ex10_2.htm


    PURCHASE
AGREEMENT

    (4210
B.F. Goodrich Boulevard)

    


    


    This
PURCHASE AGREEMENT (the “Agreement”) is made and entered into as of January 8,
2009 (the “Effective Date”), by and between THE GUARDIAN LIFE INSURANCE COMPANY
OF AMERICA, a New York corporation, successor by merger to Berkshire Life
Insurance Company, a Massachusetts corporation (“Seller”), and BLUE EARTH
SOLUTIONS TENNESSEE INC., a Tennessee corporation (“Purchaser”).

     

    In
consideration of the Purchase Price (as hereinafter defined), the Deposit (as
hereinafter defined), and the premises and the mutual covenants and conditions
set forth herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:

    PURCHASE AND SALE OF
PROPERTY

    


    1.1 Upon the
terms and conditions hereinafter set forth, Seller agrees to sell, grant and
convey, and Purchaser agrees to purchase and accept, the following:

    


    1.1.1                      that
certain tract or parcel of land, with the buildings and improvements thereon,
having a street address of 4210 B.F. Goodrich Boulevard, situated in Memphis,
Shelby County, State of  Tennessee, more particularly described on
Exhibit A
attached hereto and made a part hereof, together with all and singular the
rights and appurtenances pertaining to such property, including any right, title
and interest of Seller in and to adjacent streets, railroad access, alleys or
rights-of-way or other adjacent real property (the property described in this
Section 1.1.1 being herein referred to collectively as the “Land” or the
“Property”; and

    


    1.1.2                      all
of Seller’s right, title, and interest, if any, in and to all mechanical,
electrical or other equipment, systems, fixtures and personalty attached to or
used in connection with the Property (hereinafter collectively referred to as
“Fixtures”) on the “Closing Date” (as such term is hereinafter defined);
provided, however, Seller makes no representation as to the quantity, quality,
condition, or sufficiency of any Fixtures, and Purchaser shall accept the
Fixtures in “as is” and “where is” condition on the Closing Date; provided,
further, Seller and Purchaser agree that no portion of the “Purchase Price” (as
such term is hereinafter defined) shall be allocated to the Fixtures; however,
if any sales and/or transfer taxes are payable with respect thereto, they shall
be paid by Purchaser.

    


    1.2 The
Property shall be conveyed subject to the matters which are, or are deemed to
be, Permitted Exceptions, as defined in Section 10.1.1 below.

    


    PURCHASE PRICE AND
DEPOSIT

    


    2.1 The
purchase price of the Property (the “Purchase Price”) is ONE MILLION TWO HUNDRED
NINETY-SIX THOUSAND AND NO/100 ($1,296,000.00), DOLLARS which is subject to
prorations and adjustments as provided in this Agreement.

     

    
      
        
        

      

      
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    2.2 Five (5)
business days after the execution and delivery of this Agreement, Purchaser
shall deposit with Chicago Title Insurance Company, having an office at 6060
Poplar Avenue, Suite LL 37, Memphis, TN 38119 (the “Escrow Agent”), the sum of
TWENTY-FIVE THOUSAND ($25,000.00) DOLLARS (such deposit hereinafter referred to
as the “Deposit”).  The Deposit shall be held in escrow by Escrow
Agent pursuant to the terms of this Agreement and the Escrow Provisions attached
to this Agreement as Exhibit
B.  The Deposit shall be refunded in full only if Purchaser is
unable to secure bond financing through the Industrial Development Board of the
City of Memphis and County of Shelby, Tennessee, which financing the purchaser
shall pursue in good faith and in an expeditious manner.

    


    SETTLEMENT
AND CLOSING DATE


    


    3.1 Except as
otherwise provided in this Agreement, the consummation of the transaction
contemplated hereby (“Settlement”), as evidenced by the delivery to the Title
Company (as defined in Section 5.1) of the Deed (as defined in Section 11.2.1)
and by Seller’s receipt of the sales proceeds due to Seller under this
Agreement, shall occur on or before February 28, 2009 (the “Closing
Date”).  The Closing Date may be extended only in accordance with the
provisions of this Agreement.

    


    INSPECTION

    


    4.1 INTENTIONALLY
OMITTED.

    


    TITLE AND
SURVEY 

    


    5.1 Within
fifteen (15) days of the Effective Date, Purchaser, at Purchaser’s cost, shall
obtain from Escrow Agent or its affiliate (the “Title Company”), and deliver
copies thereof to Seller, a commitment to issue a title policy covering the Land
(the “Title Commitment”).  Purchaser, at Purchaser’s cost, may obtain,
and deliver a copy thereof to Seller, a survey of the Land sufficient in form
and substance to enable the Title Company to remove its standard survey
exception (the “Survey”), if Purchaser so elects.  Purchaser shall
have the right to object, in its sole and absolute discretion, to any exceptions
in the Title Commitment that constitute title defects (i.e., exceptions that
render title unmarketable or uninsurable), or to any matter shown on the Title
Commitment or Survey, other than the standard pre-printed exceptions set forth
in the Title Commitment and the Permitted Exceptions referred to in Section
10.1.1, by giving written notice to Seller and the Title Company no later than
thirty (30) days after the Effective Date, stating the matters to which
Purchaser objects and the reasons therefor, time being strictly the essence
thereto.  If Purchaser fails to timely provide such written objection,
then Purchaser shall be deemed to have approved all matters affecting title to
the Land and the Survey as of the date of the Title Commitment or the Survey, as
applicable.  If Purchaser so objects to any matter affecting title or
the Survey, then Seller shall, within ten (10) days after receipt of such
written notice, elect in writing, in its sole and absolute discretion, either to
(a) endeavor (without any obligation to do so) to cure or remove any one (1) or
more of such objections, or (b) terminate this Agreement, whereupon the Deposit
shall be paid to the Purchaser.

