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ACQUISITION AND PURCHASE AGREEMENT
DATED AS OF
June 14, 2013
BY AND BETWEEN
HINTO ENERGY, INC.
AND
JAKE OIL, LLC
ACQUISITION and purchase AGREEMENT
This AGREEMENT, dated as of June 14, 2013 (the "Agreement"), by and
between Hinto Energy, Inc. ("HEN"), a Wyoming Corporation and Jake Oil, LLC, a
Montana limited liability company hereinafter referred to as "JO".
WHEREAS, the Board of Directors of HEN and the manager of JO,
respectively, have each approved, as being in the best interest of the
respective entities, the Acquisition of certain assets of JO as listed on
attached Exhibit A and B by HEN, in accordance with the applicable provisions of
the Wyoming Statutes and Montana Revised Statutes;
WHEREAS, HEN and JO desire to make certain representations, warranties,
covenants and agreements in connection with the Acquisition and also to
prescribe various conditions to the acquisition; and
WHEREAS, this Agreement is intended to set forth the terms upon which
certain mineral assets listed on Exhibit A, B and D hereto, and certain
equipment described in Exhibit C will be acquired by HEN from JO.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties do
hereby agree as follows:
ARTICLE I
THE CONSIDERATION
SECTION 1.01 Purchase Price, Consideration/Acquisition; Effective Time. The
Purchase price of the assets shall be valued at $25,000, payable as follows:
a) $15,000 in cash to certain vendors and a payment on an injection
well settlement, to clear claims or potential claims against Jake
Oil, Eric Olsen or potential lease encumbrance;
b) Replacement of to the State of Montana Plugging and Abandonment
Bond on the assets listed on Exhibit A in an amount not to exceed
$60,000,such replacement to occur within 30 days of the
recordation of the assignment of the lease, and Bill of Sale
delivery for the assets listed on Exhibits A, B, C and D;
c) Other matters - Eric Olsen will purchase 120,000 shares of Hinto
Energy restricted common stock with the refund of $60,000 in
Montana state bonds, replaced by Hinto Energy (see c, above), when
refunded after transfer of leases to Hinto Energy and Hinto
posting new state bonds.
d) A 5% carried working interest in the Unit assigned to Eric Olsen;
this interest will be transferred to August Energy after
acquisition
Consulting offered by August Energy to HEN at 60 % of industry
standard rate which is $1500 daily.
SECTION 1.02 Effect of the Acquisition
The Acquisition shall become effective upon the delivery of the duly executed
assignment of leases at an NRI of not less than reflected in Exhibit B, or
75%and conveyance of title to the assets listed on Exhibits A, B, C and Exhibit
D by JO to HEN and delivery of the above-listed consideration specified in
paragraphs 1.01 a) and b) by HEN to JO:
SECTION 1.03 Conveyance Instrument
The Assignment of Leases and Bill of Sale shall be in the form
attached hereto.
SECTION 1.04 Closing
The closing shall occur on or before June 21, 2013.
ARTICLE II
TITLE MATTERS
SECTION 2.01 Seller's Title
(a) The provisions of this Article 2 provide Purchaser's exclusive remedy with
respect to title to the Leases and assets.
(b) The assignment of Leases and assets to be delivered by Seller to Purchaser
shall be substantially in the form of Exhibit E hereto (the "Assignment").
2.02 Definition of Defensible Title.
As used in this Agreement, the term "Defensible Title" means that title
of Seller which, subject to Permitted Encumbrances:
(a) Entitles Seller to receive the net revenue interest
(currently 100% working interest) of the oil, gas and other
associated minerals produced, saved and marketed from any well
existing or hereafter drilled on the property as described in
Exhibit A and D, except for variances as described in exhibit A
and D at a lease or well level,
(b) Is free and clear of liens and encumbrances, to include the
release of an Oil and Gas Lien filed on the 24th day of March
2010 in Montana, County of Yellowstone, against the oil and gas
wells listed in Exhibit C, by Jake Oil and Gas Consultants, LLC.
Section 2.03 Delivery.
(a) Seller agrees to convey the Lease to Purchaser with
"Defensible Title" to such leases. Purchaser shall notify Seller in
writing of any discovered title defect.
(b)Seller shall have the right, but not the obligation, to
attempt, at its sole cost, to cure or remove any title defect on or
before thirty (30) days after the Closing Date (the "Cure Period"),
unless the parties otherwise agree, any Title Defects of which it has
been advised by Purchaser.
(c) In the event Seller elects to proceed under this Section
(a), Seller and Purchaser shall attempt to agree on all Title Defects
and Title Defect Amounts on ten days written notice. If Seller and
Purchaser are unable to agree by that date, then, Seller's good faith
estimate of all such Title Defect Amounts shall be used to determine
the Closing Payment, and the Title Defect Amounts in dispute shall be
exclusively and finally resolved by mediation pursuant to this Section.
The parties agree that there shall be chosen a single mediator, who
shall be a title attorney with at least ten (10) years' experience in
oil and gas titles in the State of Montana as selected by mutual
agreement of Purchaser and Seller within fifteen (15) days after the
end of the Cure Period. Absent such agreement, the mediator shall be
selected from Judicial Arbiter Group (the "Title Arbitrator").The
proceeding shall be held in Denver, Colorado to the extent such rules
do not conflict with the terms of this Section. The Title Arbitrator's
determination shall be made within twenty (20) days after submission of
the matters in dispute and shall be final and binding upon both
parties, without right of appeal. In making his determination, the
Title Arbitrator shall be bound by the rules set forth herein and may
consider such other matters as in the opinion of the Title Arbitrator
are necessary or helpful to make a proper determination. The Title
Arbitrator shall act as an expert for the limited purpose of
determining the specific disputed Title Defects, and Title Defect
Amounts submitted by either party and may not award damages, interest
or penalties to either party with respect to any matter. Seller and
Purchaser shall each bear its own legal fees and other costs of
presenting its case. Each party shall bear one-half of the costs and
expenses of the Title Arbitrator.
