EXHIBIT 10.2
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PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made and entered into this
11th day of August, 2008, between
Pinnacle Energy Corp. ("PEC") and Futures Investment Corp.
("Futures").
W I T N E S S E T H:
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1. PURCHASE AND SALE.
On the Closing Date (as hereinafter
defined), but effective for all
purposes as of 12:01 a.m. Mountain Time September 1, 2008 (the
"Effective Date")
subject to the terms and conditions of this Agreement, Futures
hereby agrees to
sell, convey, and deliver to PEC, and PEC hereby agrees to purchase
and accept
delivery from Futures, the following:
(a) The oil, gas, and leasehold interests described in Exhibit
A,
which are attached hereto and incorporated by reference;
(b) all of Futures rights under the operating agreements,
unitization agreements, pooling agreements, declarations of pooling
or
unitization, farmout agreements, assignments, gas sale contracts,
gas processing
contracts, and other instruments and agreements described or
referred to in
Exhibit A (all of which are hereinafter collectively referred to as
the
"Existing Contracts");
(c) All right, title and interest of Futures in all equipment,
pipelines, accounts, wells, tanks, pipeline easements, surface
easements,
production in tanks, and appurtenances used or held for use or
related to the
aforesaid interests described in Exhibit A or operations conducted
in connection
therewith;
(d) All right, title, and interest of Futures in or derived
from
all unitization and pooling agreements concerning the properties
covered and the
units created thereby which accrue or are attributable to the
interests
described in Exhibit A, and including not less than those
percentages of
interests in the units set forth in Exhibit A;
(e) Without limitation by the foregoing, all of Futures right,
title, and interest in and to oil, gas, and mineral interests and
oil, gas, and
mineral leasehold interests and overriding royalty interests in the
lands
described or referred to in Exhibit A or to which the interests in
Exhibit A
relate;
(f) without limitation all of Futures interest in and to the
wells
described in Exhibit A (the "Wells");
all of which interests, are
hereinafter collectively referred to as the
"Subject Interests".
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2. PURCHASE PRICE.
The total purchase price (the
"Purchase Price") to be paid by PEC to
Futures for the Subject Interests is $1,000,000 in the form of a
Promissory Note
bearing interest at 8% per annum. The Purchase Price shall be paid
by monthly
interest only payments for a period of 5 years from the Closing
Date, with the
entire principal due and payable on September 1, 2013, pending the
adjustments
for title matters described in Article 7 and the adjustments for
taxes,
production, and operating costs described in Article 8.
3. DISTRIBUTION OF BENEFITS AND
ASSUMPTION OF CERTAIN OBLIGATIONS.
PEC shall be entitled to any amount
realized from and accruing to the
Subject Interests subsequent to the Effective Date and shall be
responsible for
all expenses for the development and operation of the Subject
Interests
subsequent to that date. Futures shall be entitled to all the
amounts realized
from and accruing to the Subject Interests prior to the Effective
Date and shall
be responsible for and hold PEC harmless from any liability arising
out of all
expenses for the development and operation of the Subject Interests
incurred
prior to the Effective Date and also, any litigation expenses
incurred by
Futures prior to the Closing Date.
4. REPRESENTATIONS AND WARRANTIES OF
SELLER.
Futures represents and warrants to
PEC that:
4.1 Due Organization. Futures is a
duly organized and validly existing
corporation under the laws of the State of Nevada and has the
corporate power to
carry on its business as it is now being conducted and is duly
qualified to do
business in Oklahoma.
4.2 Power and Authority; No
Conflict. Futures has full legal power and
authority to enter into and perform this Agreement, and the
consummation of the
transactions contemplated herein will not result in the breach of
any provision
of, or constitute a default under, Futures' articles of
incorporation or bylaws
or, as of the Closing Date, any indenture, mortgage, deed of trust,
credit
agreement or any other agreement or instrument by which Futures is
bound or to
which the Subject Interests are subject, except for agreements or
instruments
with respect to which Futures will have obtained by the Closing
Date the
consents set forth in Exhibit A. This Agreement has been duly
authorized by all
necessary corporate action of Futures and its shareholders and this
Agreement
constitutes a legal, valid and binding agreement of Futures
enforceable against
Futures in accordance with its terms.