     

    
      
        
        

      

      
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    5.2 If Seller
elects to endeavor to cure or remove any title objection or Survey matter,
Seller shall have a reasonable time determined by Seller from time to time, not
to exceed sixty (60) days, to endeavor to cure or remove such title objection or
Survey matter, which cure period shall extend the Closing Date.  For
purposes of this Agreement, the term “cure” shall include, without limitation,
either of the following actions taken by Seller at Seller’s sole cost and
expense:  (a) “bonding off” an objection or posting a letter of credit
in connection therewith reasonably satisfactory to Purchaser; or (b) obtaining
an appropriate endorsement to Purchaser’s title policy and/or title commitment
for the Property that reasonably protects Purchaser from an objection reasonably
satisfactory to Purchaser.  Seller shall have no liability to
Purchaser for any defects in or objections to title or the Survey or for failure
to cure or remove any such defects or objections, except as set forth in the
following sentence.  Notwithstanding anything set forth to the
contrary in Section 12.1, Purchaser’s sole remedies with respect to any such
defect or objection shall be the termination of this Agreement pursuant to this
Section, whereupon Purchaser shall receive a return of the Deposit in accordance
with Section 12.

    


    
      	
              6.1  

            	
              INTENTIONALLY
      OMITTED

            


    

    


    REPRESENTATIONS AND
WARRANTIES; AS-IS CONVEYANCE

    


    7.1 Seller
represents and warrants to Purchaser as of the Effective Date that: (a) Seller
is not a “foreign person,” as defined in the Federal Foreign Investment in Real
Property Tax Act of 1980 and the 1984 Tax Reform Act, as amended; and (b)
subject to Section 14.5 below, the execution, delivery and performance of this
Agreement by Seller has been duly authorized and approved by all requisite
corporate action.

    


    7.2 Purchaser
hereby represents and warrants to Seller as of the Effective Date that the
execution, delivery and performance of this Agreement by Purchaser has been duly
authorized and approved by all requisite corporate or partnership action, if
applicable.

    


    7.3 Purchaser
acknowledges that in purchasing the Property, Purchaser is not relying on any
representation or warranty of Seller (or its representatives, agents or
employees) regarding the physical, environmental or other condi­tions of the
Property; and, Seller specifically disclaims making any such representation or
warranty.  It is understood and agreed that neither Seller nor any
person acting or purporting to act for Seller has made or now makes any
representations as to the present or former physical condition (latent or patent
or otherwise), present or former environmental condition, value, income,
expense, operation, legality of current rents, compliance with any federal,
state or local laws including, but not limited to, laws relating to the
environmental condition of the Property and/or the presence, use, storage,
handling, introduction, abatement or removal thereon or therein of any hazardous
or toxic substances or contaminants, or any other matter or thing affecting or
relating to the Property or Fixtures.  Purchaser hereby expressly
acknowledges, represents and warrants that no such representations have been
made and Purchaser further agrees to take the Property and Fixtures “as is” as
of the Closing Date subject to all faults of every kind or nature whatsoever
(latent, patent or otherwise) and whether now or hereafter
existing.  Purchaser agrees that Seller is not liable or bound in any
manner by any financial or written statements, representations, real estate
brokers’ “set-ups”, or information pertaining to the Property furnished by any
real estate broker, agent, employee, trustee, servant or other person, unless
the same are specifically set forth herein.  It is understood and
agreed that all understandings and agreements heretofore had between the parties
are hereby merged in this Agreement which alone fully and completely expresses
their agreement and that the same is entered into after full investigation,
neither party relying upon any statement or representation made by the other not
embodied in this Agreement.  Seller also specifically disclaims any
obligation to perform or to bring the Property into compliance with any
obligations under any governmental, developmental or other conditions whatsoever
binding on the Property or any other property.

     

    
      
        
        

      

      
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    7.4 Except as
provided herein, Purchaser, on behalf of itself  and its heirs,
successors and assigns, hereby waives, releases, acquits and forever discharges
Seller, its officers, directors, partners, shareholders, employees, agents,
representatives and any other person acting on behalf of Seller, and the
successors and assigns of any of the preceding, of and from any and all claims,
actions, causes of actions, demands, rights, damages, costs, expenses or
compensation whatsoever, direct or indirect, known or unknown, foreseen or
unforeseen, which Purchaser, or any of its heirs, successors or assigns, now has
or which may arise in the future on  account of, or in any way related
to, or in connection with, any past, present or future physical characteristic
or condition of the Property, including any environmental condition
thereof.

    


    COVENANTS
PRIOR TO SETTLEMENT

    


    8.1 Seller
covenants and agrees with Purchaser that:

    


    8.1.1                      Without
the prior written approval of Purchaser, which approval shall not be
unreasonably withheld, conditioned or delayed for a period in excess of five (5)
days, Seller shall not: (a) enter into or extend any agreements affecting all or
any part of the Property that will survive the Closing Date, other than
agreements necessary to operate the Property in the normal course of business or
agreements that are terminable by Seller upon thirty (30) days prior written
notice and not involving any substantial liability to Purchaser; or (b) assign,
transfer, convey, hypothecate, pledge, create a security interest in or lien
upon the Property, unless same shall be removed prior to
Settlement.