(d) Notwithstanding anything herein to the contrary, in no event shall
there be any adjustments to the Purchase Price or other remedies
provided by Seller for individual Title Defects that do not exceed Ten
Thousand and No/100 Dollars ($10,000.00); and in no event shall there
be any adjustments to the Purchase Price or other remedies provided by
Seller for Title Defects unless the amount of all Title Defect Amounts
for Title Defects covered by this agreement in the aggregate exceeds a
deductible in an amount equal to twenty five percent (25%) of the
Purchase Price, after which point Purchaser shall be entitled to
adjustments to the Purchase Price or other remedies with respect to all
Title Defects in excess of such deductible.
ARTICLE III
CLOSING
SECTION 3.01 Closing
Unless this Agreement shall have been terminated and the transactions
herein contemplated shall have been abandoned pursuant to Article VIII, and
subject to the satisfaction or waiver of the conditions set forth in Article
VII, the closing of the Acquisition (the "Closing") shall take place as soon as
reasonably practicable (but in no event on written notice of less than two (2)
business days) after all of the conditions set forth in Article VII are
satisfied or June21, 2013 or, to the extent extended there under, at the offices
of HEN, located at 7609 Ralston Road, Arvada, CO 80002 or at such other time and
place as may be agreed to in writing by the parties hereto (the date of such
Closing being referred to herein as the "Closing Date").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF HEN
Except as set forth in the applicable section of the disclosure
schedule delivered by HEN to Sellers prior to the execution of this Agreement
(the "HEN Disclosure Schedule"), HEN represents and warrants to Sellers as
follows:
SECTION 4.01 Organization of HEN; Authority
HEN is an Entity duly organized, validly existing and in good standing
under the laws of the State of Wyoming. HEN has all requisite corporate power
and corporate authority to enter into the transaction documents to which it is a
party, to consummate the transactions contemplated hereby and thereby, to own,
lease and operate its properties and to conduct its business. Subject to the
receipt of its board of director's approval, the execution, delivery and
performance by HEN of the Transaction Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby shall have been
duly authorized by all necessary corporate action on the part of HEN, including,
without limitation, the approval of the board of directors of HEN. The
Transaction Documents have been duly executed and delivered by each of HEN and,
assuming that the Transaction Documents constitute a valid and binding
obligation of the other parties thereto, constitute a valid and binding
obligation of HEN, enforceable against HEN in accordance with its terms. HEN has
heretofore delivered or made available to JO complete and correct copies of the
certificate of incorporation and by-laws of HEN, as in effect as of the date of
this Agreement, and HEN is not in violation of its organizational documents.
SECTION 4.02 No Violation; Consents and Approvals
The execution and delivery by HEN of the transaction documents does
not, and the consummation of the transactions contemplated hereby and thereby
and compliance with the terms hereof and thereof will not, conflict with or
result in any violation of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, (a) the terms and conditions
or provisions of the certificate of incorporation or by-laws of HEN (b) any Law
applicable to HEN or the property or assets of HEN, or (c) give rise to any
right of termination, cancellation or acceleration under, or result in the
creation of any lien upon any of the properties of HEN under any contract to
which HEN is a party or by which HEN or any assets of HEN may be bound, except,
in the case of clauses (b) and (c), for such conflicts, violations or defaults
which are set forth in Section 2.04 of the HEN Disclosure Schedule, if any and
as to which requisite waivers or consents will have been obtained prior to the
Closing or which, individually or in the aggregate, would not have a material
adverse effect on HEN. No Governmental Approval is required to be obtained or
made by or with respect to HEN in connection with the execution and delivery of
this Agreement or the consummation by HEN of the transactions contemplated
hereby.
SECTION 4.03 Litigation; Compliance with Laws
(a) There are: (i) no claims, actions, suits, investigations or proceedings
pending or, to the knowledge of HEN, threatened against, relating to or
affecting HEN assets listed on Exhibit A or B that could prevent or enjoin, or
delay in any respect, consummation of the transactions contemplated hereby.
(b) HEN has complied and is in compliance in all material respects with all laws
applicable to HEN or its assets. Neither HEN has received notice from any
Governmental Entity or other Person of any material violation of law applicable
to the assets. HEN has obtained and holds all required Licenses (all of which
are in full force and effect) from all Government Entities applicable to HEN,
its business or assets. No violations are or have been recorded in respect of
any such license and no proceeding is pending, or, to the knowledge of HEN,
threatened to revoke or limit any such License.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF JO
Except as set forth in the applicable section of the disclosure
schedule delivered by JO to HEN prior to the execution of this Agreement (the
"JO Disclosure Schedule"), JO represents and warrants to HEN as follows:
SECTION 5.01 Organization of JO
JO is a limited liability company duly organized, validly existing and
in good standing under the laws of the State of Montana and has all requisite
power and authority to enter into the Transaction Documents, to consummate the
transactions contemplated hereby and thereby, to own, lease and operate its
properties and to conduct its business. The execution, delivery and performance
by JO of the Transaction Documents and the consummation of the transactions
contemplated hereby and thereby shall have been duly authorized by all necessary
corporate action on the part of JO, including, without limitation, the approval
of the interest holders of JO. The Transaction Documents have been duly executed
and delivered by JO and, assuming that the Transaction Documents constitute a
valid and binding obligation of HEN, constitute a valid and binding obligation
of JO.JO is duly qualified or licensed to do business and is in good standing in
each jurisdiction in which the property is owned, leased or operated by it or
the nature of the business conducted by it which makes such qualification
necessary. JO has herewith delivered or made available to HEN complete and
correct copies of the articles of organization and conversion to a limited
liability company and by-laws of JO, incorporation, as in effect as of the date
of this Agreement.JO is not in violation of its organizational documents.