4.3 No Defaults. Futures has not
received any notice of default and is not
in default under any lease or extension thereof, operating
agreement or other
agreement or obligation to which it is a party or by which it is
bound or to
which it may be subject affecting the Subject Interests or Futures'
right to
enter into this Agreement and carry out the transactions
contemplated hereby,
and Futures is not subject to any order, writ, injunction, or
decree of any
court or commission or other administrative agency affecting the
Subject
Interests or its right to enter into this Agreement and carry out
the
transactions contemplated hereby.
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4.4 No Finders Fee. Futures has not
incurred any obligation or liability,
contingent or otherwise, for brokers' or finders' fee in respect to
the matters
provided for in this Agreement.
4.5 No Encumbrances. Futures has
good and marketable title to the Subject
Interests and, except for the obligations, encumbrances, depth
limitations, and
burdens set forth on Exhibit A the Subject Interests are free and
clear of all
liens, claims, clouds, burdens, depth limitations, or encumbrances.
In addition,
Exhibit A reflects the names, addresses, and phone numbers of all
contractors,
service companies, materialmen, and vendors that have provided
services or
material on the Subject Interests within the last six months or who
could claim
a lien for services or materials provided to the Subject Interests
under
applicable law in a cumulative amount of $500.00 or more. The oil,
gas, and
leasehold interests described in Exhibit A, are not subject to
being reduced by
virtue of any reversionary or back-in interests or reassignments or
payments
required of Futures. The oil, gas, and leasehold interests
described in Exhibit
A, are not subject to any joint venture agreements, farmout
agreements,
operating agreements, oil and or gas sales or processing contracts,
preferential
rights of purchase, consents to assignment, drilling and or
development
obligations or other burden, restriction or limitation with respect
to the
ownership interest of Futures, the operation thereof, or the
disposition and
processing of production attributable thereto which are not
ordinary and
customary in the oil and gas industry, or which contain any terms,
provisions,
conditions or agreements which are not ordinary and customary in
the oil and gas
industry.
4.6 No Litigation. There is no
action at law or equity and no proceeding
before any governmental agency, pending or threatened, that in any
way relates
to or affects the Subject Interests or Futures' ability to enter
into, and
perform its obligations under, this Agreement.
4.7 Subject Interests. Exhibit A
contains a correct and complete
description of the Subject Interests owned by Futures and to be
conveyed to PEC
hereunder, and the Subject Interests are correctly described in
Exhibit A. The
only operating agreements or other agreements affecting the Subject
Interests
are those set forth and described in Exhibit A. The Subject
Interests entitle
Futures to receive not less than the undivided interests set forth
in Exhibit A
as "Net Revenue Interests" of all indicated hydrocarbons produced,
saved, and
marketed from the lands covered thereby and all wells located
thereon through
the plugging, abandonment, and salvage of such wells. Futures'
proportionate
obligation to bear costs and expenses relating to the development
of and
operations on the leases, land, and wells thereon is not, and,
through the
plugging, abandonment, and salvage of such wells, will not be,
greater than the
"Working Interests" set forth in Exhibit A. Exhibit A contains a
correct and
complete list of each person or entity who owns a working interest
in any of the
property covered by the Subject Interests, the extent of such
working interest,
the net revenue interest of such person or entity, each person who
holds a
royalty interest in such property, and the extent of such royalty
interest.
4.8 Environmental
Matters.
As used in this Section 4.8:
"CERCLA" means the Comprehensive
Environmental Response, Compensation a
Liability Act of 1980, as amended.
"CERCUS" means the Comprehensive
Environmental Response, Compensation an
Liability Information System List.
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"Environmental Laws" means any federal, state, local, or
foreign
statute, code, ordinance, rule, regulation, policy, guidelines,
permit, consent,
approval, license, judgment, order, writ, decree, injunction, or
other
authorization, including the requirement to register underground
storage tanks,
relating to (a) emissions, discharges, releases, or threatened
releases of
Hazardous Materials into the natural environment, including into
ambient air,
soil, sediments, land surface or subsurface, buildings or
facilities, surface
water, groundwater, pub1icly~~wned treatment works, septic systems,
or land, (b)
the generation, treatment, storage, disposal, use, handling,
manufacturing,
transportation, or shipment of Hazardous Materials, or (c)
otherwise relating to
the pollution of the environment, solid waste handling treatment,
or disposal,
or operation or reclamation of mines or oil and gas wells.
