AMENDMENT NO. 1 TO JOINT VENTURE AGREEMENT
AMENDMENT
NO. 1
TO
This Amendment No. 1 (“Amendment”) to that certain
Joint Venture Agreement dated October 19, 2009 (the “Agreement”) between TRINITY
ALPS RESOURCES, INC., a Nevada domestic corporation (“Trinity Alps”), and AMERICAN
SIERRA GOLD CORP., a Nevada domestic corporation (“American Sierra”), is made
effective as of October 23, 2009.
Pursuant to the terms and conditions
hereof, this Amendment is hereby incorporated into the Agreement as if fully set
forth therein. This Amendment and the Agreement shall be read
together as a consistent agreement. Capitalized terms used herein and
not otherwise defined shall have the meaning assigned in the
Agreement. To the extent of any necessary inconsistency between the
two, however, the terms and provisions of this Amendment shall
control.
RECITALS
A. The
Parties entered into the Agreement to document their intent and agreement to
form a joint venture to develop the Mine underlying the Claims (as those terms
are defined in the Agreement), and to provide American Sierra the ability to
purchase up to a seventy-five percent (75%) interest in the special purpose
entities to be used by the Parties to own and operate the Claims, respectively
(as further provided for in the Agreement).
B. The
Agreement provides for a Closing (as defined in the Agreement) to occur on or
before October 23, 2009, as well as the opening of a Trust Account within three
(3) business days from the Effective Date of the Agreement.
C. The
Parties are diligently working in an effort to fulfill all necessary conditions
to Closing and to identify a suitable candidate to serve as the Trust Account
Administrator and open the Trust Account, but require additional time to
complete those tasks.
NOW, THEREFORE, in
consideration of the foregoing premises, the mutual agreements set forth below,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. AMENDMENT
1.1 Exhibit B. The
Agreement’s Exhibit B (i.e., the Year One Work Plan (as defined in the
Agreement)) is hereby deleted in its entirety and replaced and superseded by the
work plan attached hereto as Exhibit
1. The Parties have each reviewed and approved Exhibit 1 and hereby
agree to provide the same to the Trust Account Administrator (as defined in the
Agreement) in furtherance of the Agreement.
1.2 Exhibit D. The
Agreement’s Exhibit D (i.e., Costs & Expenses) is hereby deleted in its
entirety and replaced and superseded by the costs and expenses attached hereto
as Exhibit
2. The Parties have each reviewed and approved Exhibit
2.
1.3 Section
1.6. Section 1.6 of the Agreement is hereby deleted in its
entirety and replaced with the following, with the revised language highlighted
in italics for purposes of clarity:
At
Closing, every cost and/or expense related to the Claims and/or the Mine that
was paid by Trinity Alps for a benefit that lasts past 19 August 2009 shall be
reimbursed to Trinity Alps by American Sierra on a pro-rated
basis. Additionally, every cost and/or expense related to the Claims
and/or the Mine that was paid by Trinity Alps on or after 19 August 2009 but
prior to Closing shall, at Closing, be reimbursed to Trinity Alps by American
Sierra. After Closing and during the Term, every cost and/or expense
related to the Claims and/or the Mine that, after Closing, accrues and/or is
received by Trinity Alps or the Operating Entity or Holding Company, shall be
promptly paid (a) by
the Trust Account Administrator from funds paid into the Trust Account
hereunder, or (b) by the
Operating Entity from the Xxxxx Cash Account (as defined herein), with such
records to be forwarded to the Trust Account Administrator as set forth in
Section 5.1.1 below. All such costs and expenses incurred prior to Closing are
itemized on the attached Exhibit D and shall
be credited toward the First Semester Payment. Further, all such costs
and expenses incurred after Closing shall be credited toward the $2,000,000 set
forth in Section 1.4.3.
1.4 Section
1.7. Section 1.7 of the Agreement is hereby deleted in its
entirety and replaced with the following, with the revised language highlighted
in italics for purposes of clarity:
American Sierra shall,
prior to Closing and at its
own expense,
form the Operating Entity and Holding Company, and purchase company record books
for same. All other costs related to the Claims and/or Mines shall be
due from and paid by American Sierra through the Operating Entity or, to the
extent such expenses are related to the Claims and/or Mines but do not concern
the Mine’s operation, through the Holding Entity, as part of the Year One Work
Plan, Year Two Work Plan, and/or such other work plan as may hereafter be
approved by the Parties and submitted to the Trust Account Administrator
for administration hereunder, respectively (collectively, the “Plans”), with said
expenditures credited toward American Sierra’s $2,000,000.00 USD contribution
requirement under Section 1.4 above.
1.5 Section
5.1. Section 5.1 of the Agreement is hereby amended by
deleting the first sentence of that section and replacing it with “On or before
Closing, American Sierra shall open an escrow account (“Trust Account”) with an
attorney-at-law or other trust account administrator to be selected by American
Sierra after the Effective Date and approved by Trinity Alps in its sole but
reasonable discretion on or before Closing (“Trust Account
Administrator”). All other sentences of Section 5.1 remain
unchanged.
1.6 Section 5.2. Section 5.2 of the
Agreement is hereby amended by deleting “23 October 2009” from the second
sentence of that section and replacing it with “7 December 2009.”
1.7 Section
12.4. Section 12.4 is hereby deleted in its entirety and
replaced with the following:
This
Agreement sets forth the Parties’ entire agreement and understandings relating
to the subject matter herein and merges and supersedes all prior agreements,
writings and understandings. This Agreement (and any waiver of any
rights herefrom) shall not be amended or modified unless in a writing signed by
the Parties, and is intended by the Parties to be read in concert with the
contemplated operating agreements for the Operating Entity and Holding
Company. To the extent that this Agreement and either or both of
such operating agreements conflict, due to the ongoing nature of such entities,
the operating agreements for each of the Operating Entity and Holding Company,
respectively, shall govern.
2. MISCELLANEOUS
PROVISIONS
2.1 Effect of
Amendment. Except as expressly amended hereby, the Agreement
is in all respects ratified and confirmed and all of the terms, conditions and
provisions thereof shall remain in full force and effect.
2.2 Governing Law; Jurisdiction /
Venue. This Amendment, as with the Agreement, will be
exclusively interpreted and enforced in a state court in Carson City, Nevada
under Nevada law (without reference to its choice of law rules). The
Parties hereby consent to such venue, governing law and the jurisdiction of such
court.
2.3. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall be deemed to constitute one
instrument.
2.4. Facsimile. Executed
copies of this Amendment may be exchanged via facsimile and such signatures
shall be deemed as originals.
IN WITNESS WHEREOF, this
Amendment is executed and appended to the Joint Venture Agreement effective as
of the date first written above.
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TRINITY
ALPS RESOURCES, INC.:
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/s/ Xxxxxxx X. Xxxxx
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/s/
Xxxxxxxx Xxxxxxxx
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By: Xxxxxxx
X. Xxxxx
Its: President
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By: Xxxxxxxx
Xxxxxxxx
Its: Chief
Financial
Officer
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