SECTION 5.02 No Violation; Consents and Approvals
The execution and delivery by JO of the Transaction Documents does not,
and the consummation of the transactions contemplated hereby and thereby and
compliance with the terms hereof and thereof will not conflict with, or result
in any violation of or default (or an event which, with notice or lapse of time
or both, would constitute a default) under, (a) the terms and conditions or
provisions of the articles of incorporation or by-laws of JO, or (b) any Laws
applicable to JO or the property or assets of JO.
SECTION 5.03 Litigation; Compliance with Laws
(a) There are: (i) no claims, actions, suits, investigations or
proceedings pending or, to the knowledge of JO, threatened against, relating to
or affecting JO, its business, its assets, or any employee, officer, director,
stockholder, or independent contractor of JO in JO capacities as such, and (ii)
no orders of any Governmental Entity or arbitrator are outstanding against JO,
its business, its assets, or any employee, officer, director, stockholder, or
independent contractor of JO in JO capacities as such, or that could prevent or
enjoin, or delay in any respect, consummation of the transactions contemplated
hereby.
(b) JO has complied and is in compliance in all material respects with
all Laws applicable to JO, its business or its assets.JO has not received notice
from any Governmental Entity or other Person of any material violation of Law
applicable to it, its business or its assets.
ARTICLE IV
ADDITIONAL AGREEMENTS
SECTION 6.01 Access to Information
From the date hereof until the Effective Time or the earlier
termination of this Agreement, each party shall give the other party and its
respective counsel, accountants, representatives and agents such reasonable
information related to this Agreement and performance hereunder. With respect to
JO, it shall provide to HEN full access, upon reasonable notice and during
normal business hours, to JO's title chain and abstract information on the
assets. HEN shall provide JO with all relevant documents, records and other
information concerning the business, finances and properties of such party and
its subsidiaries and that JO and its respective counsel, accountants,
representatives and agents, may reasonably request. No investigation pursuant to
this Section 5.01 shall affect or be deemed to modify any of the representations
or warranties hereunder or the condition to the obligations of the parties to
consummate the Acquisition; it being understood that the investigation will be
made for the purposes among others of the board of directors of each party
determining in its good faith reasonable business judgment the accuracy of the
representations and warranties of the other party. In the event of the
termination of this Agreement, each party, if so requested by the other party,
will return or destroy promptly every document furnished to it by or on behalf
of the other party in connection with the transactions contemplated hereby,
whether so obtained before or after the execution of this Agreement, and any
copies thereof (except for copies of documents publicly available) which may
have been made, and will use reasonable efforts to cause its representatives and
any representatives of financial institutions and investors and others to whom
such documents were furnished promptly to return or destroy such documents and
any copies thereof any of them may have made. It is hereby acknowledged the HEN
has filed all of its financial reports with the SEC which shall constitute
delivery of the same to JO.
SECTION 6.02 Legal Conditions to Transaction; Reasonable Efforts
JO and HEN shall take all reasonable actions necessary to comply
promptly with all legal requirements which may be imposed on itself with respect
to the Transaction and will promptly cooperate with and furnish information to
each other in connection with any such requirements imposed upon any of them or
any of JO Subsidiaries in connection with the Transaction.JO and HEN will take
all reasonable actions necessary to obtain (and will cooperate with each other
in obtaining) any consent, authorization, order or approval of, or any exemption
by, any Governmental Entity or other public or private third party, required to
be obtained or made by JO or HEN in connection with the Transaction or the
taking of any action contemplated thereby or by this Agreement.
SECTION 6.03 Certain Filings
HEN is a publicly trading company. Each party shall cooperate with the other in
(a) connection with the preparation of an announcement or required filings, (b)
determining whether any action by or in respect of, or filing with, any
governmental body, agency, official or authority is required, or any actions,
consents, approvals or waivers are required to be obtained from parties to any
material contracts, in connection with the consummation of the transactions
contemplated by this Agreement and (c) seeking any such actions, consents,
approvals or waivers or making any such filings, furnishing information required
in connection therewith or with the 8-K and seeking timely to obtain any such
actions, consents, approvals or waivers. Each party shall consult with the other
in connection with the foregoing and shall use all reasonable commercial efforts
to take any steps as may be necessary in order to obtain any consents,
approvals, permits or authorizations required in connection with the Exchange.
SECTION 6.04 Public Announcements and Filings
Prior to any release, each party shall give the other a reasonable
opportunity to comment upon, and, unless disclosure is required, in the opinion
of counsel, by applicable law, approve (which approval shall not be unreasonably
withheld), all press releases or other public communications of any sort
relating to this Agreement or the transactions contemplated hereby.
SECTION 6.05 Tax Matters
No representation is made that this is a non-taxable transaction.
SECTION 6.06 Supplements to Schedules
Prior to the Closing, JO will supplement or amend its disclosure
schedule with respect to any matter hereafter arising which, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such disclosure schedule. No supplement to or amendment of
the disclosure schedule made pursuant to this Section 5.07 shall be deemed to
cure any breach of any representation or warranty made in this Agreement unless
the other parties hereto specifically agree thereto in writing. Prior to the
Closing, HEN may supplement or amend its disclosure schedule with respect to any
matter which, if existing or occurring at the date of this Agreement, would have
been required to be set forth or described in such disclosure schedule. No
supplement to or amendment of the disclosure schedule made pursuant to this
Section 6.06 shall be deemed to cure any breach of any representation or
warranty made in this Agreement unless the other parties hereto specifically
agree thereto in writing.
ARTICLE VII
CONDITIONS OF THE CLOSING
SECTION 7.01 Conditions to Each Party's Obligation to Effect the Transaction
The respective obligations of each party to effect the Transaction
contemplated herein shall be subject to the satisfaction at or prior to the
Effective Time of the following conditions, any or all of which may be waived,
in whole or in part to the extent permitted by applicable law.
