THIS PURCHASE AGREEMENT AND ESCROW ... - LBAMspray.com

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(i) Those substances included within the definitions of hazardous substances, hazardous waste, hazardous material, toxic substance, solid waste or pollutant or contaminant in CERCLA, RCRA, FWPCA, TSCA, HMTA or any other Environmental Law (as hereinafter defined); (ii) Those substances listed in the United States Department of Transportation (DOT) Table [49 CFS 172.101], or by the Environmental Protection Agency (EPA), or any successor agency, as hazardous substances [40 CFR Part 302]; (iii) Other substances, materials and wastes that are or be<strong>com</strong>e regulated or classified as hazardous or toxic under federal, state or local laws or regulations; and (iv) Any material, waste or substance that is: (l) a petroleum or refined petroleum product, (2) asbestos, (3) polychlorinated biphenyl, (4) designated as a hazardous substance pursuant to 33 USCS § 1321 or listed pursuant to 33 USCS § 1317, (5) a flammable explosive, or (6) a radioactive material. For purposes of this Agreement, "Environmental Laws" means all federal, state, local and municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees and requirements of any government authority regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Material, or pertaining to occupational health or industrial hygiene or occupational or environmental conditions on, under, about or adjacent to the Property, as now in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Recovery Act of 1980 (CERCLA) [42 USCS §§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (RCRA) [42 USCS §§ 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (FWPCA) [33 USCS §§ 1251 et seq.]; the Toxic Substances Control Act (TSCA) [15 USCS §§ 2601 et seq.]; the Hazardous Materials Transportation Act (HMTA) [49 USCS §§1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USCS §§ 136 et seq.]; the Superfund Amendments and Reauthorization Act [42 USCS §§ 6901 et seq.]; the Clean Air Act [42 USCS §§ 7401 et seq.]; the Safe Drinking Water Act [42 USCS §§ 300f et seq.]; the Solid Waste Disposal Act [42 USCS §§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USCS §§ 1201 et seq.]; the Occupational Safety and Health Act [20 USCS §§ 655 and 657]; together with any amendment of or regulations promulgated under the statutes cited above and any other federal, state or local law, statute, ordinance or regulation now in effect or previously existing that pertains to occupational health or industrial hygiene. Seller agrees that should Buyer discover any Hazardous Substance on the Property during its excavation work prior to the Close of Escrow, such Hazardous Substance removal shall be deemed to be Seller's responsibility, unless such Hazardous Substance release can be shown to have {025696.3} 8
een caused by Buyer's activities on the Property. In the event of the discovery of such pre-existing condition, Seller shall either terminate this Agreement and pay Buyer the costs identified in Section 6(b)(ii) of this Agreement or shall promptly remediate the Hazardous Substance release or Buyer shall be entitled to do so and be reimbursed by Seller. Such remediation must occur promptly in order to minimize any delay in Buyer's construction activities. (e) Leases; Agreements. As of the date of this Agreement, Seller is not a party to any lease agreement with respect to the Property, and as of the date of this Agreement there are no tenants on the Property. As of the Close ofEscrow, Seller shall not be a party to any Agreement with respect to the Property, other than the Permit and Right of Entry Agreement alid any Interim Lease between Seller and Buyer, and there shall be no tenants on the Property, other than Buyer. From and after the date of this Agreement, Seller shall not create any leases or other agreements affecting the Property without Buyer's prior written consent. (f) Condition of Property at Close of Escrow. Subject to the development of the Property by Buyer under the Permit and Right of Entry Agreement and/or the Interim Lease, Seller shall maintain the Property until the Close of Escrow in its present condition, construction work by Buyer as provided hereunder excepted. (g) Compliance. There is no aspect or condition of the Property that violates any applicable federal, state or local laws, rules, regulations or codes, including any Environmental Laws. (h) Possessory Rights. At the Close of Escrow, no person or entity will have any right to possession ofthe Property other than Buyer. (i) Mechanics' Liens. There are no unsatisfied mechanics' or materialmen's lien rights concerning the Property. G) Actions, Suits or Proceedings. There are no actions, suits or proceedings, pending or threatened, before any <strong>com</strong>mission, board, bureau, agency, arbitrator, court or tribunal affecting, or that would affect, the Property or the right to occupy or utilize same. (k) Notice of Changes. Seller will promptly notify Buyer in writing of any material changes to the Property prior to Close ofEscrow. (1) No Bankruptcy Proceedings. Seller IS not the subject of any bankruptcy, insolvency or probate proceeding. (m) Title. Seller has title to the Property free and clear of all liens, claims and encumbrances except for the Permitted Exceptions. (n) Taxes and Assessments. Seller is tax exempt and there are no taxes, charges and assessments (special or otherwise) for all years up through and including 2008 required to be paid to any taxing authority or other association, which, if unpaid, could in any way constitute a lien against the Property or any part thereof. Seller has not received any notice from any taxing authority, governmental agency or other association: (i) asserting that Seller has failed to file or has improperly filed any tax return or report required to be filed or of any charges now owing by it which could in any way now or hereafter constitute a lien or claim against the Property or any part thereof; or (ii) regarding any pending or contemplated taxes, assessments, charges or fees which affect or will affect the {025696.3} 9
Page 1 and 2: PURCHASE AGREEMENT AND ESCROW INSTR
Page 3 and 4: (b) The parties acknowledge and agr
Page 5 and 6: not affect the Buyer's obligation t
Page 7: and review during the Due Diligence
Page 11 and 12: proceed with all good faith and exp
Page 13 and 14: 19. Indemnification. (a) Seller's I
Page 15 and 16: Ifto Buyer: Ifto Seller: Suterra LL
Page 17 and 18: deferred exchange so long as there
Page 19 and 20: LIST OF EXHIBITS Exhibit A Exhibit
Page 21 and 22: LEGAL DESCRIPTION SUTERRAPARCEL A P
Page 23 and 24: EXHIBITB Form ofPermit and Right of
Page 25 and 26: 3. TERM OF PERMIT The term of this
Page 27 and 28: 10.2.3 Workers' Compensation Insura
Page 29 and 30: Exhibit A - Permit & Right ofEntry
Page 31 and 32: EXHIBITC Form ofStatutory Warranty
Page 33 and 34: DATEDthis dayof ,2008. CITY OF BEND
Page 35: EXHIBIT A Legal Description Al,lAR,

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