    


    8.2 Purchaser
covenants and agrees with Seller that:

    


    8.2.1 To the
extent reasonably possible, Purchaser shall not disclose, to any person other
than a Permitted Person (as hereinafter defined), the terms of this
Agreement.  For purposes of this Agreement, the term “Permitted
Person” shall mean:  the officers and directors of Purchaser; the
employees of Purchaser who are involved in the acquisition of the Property;
Purchaser’s auditors, accountants, lenders, and attorneys who have
responsibility for participating in the sale transaction; governmental officials
contacted as part of Purchaser’s study of the Property, and governmental
agencies or auditors to whom disclosure is necessary because of the nature of
Purchaser’s business or the results of Purchaser’s studies. In making a
disclosure to any Permitted Person, Purchaser shall request such Permitted
Person to treat the terms of this Agreement, the details of this transaction,
and the results of its studies confidentially and to disclose any information
related to this transaction or the Property only to Purchaser and
Seller.

     

    
      
        
        

      

      
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    8.2.2 In the
event that Purchaser at any time prior to Settlement discovers or believes that
Seller has failed to perform its covenants set forth in Section 8.1, Purchaser
shall give prompt written notice to Seller setting forth in detail the alleged
non-performance and shall give Seller a reasonable period in which to cure such
alleged non-performance not to exceed sixty (60) days.  If Seller, in
Seller’s sole discretion, elects to cure any such failure to perform Seller’s
covenants hereunder, the Closing Date shall be extended for a reasonable period
of time (not to exceed 60 days) to allow Seller to so cure.

    


    8.2.3 Prior to
Settlement, Purchaser shall not enter into any agreements with any governmental
or quasi-governmental authorities or with any other person or entity that would
bind Seller or run with the Property without Seller’s prior written consent,
which consent Seller may withhold in Seller’s sole discretion.

    


    CASUALTY AND
CONDEMNATION

    


    9.1 In the
event any portion of the Property is damaged by fire or other casualty or if any
condemnation proceedings are instituted with respect to all or any portion of
the Property, then Seller shall promptly notify Purchaser thereof.  If
such damage or condemnation applies to a substantial portion (hereinafter
defined) of the Property, then Seller and Purchaser shall each have the option
to terminate this Agreement upon written notice to the other given within five
(5) days after delivery of Seller’s notice to Purchaser, in which event the
Deposit shall be returned to Purchaser in accordance with Section
12.2.  For purposes of this Article 9, a substantial portion of
the Property shall be deemed to mean a taking or loss in excess of
$10,000.00.  If this Agreement is not so terminated, then Purchaser
shall consummate the purchase of the Property without reduction in the Purchase
Price except for any insurance deductible amount which shall be paid by
Seller.  In the event Purchaser consummates the purchase of the
Property, then the right to collect the net insurance proceeds payable to Seller
or any condemnation award shall be assigned by Seller to Purchaser and Purchaser
shall pay the full Purchase Price and in such event Seller shall not agree to or
accept any insurance proceeds or compromise any condemnation award without
obtaining Purchaser’s written approval thereof, which shall not be unreasonably
withheld, conditioned or delayed.


    


    CONDITIONS TO
SETTLEMENT

    


    10.1 The
obligation of Purchaser to purchase the Property in accordance with this
Agreement is subject to the following conditions:

    


    10.1.1 Title to
the Property at Settlement shall be conveyed to Purchaser subject only to the
Permitted Exceptions (as hereinafter defined).  The term “Permitted
Exceptions” shall mean:  (a) the lien of real estate taxes and water
and sewer charges not yet due and payable; (b) all matters revealed in the
Title Commitment or of record as of the date of the Title Commitment and
approved or deemed approved by Purchaser pursuant to Section 5.1 above;
(c) all matters that would be shown by an accurate survey or an inspection
of the Property, including, but not limited to, easements, encroachments,
overlaps, riparian rights, and boundary disputes, if any, including, but not
limited to, such matters are listed as exceptions to the Title Commitment and
not objected to by Purchaser pursuant to Section 5.1; (d) all building,
zoning, environmental, and other state, county or federal laws, codes, and
regulations (whether existing or proposed) affecting the Property, including all
special exceptions, conditions, site plan approvals, and other similar matters,
if any, related to the zoning and/or use of the Property; and (e) standard
pre-printed exceptions set forth in the Owner’s and Loan Policy
Forms.

     

    
      
        
        

      

      
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    10.1.2 Seller
shall have cured or removed, within the time period for cure or removal, any
title or Survey matter that Seller has agreed to endeavor to cure or remove, if
any, pursuant to Section 5.2.

    


    10.2 Any of
the conditions to Purchaser’s obligations set forth in this Agreement may be
waived, in whole or in part, in Purchaser’s sole discretion.

    


    10.3 In the
event any of the conditions precedent to Settlement set forth in Section 10.1
are not satisfied (or deemed satisfied pursuant to Section 10.2 or Section 10.4)
on or before the Closing Date, then Purchaser shall, on or before the Closing
Date, notify Seller in writing of the nature of such unsatisfied condition(s),
and Seller shall have the right, in Seller’s sole discretion, (a) from time to
time to extend the date of Settlement beyond the Closing Date set forth in
Section 3.1 for the specific period of time that is set forth in this Agreement
to permit certain conditions to be cured or satisfied (e.g., the curing of title
objections pursuant to Section 5.2), or, if no time period is stated, for a
reasonable period of time selected by Seller from time to time, not to exceed
sixty (60) days, to permit such condition to be satisfied (which extended date
shall become the Closing Date), or (b) on the Closing Date (as such may be
extended), to terminate this Agreement by written notice to Purchaser, whereupon
the Deposit shall be returned to Purchaser in accordance with Section
12.2.

    


    10.4 Notwithstanding
anything in this Agreement to the contrary, if (a) Purchaser discovers or is
made aware that any condition precedent to Purchaser’s obligations set forth in
this Agreement cannot be satisfied, and (b) notwithstanding such discovery or
awareness, Purchaser elects to consummate its purchase of the Property at
Settlement, then (c) Purchaser shall be deemed to have waived such condition
precedent.