No governmental authority of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any statute, rule, regulation,
execution order, decree, injunction or other order (whether temporary,
preliminary or permanent) which is in effect and which materially restricts,
prevents or prohibits consummation of the Transaction or any transaction
contemplated by this Agreement; provided, however, that the parties shall use
reasonable commercial efforts to cause any such decree, judgment, injunction or
other order to be vacated or lifted.
SECTION 7.02 Additional Conditions of Obligations of HEN
The obligations of HEN to effect the Transaction and the other
transactions contemplated by this Agreement are also subject to the satisfaction
at or prior to the Closing Date of the following additional conditions unless
waived by HEN:
(a) Representations and Warranties. The representations and warranties
of JO set forth in this Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date, except as otherwise contemplated by this
Agreement.
(b) Performance of Obligations of JO. JO shall have performed in all
material respects all conditions, covenants, agreements and obligations required
to be performed by it under this Agreement at or prior to the Closing Date.
(c) No Material Adverse Change. From the date hereof through and
including the Effective Time, no event shall have occurred which would have a
Material Adverse Effect on the assets being acquired on assets being acquired.
(d) Third Party Consents.JO shall have obtained all consents and
approvals, required to be obtained prior to or at the Closing Date, from third
parties or governmental and regulatory authorities in connection with the
execution, delivery and performance by JO of this Agreement and the consummation
of the transaction contemplated hereby.
(e) Deliveries. At the Closing, JO shall have delivered to HEN true,
correct and complete copies of resolutions duly and validly adopted by the Board
of Directors of JO evidencing the authorization of the execution and delivery of
this Agreement, the other Transaction Documents to which it is a party and the
consummation of the transactions contemplated hereby and thereby, in each case,
accompanied by a certificate of the Secretary of JO, dated as of the Closing
Date, stating that no amendments have been made thereto from the date thereof
through the Closing Date.
(f) JO's Secured Indebtedness. All outstanding Indebtedness of JO
secured by the assets listed on Exhibit A and B shall have been fully paid at or
prior to Closing and the subject assets shall be assigned and conveyed free and
clear of all liens and encumbrances.
(g) JO shall have provided all due diligence materials and title
evidence as requested by HEN and HEN shall have been satisfied with such due
diligence and title evidence in HEN's sole discretion.
SECTION 7.03 Additional Conditions of Obligations of JO
The obligation of JO to effect the Transaction and the other
transactions contemplated by this Agreement is also subject to the satisfaction
at or prior to the Closing Date of the following additional conditions unless
waived by JO:
(a) Representations and Warranties. The representations and warranties
of HEN set forth in this Agreement shall be true and correct in all material
respects (except for those representations and warranties qualified by
materiality) as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date, except as otherwise contemplated by
this Agreement.
(b) Performance of Obligations of HEN. HEN shall have performed in all
material respects all conditions, covenants, agreements and obligations required
to be performed by them under this Agreement at or prior to the Closing Date.
ARTICLE VIII
TERMINATION
SECTION 8.01 Termination
This Agreement may be terminated at any time prior to the Effective
Time, by HEN or JO as set forth below:
(a) by mutual consent of the boards of directors of HEN and JO; or
(b) by HEN upon written notice to JO, if any condition to the
obligation of HEN to close contained in Article VII hereof has not been
satisfied by 60 days after date hereof (the "End Date") (unless such failure is
the result of HEN's breach of any of its representations, warranties, covenants
or agreements contained herein); or
(c) by JO upon written notice to HEN, if any condition to the
obligation of JO to close contained in Article VII hereof has not been satisfied
by the End Date (unless such failure is the result of JO's breach of any of its
representations, warranties, covenants or agreements contained herein); or
(d) by HEN if the board of directors or special committee of HEN
determines in good faith, based upon the written opinion of its outside legal
counsel, that the failure to terminate this Agreement would constitute a breach
of the fiduciary duties of the HEN board of directors or special committee to
the HEN stockholders under applicable law.
SECTION 8.02 Fees, Costs and Expenses
Whether or not the Transaction is consummated, all legal costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
None of the representations and warranties of the parties set forth in
this Agreement shall survive the Closing. Following the Closing Date with
respect to any particular representation or warranty, no party hereto, shall
have any further liability with respect to such representation and warranty.
None of the covenants, agreements and obligations of the parties hereto shall
survive the Closing.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Notices
All notices, requests and other communications to any party hereunder
shall be in writing (including telecopy, telex or similar writing) and shall be
deemed given or made as of the date delivered, if delivered personally or by
telecopy (provided that delivery by telecopy shall be followed by delivery of an
additional copy personally, by mail or overnight courier), one day after being
delivered by overnight courier or three days after being mailed by registered or
certified mail (postage prepaid, return receipt requested), to the parties at
the following addresses:
if to HEN to: Hinto Energy, Inc.
7609 Ralston Road
Arvada, CO 80002
if to JO to: Jake Oil, LLC
PO Box 80806
Billings, Montana 59108
or such other address or telex or telecopy number as such party may hereafter
specify for the purpose by notice to the other party hereto.
SECTION 10.02 Amendment; Waiver
This Agreement may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given, provided that
the same are in writing and signed by or on behalf of the parties hereto.
SECTION 10.03 Successors and Assigns
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and JO respective successors and assigns, provided
that no party shall assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the written consent of the other party
hereto.
SECTION 10.04 Governing Law
This Agreement shall be construed in accordance with and governed by
the law of the State of Wyoming without regard to principles of conflict of
laws.
SECTION 10.05 Waiver of Jury Trial
Each party hereto hereby irrevocably and unconditionally waives any
rights to a trial by jury in any legal action or proceeding in relation to this
Agreement and for any counterclaim therein.
