ASSIGNMENT, ASSUMPTION, AND NOVATION AGREEMENT
THIS
ASSIGNMENT, ASSUMPTION, AND NOVATION AGREEMENT (this “360
Investments Subsequent Assignment Agreement”),
dated
this __ day of March, 2006 (the “Effective
Date”),
is
made by and among 360 GLOBAL WINE COMPANY, a Nevada corporation (“360
Global”),
360
INVESTMENTS LLC, a Delaware limited liability company (“360
Investments”),
and
GENERAL ELECTRIC COMPANY, a New York corporation (“GE”).
WHEREAS,
Samson Investment Company, a Nevada corporation (“Samson”)
and GE
are parties to that certain Stock Purchase Agreement of even date herewith
(the
“Springer
Agreement”),
pursuant to which Samson is to acquire all of the issued and outstanding capital
stock of Springer Mining Company, a Nevada corporation (the “Mining
Company”)
from
GE, a copy of which agreement is attached hereto as Exhibit A;
WHEREAS,
Samson, 360 Investments, and GE are parties to that certain Assignment,
Assumption, and Novation Agreement (the “Samson
/ 360 Investments Assignment Agreement”) of
even
date herewith, pursuant to which Samson is to assign all of its right, title,
and interest in and to the Springer Agreement to 360 Investments (subject to
360
Investments undertaking all of Samson’s obligations thereunder), 360 Investments
is to accept such assignment of rights and to undertake to fulfill all of such
obligations, and GE is to consent thereto, which consent will act as a
conditional novation in favor of Samson of all of its obligations under the
Springer Agreement;
WHEREAS,
the parties hereto understand that this 360 Investments Subsequent Assignment
Agreement is one of a series of assignments of, and transactions involving,
the
Springer Agreement (of which the “Samson
/ 360 Investments Assignment Agreement”
is
a
component and a copy of which agreement is attached hereto as Exhibit
B);
1. Pursuant
to the Assignment, Assumption and Novation (the “Samson
Assignment”)
by and
among 360 Investments, GE, and Samson Investment Company, a Nevada corporation
(“Samson”),
a
copy of which is attached hereto as Exhibit B, Samson assigned all of its right,
title and interest in and to the rights granted under the Springer Agreement
to
360 Investments, and 360 Investments accepted all such right, title and interest
and assumed all of Samson’s duties, obligations, and liabilities under the
Springer Agreement.
2. Subject
to the terms and conditions of this Agreement, 360 Investments hereby
irrevocably sells, conveys, assigns, grants, transfers, and delivers to 360
Global and its successors and permitted assignees, to its own use and benefit
forever, all of 360 Investments’ right, title and interest in and to the rights
granted under the Springer Agreement as assigned to 360 Investments by the
Samson Assignment.
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3. Subject
to the terms and conditions of this Agreement, 360 Global hereby irrevocably
accepts such right, title, and interest in assigned in Section 3 above and
assumes all of 360 Investments’ duties, obligations, and liabilities under the
Springer Agreement as assigned to 360 Investments by the Samson
Assignment.
4. 360
Investments, for itself and its successors, but not for 360 Global, as its
permitted assignee, and not for any of 360 Global’s successors or permitted
assignees, hereby releases GE from all of GE’s duties, obligations, and
liabilities in favor of 360 Investments that may arise under the Springer
Agreement as a result of the Samson / 360 Investments Assignment
Agreement.
5. 360
Investments (after due inquiry) represents and warrants to 360 Global
that:
| a. |
Except
as set forth on Schedule 5a, all assets and property currently or
previously owned, leased, operated, or used by in connection with
the
Mining Company (the “Property”),
all current and previous conditions on and uses of the Property,
and all
current and previous ownership and operations of the Property and
the
Mining Company (including without limitation transportation and disposal
of Hazardous Materials by or for the Mining Company) comply, have
at all
times complied, and will comply with, and do not cause, have not
caused,
and will not cause liability to be incurred by the Mining Company
or 360
Investments under any current, past, or future law relating to the
protection of health or the environment, including without limitation
the
Clean Air Act, the Federal Water Pollution Control Act, the Resource
Conservation and Recovery Act, the Comprehensive Environmental Response,
Compensation and Liability Act, the Toxic Substance Control Act,
and the
Occupational Safety and Health Act, as all may be amended from time
to
time, any comparable state or foreign law, and the common law, including
the law of nuisance and strict liability (collectively, the “Environmental
Laws”).
Except as set forth on Schedule 5a attached hereto, the Mining Company
is
not in violation of and has not violated any Environmental
Law.
