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HomeMy WebLinkAbout86-10 RESOLUTIONRESOLUTION NO. 86-10 A RESOLUTION AUTHORIZING PURCHASE IN LIEU OF CONDEMNATION PROCEEDINGS AUTHORIZED IN RESOLUTION 52-10 AND APPROVING A CONTRACT FOR THE PURCHASE OF LAND ADJOINING THE FAYETTEVILLE EXECUTIVE AIRPORT -DRAKE FIELD FROM KEARNEY-NATIONAL, INC., THROUGH AN ASSIGNMENT FROM COOPER POWER SYSTEMS, LLC, IN THE AMOUNT OF $218,907.87, INCLUDING APPLICABLE CLOSING COSTS, AS PART OF THE RUNWAY 16 SAFETY AREA IMPROVEMENT PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby authorizes purchase in lieu of condemnation proceedings authorized in Resolution 52-10 and approves a contract, a copy of which is attached to this Resolution as Exhibit "A" and incorporated herein as if set out word for word, with Kearney -National, Inc., through an assignment from Cooper Power Systems, LLC, for the purchase of land adjoining the Fayetteville Executive Airport -Drake Field in the total amount of $218,907.87, including applicable closing costs, as part of the Runway 16 Safety Area Improvement Project. PASSED and APPROVED this 18th day of May, 2010. APPROVED: ATTEST: at'Sv SONDRA E. SMITH, City Clerk/Treasurer g.f.1414>fe � CI °(,11 Y O,c° • &,p' • s. kok : FAY ETU EVILLE; ,,``, `VG +ON►►Gay EXHIBIT REAL ESTATE CONTRACT THIS REAL ESTATE CONTRACT (this "Contract') is made and entered as of the Effective Date (defined in Section 15) by and between COOPER POWER SYSTEMS, LLC, a Delaware limited liability company ("Buyer"), and KEARNEY-NATIONAL INC., a Delaware corporation ("Seller"). For and in consideration of the mutual covenants and agreements contained in this Contract and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller agree as follows: 1. PURCHASE AND SALE. Seller agrees to sell and convey to Buyer, and Buyer agrees to buy from Seller, the Property (defined in the next sentence) for the consideration, upon the terms and subject to the provisions and conditions hereinafter set forth. The "Property" means all or any portion of the land situated in Washington County, Arkansas, described in Exhibit A and commonly called by the parties, the "Airport Tract", together with any and all fixtures and improvements thereon. Not Tess than ten (10) days before the Scheduled Closing Date (as defined in Section 5.1), if necessary, Buyer shall cause a metes and bounds description of the Property to be prepared. The description of the Property, as designated by Buyer, shall be used at Closing (as defined in Section 5.1) as the exhibit to the Deed (as defined in Section 5.2(a)). Seller and Buyer agree that Buyer shall not be deemed to have acquired equitable title to any portion of the Property by entering into this Contract or by performing any covenants hereunder. It is the parties' intent that this Contract shall not convey or confer and Buyer shall not have any interest in the Property by virtue of this Contract, unless and until the Property is actually conveyed by Seller to Buyer by the Deed at Closing. Buyer shall acquire legal title to the Property at Closing if it occurs hereunder, The purchase and sale contemplated hereunder shall be "as is" without any representation or warranty as to the Property of any nature whatsoever, including without limitation, the physical condition of the Property, but shall not affect any contractual relationship between Cooper Power Systems LLC and Seller concerning the environmental remediation and indemnity regarding the Property. 2. PURCHASE PRICE. The total purchase price for the Property (the "Purchase Price") is $500 and shall be paid at Closing in cash. 3. EARNEST MONEY. On or before two (2) Business Days (as defined in Section 53) after the date this Contract is executed by both Buyer and Seller, Buyer shall deliver to the office of Bronson Abstract Company, Inc. (the "Title Company"), as escrow agent, at 3810 Front Street, Suite 5, Fayetteville, Arkansas 72703, (by certified or cashier's check) the sum of $100.00 as earnest money (together with any interest earned thereon, the "Earnest Money"). 4. TERMINATION OPTION ALTERNATIVES, EFFECTS AND CONSIDERATION. Wherever in this Contract, Buyer or Seller is given the option to terminate this Contract, that party may either (1) waive such termination option (either by exercising an alternative election, if this Contract provides for one under the circumstances, or in any case by giving a written waiver notice to the other party) or (2) exercise it (i) at any time (x) after the occurrence of the 1446034v.5 0017758100051 event or circumstances giving rise to that option and (y) before the applicable deadline specified herein, if any, for exercise of such option, (ii) by giving a written notice sufficient in form and substance to communicate to the other party that the electing party terminates this Contract (a "Termination Notice") and (iii) with the effects (the "Termination Effects") that the Title Company shall promptly deliver the Earnest Money to the party entitled to it as provided in the Section of this Contract granting such termination option (or, if not specified, to Buyer) and that neither party shall have any further right or obligation under or in respect of this Contract other than as specified in this Contract with respect to rights or obligations that survive termination; provided that upon any termination, the Title Company shall deliver One Hundred Dollars ($100) of the Earnest Money to Seller as independent and sufficient consideration for this option contract. 