EXHIBIT 10.2
AMENDMENT
TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT is made as of the 26th day of December, 2003, by and
between Frontier Development, LLC., a Nevada limited liability company, whose
principal place of business is ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("SELLER"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, member of Seller ("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
member of Seller ("▇▇▇▇▇▇▇"), ▇▇▇▇ ▇▇▇▇▇▇▇▇, member of Seller ("▇▇▇▇▇▇▇▇"), and
▇▇ ▇▇▇▇, member of Seller ("▇▇▇▇") (▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and ▇▇▇▇ are
collectively referred to below as the "SELLING MEMBERS"), Oretech, Inc., a
Nevada corporation, whose principal place of business is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("PURCHASER"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, shareholder and
officer of Purchaser (referred to as the "CONTRACT SHAREHOLDERS"), and Oretech
Holdings, Inc., a Colorado corporation ("ORETECH HOLDINGS").
R E C I T A L S:
A. The parties hereto, other than Oretech Holdings but also with
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, shareholder and CEO of Purchaser, entered into that certain
Asset Purchase Agreement, Dated September 2, 2003, and that certain Addendum to
the Asset Purchase Agreement, dated September 2, 2003. Said Agreement and
Addendum are sometimes collectively referred to hereinafter as the "ORIGINAL
AGREEMENT."
B. The parties hereto desire to amend the Original Agreement on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
T E R M S:
1. CAPITALIZED TERMS. Capitalized terms used in this Amendment shall
have the same meanings given those terms in the Original Agreement.
2. ORETECH HOLDINGS. Purchaser hereby assigns to Oretech Holdings
Purchaser's rights under the Original Agreement, and Oretech Holdings hereby
assumes and agrees to timely perform all of Purchaser's obligations under or
otherwise relating to the Original Agreement, as well as all of Purchaser's
obligations under this Amendment and any other amendments to the Original
Agreement (whether executed before or after the execution of this Amendment).
Nothing in this Amendment modifies or in any other manner limits Purchaser's
obligations under the Original Agreement. Purchaser is a primary obligor under
the Original Agreement, as amended hereby, as well as a guarantor of the
obligations of Oretech Holdings.
The faithful and timely performance by the Oretech Holdings under the
Original Agreement, including performance of all of Purchaser's obligations
under the Original Agreement, including but not limited to payment of the Note
(if one is used) and performance under the Agreement For Purchase and Sale of
Real Estate described on Exhibit "D" to the Original Agreement, is hereby
guaranteed by Purchaser. Purchaser further agrees that any action may be bought
and prosecuted by the Seller against Purchaser whether or not any action is
brought against Oretech Holdings, and whether or not Orectech Holdings or any
other parties are joined in such action. Purchaser specifically agrees to be
liable to Seller for the obligations of Oretech Holdings as set out above, even
if Seller or any successor-in-interest releases any or all rights of any sort
against Oretech Holdings. Purchaser hereby consents to any such release, which
release shall be without effect on Purchaser's liability for said obligations.
Purchaser waives any right to require Seller to proceed against Oretech Holdings
or pursue any other remedy in Seller's power. Purchaser waives any defense
arising by reason of any disability or other defense of Oretech Holdings by
reason of the cessation from any cause whatsoever (other than performance in
full) of the liability of Oretech Holdings under the Note.
3. NO PROMISSORY NOTE. At the Closing, Purchaser shall pay the entire
purchase price in full in cash or cash equivalent. The Note will not be used,
and Purchaser will not pay the $15,000.00 additional purchase price described in
subparagraph 3(a)(ii) of the Original Agreement.