SECTION 10.06 Consent to Jurisdiction
Each of the Parties hereby irrevocably and unconditionally submits to
the exclusive jurisdiction of any court of the State of Colorado or any federal
court sitting in Colorado for purposes of any suit, action or other proceeding
arising out of this Agreement and the Transaction Documents (and agrees not to
commence any action, suit or proceedings relating hereto or thereto except in
such courts).Each of the Parties agrees that service of any process, summons,
notice or document pursuant to the laws of the State of Colorado and on the
parties designated in Section 10.01 shall be effective service of process for
any action, suit or proceeding brought against it in any such court.
SECTION 10.07 Counterparts; Effectiveness
Facsimile transmissions of any executed original document and/or
retransmission of any executed facsimile transmission shall be deemed to be the
same as the delivery of an executed original. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 10.08 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership
Except as expressly provided herein, this Agreement (including the
documents and the instruments referred to herein) constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof. Except as
expressly provided herein, this Agreement is not intended to confer upon any
person, other than the parties hereto, any rights or remedies hereunder. The
parties hereby acknowledge that no person shall have the right to acquire or
shall be deemed to have acquired shares of common stock of the other party
pursuant to the Exchange until consummation thereof.
SECTION 10.09 Headings
The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
SECITON 10.10 No Strict Construction
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises under any provision of this Agreement, this Agreement
shall be construed as if drafted jointly by the parties thereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
SECTION 10.11 Severability
If any term or other provision of this Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner that is materially adverse to
any party.
ARTICLE XI
DEFINITIONS
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Closing" shall have the meaning set forth in Section 1.04 of this
Agreement.
"Effective Time" shall be the date all conditions and performance
hereunder has been completed but no later than June21, 2013.
"HEN" shall have the meaning set forth in the preamble to this
Agreement.
"HEN" Common Stock" shall have the meaning set forth in the recitals to
this agreement.
"Governmental Approval" shall mean the consent, approval, order or
authorization of, or registration, declaration or filing with any court,
administrative agency or commission or other Governmental Entity, authority or
instrumentality, domestic or foreign.
"Governmental Entity" means the government of the United States of
America, any other nation or any political subdivision thereof, whether foreign,
state or local, and any agency, authority, instrumentality, regulatory body,
court, tribunal, arbitrator, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"JO" shall have the meaning set forth in the preamble to this
Agreement.
"Indebtedness" shall mean as to any Person and whether recourse is
secured by or is otherwise available against all or only a portion of the assets
of such Person and whether or not contingent, but without duplication: (a) every
obligation of such Person for money borrowed; (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the Exchange of property,
assets or businesses; (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (d) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (including
securities repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not more than
120 days overdue or which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP); (e) every Capital Lease Obligation of such Person; (f) any
obligation of such Person to pay any discount, shares, fees, indemnities,
penalties, recourse, expenses or other amounts in connection with any sales by
such Person unless such sales are on a non-recourse basis (as to collectability)
of (i) accounts or general intangibles for money due or to become due, (ii)
chattel paper, instruments or documents creating or evidencing a right to
payment of money or (iii) other receivables, whether pursuant to a purchase
facility or otherwise, other than in connection with the disposition of the
business operations of such Person relating thereto or a disposition of
defaulted receivables for collection and not as a financing arrangement; (g)
every obligation of such Person under any forward contract, futures contract,
swap, option or other financing agreement or
arrangement (including, without limitation, caps, floors, collars and similar
agreements), the value of which is dependent upon shares rates, currency
exchange rates, commodities or other indices (a "derivative contract"); (h)
every obligation in respect of Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent that such
Person is liable therefore as a result of such Person's ownership shares in or
other relationship with such entity, except to the extent that the terms of such
Indebtedness provide that such Person is not liable therefore and such terms are
enforceable under applicable law; and (i) every Contingent Obligation of such
Person with respect to Indebtedness of another Person. Notwithstanding anything
to the contrary in this Agreement, the term "Indebtedness" expressly includes
the following debts and obligations of JO:
"Laws" shall mean all foreign, federal, state and local statutes, laws,
ordinances, regulations, rules, resolutions, orders, writs, injunctions,
judgments and decrees applicable to the specified Person and to the businesses
and assets thereof.
"License" shall mean any franchise, authorization, license, and permit,
certificate of occupancy, easement, variance, exemption, certificate, consent or
approval of any Governmental Entity or other Person.
"Lien" shall mean any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, Limited Liability Company,
association, Entity, institution, entity, party, Governmental Entity or any
other juridical entity of any kind or nature whatsoever.
"Transaction" shall mean the business arrangement set forth in this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Acquisition and
Purchase Agreement to be duly executed as of the day and year first above
written.
HINTO ENERGY, INC.
