ASSIGNMENT AND AMENDMENT AGREEMENT
This AGREEMENT is made this 7th day of April, 2011, by and among
Catalyst Capital Group, Inc., a California corporation ("Assignor")
and Breezer Ventures, Inc., a Nevada corporation ("Assignee").
W I T N E S S E T H:
WHEREAS, Firecreek Global, Inc. ("Firecreek") had a 93.75% working
interest (70.341796% net revenue interest) in the Xxxx Xxxxxxx Lease
(Texas Railroad Commission Lease Numbers 00757/11494), Xxxxxxxx County,
Texas (for depths above 100 feet below the top of the Ellenburger
Formation and in certain areas, depths below 1,400 feet); and
WHEREAS, Assignor, pursuant to an agreement between Assignor and
Firecreek dated December 31, 2010 and attached hereto as Attachment
A (the "Firecreek Agreement"), has the right to acquire:
(a) an undivided 13/16th interest in and to Firecreek's right,
title and interest in and to the following (collectively hereinafter
referred to as the "Assets"): (i) Well #6 (API# 42-059-04612) together
with the proration units designated for such well by the Texas Railroad
Commission and the rights and appurtenances incident to such well (such
well and the associated proration units and rights and appurtenances,
arising from the working Interests, hereinafter referred to as the
"Initial Well"); (ii) Firecreek's rights in, to and under, and
obligations arising from, agreements relating to the Lease to the extent
the same are applicable to the Initial Well; (iii) Firecreek's interest
in fixtures and personal property used solely in connection with the
operation of the Initial Well; and (iv) Firecreek's interest in books,
files, data and records in Seller's possession to the extent the same
relate to the Initial Well provided that possession of same will remain
with Firecreek; and
(b) the right and option (the "Option"), on the terms and conditions
stated in the Firecreek Agreement, to acquire a 13/16th interest in and
rehabilitate certain other xxxxx (the "Option Xxxxx"); and
WHEREAS, Assignor and Firecreek have agreed to amend the Firecreek
Agreement to replace two of the xxxxx subject to the Option such that
the final list of xxxxx subject to the Firecreek Agreement is as set
forth in Attachment B; and
WHEREAS, Assignor wishes to assign its rights and obligations under the
Firecreek Agreement to Assignee so that Assignee has the right to acquire
the Assets pursuant to the Firecreek Agreement and the right to exercise
the Option under the Firecreek Agreement, all in accordance with the terms
and conditions set forth in that certain Asset Purchase Agreement dated
April 7, 2011, by and between Assignor and Assignee (the "Asset Purchase
Agreement"); and
WHEREAS, the parties hereto and Firecreek desire to evidence such
assignment and the amendment to the Firecreek Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Assignment of Rights under Firecreek Agreement. Subject to the
terms and conditions set forth herein, Assignor hereby assigns and transfers
to Assignee, and Assignee agrees to purchase and assume from Assignor, in
accordance with the terms and conditions of the Asset Purchase Agreement,
all of Assignor's rights under the Firecreek Agreement including the right
to acquire the Assets and the right to exercise the Option.
2. Assignee Bound. Assignee hereby accepts the foregoing assignment
and transfer and promises to be bound by and upon all the covenants,
agreements, terms and conditions set forth herein. Assignee hereby assumes
all of the obligations of Assignor under the Firecreek Agreement and agrees
to indemnify and save harmless Assignor from loss, costs, damages and
expenses in the event that Assignee fails to perform under the Firecreek
Agreement in accordance with its terms. Notwithstanding the foregoing, it
is understood that as between Firecreek and Assignor, the foregoing assignment
does not release Assignor from obligations under the Firecreek Agreement in
the event that Assignee fails to perform under the Firecreek Agreement.
3. Xxxxx Subject to Firecreek Agreement. Assignor and Assignee agree with
each other and with Firecreek that the list of xxxxx set forth in Attachment B
hereto is the final list of xxxxx subject to the Firecreek Agreement.