"Hazardous Material" means (a) any "hazardous substance", as
defined
by CERCLA, (b) any "hazardous waste," as defined by the Resource
Conservation
and Recovery Act, as amended, (c) any hazardous, dangerous, or
toxic chemical,
material, waste, or substance within the meaning of and regulated
by any
Environmental Law, (d) any radioactive material, including any
naturally
occurring radioactive material, and any source, special, or
byproduct material
as defined in 42 U.S.C. ss.2011 et seq. and any amendments or
authorizations
thereof, (e) any asbestos-containing materials in any form or
condition, or (f)
any polychlorinated biphenyls in any form or condition.
(a) Futures has conducted its business and operated the
Subject Interests, and is conducting its business and operating the
Subject
Interests, in material compliance with all Environmental Laws;
(b)
Neither Futures nor the Subject Interests are the subject
of any investigation or inquiry by any governmental authority
evaluating whether
any material remedial action is needed to respond to a release of
any Hazardous
Material or to the improper storage or disposal (including storage
or disposal
at offsite locations) of any Hazardous Material;
(c) Futures (and to the best knowledge, information, and
belief of Futures, no other person) has filed any notice under any
federal,
state, or local law indicating that it is responsible for the
improper release
into the environment, or the improper storage or disposal, of any
Hazardous
Material or that any Hazardous Material is improperly stored or
disposed of upon
any of the Subject Interests;
(d) Futures does not have any material contingent liability in
connection with the release into the environment or at or on any
property now or
previously owned or leased by Futures or the storage or disposal of
any
Hazardous Material;
(e) Futures has not received any claim, complaint, notice,
inquiry, or request for information, which remains unresolved as of
the date
hereof, with respect to any alleged violation of any Environmental
Law or
regarding potential liability under any Environmental Law or under
any common
law theories relating to operations or conditions of any facilities
or property
owned, leased, or operated by Futures;
(f) No property now or previously owned, leased, or operated
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by Futures is listed on the National Priorities List pursuant to
CERCLA or on
the CERCUS or on any other federal or state list as sites
requiring
investigation or cleanup;
(g) Futures is not directly transporting, has directly
transported or, is directly arranging for the transportation of any
Hazardous
Material to any location which is listed on the National Priorities
List
pursuant to CERCLA, on the CERCUS, or on any similar federal or
state list or
which is the subject of federal, state, or local enforcement
actions or other
investigations that may lead to material claims against Futures for
remedial
work, damage to natural resources, or personal injury, including
claims under
CERCLA;
(h) There are no sites, locations, or operations at which
Futures is currently undertaking, or has completed, any remedial or
response
action relating to any such disposal or release, as required by
Environmental
Laws; and
(i)
All underground storage tanks and solid waste disposal
facilities owned or operated by Futures are used and operated in
material
compliance with Environmental Laws.
4.9 Consents and Approvals. Except
as set forth in Exhibit A, no
governmental, regulatory, or other third party approvals, waivers,
consents, or
waivers of preferential or similar rights of third parties to
purchase any part
of the Subject Interests are required to consummate the
transactions
contemplated by this Agreement and to fully vest in PEC all rights,
title, and
interests of Futures in and to the Subject Interests, and none of
the leases,
contracts or other agreements listed in Exhibit A and being
assigned to PEC
hereunder require the consent of another party to such assignment.
Consummation
of the transaction contemplated hereby by Futures will not violate
any statute,
ordinance, or regulation of any governmental or regulatory
body.