4. MODIFICATIONS REGARDING THE SILVER MINE. The Escrow Agent prepared a
title report for the Silver Mine, and it appears from that report that there are
some title problems with some of the mines which were included in the
description of the "Silver Mine," which description appeared on Exhibit "B" to
the Original Agreement. The parties have agreed to proceed to close the purchase
and sale of the Pittsburg Mine, and also to close on the portion of the Silver
Mine where there are no title problems. As a result of the title problems on the
Silver Mine, the parties hereby amend the Original Agreement as follows:
(a) Seller will sell and Purchaser will buy at the Closing
that portion of the Silver Mine for which free and clear title can be
transferred by Seller.
(b) The purchase price for the Silver Mine as identified in
Section 3 (including subparagraph 3(b)) of the Original Agreement, is hereby
reduced by $18,750 cash, 75,000 shares of Common Stock, and 18,750 Warrants.
Since the ▇▇▇▇▇▇▇ Mine was excluded (subject to certain conditions) from the
Assets transferred pursuant to the Addendum to Asset Purchase Agreement
described above, and the 506 Offering (defined in subparagraph 3(a) of the
Original Agreement) has not yet been closed, but the Note will not be used, the
parties intend at the Closing that Purchaser will not pay the sum of $15,000.00
as called for in subparagraph 3(a)(ii) of the Original Agreement, but shall
issue Seller 500,000 shares of Common Stock and 125,000 Warrants for the
Pittsburg Mine, shall issue Seller 675,000 shares of Common Stock and 168,750
Warrants for the Silver Mine, and shall pay Seller cash in the amount of
$125,000.00 for the Pittsburg Mine and $168,750.00 for the Silver Mine. The
totals are 1,175,000 shares of Common Stock, 293,750 Warrants, and $293,750.00.
(c) At the Closing, Seller will assign (on a Quit-Claim basis)
to Purchaser whatever rights Seller has to the mines which were originally
included on Exhibit "B" to the Original Agreement but were not transferred to
Purchaser at the Closing because of title problems. Said mines are referred to
as the "Silver Quiet Title Mines."
(d) Purchaser shall, at Purchaser's cost, as soon as is
practicable after the Closing, commence and diligently prosecute quiet title
actions to quiet title to the Silver Quiet Title Mines. If and when Purchaser
acquires title, whether through quiet title actions or otherwise, to the Silver
Quiet Title Mines, then Purchaser shall pay Seller, within twenty (20) days
after Seller so acquires title, the purchase price for each Silver Quiet Title
Mine. Said purchase price shall be calculated pro rata (based upon number of
mines, not value of mines), and shall be based upon a total for all of the
Silver Quiet Title Mines of $18,750.00 cash, 75,000 shares of Common Stock and
18,750 Warrants. For example, if there are at the Closing 14 Silver Quiet Title
Mines, and Purchaser after the Closing acquires title to one of said mines, then
the purchase price payable by Purchaser to Seller for that one mine shall be the
fraction, the numerator of which is 1 and the denominator of which is 14, times
$18,750.00 cash, 75,000 shares of Common Stock, and 18,750 Warrants. Therefore,
the cash purchase price for said mine would be $1,339.29 cash, 5,357.14 shares
of Common Stock, and 1,339.29 Warrants. Purchaser's performance of its
obligations set out in this paragraph shall from and after the Closing be
secured by a Deed of Trust and Assignment of Rents encumbering the Assets. The
Deed of Trust and Assignments of Rent will be drafted using the Escrow Agent's
standard form (with however a due-on-sale and due-on-encumbrance clause added if
the same is not in the form), if any, and in the absence of such a form, then
using a form acceptable to Seller in Seller's discretion.
