Assumption PSA Agreement

ASSUMPTION PSA AGREEMENT

This Assumption PSA Agreement (the "Agreement") is entered into as of by and between Assignor Name: , an entity organized under the laws of , with principal place of business at (the "Assignor"), and Assignee Name: , an entity organized under the laws of , with principal place of business at (the "Assignee"). Assignor and Assignee are each a "Party" and collectively the "Parties."

RECITALS

WHEREAS, on or about , a Purchase and Sale Agreement (the "PSA") was executed by and between and concerning the property or assets described in Schedule A attached hereto (the "Property");

WHEREAS, Assignor is currently obligated under the PSA and desires to assign and transfer certain rights and obligations under the PSA to Assignee, and Assignee desires to assume such rights and obligations on the terms and subject to the conditions set forth herein;

WHEREAS, the Parties intend that this Agreement effect the assumption of specified obligations of the PSA by Assignee and the corresponding release and indemnification of Assignor to the extent set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

For purposes of this Agreement, the following terms shall have the following meanings: "PSA" means the Purchase and Sale Agreement described in the recitals above and any related schedules, exhibits, amendments and modifications thereto; "Assumed Liabilities" means those liabilities, obligations and responsibilities expressly identified in Schedule A as being assumed by Assignee; "Effective Date" means the date set forth above as effective_date.

2. ASSUMPTION OF OBLIGATIONS

2.1 Assumption. Subject to the terms and conditions of this Agreement, Assignor hereby assigns, transfers and conveys to Assignee, and Assignee hereby accepts and assumes, all of Assignor’s right, title and interest in and to, and duties and obligations under, the PSA to the extent set forth in Schedule A (the "Assumed Obligations"), effective as of .

2.2 Limitations. Except as expressly set forth in Schedule A, Assignor retains all liabilities and obligations under the PSA not specifically and unambiguously assumed by Assignee. Assignee acknowledges and agrees that any obligations not listed in Schedule A remain the responsibility of Assignor.

3. CONSIDERATION

In consideration of the assignment and assumption described herein, Assignee shall pay to Assignor the sum of (the "Consideration") in accordance with the following terms:

4. CLOSING

4.1 Closing Date. The closing of the matters contemplated by this Agreement ("Closing") shall occur on at such location as the Parties shall mutually designate in writing.

4.2 Deliveries. At Closing: (a) Assignor shall deliver executed instruments of assignment and consent if required by the PSA or third parties; (b) Assignee shall deliver evidence of payment of the Consideration and any documents necessary to effectuate the assumption of the Assumed Obligations; and (c) the Parties shall execute such other documents as are necessary to give effect to this Agreement.

5. REPRESENTATIONS AND WARRANTIES

5.1 Mutual Representations. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (b) it has the power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and (c) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary action.

5.2 Assignor Representations. Assignor represents and warrants that to its knowledge: (a) the PSA is in full force and effect except as disclosed in writing to Assignee; (b) Assignor has not previously assigned the Assumed Obligations to any other third party; and (c) there are no defaults by Assignor under the PSA that have not been disclosed in writing to Assignee.

5.3 Assignee Representations. Assignee represents and warrants that: (a) it has reviewed the PSA and the Assumed Obligations and has adequate financial capacity and operational ability to perform the Assumed Obligations; and (b) its assumption of the Assumed Obligations will not violate any applicable law or contractual restriction of which it is aware.

6. COVENANTS

Each Party covenants to the other that it shall cooperate in good faith to effectuate the transactions contemplated by this Agreement, including providing reasonable access to documents and executing further instruments reasonably required to effectuate the transfer and assumption of rights and obligations under the PSA.

7. INDEMNIFICATION

7.1 Assignee Indemnity. Assignee shall indemnify, defend and hold harmless Assignor from and against any and all losses, liabilities, claims, damages, costs and expenses (including reasonable attorneys' fees) arising out of or resulting from Assignee’s breach of this Agreement or Assignee’s performance or non-performance of any Assumed Obligations after the Effective Date.

7.2 Assignor Indemnity. Assignor shall indemnify, defend and hold harmless Assignee from and against any and all losses, liabilities, claims, damages, costs and expenses (including reasonable attorneys' fees) arising out of or resulting from Assignor’s representations or breaches of this Agreement to the extent such matters relate to periods or acts prior to the Effective Date and are not Assumed Obligations.

8. RELEASE

Upon the effective assumption at Closing, and subject to the indemnities set forth in Section 7, Assignor shall be released from those obligations under the PSA that are specifically and expressly assumed by Assignee as of the Effective Date. This release shall not operate to release Assignor from obligations expressly excluded from assumption in Schedule A.

9. FURTHER ASSURANCES

Each Party shall, at the request and expense of the requesting Party, execute and deliver such further instruments and take such further actions as may be reasonably necessary to effectuate the purposes of this Agreement.

10. NOTICES

All notices, consents and other communications required or permitted hereunder shall be in writing and delivered by hand, nationally recognized overnight courier, certified mail (return receipt requested) or by electronic mail followed by a mailed copy, addressed as follows (or to such other address as a Party shall designate by notice):

11. GOVERNING LAW; VENUE

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to conflict of laws principles. Each Party hereby submits to the exclusive jurisdiction of the state and federal courts located in such State for the resolution of disputes arising out of or relating to this Agreement.

12. ENTIRE AGREEMENT; SEVERABILITY

This Agreement, together with the PSA and any schedules and exhibits attached hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired.

13. AMENDMENT; WAIVER

This Agreement may be amended only by a written instrument executed by both Parties. No waiver of any provision or breach hereof shall be effective unless in writing and signed by the Party granting the waiver, and no waiver shall constitute a waiver of any other or subsequent breach.

14. COUNTERPARTS

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Electronic or facsimile signatures shall be valid and binding for all purposes.

SCHEDULE A — ASSUMED OBLIGATIONS

Operational obligations related to the Property
Environmental remediation obligations specifically set forth in Schedule A
Ordinary course tax obligations arising after Effective Date
Other (describe below)

MISCELLANEOUS

The headings contained in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. All references to "days" mean calendar days unless otherwise specified. The Parties acknowledge that they have been represented by counsel or have had the opportunity to seek counsel prior to executing this Agreement.

Sign Now