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| b. |
Except
as set forth on Schedule 5b, the Mining Company has properly obtained
and
is in compliance with all necessary permits, registrations, approvals,
and
licenses (the “Environmental
Permits”)
and has properly made all filings with and submissions to any government
or other authority required by any Environmental Law. No deficiencies
have
been asserted by any such government or authority with respect to
such
items.
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| c. |
Except
as set forth on Schedule 5c, the consummation of the transactions
referenced in the Springer Agreement, the Samson / 360 Investments
Assignment Agreement, and this 360 Investments Subsequent Assignment
Agreement and as contemplated thereby and hereby will not (i) require
the
Mining Company, GE, Samson, 360 Investments, or 360 Global to provide
notices, obtain governmental approval, or take any actions, including,
but
not limited to, any repairs, construction, or capital expenditures,
in
order for either or both of the Mining Company or 360 Global to hold
or to
continue to hold all Environmental Permits and to remain in compliance
with the terms and conditions thereof and of all Environmental Laws
or
(ii) require either or both of the Mining Company or 360 Global to
obtain
any new Environmental Permit.
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| d. |
Except
as set forth on Schedule 5d, there has been no spill, discharge,
leak,
leaching, emission, migration, injection, disposal, escape, dumping,
or
release of any kind on, beneath, above, from, or into the Property
or any
other property that any or all of the Mining Company, GE, Samson,
or 360
Investments currently or in the past has owned, operated, leased,
occupied, or used, or into the environment surrounding the Property
of any
(i) pollutants or contaminants, (ii) hazardous, toxic, infectious
or
radioactive substances, chemicals, materials, or wastes (including,
without limitation, those defined as hazardous under any Environmental
Law), (iii) petroleum and petroleum products and wastes, including
crude
oil or any derivative or fraction thereof, (iv) asbestos fibers,
(v) solid
wastes, or (vi) medical wastes ((i) through (vi), inclusive, collectively,
the “Hazardous
Materials”).
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| e. |
Except
as set forth on Schedule 5e, there are and have been no (i) Hazardous
Materials stored, disposed of, generated, manufactured, refined,
transported, produced, processed, distributed, used, sold, treated,
recycled, received, or handled at, upon, or from the Property; (ii)
asbestos fibers or materials or polychlorinated biphenyls on or beneath
the Property, or (iii) underground storage tanks on or beneath the
Property. Schedule 5e includes the description and the quantity of
the
Hazardous Materials, the location where the activities occurred,
the names
and addresses of the persons involved and the dates of the activities.
Schedule 5e sets forth the name and address of each person and location
involved in the transportation and disposal of Hazardous Materials
on
behalf of any or all of the Mining Company, GE, Samson, or 360 Investments
or from the Property.
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| f. |
Except
as set forth in Schedule 5f, there never has been pending or threatened
against any or all of the Mining Company, GE, Samson, or 360 Investments
or any other person or entity to the extent such other person or
entity
from time to time has owned, leased, occupied, or conducted operations
on
the Property, any civil, criminal, or administrative action, suit,
summons, complaint, citation, claim, hearing, study, inquiry, or
investigation based on or related to an Environmental Permit or an
Environmental Law.
|
| g. |
Except
as set forth in Schedule 5g, none of , the Mining Company, GE, Samson,
or
360 Investments nor any other person or entity to the extent that
such
other person or entity from time to time has owned, leased, occupied,
or
conducted operations on the Property, has ever received from any
person
any notice of, or has knowledge of, any past, present or anticipated
future events, conditions, circumstances, activities, practices,
incidents, actions, agreements, or plans that could (i) interfere
with,
prevent, or increase the costs of compliance or continued compliance
with
any Environmental Permit or any renewal or transfer thereof or any
Environmental Law; (ii) make more stringent any restriction, limitation,
requirement, or condition under any Environmental Law or any Environmental
Permit in connection with the operations at the Property; or (iii)
give
rise to any liability, loss or expense, or form the basis of any
civil,
criminal, or administrative action, suit, summons, citation, complaint,
claim, notice, demand, request, judgment, order, lien, proceeding,
hearing, study, inquiry, or investigation involving the Property
or the
Mining Company, GE, Samson, or 360 Investments based on or related
to an
Environmental Permit, or an Environmental Law or to the presence,
manufacture, generation, refining, processing, distribution, use,
sale,
treatment, recycling, receipt, storage, disposal, transport, handling,
emission, discharge, release or threatened release of any Hazardous
Materials.
