Exhibit 10.9
MUTUAL TERMINATION AND RELEASE
THIS MUTUAL TERMINATION AND RELEASE (this "Agreement") is made and entered
into this 31st day of December, 2004, by and between BPK Resources, Inc., a
Nevada corporation (the "Company"), and Xxxx Coast Capital Corp. ("Xxxx Coast")
for the purpose of terminating that certain binding Letter of Intent (the
"Letter of Intent") executed in November 2003 by and between Montex Exploration,
Inc. ("Montex") and Xxxx Coast. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in the Letter of Intent.
Recitals
WHEREAS, Montex and Xxxx Coast entered into the Letter of Intent in
November 2003; and
WHEREAS, Montex and the Company entered into that certain Assignment and
Assumption Agreement dated April 19, 2004, pursuant to which Montex assigned to
the Company all of its rights and obligations under the Letter of Intent; and
WHEREAS, the Company and Xxxx Coast wish to terminate the Letter of Intent
and their respective rights and obligations thereunder.
NOW, THEREFORE, in consideration of the foregoing premises and
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto hereby agree as follows:
1. Termination. The Company and Xxxx Coast hereby terminate the Letter of
Intent in its entirety and their respective rights and obligations thereunder.
2. Release. The Company and Xxxx Coast, for themselves and on behalf of
their respective subsidiaries, directors, officers, shareholders, affiliates,
employees, agents, attorneys, accountants, successors and assigns (collectively,
the "Releasing Party"), do hereby fully and irrevocably remise, release and
forever discharge Xxxx Coast and the Company, respectively, and their respective
subsidiaries, directors, officers, shareholders, affiliates, employees, agents,
attorneys, accountants, successors and assigns (collectively, the "Released
Parties"), of and from any and all manner of claims, actions, causes of action,
grievances, liabilities, obligations, promises, damages, agreements, rights,
debts and expenses (including claims for attorneys' fees and costs), of every
kind, whether in law or in equity, whether contingent, mature, known or unknown,
or suspected or unsuspected, including, without limitation, any claims arising
under any federal, state, local or municipal law, common law or statute, whether
arising in contract or in tort, and any claims arising under any other laws or
regulations of any nature whatsoever, that the Releasing Party ever had, now has
or may have, for or by reason of any cause, matter or thing whatsoever, from the
beginning of the world to the date hereof. Each Releasing Party represents,
warrants and covenants that it has not sold, assigned, transferred, or otherwise
conveyed to any other person or entity all or any portion of its rights, claims,
demands, actions, or causes of action herein released. Each Releasing Party
further agrees and covenants not to xxx or to bring, or assign to any third
person, any claims or charges against any of the Released Parties with respect
to any matter covered by the release set forth in this Section 2, and not to
assert against any of the Released Parties any action, grievance, suit,
litigation or proceeding for any matter covered by the release set forth in this
Section 2.
3. Scope of Release. The release set forth in Section 2 is intended to be
enforceable against the Releasing Parties in accordance with the express terms
and scope thereof notwithstanding any express negligence rule or any similar
directive that would prohibit or otherwise limit the release because of the
simple or gross negligence (whether sole, concurrent, active or passive) or
other fault or strict liability of any of the Released Parties.
4. Construction. The release provisions set forth in Section 2 shall be
construed as broadly as may be permitted by law to protect the Released Parties
against litigation and liability and, to effect this intent, each of the
undersigned, on behalf of the undersigned and each of the other Releasing
Parties, hereby agrees that the language of this Release is to be strictly
construed against it and in favor of release of the Released Parties,
individually and collectively.
5. Miscellaneous.
(a) This Agreement contains the entire agreement between the parties
and supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that no party hereto may assign its rights or delegate its obligations
under this Agreement without the express prior written consent of the other
party hereto. Nothing in this Agreement is intended to confer upon any person
not a party hereto (and their successors and assigns) any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
(c) If any provision of this Agreement or the application thereof to
any Person or circumstance is held to be invalid or unenforceable to any extent,
the remainder of this Agreement shall remain in full force and effect and shall
be reformed to render the Agreement valid and enforceable while reflecting to
the greatest extent permissible the intent of the parties.
(d) Each of the parties hereto agrees to use its reasonable best
efforts after the date hereof to take or cause to be taken all action, to do or
cause to be done, and to assist and cooperate with the other party hereto in
doing, all things necessary, proper or advisable under applicable laws to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated herein.
(e) The Section headings contained in this Agreement are inserted
for convenience of reference only and will not affect the meaning or
interpretation of this Agreement. All references to Sections contained herein
mean Sections of this Agreement unless otherwise stated. All capitalized terms
defined herein are equally applicable to both the singular and plural forms of
such terms.
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(f) This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together
shall constitute one and the same agreement.
(g) This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania, without regard to the
laws that might otherwise govern under applicable principles of
conflicts of laws thereof.
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IN WITNESS WHEREOF, intending to be legally bound, the parties hereto have
caused this Agreement to be executed as of the date first written above.
BPK RESOURCES, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
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Xxxxxxxxxxx X. Xxxxxxxx
Chief Executive Officer
XXXX COAST CAPITAL CORP.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
President
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