AMENDMENT NO. 2 TO THE LOAN AGREEMENT
AMENDMENT
NO. 2 TO THE
This
AMENDMENT NO. 2 TO THE LOAN
AGREEMENT (this “Amendment”)
is made
effective this December 1, 2008, amends that certain Loan Agreement (the “Loan Agreement”),
dated October 9, 2008, as previously amended, by and among Denly ACI Partners, Ltd., a
Texas limited partnership (the “Partnership”), and
Xxxxxx
X. xxx Xxxxxx, and Xxxxx
X. xxx Xxxxxx, as Co-Trustees ofThe von Waaden 2004
Revocable
Trust (the “Trust”),
and America West Resources, Inc.,
a Nevada corporation (the “Borrower”). The
Partnership and the Trust are hereinafter collectively referred to as the “Lenders”).
WHEREAS,
the Borrower and
Lenders have agreed to make certain changes to the Loan Agreement;
NOW,
THEREFORE, in
consideration of the above, and for other good and valuable consideration,
the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1.
Section 6.2(a) of the Loan Agreement is hereby amended in its entirety and
replaced with the following:
“(a)
Confirmation Order shall have been entered and shall have become a Final
Confirmation Order by no later than December 22, 2008.”
2.
Defined terms not defined in this Amendment shall have the meaning set forth
in
the Loan Agreement.
3.
The Borrower agrees to pay all costs and expenses and reimburse the Lenders
for
any and all expenditures related to this Amendment.
4.
The Borrower acknowledges and confirms that Lenders have performed all of their
obligations under the Loan Agreement and all other Loan Documents as of the
execution of this Amendment, and releases, acquits and discharges Lenders from
any and all claims and causes of actions of every kind and character arising
out
of, or in connection with, any of the Loan Documents or any of the transactions
described in the same to the extent the same have arisen or accrued prior to
the
execution of this Amendment.
5.
Except as amended by this Amendment, the Loan Agreement remains in full force
and effect in accordance with its terms, and, by executing this Amendment,
Lenders shall not be deemed to waive or release (or be obligated to waive or
release in the future) any of the rights of Lenders under any of the Loan
Documents.
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6.
To facilitate execution, this Amendment may be executed in any number of
counterparts as may be convenient or necessary, and it shall not be necessary
that the signatures of all parties hereto be contained on any one counterpart
hereof. Additionally, the parties hereto hereby agree that, for purposes of
facilitating the execution of this Amendment, (a) the signature pages taken
from
separate individually executed counterparts of this Amendment may be combined
to
form multiple fully executed counterparts and (b) a facsimile transmission
shall
be deemed to be an original signature. All executed counterparts of this
Amendment shall be deemed to be originals, but all such counterparts taken
together or collectively, as the case may be, shall constitute one and the
same
agreement.
REMAINDER
OF PAGE INTENTIONALLY BLANK
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IN
WITNESS WHEREOF, each of
the parties hereto has executed this Amendment or has caused this Amendment
to
be executed on its behalf by a representative duly authorized, all as of the
date first above set forth.
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a
Nevada corporation
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By:
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/s/
XXX X. XXXXX
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Xxx
X. Xxxxx
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Chief
Executive Officer
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Denly
ACI Partners, Ltd.,
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a
Texas limited partnership
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By:
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Denly
ACI Mgt., LLC,
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a
Texas limited liability company
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By:
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/s/
XXXXXX X. XXX XXXXXX
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Xxxxxx
X. xxx Xxxxxx, Manager
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By:
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/s/
XXXXX X. XXX XXXXXX
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Xxxxx
X. xxx Xxxxxx, Manager
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Xxxxxx
X. xxx Xxxxxx, Co-Trustee of The von Waaden 2004 Revocable Trust,
created
under agreement dated May 13, 2004
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Xxxxx
X. xxx Xxxxxx, Co-Trustee of The von Waaden 2004 Revocable Trust,
created
under agreement dated May 13, 2004
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