THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
Exhibit 10.2
THIRD AMENDMENT TO
AMENDMENT NO. 3 TO PURCHASE AND SALE AGREEMENT, dated as of April 30, 2012 (this “Amendment”), among Xxxxxx X. Xxxxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxx LP, Xxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx (collectively “Seller”), Xxxxx X. Xxxxxxx Exploration, Inc. (Operator) and XUN Oil Corporation as successor to Xxxxxxxx Energy Corporation (“Buyer” and together with the Seller, Operator and the “Parties”).
W I T N E S S E T H:
WHEREAS, the Parties have entered into a Purchase and Sale Agreement, dated as of January 31, 2012 (the “Agreement”);
WHEREAS, on the date hereof, the Parties desire to amend the Agreement on the terms set forth in herein to extend the Closing Date.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and receipt of all of which is hereby acknowledged, the Parties hereto hereby agree as follows:
1.
Changes to the Agreement.
Paragraph 3(a) is hereby deleted and the following is substituted in lieu thereof:
Subject to the satisfaction of all conditions to the Closing set forth in Section 10 of this Agreement (unless waived by the party entitled to satisfaction of such condition), the sale and purchase of the Properties (the “Closing”) shall be on or before June 29, 2012 at such place as Buyer and Seller shall mutually agree. Buyer’s failure to close this transaction on or before June 29, 2012 for any reason other than those set out in 10a or failure to make any interest payment as set forth herein shall immediately terminate the Agreement and the Seller may retain all previously paid Xxxxxxx Money and interest (as more fully described in this Amendment) as full liquidated damages, Seller and Buyer agreeing that it would be difficult to ascertain actual damages and therefore agreeing that the Xxxxxxx Money and interest retained by Seller would be liquidated damages in lieu of actual damages.
2.
Conditions to Effectiveness.
This Amendment shall become effective as of the first date when each of the following conditions shall have been satisfied:
(i)
Buyer shall release the $250,000.00 in escrow as Xxxxxxx Money and direct Xxxxx, Xxxx, Xxxxxx, Escrow Agent, to disburse said funds in the proportionate interests to Seller, less overnight fee or wire fee if applicable, as shown next to their signatures hereto. Should Closing occur, said Xxxxxxx Money shall be credited to the Purchase Price at Closing.
(ii)
Each of the Parties shall have received this Amendment duly executed and delivered by each of the Parties
3.
Further Consideration.
(i)
In consideration of the foregoing Buyer agrees to pay to Seller by wire transfer interest in an amount equal to the rate of 6% per annum on the difference between $17,000,000.00 and the Xxxxxxx Money (i.e. $17,000,000.00 less $250,000.00 or $16,750,000.00) until Closing. The payment of interest shall be made as follows:
a.
On or before May 14, 2012, the sum of $85,356.00, representing the interest due for the entire month of May;
b.
If closing does not occur on or before June 1, 2012, on or before June 1, 2012, the sum of $19,273.97, representing the interest due for June 1-7, 2012;
c.
If closing does not occur before June 8, 2012, on or before June 8, 2012, the sum of $19,273.97, representing the interest due for June 8-14, 2012;
d.
If closing does not occur before June 15, 2012, on or before June 15, 2012, the sum of $19,273.97, representing the interest due for June 15-21, 2012; and
e.
If closing does not occur before June 22, 2012, on or before June 22, 2012, the sum of $19,273.97, representing the interest due for June 22-29, 2012.
Said interest as set forth in subparagraph ii above is non-refundable and will not be credited against Purchase Price at closing. All interest shall be wired as follows:
First Financial Bank
P. O. Box 5291
San Angelo, Texas 76902
ABA 000000000
further credit to:
XXXXX,XXXX,XXXXXX,XXXX & PRICE
TRUST ACCOUNT
ACCOUNT NO.: 63000105260
Representations and Warranties.
Each Party represents and warrants as follows as of the date hereof: (i) the execution, delivery and performance of the Amendment has been duly authorized by all necessary action on the part of each Party. The execution, delivery and performance by each Party of this Amendment does not and will not (a) violate any provision of any law or any governmental rule or regulation in any material respect, or any material order, judgment or decree of any court or other agency of government binding on any Party (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any contractual obligation of any Party. This Amendment has been duly executed and delivered by each Party that is a party hereto and constitutes a legally valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, except as may be limited by Debtor Relief Laws or by equitable principles and principles of good faith and fair dealing relating to enforceability.