4.10 Validity of Leases and
Contracts. Each of the leases, operating
agreements, and other agreements described in Exhibit A hereto
relating to the
Subject Interests is valid and subsisting; such leases will be
maintained in
effect as to the lands covered thereby by production from the Wells
located on
such leases or by timely meeting the drilling obligations
thereunder; there is
not under any such leases or contracts any existing breach or
default or event
that with notice or lapse of time, or both, would constitute a
breach or
default. Futures has fulfilled all requirements for filings,
certificates,
disclosures of parties in interest, and other similar matters
contained in (or
otherwise applicable thereto by law, rule or regulation) the leases
or other
documents applicable to Futures and is fully qualified to own and
hold all such
leases or other interests relating to the Subject Interests. There
are no
obligations (excluding implied covenants, if any) to engage in
continuous
development operations in order to maintain any such lease relating
to the
Subject Interests or other interest in force and effect for the
areas and depths
covered thereby; there are no provisions applicable to such leases
or other
documents which increase the royalty share of the lessor
thereunder. Upon the
establishment of production in commercial quantities, the leases
and other
interests will be in full force and effect over the economic life
of the
property involved and do not have terms fixed by a certain number
of years. With
respect to tangible personal property held by Futures under lease,
all such
agreements are valid, binding and in full force and effect and
Futures is not in
default under any such lease. The copies of the leases and
agreements described
in Exhibit A to this Agreement which have been heretofore delivered
to PEC are
true and complete copies thereof, with all amendments to date.
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4.11 Compliance with Laws. To the
best of Futures' knowledge, all of the
Wells have been drilled, completed, and operated in compliance with
all
applicable laws and regulations. Futures holds (and is in
compliance with the
terns of) all permits, licenses, variances, exemptions, orders,
franchises,
approvals, and authorizations of all governmental agencies
necessary for the
lawful conduct of its business or the lawful ownership, use, and
operation of
its assets. As of the date of this Agreement, no investigation or
review by any
governmental agency with respect to Futures or its Subject
Interests is pending
or, to the best knowledge, information, and belief of Futures, is
threatened.
Futures is not subject to regulation under the Public Utility
Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act,
the Investment
Company Act of 1940, or any state public utilities code.
4.12 Obligation Wells. A complete
and accurate description of all drilling
obligations and other material development obligations (and the
penalties for
the breach thereof) affecting the Subject Interests is set forth in
Exhibit A.
4.13 Taxes. All ad valorem,
property, production, severance, and similar
taxes and assessments based on or measured by the ownership of
property or the
production of hydrocarbons or the receipt of proceeds therefrom
with respect to
the Subject Interests for all years prior to the year in which this
Agreement is
executed have been properly paid, and all such taxes and
assessments which
become due and payable prior to the Closing Date shall be paid in
full by
Futures, subject, however, to proration pursuant to Section
8.2.
4.14 Oil and Gas Reserve
Information. All information in any reserve
reports furnished to PEC and relating to the Subject Interests was
(as of the
date of the reserve report) true and correct in all material
respects. Except
for changes in classification or values of oil and gas reserve or
property
interests that occurred in the ordinary course of business since
the date of
such report and except for changes (including changes in commodity
prices)
generally affecting the oil and gas industry, there has been no
material adverse
change with respect to the matters addressed in the Reserve
Report.
4.15 Oil and Gas
Operations. Except as otherwise set forth in Exhibit A:
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(a) None of the Wells has been overproduced such that it is
subject
or liable to being shut-in or to any other overproduction
penalty;
(b) There have been no changes proposed in the production
allowables
for any Wells;
(c) All Wells have been drilled and (if completed) completed,
operated and produced in accordance with good oil and gas field
practices and in
compliance in all material respects with applicable oil and gas
leases and
applicable laws, rules, and regulations;
(d) Futures has not agreed to, and is not obligated to, abandon
any
Well;
(e) Proceeds from the sale of oil or gas produced from the Wells
are
being received by Futures in a timely manner and are not being held
in suspense
for any reason (except for amounts, individually or in the
aggregate, not in
excess of $100.00 and held in suspense in the ordinary course of
business); and
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(f) No person has any call on, option to purchase, or similar
rights
with respect any of the Subject Interests or any or to the
production
attributable thereto, and upon consummation of the transactions
contemplated by
this Agreement, PEC will have the right to market production from
the Subject
Interests on terms no less favorable than the terms upon which
Futures is
currently marketing such production.
(g) Except as disclosed on Exhibit A no agreements relating to
the
Subject Interests will require as of or after the Closing Date, PEC
to sell or
deliver, oil or gas for a price materially less than the market
value price that
would have been, or would be, received pursuant to any arm's-length
contract for
a term of one month with an