AMENDMENT TO REDEMPTION AND STOCK PURCHASE AGREEMENT
Exhibit 10.18
AMENDMENT TO
REDEMPTION AND STOCK PURCHASE AGREEMENT
REDEMPTION AND STOCK PURCHASE AGREEMENT
THIS AMENDMENT TO REDEMPTION AND STOCK PURCHASE AGREEMENT is made as of the 2nd day of
September, 2005, by and between Xxxxxx X. Xxxxxxxx (“X. Xxxxxxxx”) and Xxxxxx X. Xxxxxxxx
(“X. Xxxxxxxx”) (X. Xxxxxxxx and X. Xxxxxxxx hereinafter sometimes referred to individually
as “Seller” and collectively as “Sellers”), E-Rail Logistics, Inc.
(“E-Rail”), a New York corporation (hereinafter referred to as “Buyer”), and
Xxxxxxxx Mining Company, Inc., an Ohio corporation (hereinafter referred to as “BMC”).
RECITALS
WHEREAS, on July 11, 2005, the parties entered into a Redemption and Stock Purchase Agreement
(hereinafter the “July 11 Stock Purchase Agreement”);
WHEREAS, the parties now wish to amend the July 11 Stock Purchase Agreement as provided
herein; and
NOW, THEREFORE, in consideration of the mutual covenants, conditions, and agreements herein
contained, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties do hereby amend the July 11 Stock Purchase Agreement as follows:
1. The first Whereas Clause of the July 11 Stock Purchase Agreement is revised to read as
follows:
“WHEREAS, X. Xxxxxxxx and X. Xxxxxxxx represent that each owns 636 shares of BMC’s common
stock (1,272 shares total), $100 par value per share (the “Common Stock”) respectively,
comprising 100% of the outstanding issued shares of BMC (the “Shares”); and”
2. Section 1.2 of the July 11 Stock Purchase Agreement is revised to read as follows:
“1.2 “Bank One Obligation” means the letter of Bank One, dated May 17, 2005
addressed to BMC and X. Xxxxxxxx, as amended by letters from Bank One dated August 11, 2005 and
August 23, 2005, addressed to BMC, setting forth Bank One’s agreement to accept a single lump sum
payment of $800,000 as full and final satisfaction of all amounts owed to it by BMC, X. Xxxxxxxx
and X. Xxxxxxxx, and to accept a single lump sum payment of $40,000 as full and final satisfaction
of the obligations of Xxxxxx X. and Xxxxxxx Xxxxxxxx to Bank One, and to release all liens of Bank
One against the Real Property and stock pledged as collateral, if
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received on or before September 2, 2005, as that letter agreement may be amended with the consent
of the Buyer, and as reduced by the payment of $50,000 provided for in Section 4.1 of this
Agreement, and as further reduced by two payments of $25,000 each made pursuant to the August 11,
2005 and August 23, 2005 Bank One letters, with the final settlement payment in the amount of
$740,000.00 due on or before September 2, 2005.”
3. Section 2 of the July 11 Stock Purchase Agreement is revised to read as follows:
“2. REDEMPTION AND SALE OF CORPORATE STOCK
Upon the terms, subject to the conditions and in reliance on the representations, warranties
and covenants set forth herein, at Closing (as defined in Section 5 hereof), (a) BMC agrees
to redeem 81.596 percent (1,038 shares) of the Sellers’ Shares (the “Redemption Shares”)
and Sellers agree to tender such interest in their Shares in redemption for the Redemption Price
(as defined in Section 3 hereof), and (b) the Buyer agrees to purchase from the Sellers and
the Sellers hereby agree to sell and transfer to the Buyer, all of Sellers’ remaining interest
(18.404 percent, 234 shares) in the Shares (the “Sale Shares”) for the Purchase Price (as
defined in Section 3 hereof), in each case free and clear of all liens, equities,
encumbrances and claims of any kind and rights of any person.”
4. Any and all references to the “Globe Hollow Tract” and/or to the “10 acre Globe Hollow
Tract” in the July 11 Stock Purchase Agreement, including references to the Globe Hollow Tract
contained in Sections 3.1(c), 4.6(a), and 7.1(h), are revised to mean the approximately 19 acre
Globe Hollow Tract as further described in Exhibit G attached hereto.
5. Section 3.1(c) of the July 11 Stock Purchase Agreement is revised to read as follows:
“(c) At Closing, Buyer shall provide to Sellers a first mortgage on 700 unencumbered acres
(hereinafter “Mortgage 1”), to be in the form attached hereto as Exhibit C, and a
second mortgage on 800 acres remaining (hereinafter “Mortgage 2”) (with the first mortgage
position to be held by Xxxxxxxx and Roshon as further provided herein), to be in the form attached
hereto as Exhibit D, to secure both the Liquidating Note and Installment Note (the
“Notes”) provided for in this Section. The Mortgages shall provide that any reduction in
the amount of the Notes made based on a claim by Buyer that Sellers owe the Buyer any amount under
Sellers’ indemnity under Article 10 hereof shall not constitute an event of default or
other grounds for purposes of commencing or enforcing a foreclosure on the properties subject to
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Mortgage 1 or Mortgage 2, unless and until it has been finally determined, either by written
agreement of the parties, court decision, binding arbitration or other dispute resolution mechanism
agreed to by the parties, that the amount of Sellers’ liability under Article 10 applied in
reduction of the Notes (or any portion thereof) was incorrect, and BMC does not pay the amounts
past due within 10 business days following such final decision. Notwithstanding the foregoing, the
grant of Mortgages 1 and 2 are subject to the exception that an approximately 19 acre tract along
Route 140, within the tract which is subject to a mortgage held by Xxxxx X. and Xxxxxxxxx Xxxxxxxx
(the “Xxxxxxxx Mortgage”), known as the Globe Hollow Tract, where the Buyer is planning on
the installation of a rail line, will be excluded from the Mortgages to secure the Notes, as noted
in Section 4.6(a), as further described in Exhibit G, attached hereto.”