a Wyoming Corporation
By: /s/ George E. Harris
Name: George E. Harris
Title: CEO
JAKE OIL, LLC
a Montana Limited Liability Company
By: /s/ Eric H. Olsen
Name: Eric H. Olsen
Title: Managing Member
Eric H. Olsen
By:/s/ Eric H. Olsen
EXHIBIT A
UNIT LEASES
Bureau of Land Management
Case Recordation
(Mass) Serial Register Page
Run Date: 07/09/2012
01 02-25-1920;041STAT0437;30USC181 Total Acres Serial Number
Case Type: 318220: O&G SECONDARY UNIT 558.650 MTM----085910X
Commodity 459: OIL & GAS L
Case Disposition: AUTHORIZED
Serial Number: MTM---085910X
Name & Address Int Rel %Interest
------------------------- ---------------------- --------------------------- ----------------------- ----------------BLM Montana SO
501 Southgate Dr Billings, MT 59101-4660 OFFICE OF RECORD 0.00000000
Jake Oil, LLC BOX 5086 Billings MT 59108 Operator 100.000000
Serial Number: MTM---085910X
Mer Twp Rng Sec STyp SNR Suff Subdivision District/Field Office County Mgmnt Agency
-------------------------- -------- ----------- ------------- --------------------------- ----------------- ------------------------
20 0080N 0240E 001 LOTS 3,4,5,6 Billings Field Office MusselShell Bureau of Land Mgmnt
20 0080N 0240E 002 LOTS 1,2,7,8 Billings Field Office MusselShell Bureau of Land Mgmnt
20 0090N 0240E 034 AUG SE Billings Field Office MusselShell Bureau of Land Mgmnt
20 0090N 0240E 035 AUG SW Billings Field Office MusselShell Bureau of Land Mgmnt
Serial Number: MTM---085910X
Act Date Code Action Action Remark Pending Office
------------------- ----------------- ---------------------------------- ---------------------------------- --------------------
9/18/1996 383 Case Established Designation Receiver
9/18/1996 500 Geographic Name Mason Lake
10/29/1996 519 Agrmnt/Expansion Desig
11/18/1996 680 Agreement filed
11/26/1996 334 Agmnt approved
12/01/1996 516 Formation CCRKCI; 1st Cat Creek
12/01/1996 525 Acres-NonFederal 160.00;28.64% State
12/01/1996 526 Acres-NonFederal 278.50; 49.85% Fex
12/01/1996 526 Acres - Federal Int 100% 120.15; 23.51%
12/01/1996 868 Effective Date /A/ Unit Agreement
12/01/1996 909 Bond Accepted ;MT0912
11/20/1997 378 Bond Period Terminated ;MT0912
11/20/1997 909 Bond Accepted ;MT0964
4/18/2005 378 Bond Period Terminated MTO964;
4/18/2005 909 Bond Accepted ;MT9000091
4/24/2005 672 Successor Operator Black Hawk/Jake Oil
Serial Number: MTM---085910X
Line Nr Remarks
------------------- -------------------------------------------------------------------------------------------------
0001 /A/EXHIBIT C EFFECTIVE 12/01/1996
0002 Lease Serial No Tm# PE 1% PE 2% PE 3%
0003 MTN 0 63166 # 1A 14.505600
0004 MTN 0 63166 # 1B 7.158700
0005 STATE 2 28.054800
0006 FEX 3 28.778800
0007 FEX 4 21.505100
0008 #Indicates Lease Eligible for Segregation
0009 Lands remaining is unitized lease
0010 TIA, 8N,24E,S2 Lots 1 and 8
0011 TIB, 8N,24E,S2 Lots 2 and 7
0012 All leases and interests fully committed by MDOJCC
NO WARRANT IS MADE BY BLM FOR USE OF THE DATA FOR PURPOSES NOT INTENDED BY BLM
EXHBIT B
WI/ORRI/NRI
Mason Lake (1st Cat Creek) Unit
Township 8 North and Township 9 North, Range 24 East
Musselshell, County
Tract
Federal
Minerals Legal Description Acres Lessor & Exp. Date LOR & % Lessee of Record
------------- ----------------------------------------- ------- ------------------------- -------------- ---------------------------
1(a) T8N-R24E SEC 2 Lots 1(19.84), 8(40.00) 50.84 MTM-063196(acq)HBP 11.700000% Black Hawk Resources, LLC
--------------
11.70000%
12.50000%
--------------
12.50000%
1(b) T8N-R24E Sec 2: Lots 7(20.31), 8(40.00) 60.31 MTM-063166(acq) HBP 11.700000% Black Hawk Resources, LLC
--------------
11.700000%
12.500000%
--------------
12.50000%
Tract ORRI Owners ORRI % WI Owners WI %
------------ ------------------------------------------- ------------- ---------------------------------- ----------
1(a) *S&L Energy, Inc. - 1.93014 RI 1.930140% Black Hawk Resources, LLC-1 100.00%
*Guy L. Wiggs - .48897 ORRI 0.488970%
*Stanley H. Collins - .53343 ORRI 0.533430%
*Irvin Kranzler - 1.10018 ORRI 1.100180%
*John D. Lawrence Jr. - 1.800030 ORRI 1.800300%
*John Bratt Lawrence-.60010 ORRI 0.600100%
*John R. Warne- .36672 OORI 0.366720%
-------------
6.819840% 18.5196400% 81.48%
**S&L Energy, Inc. - 1.93014 RI 1.930140% Black Hawk Resources, LLC-1 100.00%
**Guy L. Wiggs - .48897 ORRI 0.488970%
**Stanley H. Collins - .97794 ORRI 0.977940%
**Irvin Kranzler - 1.10018 ORRI 1.100180%
**John D. Lawrence Jr. - 3.300555 ORRI 3.300555%
**John Bratt Lawrence- 1.100185 ORRI 1.100185%
**John R. Warne- .36672 OORI 0.366720%
**Bank of Denver - 2.00000 ORRI 2.00000%
-------------
11.264690% 23.764590% 76.24%
1(b) *S&L Energy, Inc. - 1.93014 RI 1.930140% Black Hawk Resources, LLC-1 100.00%
*Guy L. Wiggs - .48897 ORRI 0.488970%
*Stanley H. Collins - .53343 ORRI 0.533430%
*Irvin Kranzler - 1.10018 ORRI 1.100180%
*John D. Lawrence Jr. - 1.80030 ORRI 1.800300%
*John Bratt Lawrence- .60010 ORRI 0.600100%
*John R. Warne- .36672 OORI 0.366720%
*Keith R. Anderson- 1.50% ORRI 1.500000%
-------------
8.319640% 20.019840 79.98%
**S&L Energy, Inc. - 1.93014 RI 1.930140% Black Hawk Resources, LLC-1 100.00%
**Guy L. Wiggs - .48897 ORRI 0.488970%
**Stanley H. Collins - .97794 ORRI 0.977940%
**Irvin Kranzler - 1.10018 ORRI 1.100180%
**John D. Lawrence Jr. - 3.300555 ORRI 3.300555%
**John Bratt Lawrence- 1.100185 ORRI 1.100185%
**John R. Warne- .36672 OORI 0.366720%
**Bank of Denver - 2.00000 ORRI 2.000000%
**Keith R. Anderson - 1.50% 1.500000%
-------------
12.764690% 25.264690% 74.74%
*When average daily production is less than 15 barrels per day, ownership is as
set out above. **When average daily production is greater than 15 barrels per
day, ownership is as set out above.