    


    CLOSING
EVENTS

    


    11.1 Settlement
shall be held in the offices of closing attorneys, Glankler Brown, PLLC, 6000
Poplar Avenue, Suite 100, Memphis, Tennessee 38119, Attn: B. Douglas Earthman on
the Closing Date or on such business day and at such time before the Closing
Date reasonably acceptable to Seller and Purchaser (such prior date to be deemed
the “Closing Date”).  The delivery of the documents and the payment of
the sums to be delivered and paid at Settlement shall be accomplished through
the Title Company.

    


    11.2 At
Settlement, Seller shall:

    


    11.2.1 Deliver
to Purchaser a fully executed Special Warranty Deed in the form attached hereto
as Exhibit C
conveying the Property (subject to the Permitted Exceptions) to Purchaser (the
“Deed”).

     

    
      
        
        

      

      
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    11.2.2 INTENTIONALLY
OMITTED.

    


    11.2.3 INTENTIONALLY
OMITTED.

    


    11.2.4 INTENTIONALLY
OMITTED.

    


    11.2.5 Deliver
to Purchaser a certificate certifying that Seller is not a foreign person,
corporation or partnership, trust or estate within the meaning of §1445 of the
Internal Revenue Code of 1986, as amended.

    


    11.2.6 INTENTIONALLY
OMITTED

    


    11.2.7 INTENTIONALLY
OMITTED.

    


    11.2.8 Purchaser
shall cooperate with Seller for a period of seven (7) years after Closing in
case of Seller’s need in response to any legal requirement, tax audit, tax
return preparation or litigation threatened or brought against Seller, by
allowing Seller and its agents or representatives access, upon reasonable
advance notice (which notice shall identify the nature of the information sought
by Seller), at all reasonable times to examine and make copies of any and all
instruments, files and records, which right shall survive Settlement and the
recordation of the Deed.

    


    11.2.9  Execute
such documents as the Purchaser or Title Company may reasonably request provided
that such documents do not impose or extend additional liability upon or reduce
the benefits to the Seller.

    


    11.3 At
Settlement, Purchaser shall:

    


    11.3.1 Pay to
Seller the Purchase Price (as increased or decreased by adjustments and
prorations as provided herein) in cash, by bank wire transfer of
immediately-available federal funds to a bank account designated by Seller in
writing to Purchaser prior to Settlement.  The Deposit shall be
credited to the Purchase Price.

    


    11.3.2 INTENTIONALLY
OMITTED.

    


    11.3.3 Execute
such documents as Seller may reasonably request or require and otherwise
cooperate with Seller in connection with structuring this transaction as a tax
free exchange (if Seller so elects) at no cost to Purchaser.  This
covenant shall survive the Closing.

    


    11.4 At
Settlement, Seller and Purchaser shall each deliver to the Title Company, as
closing agent, and to the other party, evidence reasonably sufficient to satisfy
the Title Company that:

     

    
      
        
        

      

      
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    11.4.1 Such
party executing documents is duly organized (if applicable).

    


    11.4.2 As of the
date of Settlement, such party is validly existing, qualified to do business and
in good standing in the state of its formation and if necessary, the State of
Tennessee, unless such party is an individual.

    


    11.4.3 The
execution, delivery and performance of this Agreement has been duly authorized
and approved by all requisite corporate or partnership action, as
applicable.

    


    11.5           Seller
shall pay the cost of preparing the instruments of conveyance described in
Section 11.2 and the costs of the title search.  Purchaser shall pay
the cost of (i) any state or county transfer and recordation tax necessary or
required for recordation of the Deed, (ii) preparing any survey obtained by
Purchaser, and (iii) the premium for the title insurance commitments or policies
insuring the Purchaser and/or any lender to Purchaser; together with costs of
any endorsements to be attached to the title insurance policies.  Each
party shall pay its own attorneys’ fees in connection with the conveyance of the
Property. Any charges by the Escrow Agent shall be divided equally between
Seller and Purchaser.

    


    11.6           The
following are also to be apportioned as of 12:01 a.m. on the Closing
Date:

    


    11.6.1                      Real
Estate and property taxes and other assessments.  If Settlement shall
occur before the tax rate is fixed, such apportionment shall be based upon the
tax rate for the next preceding year applied to the latest assessed
valuation

    


    11.7 Possession
of the Property shall be delivered to Purchaser immediately upon consummation of
Settlement free of the claim of any tenants or other occupants without any
material change in conditions from the property condition at the Effective Date
except for any changes in condition caused by Purchaser, its agent, employees or
independent contractors.

    


    REMEDIES

    


    12.1 In the
event Seller breaches any of the covenants or obligations to be performed by
Seller under this Agreement (subject to Seller’s cure rights pursuant to Section
8.2.2), then Purchaser’s sole and exclusive remedies shall be either (a) to file
an action to obtain specific performance of Seller’s obligation to deliver the
documents described in Section 11.1 upon payment to Seller of the full Purchase
Price, or (b) to terminate this Agreement, in which event the Deposit shall be
returned to Purchaser in accordance with Section 12.2.  In no event
whatsoever shall Purchaser be entitled to any foreseeable or unforeseeable
direct, indirect, compensatory, consequential or other damages, or other rights
or remedies against Seller as a result of any default of Seller hereunder, other
than as set forth in this Section.

    


    12.2 In the
event that Purchaser terminates this Agreement due to Purchaser’s inability to
obtain adequate bond financing through The Industrial Development Board of the
City of Memphis and County of Shelby, Tennessee, or pursuant to any other
provision hereof authorizing such termination, and Purchaser has complied fully
with all obligations of Purchaser under this Agreement, then, not less than five
(5) days and no more than seven (7) days after the date that Purchaser has given
Escrow Agent and Seller written notice requesting a return of the Deposit to
Purchaser and describing the reasons therefor, Escrow Agent shall deliver the
Deposit to Purchaser, and the parties shall have no further obligations
hereunder.