4. Closing Documents. Closing documents to be executed by Firecreek and
Assignee are being provided by Firecreek to Assignor and Assignee
contemporaneously with execution of this Agreement.
5. Option to Acquire All Remaining Xxxxx at One Time. The parties hereto,
with the agreement of Firecreek as set forth at the end of this Agreement,
agree that the buyer under the Firecreek Agreement shall have the right to
acquire all of the xxxxx subject to the Firecreek Agreement as to which the
Option has not been exercised at the time in question by (i) providing thirty
(30) days' written notice (which may be given by email) to Firecreek that the
buyer wishes to so acquire all such remaining xxxxx and designating a proposed
closing date, and (ii) tendering full payment for all such remaining xxxxx
(calculated as provided in the Firecreek Agreement) to Firecreek by wire
transfer at least ten (10) days prior to the proposed closing date; provided
that the proposed closing date shall not be more than sixty (60) days after
the date that such notice is given.
6. Benefit and Assignments. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns; provided that no party shall assign or transfer all or any portion
of this Agreement without the prior written consent of the other party, and
any such attempted assignment shall be null and void and of no force or effect.
7. Assignor's Warranty. Assignor warrants and represents to Assignee that
Assignor has full right and authority to acquire the Assets and to exercise the
Option, in accordance with the terms and conditions of the Firecreek Agreement,
as of the date of this Agreement.
8. Waiver. Any party hereto shall have the right to waive compliance by the
other of any term, condition or covenant contained herein. Such waiver shall
not constitute a waiver of any subsequent failure to comply with the same or
any different term, condition or covenant.
9. Applicable Law. California, other than choice of law, shall govern the
validity, construction, interpretation and effect of this Agreement as between
Assignor and Assignee.
10. Headings. The paragraph headings of this Agreement are for convenience
of reference only and do not form a part of the terms and conditions of this
Agreement or give full notice thereof.
11. Severability. Any provision hereof that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability, without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
12. Entire Agreement. This Agreement contains the entire understanding
between Assignor and Assignee as to the subject matter hereof and no other
representations, warranties or covenants have induced either party to
execute this Agreement. This Agreement supersedes all prior or
contemporaneous agreements between Assignor and Assignee with respect to
the subject matter hereof. This Agreement may not be amended or modified
in any manner except by a written agreement duly executed by the party to
be charged, and any attempted amendment or modification to the contrary
shall be null and void and of no force or effect.
13. Joint Drafting. The parties agree that this Agreement hereto shall be
deemed to have been drafted jointly by all parties hereto, and no construction
shall be made other than with the presumption of such joint drafting.
14. Reliance. Assignor and Assignee hereby represent and warrant to each other
and to Firecreek that they are relying on their separate professional advisors
for economic, accounting, technical, securities and legal advice and
representation, and that they have not relied on the advice, counsel or
representations of the other or of Firecreek, or of any principals or
agents of the other or of Firecreek, in entering into this Agreement or
making any decision relating to this Agreement.
15. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and which together shall constitute
one and the same instrument. Signatures on this Agreement or in any document
relating hereto may be given by facsimile, email or other means of electronic
transfer and shall be binding on the party giving same as though originally
signed, provided that all documents to be recorded shall have original
signatures and shall be notarized where required by law.
IN WITNESS WHEREOF, each of the parties hereto has caused this Xxxx of Sale and
Assignment and Assumption to be executed as of the day and year first above
written.
ASSIGNEE ASSIGNOR
Breezer Ventures, Inc. Catalyst Capital Group, Inc.
a Nevada Corporation a California Corporation
By: Tang Xu By: Mr. Xxxxx Xxxx
Title: President Title: President_
Agreed and Acknowledged
Firecreek Global, Inc.
By: Xxxx X. Xxxxxx
Title: Chief Executive Officer
