment. The effective date of this
Second Amendment ("Effective Date of Second Amendment") shall be
the date of entry of the Bankruptcy Court Order approving this
Second Amendment.
2. Sale of Assets. Section 2.2 of the Agreement is amended
by deleting the words and figures "TWO MILLION NINE HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($2,950,000.00)" and substituting
therefor the words and figures "THREE MILLION ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($3,100,000.00)".
3. Payment of Purchase Price. The third payment item of
Section 2.5(a) of the Agreement is amended to read as follows:
$1,860,000 (the "Remaining Cash Portion of the Purchase
Price") with interest thereon, as follows:
$310,000 at Closing (which includes $60,000
to be paid pursuant to the first and
second payment items of Section 2.5(a)
of the Agreement) less the amount paid
or agreed to be paid by SUMMO to Cyprus
Mines Corporation for the Section 25
Land, which amount shall not exceed
$30,000 without the agreement of SUMMO
and ARIMETCO.
$500,000 on or before June 4, 2000, together
with interest on the unpaid amount of
the Remaining Cash Portion of the
Purchase Price at the rate of eight
percent (8%) per annum payable quarterly
from the date of Closing
$500,000 on or before June 4, 2001, together
with interest on the unpaid amount of
the Remaining Cash Portion of the
Purchase Price at the rate of eight
percent (8%) per annum payable quarterly
from the date of Closing
$550,000 on or before June 4, 2002, together
with interest on the unpaid amount of
the Remaining Cash Portion of the
Purchase Price at the rate of eight
percent (8%) per annum payable quarterly
from the date of Closing
4. Closing. Section 2.12(a) of the Agreement is amended by
deleting the words "the tenth (10th) business day after the
completion of the due diligence period" and substituting therefor
the words "within two (2) business days after the entry of the
Bankruptcy Court's order approving this Second Amendment".
5. Obligations of SUMMO at Closing. Section 2.16 of the
Agreement is amended to read as follows:
2.16 Obligations of SUMMO at Closing. At Closing SUMMO
(or, in the event of an assignment of SUMMO's rights under this
Agreement as provided in Section 3.4, SUMMO's Assignee) shall:
(a) Pay SELLER THREE HUNDRED TEN AND NO/100
DOLLARS ($310,000), by cashier's check or wire
transfer.
(b) Deliver to SELLER a Grant of Production
Payment substantially in the form of Exhibit "K"
attached hereto and incorporated by reference herein.
(c) Execute and deliver to Arimetco (i) a
promissory note in the amount of the unpaid amount of
the Remaining Cash Portion of the Purchase Price
together with interest thereon, and (ii) lien documents
granting liens against and security interests in the
Xxxxxxx Camp Property that shall be in form and
substance wholly satisfactory to SELLER and shall
include requirements that will enable SELLER to monitor
on an ongoing basis SUMMO's commitments to the mine,
such as the payment of taxes, the maintenance of
permits, and the payment of utilities and other holding
costs associated with the mine. The parties hereto
agree that Cochise County, Arizona will retain its lien
on the Xxxxxxx Camp Property until the lien is paid in
full. Accordingly, the parties shall establish in the
note and the lien documents a mechanism to ensure that
so long as such lien remains on the Xxxxxxx Camp
Property, the monies to be paid to SELLER hereunder are
paid to Cochise County to satisfy its lien. Except for
the lien of Cochise County, the liens and security
interests of Arimetco shall be first priority liens and
security interests against the Xxxxxxx Camp Property.
(d) Unless SUMMO has assigned its rights under
this Agreement to NORD as provided in Section 3.4, a
Guaranty in form and substance satisfactory to Arimetco
whereby NORD and its Affiliates guarantee the
obligations of SUMMO or SUMMO's Assignee under the
above-mentioned note and lien documents.
6. Post Closing Inventory. Section 2.20 of the Agreement
is amended by deleting the words and figures "amount retained by
the Escrow Agent as provided in Section 2.16(a)" and substituting
therefor the words and figures "unpaid amount of the Remaining
Cash Portion of the Purchase Price, the amount so retained to be
credited against the payments thereafter falling due under
Section 2.5(a)".
7. Assignment. Section 3.4(a) of the Agreement is amended
to read as follows:
The rights of SUMMO under this Agreement may be
assigned to an Affiliate of SUMMO, to Nord Resources
Corp., a Delaware corporation ("NORD"), or to an
affiliate of NORD. For the purposes of this Section,
the term "affiliate of NORD" shall have the meaning set
out in Section 1.1, "Affiliate", with the word "Nord"
substituted for the word "SUMMO". No such assignment
shall release SUMMO from any obligations and
liabilities under this Agreement.
8. Ratification. The parties hereby ratify and confirm the
Agreement as heretofore amended and as hereby amended.
IN WITNESS WHEREOF, the parties have executed this
Amendment as of the 26th day of May 1999.
SUMMO USA CORPORATION, ARIMETCO, INC.
a Colorado corporation a Nevada corporation
By: /s/ Xxxxxxx X. Xxxx By: /s/ H. Xxx Xxxxxx
Xxxxxxx X. Xxxx H. Xxx Xxxxxx
President President
STATE OF COLORADO )
) ss:
County of Denver )
The foregoing instrument was acknowledged before me this
26th day of May, 1999, by Xxxxxxx X. Xxxx, as the President of
Summo USA Corporation, a Colorado corporation, the corporation
named in and that executed the foregoing instrument, on behalf of
the corporation.
/s/ Xxxxxxxx Xxxxxxx
Notary Public
My Commission Expires:
March 18, 2003
[SEAL]
STATE OF ARIZONA )
) ss:
County of Pima )
The foregoing instrument was acknowledged before me this
27th day of May, 1999, by H. Xxx Xxxxxx, as the President of
Arimetco, Inc., a Nevada corporation, the corporation named in
and that executed the foregoing instrument, on behalf of the
corporation.
/s/ Xxxxxxx Xxxxx Xxxxxxxx
Notary Public
My Commission Expires:
September 29, 2001
[SEAL]