     

    
      
        
        

      

      
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    12.3 The
parties acknowledge that Seller should be entitled to compensation for any
detriment suffered if Purchaser defaults in its obligations hereunder, but agree
that it is extremely difficult to ascertain the extent of the actual detriment
Seller would suffer as a result of such default.  Consequently, if
Purchaser breaches any of its representations or warranties or the covenants or
obligations to be performed by Purchaser under this Agreement, then Seller shall
be entitled to receive the Deposit, as fixed, agreed, and liquidated damages and
Purchaser shall promptly reimburse Seller for Seller’s reasonable attorneys’
fees and reasonable costs incurred in connection with obtaining the
Deposit.

    


    BROKERAGE

    


    13.1 Seller
and Purchaser each warrant to the other that no broker is entitled to any
brokerage commission or fee arising out of this transaction except for Gene
Woods of Colliers Wilkinson Snowden representing Seller and Patrick Burke of
C.B. Richard Ellis representing Purchaser, and upon (and only upon) Settlement,
the commissions shall be paid by Seller to Colliers Wilkinson Snowden in an
amount equal to two percent (2%) of the Purchase Price and to C.B. Richard Ellis
an amount equal to three percent (3%) of the Purchase Price.  Each
party hereto shall indemnify the other against any claims resulting from a
breach of the foregoing warranty.  This provision shall survive
Settlement.

    


    GENERAL
PROVISIONS

    


    14.1 Purchaser
may assign any or all of its rights or delegate any of Purchaser’s obligations
under this Agreement without Seller’s consent, so long as Purchaser remains
liable under the terms of this Agreement.

    


    14.2 The terms
and conditions of this Agreement shall be binding upon, and inure to the benefit
of, the parties hereto and their respective heirs, successors, permitted
assigns, and legal representatives.

    


    14.3 If
Settlement is consummated, then the representations, warranties, covenants and
indemnities of each party contained in this Agreement shall not survive the
delivery of the deed and the transfer and conveyance of the Property to
Purchaser, but shall be merged therein, except for the representations,
warranties, covenants and indemnities specifically set forth in this Agreement,
including those set forth in Sections 7.3, 7.4, 8.2, 11.3.3, 11.6 and 13.1,
which are stated to survive.  If this Agreement expires or is
terminated by either party, or if Settlement is not consummated for any reason,
then the representations, warranties, covenants and indemnities shall be
automatically extinguished, except for the confidentiality requirements of
Section 8.2, which shall survive such expiration, termination, or failure to
consummate.

     

    
      
        
        

      

      
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    14.4 Any
notices required or permitted hereunder shall be deemed to have been given
either when delivered to Purchaser or Seller and when the party giving such
notice has received a signed receipt therefor, or when delivered by a recognized
commercial air or local courier service, addressed as follows (or addressed in
such other manner as the party being notified shall have requested by such
written notice to the other party) with evidence of delivery, or when sent by
facsimile transmission with confirmation of such transmission, except that
refusal to accept delivery of notice shall be deemed to be receipt
hereunder:

    


    
      	
              (1)  

            	
              If to
      Purchaser:

            


    

    


    Blue
Earth Solutions Tennessee Inc.

    13511
Granville Avenue

    Clermont,
FL  34711

    Attn:
James Cohen Jr.

    Tel:  (352)
729-0150

    Fax:  (352)
729-0149

    


    
      	
              (2)  

            	
              If to
      Seller:

            


    

    


    The
Guardian Life Insurance Company of America

    7 Hanover
Square, 20th Floor -
C

    New York,
New York  10004

    Attn:  Mr.
Rob LoCascio,

    Senior
Director, Real Estate Asset Management

    Tel:
(212) 919-3388

    Fax:
(212) 919-2149

    


                             And

    


    Vice
President, Investment and Real Estate Counsel

    Law
Department

    7 Hanover
Square

    23rd
Floor

    New York,
New York  10004

    Tel:  (212)
598-8792

    Fax:  (212)
919-2690

    


    (3)                 If to Closing
Attorneys:

    


    B.
Douglas Earthman

    Glankler
Brown, PLLC

    6000
Poplar Avenue, Suite 100

    Memphis,
TN 38119

    Tel:  (901)
576-1707

    Fax:  (901)
761-2454

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    


    (4)    If to Escrow
Agent:

    


    Chicago
Title Insurance Company

    6060
Poplar Avenue, Suite LL 37

    Memphis,
TN 38119

    Attn:  Barbara
Gardner

    Tel:  (901)
821-0303

    Fax:  (901)
821-0400

    


    14.5 Purchaser
acknowledges that this Agreement and the purchase and sale transaction
contemplated hereunder is expressly conditioned upon the approval thereof by
Seller’s Board of Directors or the approval by those individuals designated for
that purpose pursuant to general and specific authorizations from and by Seller
(“Seller’s Board’).  Seller acknowledges that Seller’s Board will
render its decision on this Agreement within forty-five (45) business days of
the Effective Date of this Agreement.  Seller will subsequently notify
Purchaser, in writing, of Seller’s Board’s decision.  In the event
Seller’s Board fails to approve the transaction contemplated hereunder, Seller
shall  be liable to reimburse Purchaser for all out-of-pocket costs up
to a maximum of $10,000.00 incurred by Purchaser in connection with this
transaction (including, but not limited to, all costs incurred by Purchaser
pursuant to Section 5.1 hereof of which Title Commitment, Survey and appraisal
of the Property are included).  In addition, within five (5) business
days of such failure to approve by Seller's Board, Seller shall direct the
Escrow Agent to return to Purchaser the Deposit  in accordance with
Section 12.2 hereof.

