AMENDMENT NO. 1 TO THE COMMON STOCK PURCHASE AGREEMENT
AMENDMENT
NO. 1 TO THE
This
AMENDMENT NO. 1 TO THE
COMMON
STOCK PURCHASE AGREEMENT (the “Amendment”)
is made
effective this December 1, 2008, amends that certain Common Stock Purchase
Agreement (the “Purchase Agreement”),
dated October 9, 2008, by and among Denly ACI Partners, Ltd., a
Texas limited partnership (“Denly ACI”), and
Xxxxxx X. xxx Xxxxxx, and
Xxxxx
X. xxx Xxxxxx, as Co-Trustees ofThe von Waaden 2004
Revocable
Trust (the “Trustees”),
and America West Resources,
Inc.,
a Nevada corporation (the “Company”). Denly
ACI and the Trustees are hereinafter collectively referred to as the “Investors”).
WHEREAS,
the Company and
Investors have agreed to make certain changes to the Purchase
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 3.01 of the Purchase Agreement is hereby amended to include in the
definition of “Loan Agreement” the original Loan Agreement dated October 9, 2008
together with, and in addition to, any and all amendments or restatements
of the
same from time to time entered into by the parties.
2.
Section 7.02(c) of the Purchase Agreement is amended to read in its entirety
as
follows:
“(c) each
of the conditions set forth at Section 7.01 above has not been fully satisfied
or waived on or before December 31, 2008.”
3.
Defined terms not defined herein shall have the meaning set forth in the
Loan
Agreement.
4.
The Borrower agrees to pay all costs and expenses and reimburse the Lenders
for
any and all expenditures related to this Amendment.
5.
The Company acknowledges and confirms that Investors have performed all of
their
obligations under the Purchase Agreement and all of the other Transaction
Documents through and as of the execution of this Amendment, and releases,
acquits and discharges Investors of and from any and all claims and causes
of
action of every kind and character arising out of or in connection with any
of
the Transaction 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.
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6.
Except as amended by this Amendment, the Purchase Agreement remains in full
force and effect in accordance with its terms, and, by executing this Amendment,
Investors will not be deemed to waive or release (or be obligated to waive
or
release in the future) any of the rights of Investors under any of the
Transaction Documents.
7. 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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/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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