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5. ▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ TRANSACTION. In connection with and as part of the
Closing, contingent on the Closing occurring, but automatically effective at the
Closing without any other act being required, Purchaser hereby assumes and
agrees to timely perform, as and when said performance is due, all of the
obligations of Seller under subparagraphs 2a (the "▇▇▇▇▇▇ Note"), 2d ($1,000 per
month), and 2e (real estate taxes) of that certain Agreement For Purchase and
Sale of Real Estate, dated September 8, 2003, by and between Seller and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇. Notwithstanding the foregoing, the parties agree that at or before
the Closing they shall obtain a payment extension of the amounts due under the
▇▇▇▇▇▇ Note such that the sum of $1,065.00 shall continue to be due each month,
but the $100,000.00 balance shall not be due until March 31, 2004. Purchaser
shall continue to pay the $1,065.00 per month. On or before March 31, 2004,
Seller shall pay the sum of $37,000.00 against the amounts due under the ▇▇▇▇▇▇
Note, and Purchaser shall pay all other amounts due under the ▇▇▇▇▇▇ Note.
Purchaser shall repay Seller the $37,000.00 described in the preceding
sentence, with interest at the rate of ten percent (10%) per annum, compounded
monthly, in monthly installments of $1,000.00 per month, payable on the first
day of each month commencing May 1, 2004, until paid in full. This Agreement
shall act as a Promissory Note for the obligations payable under this paragraph,
containing the terms appearing in this paragraph. All payments shall be payable
and shall be sent to Seller ▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the payee may from time to time
designate in writing. If any payments are not paid when due, or if Purchaser
fails to comply with any other terms of this paragraph, then the payee shall be
entitled to declare the entire principal sum and accrued interest to be
immediately due and payable without further notice. If any payment is not made
within five (5) days after its due date, at the option of the payee, and without
prejudice to any right or remedy available to payee, a late charge shall accrue
equal to five percent (5%) of the amount due for the purpose of deferring the
expense incident to handling such delinquent payments. Such late charge
represents the reasonable estimate by the parties of a fair and average
compensation for the loss which may be sustained by the payees due to the
failure to make timely payments. The right of the payee to impose a late payment
charge shall be in addition to any other rights and remedies available to the
payee. Purchaser shall reimburse the payee for all costs and expenses, including
attorneys' fees and costs, incurred in the enforcement or collection of this
debt, or any judgment obtained thereon.
Purchaser's performance of its obligations set out in the preceding
paragraph shall from and after the Closing be secured by a Deed of Trust and
Assignment of Rents encumbering the Assets. The Deed of Trust and Assignments of
Rent will be drafted using the Escrow Agent's standard form (with however a
due-on-sale and due-on-encumbrance clause added if the same is not in the form),
if any, and in the absence of such a form, then using a form acceptable to
Seller in Seller's discretion.
6. CLOSING DATE. The date for the Closing, as identified in Section 6
of the Original Agreement, is hereby extended to 10:00 a.m. December 31, 2003.
7. FRONTIER'S PROCEEDS. Frontier hereby irrevocably instructs Escrow
Agent at the Closing to pay directly to ▇▇▇▇ & ▇▇▇▇, P.C., attorneys for
Frontier, all proceeds due to Frontier, to be applied first against fees and
costs owing by Frontier.
8. NO CHANGE TO OTHER TERMS. Except as expressly called for in this
Amendment, the Original Agreement continues unmodified and in full force and
effect.
9. FACSIMILE SIGNATURES; COUNTERPARTS.This Amendment may be executed by
the parties in one or more counterparts, and any number of counterparts signed
in the aggregate by the parties shall constitute a single instrument. The
parties authorize and agree to accept facsimile signatures in counterparts to
this Amendment, and that said facsimile signatures shall for all purposes be
binding upon the parties as if the same were originals.
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DATED as of the date first shown above.
SELLER:
Frontier Development, LLC., a Nevada
limited liability Company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Member
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇, Member
By: /s/ ▇▇ ▇▇▇▇
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▇▇ ▇▇▇▇, Member
PURCHASER:
Oretech, Inc., a Nevada corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
CONTRACT SHAREHOLDERS: ( Signature waived by parties )
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
SELLING MEMBERS:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇ ▇▇▇▇
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▇▇ ▇▇▇▇
ORETECH HOLDINGS:
Oretech Holdings, Inc., a Colorado
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
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