TO THE 109 WAGON WHEEL, THE PROJECT
OR THE PROJECT OWNER, HAS RECEIVED NOTICE OF ANY OBLIGATION, LIABILITY, ORDER,
SETTLEMENT, JUDGMENT, INJUNCTION OR DECREE RELATING TO OR ARISING UNDER
ENVIRONMENTAL LAWS WHICH HAS NOT BEEN RESOLVED TO THE SATISFACTION OF THE
APPROPRIATE GOVERNMENTAL ENTITIES.
NO FACTS, CIRCUMSTANCES OR CONDITIONS EXIST
WITH RESPECT TO THE PROJECT OWNER OR THE PROJECT THAT COULD GIVE RISE TO
ENVIRONMENTAL LIABILITIES APPLICABLE TO THE PROJECT OR THE WAGON WHEEL
MEMBERSHIP INTEREST.
(B)
THE 109 WAGON WHEEL'S AND THE PROJECT OWNER'S USE, HANDLING,
MANUFACTURE, TREATMENT, PROCESSING, STORAGE, GENERATION, RELEASE, DISCHARGE AND
DISPOSAL OF HAZARDOUS MATERIALS IN CONNECTION WITH PAST AND CURRENT OPERATIONS
COMPLIED AND COMPLIES WITH APPLICABLE ENVIRONMENTAL LAWS THEN IN EFFECT.
(C)
FOR PURPOSES OF THIS AGREEMENT:
(1)
"ENVIRONMENTAL LAWS" COLLECTIVELY SHALL MEAN ALL PRESENT AND
FUTURE LAWS (WHETHER COMMON LAW, STATUTE, RULE, ORDER, REGULATION OR OTHERWISE),
PERMITS, AND OTHER REQUIREMENTS OR GUIDELINES OF GOVERNMENTAL AUTHORITIES
APPLICABLE TO THE PROPERTY AND RELATING TO THE ENVIRONMENT AND ENVIRONMENTAL
CONDITIONS OR TO ANY HAZARDOUS MATERIALS OR HAZARDOUS MATERIALS ACTIVITY
(INCLUDING THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION, AND LIABILITY
ACT OF 1980, 42 U.S.C. §§ 9601 ET SEQ., THE FEDERAL RESOURCE CONSERVATION AND
RECOVERY ACT OF 1976, 42 U.S.C. §§ 6901 ET SEQ., THE HAZARDOUS MATERIALS
TRANSPORTATION ACT, 49 U.S.C. §§ 6901 ET SEQ., THE FEDERAL WATER POLLUTION
CONTROL ACT, 33 U.S.C. §§ 1251 ET SEQ., THE CLEAN AIR ACT, 33 U.S.C. §§ 7401 ET
SEQ., THE CLEAN AIR ACT, 42
19
U.S.C. §§ 7401 ET SEQ., THE TOXIC SUBSTANCES CONTROL ACT, 15 U.S.C.
§§ 2601-2629, THE SAFE DRINKING WATER ACT, 42 U.S.C. §§ 300F-300J, THE EMERGENCY
PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT, 42 U.S.C. §§ 1101 ET SEQ., THE CLEAN
WATER ACT, 33 U.S.C. § 1251 ET SEQ. AND ANY SO-CALLED "SUPER FUND" OR "SUPER
LIEN" LAW, ENVIRONMENTAL LAWS ADMINISTERED BY THE ENVIRONMENTAL PROTECTION
AGENCY, OR ANY SIMILAR STATE AND LOCAL LAWS AND REGULATIONS, AS WELL AS ALL
AMENDMENTS THERETO AND ALL REGULATIONS, ORDERS, DECISIONS, AND DECREES NOW OR
HEREAFTER PROMULGATED THEREUNDER).
(2)
"ENVIRONMENTAL LIABILITIES" MEANS, ALL LIABILITIES, OBLIGATIONS,
RESPONSIBILITIES, REMEDIAL ACTIONS, LOSSES, DAMAGES, COSTS AND EXPENSES
(INCLUDING ALL REASONABLE FEES, DISBURSEMENTS AND EXPENSES OF COUNSEL, EXPERTS
AND CONSULTANTS AND COSTS OF INVESTIGATION AND FEASIBILITY STUDIES), FINES,
PENALTIES, SANCTIONS AND INTEREST INCURRED AS A RESULT OF ANY CLAIM OR DEMAND BY
ANY OTHER PERSON ARISING UNDER ANY ENVIRONMENTAL LAW.
(3)
"RELEASE" MEANS ANY SPILLING, LEAKING, PUMPING, POURING, EMITTING,
EMPTYING, DISCHARGING, INJECTING, ESCAPING, LEACHING, DUMPING, DISPOSING OR
MIGRATING INTO OR THROUGH THE ENVIRONMENT OR ANY NATURAL OR MAN-MADE STRUCTURE.
2.19
No Bankruptcy.
No bankruptcy, insolvency, rearrangement or similar action involving the Project
Owner or 109 Wagon Wheel, whether voluntary or involuntary, is pending or
threatened, and neither the Project Owner nor 109 Wagon Wheel has ever: (i)
filed a voluntary petition in bankruptcy; (ii) been adjudicated a bankrupt or
insolvent or filed a petition or action seeking any reorganization, arrangement,
recapitalization, readjustment, liquidation, dissolution or similar relief under
any federal bankruptcy act or any other laws; (iii) sought or