AMENDING AGREEMENT
(Xxxxxx/Eternal
Royalty Purchase Agreement)
THIS AGREEMENT dated April 20,
2010.
BETWEEN:
XXXXXX OIL CORPORATION, a body
corporate having offices in the City of Vancouver, in the Province of
British Columbia (“Xxxxxx”)
- and
-
ETERNAL ENERGY CORP., a body
corporate having offices in the City of Littleton, in the State of Colorado
(“Eternal”)
WHEREAS Xxxxxx and Eternal are
parties to a Royalty Purchase Agreement dated March 26, 2010 providing for the
sale of certain royalty interests (the “Xxxxxx/Eternal Royalty Purchase
Agreement”);
AND WHEREAS the parties
neglected to reduce the Cash Consideration (as defined in the Xxxxxx/Eternal
Royalty Purchase Agreement) to reflect their intention that Eternal separately
acquire and pay for the Hardy Tangibles (as likewise defined in the
Xxxxxx/Eternal Royalty Purchase Agreement);
AND WHEREAS the parties wish
to amend the Xxxxxx/Eternal Royalty Purchase Agreement by (i) reducing the Cash
Consideration by a negotiated US dollar value in respect of the Hardy Tangibles
and (ii) making consequential adjustments to the allocation of the Property
Consideration (as defined in the Xxxxxx/Eternal Royalty Purchase
Agreement);
AND WHEREAS the parties wish
to confirm that the total consideration other than share consideration agreed to
be paid by Xxxxxx for the Eternal Royalties (as defined in the Xxxxxx/Eternal
Royalty Purchase Agreement) is USD $2,900,000 plus CDN $240,001;
NOW THEREFORE in consideration
of the premises hereto, the covenants and agreements hereinafter set forth and
contained and other good and valuable consideration (the receipt and sufficiency
of which is hereby acknowledged), the parties agree to amend the Xxxxxx/Eternal
Royalty Purchase Agreement as follows:
ARTICLE 1
AMENDMENTS
|
1.1
|
Reduction
of Cash Consideration
|
The Cash
Consideration (exclusive of any required withholding taxes) is reduced from USD
$3,000,000 to USD $2,900,000.
- 2 -
|
1.2
|
Allocation
of Property Consideration
|
The
allocation of the Property Consideration (totalling CDN $240,001) in Clause
4(b)(i) through (iii) is amended to read as follows:
|
(i)
|
Hardy
PNG Rights: CDN $138,413
|
|
(ii)
|
Hardy
Tangibles: CDN $101,587
|
|
(iii)
|
Hardy
Miscellaneous Interests: CDN
$1.00
|
ARTICLE 2
RATIFICATION
|
2.1
|
Xxxxxx/Eternal
Royalty Purchase Agreement
|
This
Agreement is supplementary to and shall form one instrument with the
Xxxxxx/Eternal Royalty Purchase Agreement, such instrument shall henceforth be
read together with this Agreement and have effect so far as practical as though
all the relevant provisions hereof and thereof were contained in one instrument
and the Xxxxxx/Eternal Royalty Purchase Agreement, as amended, modified or
supplemented by this Agreement, is in all respects ratified and
confirmed.
ARTICLE 3
MISCELLANEOUS
|
3.1
|
Headings
|
The
headings of clauses herein are inserted for convenience of reference only and
shall not affect the construction of the provisions hereof.
|
3.2
|
Supercedes
Previous Agreements
|
This
Agreement supercedes any other agreements, documents, writings and verbal
understandings between the parties relating to the subject matter of this
Agreement, and expresses all of the terms and conditions agreed upon by the
parties with respect thereto.
|
3.3
|
Governing
Laws/Courts
|
|
(a)
|
Governing
Laws: This Agreement shall, in all respects, be subject
to, interpreted, construed and enforced in accordance with and under the
laws of the Province of Alberta and the laws of Canada applicable therein
and shall, in every regard, be treated as a contract made in the Province
of Alberta. To the extent that the location of the Royalty
Lands in the Province of Saskatchewan requires the application of the laws
in force in the Province of Saskatchewan, such laws shall be adduced as
evidence in the Alberta courts having jurisdiction in respect of a dispute
arising hereunder.
|
- 3 -
|
(b)
|
Courts:
The parties irrevocably attorn and submit to the exclusive jurisdiction of
the courts of the Province of Alberta and courts of appeal therefrom in
respect of all matters arising out of this
Agreement.
|
|
3.4
|
Severability
|
If any
covenant or condition contained in this Agreement is determined to be, in whole
or in part, invalid or unenforceable by reason of any rule of law or public
policy, such invalidity or unenforceability will not affect the validity or
enforceability of any other covenant or provision, such partial invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of such covenant or provision and such invalid or unenforceable
covenant or provision or portion thereof, as the case may be, shall be severable
from the remainder of this Agreement.
|
3.5
|
Further
Assurances
|
Each
party, without further consideration, shall in a timely fashion do or perform or
cause to be done or performed all such further and other acts and things,
execute, acknowledge and deliver or cause to be executed, acknowledged and
delivered all such further and other instruments, deeds and other writings and
generally shall take or cause to be taken all such further and other actions as
may be reasonably necessary or desirable to carry out its obligations hereunder
or to ensure and give full force and effect to the provisions and intent,
purpose and meaning of this Agreement.
|
3.6
|
Enurement
|
This
Agreement shall be binding upon and shall enure to the benefit of the parties
and their respective successors, receivers, receiver-managers, trustees and
permitted assigns.
|
3.7
|
Counterparts
and Delivery
|
This
Agreement may be executed in counterparts and delivered by electronic or other
means, which shall constitute effective execution and delivery.
IN WITNESS WHEREOF the parties
have executed this Agreement as of the date first written
above.
|
XXXXXX
OIL CORPORATION
|
||||
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Per:
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/s/
Xxxxxx X. Xxxxxxx
|
Per:
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/s/
Xxxxxxx X. Xxxxx
|
|
|
Xxxxxx
X. Xxxxxxx
President
|
Xxxxxxx
X. Xxxxx
Chief
Executive
Officer
|
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