6. Section 4.2 of the July 11 Stock Purchase Agreement is revised to read as follows:
“4.2 Reclamation Obligations. On or about May 25, 2005, the Buyer paid Sellers the
amount of $25,000 for use in performing and overseeing reclamation work on areas covered by the
Permits. Such payment shall be applied to and reduce the corresponding reclamation debt of BMC
itemized in Schedule 1.4 hereof. Sellers will present evidence to the Buyer that said $25,000 was
expended to perform reclamation work on areas covered by the Permits. If any of the $25,000 for
reclamation work remains unspent as of the Closing, the balance remaining shall be placed in the
attorney escrow account of Xxxxxx Xxxxx and shall be disbursed from said escrow account upon the
presentation of receipts or invoices to Xxxxxx Xxxxx and Buyer for the reclamation work performed
pursuant to this section.”
7. Section 5.1 of the July 11 Stock Purchase Agreement is revised to read as follows:
“5.1. The closing of the redemption, sale and purchase of Shares pursuant to this Agreement
(the “Closing”) shall take place at the offices of Best Title at 000 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxx, xx or before Friday, September 2, 2005, or such other time and date as the parties
may mutually agree, including any extension requested by Buyer and approved by Bank One and Sellers
(the “Closing Date”), with the transactions to be conducted at such closing becoming
effective at the close of business on the Closing Date.”
8. Section 5.5(a) of the July 11 Stock Purchase Agreement is revised to read as follows:
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“(a) Pay to the Sellers the Purchase Price in accordance with Section 3.3”
9. Section 7.1(c) of the July 11 Stock Purchase Agreement is revised to read as follows:
“c. Capitalization. The aggregate number of securities that BMC is authorized to
issue is Two Thousand Five Hundred (2,500) shares of Common Stock of which One Thousand Two Hundred
and Seventy Two (1,272) shares are issued and presently outstanding. Said issued and outstanding
Shares are the sole securities (100%) of BMC issued and presently outstanding. The issued and
outstanding Shares are duly authorized, validly issued, fully paid and nonassessable, have not been
issued in violation of any preemptive, subscription or other rights or laws, and when sold,
transferred and delivered to the Buyer in accordance with the terms of this Agreement, and will be
free of all restrictions on transfer other than those arising under the Securities Act of 1933, as
amended (the “Securities Act”), or state securities laws. There are no other debt or
equity securities of BMC outstanding and there is no outstanding option, warrant, right, call,
subscription or other agreement or commitment to which either of the Sellers or BMC is a party
which (i) calls for the issuance, sale, pledge or other disposition of any shares of BMC common
stock, including the Shares, or any securities convertible or exchangeable into, or other rights to
acquire, any shares of BMC common stock, (ii) obligates any Seller to grant, offer or enter into
any of the foregoing, or (iii) relates to the voting, transfer or control of the Shares. There are
no agreements, contracts, obligations or undertakings (written or oral) to which either the Sellers
or BMC is a party (or by which either of them are bound) relating to the issuance, sale or transfer
of any securities of BMC.”
10. The Parties state that the Schedules and Exhibits referenced in the July 11, 2005
Agreement have been completed by Sellers and/or BMC and the Parties waive the July 15, 2005
deadline contained in Section 12.1 of the July 11, 2005 Agreement for preparation of said Schedules
and Exhibits.
11. Schedule 1.6 is revised per the attached Schedule 1.6 Revised 9-2-2005, removing the
Plibrico Lease from the schedule of properties.
12. Pursuant to Section 5.2 of the July 11, 2005 Agreement, at Closing the Buyer will transfer
to Best Title Agency, Inc., Xxxxxx Xxxxx, the closing agent, sufficient funds to pay the
Liabilities set forth in revised Schedule 5.2 and the Settlement Statement prepared by Best
Title Agency, Inc. (the “Pay At Closing Obligations”). Certain of the Pay At Closing
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Obligations may be reduced prior to payment and some of the creditors listed on the Pay At
Closing Obligations listing have not been located. The parties agree that Best Title shall retain
in escrow (hereinafter the “Pay at Closing Escrow”) any balance remaining from the funds provided
for the Pay At Closing Obligations and any amounts that are not paid from escrow after 60 days
shall be returned to the Buyer. Best Title shall provide an accounting to both Buyer and Sellers
of payments from the Pay at Closing Escrow and an accounting of any balance remaining that is
returned to Buyer. The amount of the balance returned to the Buyer from the Pay at Closing Escrow
shall be added to the principal amount of the Installment Note
IN WITNESS WHEREOF, the parties have executed this AMENDMENT on the day and year first written
above.
| SELLERS: | ||||
| BMC: XXXXXXXX MINING COMPANY, INC. |
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| Title: President | ||||
| BUYER: E-RAIL LOGISTICS, INC. |
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| Title: President |
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