    


    14.6 Notwithstanding
anything to the contrary contained herein, any claim by Purchaser hereunder
shall be satisfied solely out of Seller’s interest in the
Property.  In no event shall any of Seller’s other interests or
assets, or the interests or assets of any of Seller’s employees, agents,
directors or affiliates, be subject to claim or attachment.

    


    14.7 This
Agreement constitutes the entire agreement between the parties concerning the
subject matter hereof and supersedes all prior agreements or
undertakings.

    


    14.8 This
Agreement may not be modified except by the written agreement of Seller and
Purchaser.

    


    14.9 In the
event any one or more of the provisions contained in this Agreement are held to
be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision hereof, and
this Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had not been contained herein.

    


    14.10 The
submission of an unsigned copy of this Agreement to Purchaser shall not
constitute an offer or option to sell the Property.  This Agreement
shall become effective and binding only upon execution and delivery by both
Seller and Purchaser.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    


    14.11 Any
paragraph headings or captions contained in this Agreement shall be for
convenience of reference only and shall not affect the construction or
interpretation of any provision of this Agreement.

    


    14.12 This
Agreement shall be governed by and construed according to the laws of the State
of Tennessee.

    


    14.13 EACH
PARTY HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY EITHER PARTY IN CONNECTION WITH ANY MATTER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE RELATIONSHIP OF SELLER AND
PURCHASER HEREUNDER, PURCHASER’S OWNERSHIP OR USE OF THE PROPERTY, AND/OR ANY
CLAIMS OF INJURY OR DAMAGE.  EACH PARTY HEREBY CONSENTS TO SERVICE OF
PROCESS AND ANY PLEADING RELATING TO ANY SUCH ACTION, PROCEED­ING, CLAIM OR
COUNTERCLAIM AT THE ADDRESS SET FORTH FOR SUCH PARTY IN SECTION 14.4 HEREOF AND
AGREES THAT, ANY LITIGATION WHICH MAY BE FILED AS THE RESULT OF THIS AGREEMENT
MAY BE FILED IN SHELBY COUNTY, TENNESSEE OR THE FEDERAL DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE.

    


    14.14 If the
final date of any period which is set out in any provision of this Agreement
falls on a Saturday, Sunday or legal holiday under the laws of the United States
or the State of Tennessee then, and, in such event, the time of such period
shall be extended to the next day that is not a Saturday, Sunday or legal
holiday.

    


    14.15 The
exhibits and schedules attached hereto are hereby made a part of this Agreement
as fully as if set forth in the text of this Agreement.

    


    14.16 The
Escrow Agent shall be responsible for all reporting, filing and other
requirements imposed by section 6045(c) of the Internal Revenue Code of 1986, as
amended.

    


    14.17 This
Agreement constitutes the entire understanding between the parties with respect
to the transaction contemplated herein, and all prior or contemporaneous oral
agreements, understandings, representations and statements are merged into this
Agreement.  Neither this Agreement nor any provisions hereof may be
modified, amended, discharged or terminated except by an instrument in writing
signed by the party against which the enforcement of such modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument.  Unless otherwise provided herein, no
provision of this Agreement may be waived except by an instrument in writing
signed by the party against which the enforcement of such waiver is
sought.

    


    14.18 Purchaser
shall not record this Agreement or any memorandum thereof.

    


    [Signature
page follows]

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.

    
    

     

    
      	SELLER:
	 
	THE GUARDIAN LIFE
      INSURANCE COMPANY OF AMERICA, a New York corporation, successor by merger
      to Berkshire Life Insurance Company, a Massachusetts
  corporation
	 
	By: /s/ Robert LoCascio
	Name: Robert
      LoCascio
	Title: Senior
      Director, Real Estate Investments
	 
	PURCHASER:
	 
	BLUE
      EARTH SOLUTIONS TENNESSEE INC., a
      Tennessee corporation
	 
	By:
      /s/ James Cohen
    Jr.
	Name: James Cohen
      Jr.
	Title: Vice
      President
	 
	
              AGREED
      WITH RESPECT TO DEPOSIT:

              ESCROW
      AGENT:

            
	 
	CHICAGO
      TITLE INSURANCE COMPANY
	 
	By:
      /s/ Donna
  Stern
	Name: Donna
      Stern
	Title: Title
      Officer


    

     

    
      	
              Exhibit
      A

            	
              --  Legal
      Description

            


    

    
      	
              Exhibit
      B

            	
              -  Escrow
      Provisions

            


    

    
      	
              Exhibit
      C

            	
              --  Deed

            


    

     

    
      
         

      

      
        13

        
          

        

      

      
         

      

    

     

    EXHIBIT
A

     

    LEGAL
DESCRIPTION

     

    The
following described real property in Memphis, Shelby County,
Tennessee:

    


    Lots 336,
337, 338 and the northeasterly half of Lot 339 of Section L-4 of the Airport
Industrial Park Subdivision, as shown on Plat of Record in Plat Book 49 Page 40,
in the Register’s Office of Shelby County, Tennessee, and being more
particularly described as follows:

    


    BEGINNING
at a point in the easterly right-of-way (R.O.W.) line of B. F. Goodrich
Boulevard (80' wide R.O.W.); said point being the northwest corner of Lot 336 of
Section “L-4”, Airport Industrial Park (Bk. 49 Pg. 40), and the southwest corner
of Lot 404 of Section “L-6” Airport Industrial Park (Plat Bk. 56 Pg. 65 as
recorded in the Register’s Office of Shelby County, Tennessee) and also being
located in the north line of said Section “L-4” of Airport Industrial Park;
thence South 59 degrees 22 minutes 21 seconds East along said north line a
distance of 506.0 ft. to an iron pin in the east line of said Section “L-4” of
Airport Industrial Park; thence South 30 degrees 37 minutes 39 seconds West
along said east line a distance of 350.0 ft. to a cross set in the east rail of
a railroad track; thence North 59 degrees 22 minutes 21 seconds West a distance
of 506.0 ft. to an iron pin in said easterly R.O.W. line of B. F. Goodrich
Boulevard; thence North 30 degrees 37 minutes 39 seconds East along said
easterly R.O.W. line a distance of 350.0 ft. to an iron pin being the POINT OF
BEGINNING.