1 FEDERAL TRACT TOTALING 120.15 ACRES, COMPRISING 21.50721% OF THE TOTAL UNIT AREA.
EXHIBIT B CONT.
Mason Lake (1st Cat Creek) Unit
Township 8 North and Township 9 North, Range 24 East
Musselshell, County
Tract
State of
Montana
Minerals Legal Description Acres Lessor & Exp. Date LOR & % Lessee of Record
------------- --------------------------- --------- ------------------------ -------------- -------------------------------
2 T9N-R24E, Sec. 34: SE% 160.00 31,999-96 B HBP 13.00000% Black Hawk Resources, LLC
--------------
13.0000%
Tract ORRI Owners ORRI % WI Owners WI %
------------ ------------------------------------------- ------------- ---------------------------------- ----------
2 *S&L Energy, Inc. - 5.25000 ORRI 5.250000% Black Hawk Resources, LLC-1 100.00%
*J&B Production - 1.75000 ORRI 1.750000%
-------------
7.000000% 20.000000% 80.00%
1 STATE OF MONTANA TRACT TOTALING 160.00 ACRES, COMPRISING 28.64047% OF THE TOTAL UNIT AREA
Mason Lake (1st Cat Creek) Unit
Township 8 North and Township 9 North, Range 24 East
Musselshell, County
Tract
Patented
Minerals Legal Description Acres Lessor & Exp. Date LOR & % Lessee of Record
------------- --------------------------- -------- ------------------------------- ------------ -----------------------------
3 T9N-R24E,Sec. 35: SW% 160.00 B.E VanArsdale, Jr 7-6-98 4.06250% Black Hawk Resources, LLC
Alice VanArsdale 7-6-98 4.06250%
Hall Family Trust 11-2-98 3.56250%
Norman Family Trust11-2-98 3.56250%
John Clarke Adams7-6-98 2.00000%
Nancy McSweyn 7-6-98 0.25000%
LRM Corporation 7-6-98 0.25000%
David T. Hansen 11-2-98 0.33333%
Margaret P Hansen11-2-98 0.33333%
Sara H. Walsh 11-2-98 0.33334%
------------
18.75000%
4 T8N-R24E 118.50 B.E VanArsdale, Jr 7-6-98 4.06250% Black Hawk Resources, LLC
Sec. 1: Lots 3(19.07), Alice VanArsdale 7-6-98 4.06250%
4(19.43), 5(40.00), Hall Family Trust 11-2-98 3.56250%
6(40.00) Norman Family Trust11-2-98 3.56250%
John Clarke Adams7-6-98 2.00000%
Nancy McSweyn 7-6-98 0.25000%
LRM Corporation 7-6-98 0.25000%
David T. Hansen 11-2-98 0.33333%
Margaret P Hansen11-2-98 0.33333%
Sara H. Walsh 11-2-98 0.33334%
------------
18.75000%
Tract ORRI Owners ORRI % WI Owners WI %
------------ ------------------------------------------- ------------- ---------------------------------- ----------
3 *S&L Energy, Inc. - 1.25000 ORRI 1.250000% Black Hawk Resources, LLC-1 100.00%
-------------
1.250000% 20.000000% 80.00%
4 *S&L Energy, Inc. - 1.25000 ORRI 1.250000% Black Hawk Resources, LLC-1 100.00%
-------------
1.250000% 20.000000% 80.00%
2 FEE TRACTS TOTALING 278.50 ACRES, OMPRISING 49.82532% OF THE TOTAL UNIT AREA.
RECAPULATION
MINERAL OWNER ACRES IN UNIT PERCENTAGE OF UNIT AREA
---------------------------------------- ---------------------------- --------------------------------
USA (Federal) 120.15 21.50721%
STATE OF MONTANA 160.00 28.64047%
FEE (Patented) 278.50 49.85232%
TOTAL 558.65 100.00%
Participation Area STATE MMS TOTALS MMS
------------------ ----------- ---------------- ---------------- ---------------- --------------- ----------------
1A 14.5056% 0.0000% 12.5000% 1.813200% 2.71%
1B 7.1557% 0.0000% 12.5000% 0.894463% STATE
2 28.0548% 13.000% 0.0000% 3.6471% 3.65%
3 28.7788% 0.0000% 0.0000% 0.0000%
4 21.5051% 0.0000% 0.0000% 0.0000%
----------------
100.0000%
EXHIBIT C
WELLS AND ASSET INVENTORY
WELLS IN THE MASON LAKE UNIT
MUSSELSHELL COUNTY, MONTANA
API NUMBER WELL NAME LEASE NUMBER DESCRIPTION
25-065-21439 Government Hall Federal #1 MTM-63166 Township 8N, Range24 East, MPM
Section 2: NE1/4NE1/4
25-065-21433 Van Arsdale #14-35 Fee Township 9N, Range 24E, MPM
Section 35: NE1/4SW1/4
25-065-21817A State #44-34 State Township 9N, Range 24E, MPM
Section 34: SE1/4SE1/4
25-065-21396 State #34-34 State Township 9N, Range 24E, MPM
Section 34: SW1/4SW1/4
25-065-21420 State #43-34 State Township 9N, Range 24E, MPM
Section 34: NE1/4SE1/4
25-065-21625 Van Arsdale #11X-1 Fee Township 8N, Range 24E, MPM
Section 1: NW1/4NW1/4
Van Arsdale 11x-1 is plugged and abanadoned.
Van Arsdale 31x-3 is outside unit. It produces water and oil from the Amsden. It
should be included in unit as water source well.
EXHIBIT C
WELLS AND ASSET INVENTORY - CONTINUED
only 2 tanks on federal lease now.
3800 feet of PH6 sold off several years ago.