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| h. |
The
Mining Company, Samson, and 360 Investments have delivered to 360
Global,
prior to the execution and delivery of each of the Springer Agreement,
the
Samson / 360 Investments Assignment Agreement, and this 360 Investments
Subsequent Assignment Agreement, true and complete copies of any
and all
(i) documents received by any or all of the Mining Company, Samson,
or 360
Investments from, or submitted by any of their respective officers,
directors, stockholders or members, to, the Environmental Protection
Agency and/or any foreign, state, county, or municipal environmental
or
health agency concerning the environmental condition of the Property
or
the effect of the operations of the Mining Company on the environmental
condition of the Property and (ii) reviews, audits, reports, or other
analyses concerning the Property in the possession of or available
to any
or all of the Mining Company, Samson, or 360
Investments.
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| i. |
360
Investments and the Mining Company have provided 360 Global true,
accurate
and complete information pertaining to all of the matters set forth
in
paragraphs (a) through (h) hereof, including all documents pertaining
to
all environmental audits or
assessments.
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6. 360
Investments shall hold 360 Global, its stockholders, directors, officers,
successors, permitted assignees, and agents (the “Indemnified
Persons”),
harmless and indemnify each of them from and against, and waives any claim
for
contribution with respect to, any and all claims, losses, damages, liabilities,
expenses or costs (the “Losses”),
plus
reasonable and necessary attorneys' fees and expenses, incurred in connection
with Losses and/or enforcement of this Agreement (in all, the “Indemnified
Losses”),
whether now known or unknown, whether voluntarily incurred or otherwise,
incurred by any of them to the extent resulting from or arising out
of:
| a. |
Any
breach or violation of 360 Investments' representations, warranties,
covenants, or agreements contained in this
Agreement;
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| b. |
The
manufacture, generation, refining, processing, distribution, use,
sale,
treatment, recycling, receipt, storage, disposal, transportation,
handling, emission, discharge, leaching, release or threatened release
of
any Hazardous Material by 360 Investments or the Mining Company,
or their
officers, directors, employees or agents, whether or not such occurred
on
the Property or other Property, including but not limited to, other
property that 360 Investments or the Mining Company currently or
in the
past has owned, operated, leased, occupied or used, or property at
which
360 Investments or the Mining Company’s Hazardous Materials may have been
sent for treatment, recycling, disposal, or
storage;
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| c. |
Any
pollution or contamination of the environment or damage to natural
resources on, under or from the Property, including, but not limited
to,
the disposal, emission, discharge, leaching, release, or threatened
release of Hazardous Materials on, under, or from the Property;
and
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| d. |
The
violation or assertion of any past, present, or future Environmental
Law;
or the assertion of any civil, criminal, administrative, or common
law
claim or action relating to the health, safety, natural resources
or the
environment arising out of or related to the conduct of the business
of
360 Investments or the Mining
Company.
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7. In
consideration of the transactions contemplated by the Samson / 360 Investments
Assignment Agreement and this 360 Investments Assignment Agreement, 360
Investments and 360 Global hereby agree that on, or as soon as practicable
after
the Effective Date, 360 Global shall cause the consummation of one or more
transactions, pursuant to which (i) a wholly-owned subsidiary of 360 Global
shall merge with and into the Mining Company, with the Mining Company as the
surviving corporation, which transaction(s) shall result in the Mining Company
becoming a wholly-owned subsidiary of 360 Global, and (ii) 360 Global shall
tender to 360 Investments certain consideration, all as may be more completely
set forth in one or more other transaction documents between 360 Global and
360
Investments.
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8. Except
as
otherwise limited herein, this 360 Investments Assignment Agreement shall be
binding on and inure to the benefit of the parties hereto and their respective
successors and permitted assignees.
9. This
360
Investments Assignment Agreement may be executed in counterparts, any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same
instrument.
10. All
questions concerning the construction, validity and interpretation of this
360
Investments Assignment Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Nevada, without giving effect
to any choice of law or conflict of law provision (whether of the State of
Nevada or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Nevada.
11. This
360
Investments Assignment Agreement shall not become effective unless and until
each of the Springer Agreement, the Samson / 360 Investments Assignment
Agreement, and this document has been duly executed by each party thereto and
hereto (as relevant) and each such executed agreement has been delivered to
each
such executing party.
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date first written
above.
| 360 GLOBAL: |
360
GLOBAL
WINE COMPANY,
a Nevada corporation
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| 360 INVESTMENTS: |
360
INVESTMENTS LLC,
a Delaware limited liability
company
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| GE: |
GENERAL
ELECTRIC COMPANY
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