4.
Full Force and Effect.
Except as amended herein, all the terms and conditions of the Agreement shall remain in full force and effect. On and after the effective date of this Amendment, each reference in the Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Agreement shall mean and be a reference to the Agreement, as amended by this Amendment.
5.
Execution in Counterparts.
This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute one and the same instrument. Delivery by facsimile or electronic transmission of an executed counterpart of a signature page to this Amendment shall be effective as delivery of an original executed counterpart of this Amendment.
6.
Severability.
In case any provision in or obligation of this Amendment shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
[Space Intentionally Left Blank]
7.
Successors.
The terms of this Amendment shall be binding upon, and shall inure for the benefit of, the parties hereto and their respective successors and assigns
DATED effective April 30, 2012.
"SELLER"
Signed: By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Seller - 80% interest
Signed: By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx, Seller - 5% Interest
Signed: By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Seller - 5% interest
VESTA, LP, a Texas limited partnership
(Seller – 5% interest)
Signed: _________________________________
General Partner
Signed: By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, Seller, 1% interest
Signed: By: /s/ Xxxx & Xxxxx Xxxxxx
Xxxx & Xxxxx Xxxxxx, Seller 2% interest
Signed: By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Seller 1% interest
Signed: By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, Seller 1% interest
“BUYER”
Xun Oil Corporation
Signed: By: /s/ Xxxxx X. Xxxxxxxxxxx
Xxxxx X. Xxxxxxxxxxx, President
"OPERATOR"
XXXXX X. XXXXXXX EXPLORATION, INC.
Signed: By: /s/ Xxxxx X. Xxxxxxx, Xx.
Xxxxx X. Xxxxxxx, Xx., President
EXHIBIT “A”
West Crockett Project
Oil Producing Properties in West Texas
All Leases 100% Working Interest, 75% Net Revenue Interest
Xxxxx Xxxxxxx Lease
596 acres, more or less
1 producing well (San Xxxxxx)
1 water injection well
Oil and Gas Lease dated March 1, 1977, recorded at Vol. 310, p. 223, Deed Records, Xxxxxxxx County, Texas, commonly known as the Xxxxx X. Xxxxxxx Lease, and covering all of Xxxxxxx 00, Xxxxx XX, S. C. White Survey, A-3003, Xxxxxxxx County, Texas, containing 596 acres, more or less.
Xxxx Xxxxx fee Lease
462.5 acres, more or less
8 producing xxxxx (San Xxxxxx)
2 shut-in xxxxx
1 water injection well
Oil and Gas Lease dated March 31, 1945, recorded at Vol. 82, p. 507, Deed Records of Xxxxxxxx County, Texas, covering all of Section 16, X. Xxxxxxxxxx Survey, A-1874, containing 462.50 acres, more or less (X. X. Xxxxx Fee Lease).
Xxxxx Xxxxx “B” Lease
542 acres, more or less
3 producing xxxxx (San Xxxxxx)
1 shut in well
Xxxxx Xxxxx “H” Lease
80 acres, more or less
1 producing well (San Xxxxxx)
Oil and Gas Lease dated January 23, 1933, recorded at Vol. 59, p. 000, Xxxx Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxxx, covering the all of Section 000, Xxxxx XX, X. Xxxxxx Xxxxxx, X-0000, containing 622 acres, more or less. (Couch “H” & “B”Lease);
X. X. Xxxxx Lease -
480 acres, more or less
1 producing well (San Xxxxxx)
Oil and Gas Lease dated July 30, 1932, recorded at Vol. 59, p. 637, Deed Records of Xxxxxxxx County, Texas, covering the S/2 and the NW/4 of Xxxxxxx 0, Xxxxx XX, X & X.X. X.X. Co. Survey, A-4919, containing 480 acres, more or less (X. X. Xxxxx Lease);
X. X. Xxxxx “D” Lease
160 acres, more or less
1 producing well (San Xxxxxx)
1producing well (Queen Sand)
Oil and Gas Lease dated June 20, 1932, recorded at Vol. 58, p. 624, Deed Records of Xxxxxxxx County, Texas, covering the northeast quarter (NE/4) of Xxxxxxx 00, Xxxxx XX, XX & SF R.R. Co. Survey, A-3266, containing 160 acres, more or less (X. X. Xxxxx “D” Lease).