EXHIBIT D
LEASES TO BE ASSIGNED IF IN FORCE AT PURCHASE DATE
OMITTED
EXHIBIT E
ASSIGNMENT OF LEASES AND BILL OF SALE
STATE OP MONTANA ss.
ss.
COUNTY OF MUSSELSHELL ss.
Effective as of June 14, 2013 at 12:01 a.m., MST ("Effective Date"), Jake Oil,
LLC a Montana limited liability company.
("Assignor"), for good and valuable cash consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to the reservations
and conditions herein contained, does hereby GRANT, BARGAIN, SELL, CONVEY,
TRANSFER and ASSIGN unto and Hinto Energy, Inc. a Colorado
corporation("Buyer"),("Assignee"), all of Assignor's right, title and interest
in and to the following (collectively, the "Assets"):
(i) The oil and gas leases (including all leasehold estates,
mineral interest, royalty interests, overriding royalty interests, net profits
interests, or similar interests) specifically described in Exhibits A, B, C and
D(collectively, the "Leases") and the lands covered thereby or lands pooled or
unitized therewith (the "Lands");
(ii) The oil, gas, casing head gas, coal bed methane,
condensate and other gaseous and liquid hydrocarbons or
any combination thereof, sulphur extracted from hydrocarbons and all other lease
substances ("Hydrocarbons") under the Leases arid that may be produced and saved
under the Leases;
(iii) The unitization, pooling and communalization agreements,
declarations, orders, and the units created thereby relating to the properties
and interests described in Sections 1.3(a) through (e) and to the production of
Hydrocarbons, if any, attributable to said properties and interests;
(iv) All equipment, machinery, fixtures and other tangible
personal property and improvements located on or used or held for use in
connection with the operation of the interests described in (i) through (iv),
above, including any wells, tanks, hollers, buildings, fixtures, injection
facilities, saltwater disposal facilities, compression facilities, pumping
units and engines, platforms, flow lines, pipelines, gathering systems, gas
and oil treating facilities, machinery, power lines, telephone and telegraph
lines, roads, and other appurtenances, improvements arid facilities;
TO HAVE AND TO HOLD of all said Assets unto Assignee, its successors
and assigns, forever? This Assignment is made and accepted expressly subject to
the following terms and conditions:
1. THIS ASSIGNMENT IS MADE WITHOUT .ANY WARRANTY OF ANY KINDTO THE ASSETS,
INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE,WHETHER EXPRESS,
IMPLIED OR STATUTORY EXCEPT \\`ITH RESPECT TOTITLE CLAIMS ARISING BY,
THROUGH AND UNDER ASSIGNOR, PURSUANT TO THE TERMS OF THE ACQUISITION
AND PURCHASE AGREEMENT, DATED June 14, 2013, BUT NOT OTHERWISE.
2. IT IS EXPRESSLY UNDERSTOOD BY ASSIGNEE THAT ANY PERSON PROPERTY,
FIXTURES, EQUIPMENT AND ITEMS THAT COMPRISE THE ASSETS ARE BEING
CONVEYED TO ASSIGNEE "AS IS" AND "WHERE IS"ANDWITHOUT WARRANTY OF
MERCHANTABILITY, CONDITION OR FITNESS FORA PARTICULAR PURPOSE, EITHER
EXPRESS OR IMPLIED, AND ASSIGNEEACCEPTS SUCH ASSETS IN THEIR PRESENT
CONDITION WITH ALL FAULTSAND DEFECTS, INCLUDING, BUT NOT LIMITED TO,
THE PRESENCE OFNATURALLY OCCURRING RADIOACTIVE MATERIAL, IN
ADDITION,ASSIGNOR MAKES NO REPRESENTATION, COVENANT, OR
WARRANTY,EXPRESS, IMPLIED, OR STATUTORY, AS TO THE ACCURACY
ORCOMPLETENESS OF ANY DATA DELIVERED TO ASSIGNEE WITH RESPECT TOTHE
ASSETS, OR CONCERNING THE QUALITYOR. QUANTITY OFHYDROCARBON RESERVES,
IF ANY, ATTRIBUTABLE TO THE ASSETS, OR THE ABILITY OF THEASSETS TO
PRODUCE HYDROCARBONS, OR THEPRICES THAT ASSIGNEE WILL BE ENTITLED TO
RECEIVE FOR SUCHHYDROCARBONS.
3. This Assignment is being made pursuant to the terms of that certain
Acquisition and Purchase Agreement dated June 14, 2013 by and among
Assignee and Assignor (the "Agreement"). All capitalized terms used but
not otherwise defined herein shall have the respective meanings ascribed
to them in the Agreement.
Assignee will bear all expenses which are incurred in respect of the
Assets after the Effective Date, and Assignee will receive all proceeds
in respect of the Assets attributable to the period after the Effective
Date, Assignor will bear all expenses which are incurred in respect of
the Assets before the Effective Date, and Assignor will receive all
proceeds collectible in respect of the Assets attributable to the period
prior to the Effective Date (regardless of whether such proceeds are
received prior to or after the Effective Date). Subject to the terms
hereof, all monies, proceeds, receipts, credits and income attributable
to the ownership arid operation of the Assets (i) for all periods of
time from, arid including, the Effective Date, shall be the sole
property and entitlement of Assignee, and to the extent received by
Assignor, Assignor shall promptly after such receipt, fully disclose,
account for and transmit same to Assignee and (ii) for all periods of
time prior to the Effective Date, shall be the sole property and
entitlement of Assignor, and to the extent received by Assignee,
Assignee shall promptly fully disclose, account for and transmit same to
Assignor.
4. This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee, their respective successors and assigns.
5. This Assignment shall be governed by and construed in accordance with
the laws of the State of Montana without regard to its conflict of law
provisions.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment of
Leases & Bill of Sale on the date(s) set forth in their respective
acknowledgments below, but to be effective for all purposes as of the Effective
Date.
ASSIGNOR
Jake Oil, LLC