    


    EASEMENT
PARCEL

    


    Together
with rights, benefits, and privileges under easement recorded as Instrument No.
N8 5616, Register’s Office, Shelby County, Tennessee, for the benefit of the
real property described above.

    


    Together
with rights, benefits and privileges under Agreement recorded as Instrument M9
8171, said Register’s Office.

    


    Being the
same property conveyed to Berkshire Life Insurance Company, a Massachusetts
corporation, by Trustee’s Deed recorded as Instrument LA 9264 in the Register’s
Office of Shelby County, Tennessee.

     

    
      
         

      

      
        14

        
          

        

      

      
         

      

    

     

    EXHIBIT
B

     

    ESCROW
PROVISIONS

     

    Purchaser
and Seller have agreed to select Chicago Title Insurance Company.

     

    (“Escrow
Agent”) to serve as the escrow agent with respect to the Deposit to be made by
Purchaser pursuant to the Agreement.  Capitalized terms used but not
defined herein shall have the same meanings as set forth in the
Agreement.

     

    1. Upon
receipt of the Deposit from Purchaser, Escrow Agent shall place the Deposit into
an escrow account which it uses for such purposes. Escrow Agent shall not be
required to invest such funds.

     

    2.           
It is agreed between the parties hereto that the Deposit shall be held in escrow
with Escrow Agent until such time as Escrow Agent is notified in writing to
terminate the escrow and disburse the money as jointly directed by Purchaser and
Seller.

     

    3.           In
the event of any dispute between Purchaser and Seller regarding the
disburse­ment of the Deposit, or in the event Escrow Agent shall receive
conflicting demands or instruc­tions with respect thereto, Escrow Agent
shall withhold such disbursement until such dispute is
resolved.  Alternatively, Escrow Agent shall be entitled to deposit
all such funds into a court of general jurisdiction in Shelby County, Tennessee,
and to interplead Purchaser and Seller in connection therewith.

     

    4.             Escrow
Agent shall not be liable for any damage, liability or loss arising out of or in
connection with the services rendered by Escrow Agent pursuant to the Agreement
or this Escrow Agreement, except for any damage, liability or loss resulting
from the willful or negligent conduct of Escrow Agent or any of its officers or
employees.  Furthermore, Purchaser and Seller herein will indemnify
and will save harmless Escrow Agent from all loss or expense (specifically
including, but not limit to, court costs and attorney's fees) arising by reason
of the execution of this instrument.

     

    
      
         

      

      
        15

        
          

        

      

      
         

      

    

     

    EXHIBIT
C

    DEED

    


    This
instrument prepared by:

    B.
Douglas Earthman

    Glankler
Brown, PLLC

    6000
Poplar Avenue, Suite 100

    Memphis,
Tennessee 38119

    


    SPECIAL WARRANTY
DEED

    


     

    
      
        	Address
      New Owners As Follows:  	Send
      Tax Bills To:   	Map
      Parcel No.
	__________________________	SAME  	Map
  _____
	__________________________	 	Parcel
    _____
	__________________________	 	 
	__________________________	 	 


      

    

    


               FOR
AND IN CONSIDERATION of the sum of Ten Dollars ($10.00), cash in hand paid by
the hereinafter named Grantee, and other good and valuable consideration, the
receipt of which is hereby acknowledged,  THE GUARDIAN LIFE INSURANCE
COMPANY OF AMERICA, a New York corporation, successor by merger to Berkshire
Life Insurance Company, a Massachusetts corporation (the "Grantor"), does hereby
bargain, sell, transfer and convey unto BLUE EARTH SOLUTIONS TENNESSEE INC., a
Tennessee corporation (the "Grantee") its successors and assigns, all its right
title and interest in and to property located in Memphis, Shelby County,
Tennessee, more particularly described on attached Exhibit A.

    


    BEING the
same property conveyed to Berkshire Life Insurance Company, a Massachusetts
corporation, by Trustee’s Deed from W. Rowlett Scott, Trustee, of record at
Instrument No. LA 9264 in the Register’s Office of Shelby County,
Tennessee.

    


    TO HAVE AND TO HOLD said tract or
parcel of land with the appurtenances, estate, title and interest thereto
belonging to the said Grantee, his successors and assigns, forever.

    


    AND Grantor does covenant with Grantee,
that it is lawfully seized and possessed of said land in fee simple, has a good
right to convey it and that the same is unencumbered, except as shown on Exhibit
B attached hereto.

    


    AND Grantor does further covenant and
bind itself , its successors and assigns to warrant and forever defend the title
to said land to Grantee, its successors and assigns against the lawful claims of
all persons claiming by, through or under Grantor but not further or
otherwise.  This conveyance is made subject to the matters set forth
in Exhibit B attached hereto.

     

    
      
         

      

      
        16

        
          

        

      

      
         

      

    

    


    IN WITNESS WHEREOF, this Special
Warranty Deed has been executed this _____ day of __________________,
2009.

