Tradeout Agreement Template

TRADEOUT AGREEMENT

This Tradeout Agreement (the "Agreement") is made and entered into as of Day: Month: Year: by and between Party A: , an entity of type Individual Corporation LLC Partnership Other, with principal place of business at ; and Party B: , an entity of type Individual Corporation LLC Partnership Other, with principal place of business at (each a "Party" and collectively, the "Parties").

RECITALS

WHEREAS, Party A owns or controls certain assets, rights and obligations more fully described on Schedule A attached hereto (the "Party A Assets"); and

WHEREAS, Party B owns or controls certain assets, rights and obligations more fully described on Schedule B attached hereto (the "Party B Assets"); and

WHEREAS, the Parties desire to effect a reciprocal exchange of specified assets, obligations, and consideration on the terms and conditions set forth in this Agreement (the "Tradeout Transaction").

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Parties agree as follows:

1. DEFINITIONS

1.1 "Assets" means, collectively, the Party A Assets and the Party B Assets as described on Schedule A and Schedule B, respectively. Specific asset descriptions and identifying information shall be set forth in the Schedules and, to the extent inconsistent, the Schedule controls.

1.2 "Closing" means the consummation of the Tradeout Transaction in accordance with Section 4.

2. TRADEOUT TRANSACTION

2.1 Exchange. Subject to the terms and conditions of this Agreement, at the Closing, Party A shall transfer, convey and assign to Party B good and marketable title to the Party A Assets free and clear of all liens, claims and encumbrances except as expressly permitted in writing by Party B, and Party B shall transfer, convey and assign to Party A good and marketable title to the Party B Assets free and clear of all liens, claims and encumbrances except as expressly permitted in writing by Party A.

2.2 Allocation of Consideration. The Parties acknowledge that the tradeout may involve cash adjustments, netting of obligations, assumption of liabilities, or issuance of instruments as consideration. Such consideration and allocation shall be set forth in Schedule C:

3. REPRESENTATIONS AND WARRANTIES

3.1 Mutual Authority. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, has full corporate or other power and authority to enter into and perform this Agreement, and the execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate or other action.

3.2 Title to Assets. Each Party represents and warrants that it has good and marketable title to the Assets it proposes to transfer, that such Assets are owned free and clear of liens and encumbrances (except as disclosed on the applicable Schedule), and that no third party has a superior right to such Assets.

3.3 Compliance with Law. Each Party represents that, to its knowledge, the transfer of the Assets as contemplated will not violate any applicable law, regulation, license, contractual restriction or order of a governmental authority.

4. CLOSING; CONDITIONS PRECEDENT

4.1 Closing Procedures. The Closing shall occur at a mutually agreed location and time, or by exchange of executed instruments and certificates delivered electronically or in original form, provided that all conditions to Closing set forth in this Agreement have been satisfied or waived.

4.2 Conditions Precedent. The obligations of each Party to consummate the Closing are subject to the satisfaction or waiver of customary conditions precedent, including (a) accuracy of the other Party's representations and warranties as of the Closing, (b) performance in all material respects of the covenants required to be performed prior to Closing, and (c) delivery of all documents, instruments and assignments necessary to transfer title to the Assets.

5. COVENANTS

5.1 Conduct Prior to Closing. Each Party covenants that, from the Effective Date through the Closing, it will (a) preserve the Assets in substantially the same condition, (b) not enter into any agreement that would impair the transferability of the Assets, and (c) give prompt notice to the other Party of any material adverse change affecting the Assets.

5.2 Cooperation. Each Party shall execute and deliver such further documents and take such further actions reasonably necessary to carry out the provisions of this Agreement and effect the transactions contemplated hereby.

6. INDEMNIFICATION

6.1 Indemnity by Each Party. Each Party (an "Indemnifying Party") shall indemnify, defend and hold harmless the other Party (the "Indemnified Party") from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or resulting from any breach of the representations, warranties or covenants of the Indemnifying Party under this Agreement, subject to the limitations and procedures set forth in this Section.

6.2 Procedure. The Indemnified Party shall promptly notify the Indemnifying Party in writing of any claim for which it seeks indemnification; failure to give prompt notice shall not relieve the Indemnifying Party except to the extent it is materially prejudiced by such failure.

7. LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM FRAUD OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE. THE AGGREGATE LIABILITY OF EITHER PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF (A) THE MONETARY AMOUNTS ACTUALLY TRANSFERRED PURSUANT TO SECTION 2.2 OR (B) AN AMOUNT SET FORTH HERE:

8. CONFIDENTIALITY

8.1 Confidential Information. Each Party shall keep confidential and not use or disclose, other than in connection with performing its obligations hereunder, any non-public information regarding the other Party and the Assets that is designated as confidential or that reasonably should be understood to be confidential.

8.2 Exceptions. Confidentiality obligations shall not apply to information that (a) is or becomes publicly available through no fault of the receiving Party, (b) is rightfully received from a third party without restriction, or (c) is required to be disclosed by law or order of a court or government authority, provided the disclosing Party gives prompt notice to the other Party of such requirement to permit a protective order or other appropriate remedy.

9. NOTICES

All notices, requests, demands and other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given when delivered personally, sent by nationally recognized overnight courier, or sent by certified mail, return receipt requested, to the Parties at the addresses set forth below (or such other address as a Party may designate by notice in accordance with this Section).

10. AMENDMENT; WAIVER

No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. No waiver by either Party of a breach shall be deemed a waiver of any subsequent breach.

11. GOVERNING LAW; VENUE

This Agreement shall be governed by and construed in accordance with the laws of the State specified below without regard to its conflicts of laws principles. The Parties submit to the exclusive jurisdiction of the competent courts located in that State for any dispute arising out of or relating to this Agreement.

12. ENTIRE AGREEMENT; SEVERABILITY

This Agreement, including its Schedules, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, both written and 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. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Signatures delivered by electronic transmission (including scanned signatures) shall be binding.

14. MISCELLANEOUS

14.1 Assignment. Neither Party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other Party, except that a Party may assign to an affiliate or in connection with a merger or sale of substantially all of its assets.

14.2 Further Assurances. Each Party shall execute and deliver such further documents and take such further actions as may be reasonably required to carry out the purposes and intent of this Agreement.

SCHEDULES AND ATTACHMENTS

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