    


    THE
GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, a New York corporation, successor by
merger to Berkshire Life Insurance Company, a Massachusetts
corporation

    


    By:                                                           

    Name:                                                           

    Title:                                                           

    


    


    


    


    STATE OF
TENNESSEE

    COUNTY OF
SHELBY

    


    I hereby swear or affirm that, to the
best of my knowledge, information, and belief, the actual consideration for this
transfer or value of the property transferred, whichever is greater, is
$1,296,000.00, which amount is equal to or greater than the amount which the
property transferred would command at a fair and voluntary sale.

    


                                                                    _________________________

    AFFIANT

    


    Sworn to and subscribed before me this
_____ day of _____________, 2009.

    


                                                                    _________________________________

    NOTARY
PUBLIC

    


    My
Commission Expires:_________________________.

     

    
      
         

      

      
        17

        
          

        

      

      
         

      

    

     

    
      	STATE
      OF ____________ 	)
	
              COUNTY
      OF __________

            	
              )

            


    

    


    Before me, the undersigned, a Notary
Public in and for the State and County aforesaid, personally appeared
______________________, with whom I am personally acquainted (or proved to me on
the basis of satisfactory evidence), and who, upon oath, acknowledged himself to
be the ___________________ of THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, a
New York corporation, successor by merger to Berkshire Life Insurance Company, a
Massachusetts corporation, the within named bargainor, and that he as such
__________________, being authorized so to do, executed the foregoing instrument
for the purpose therein contained, by signing the name of the corporation by
himself as ________________.

    


    WITNESS my hand and official
seal at office on this the ____ day of ______________, 2009.

    


    ________________________________

    NOTARY PUBLIC

    


    My
Commission Expires: ___________________

    


    
      
         

      

      
        18

        
          

        

      

      
         

      

    

     

    EXHIBIT
“A”

    LEGAL
DESCRIPTION

    


    The
following described real property in Memphis, Shelby County,
Tennessee:

    


    Lots 336,
337, 338 and the northeasterly half of Lot 339 of Section L-4 of the Airport
Industrial Park Subdivision, as shown on Plat of Record in Plat Book 49 Page 40,
in the Register’s Office of Shelby County, Tennessee, and being more
particularly described as follows:

    


    BEGINNING
at a point in the easterly right-of-way (R.O.W.) line of B. F. Goodrich
Boulevard (80' wide R.O.W.); said point being the northwest corner of Lot 336 of
Section “L-4”, Airport Industrial Park (Bk. 49 Pg. 40), and the southwest corner
of Lot 404 of Section “L-6” Airport Industrial Park (Plat Bk. 56 Pg. 65 as
recorded in the Register’s Office of Shelby County, Tennessee) and also being
located in the north line of said Section “L-4” of Airport Industrial Park;
thence South 59 degrees 22 minutes 21 seconds East along said north line a
distance of 506.0 ft. to an iron pin in the east line of said Section “L-4” of
Airport Industrial Park; thence South 30 degrees 37 minutes 39 seconds West
along said east line a distance of 350.0 ft. to a cross set in the east rail of
a railroad track; thence North 59 degrees 22 minutes 21 seconds West a distance
of 506.0 ft. to an iron pin in said easterly R.O.W. line of B. F. Goodrich
Boulevard; thence North 30 degrees 37 minutes 39 seconds East along said
easterly R.O.W. line a distance of 350.0 ft. to an iron pin being the POINT OF
BEGINNING.

    


    EASEMENT
PARCEL

    


    Together
with rights, benefits, and privileges under easement recorded as Instrument No.
N8 5616, Register’s Office, Shelby County, Tennessee, for the benefit of the
real property described above.

    


    Together
with rights, benefits and privileges under Agreement recorded as Instrument M9
8171, said Register’s Office.

    


    
      
         

      

      
        19

        
          

        

      

      
         

      

    

     

    EXHIBIT
“B”

     

    ENCUMBRANCES

     

    AS TO FEE
PARCEL

     

    
      	
              1.  

            	
              Subdivision
      restrictions, building lines, and easements of record in Plat Book 49,
      Page 40, Register’s Office, Shelby County, Tennessee, which contain no
      reversionary clause, said building lines and easements being located as
      shown on survey of AFA Engineering date December 15, 1989, last revised
      January 12, 1990.

            


    

     

    
      	
              2.  

            	
              Easements
      of records as Instrument Nos. N8 5616, L9 6008, and L9 6009, said
      Register’s Office, located as shown on said
  survey.

            


    

     

    
      	
              3.  

            	
              The
      following matters shown on said
survey:

            


    

     

    
      	
              (a)  

            	
              Encroachment
      of building on setback line;

            


    

     

    
      	
              (b)  

            	
              Location
      of transformer pad and electrical box, gas valve 6” cover, gas meters, 4”
      gas pipe, guard posts, fire hydrant, concrete pads, block wall and
      fences.

            


    

     

    
      	
              4.  

            	
              Agreement
      for maintenance of fire protection water system of record at Instrument M9
      8171, said Register’s Office.

            


    

     

    
      	
              5.  

            	
              City
      of Memphis or Shelby County real estate taxes or assessments not yet due
      and payable.

            


    

     

    
      	
              6.  

            	
              [Any
      other matters of record disclosed by the title
  search.]

            


    

     

    AS TO EASEMENT
PARCEL

     

    
      	
              1.  

            	
              Trust
      Deed recorded as Instrument No. M4 3091, as modified by Modification
      Agreement recorded as Instrument M9 3676 and assigned to Western Southern
      Life Insurance Company as Instrument M9 3678, said Register’s
      Office.

            


    

     

    
      	
              2.  

            	
              Trust
      Deed recorded as Instrument M5 0173, as corrected by Instrument No. M6
      4177, said Register’s Office.

            


    

     

    
      	
              3.  

            	
              Any
      unpaid City of Memphis and Shelby County real property
    taxes.

            


    

     

    
      	
              4.  

            	
              [Any
      other matters of record disclosed by the title
  search.].