5. CLOSING. 5.1 Place and Time. The closing of the purchase and sale of the Property (the "Closing") shall take place at the Title Company at 10:00 AM on the first "Business Day" (a day that is not a Saturday, Sunday or another day when national banks in the State of Arkansas are required or permitted to be closed) next following the expiration of ten (10) days after the last day of the Feasibility Period (as defined in Section 6.1), unless such date is changed in writing by Seller and Buyer. The date for which the Closing is scheduled to occur is herein called the "Scheduled Closing Date" and the date on which the Closing actually occurs is herein called the "Closing Date". 5.2 Seller's Closing Deliveries. At the Closing, Seller shall deliver to Buyer the following: (a) a duly executed and acknowledged special warranty deed (the "Deed") conveying to Buyer fee simple title to the Property, free and clear of any and all liens, assessments and encumbrances other than those matters set forth on Exhibit B; (b) a nonforeign affidavit as permitted by Section 1445(6)(2) of the Internal Revenue Code of 1986, as amended; (c) evidence of Seller's and its closing representative's capacity and authority for the Closing; and executed. (d) all other papers necessary for proper completion of the Closing, duly 5.3 Buyer's Closing Deliveries. At the Closing, Buyer shall pay or perform and deliver, at Buyer's sole cost and expense, the following: (a) the Purchase Price in cash; (b) for the Closing; and evidence of Buyer's and its closing representative's capacity and authority (c) all other papers necessary for proper completion of the Closing. 2 1446034v5 0017758/00051 5.4 Closing Costs. Buyer shall pay all escrow fees; costs of tax certificates; fees for preparation of the conveyance documentation; Buyer's attorneys' fees associated with this sale; Title insurance or survey; recording fees for the Deed and other expenses stipulated to be paid by Buyer under other provisions of this Contract. Seller shall pay Seller's attorneys' fees associated with the conveyance and other expenses stipulated to be paid by Seller under other provisions of this Contract. 6. FEASIBILITY STUDY AND INSPECTION. Buyer is responsible for all assessments, taxes and maintenance fees and there are no other rents, royalties or profits. 6.1 Buyer's Feasibility Study and Feasibility Study Period/Seller's Termination Rights. Buyer is hereby granted the right to conduct physical inspection of the Property (the "Feasibility Period") commencing on the Effective Date and ending at 5:00 PM, Central time, on the third (3rd)day after the Effective Date or sooner if Buyer so provides notice to Seller. Buyer or its designated agents may enter upon the Property for purposes of such analyses, tests and inspections as Buyer deems necessary for the Feasibility Study. If Buyer determines, in its sole judgment, that the Property for any reason is not suitable for Buyer's intended use or purpose, or is not in satisfactory condition, then Buyer may terminate this Contract by giving a Termination Notice to Seller at any time before expiration of the Feasibility Period, which shall have the Termination Effects and the Earnest Money shall be delivered to Buyer. The Feasibility Study shall be conducted at Buyer's expense. Likewise, Seller shall have the right to terminate this Contract at any time during the Feasibility Period by providing a Termination Notice to Buyer before the expiration of the Feasibility Period, whereupon the Earnest Money shall be delivered to Buyer. 6.2 Indemnity re Feasibility Study. Whether or not the Closing occurs, Buyer agrees to indemnify, defend and hold Seller harmless from all claims, liabilities, damages and causes of action (other than for or because of pre-existing conditions) arising out of the Feasibility Study performed by Buyer, its agents, independent contractors, servants or employees, unless due to the negligence of Seller, its agents, independent contractors, servants or employees. Seller must bring any claim for indemnity within thirty (30) days after the expiration of the Feasibility Period, or such claim shall be irrevocably lost. 7. TITLE AND SURVEY. Buyer may, at its option and expense, obtain (i) an Owner's Policy of Title Insurance insuring Buyer's fee simple title to the Property to be good and marketable and/or (ii) a current survey of the Property. 8. BROKER. Buyer and Seller represent and warrant to each other that no real estate commissions, finders' fees or brokers' fees have been or will be incurred in connection with the sale of the Property by Seller to Buyer. Buyer and Seller shall each indemnify, defend and hold each other harmless from any claim, liability, obligation, cost or expense (including reasonable attorneys' fees and expenses) for fees or commissions relating to Buyer's purchase of the Property asserted against such party by any broker or other person claiming by, through or under the indemnifying party or whose claim is based on the indemnifying party's acts. 9. DEFAULT. 3 1446034 v.5 0017758/00051 9.1 Buyer's Default and Seller's Remedy. Unless otherwise provided for herein, if Closing is not completed by reason of Buyer's breach or other failure to perform all obligations and conditions to be performed by Buyer, Seller, as Seller's sole and exclusive remedy, may terminate this Contract by giving a Termination Notice to Buyer, which shall have the Termination Effects and the Earnest Money shall be delivered to Seller as liquidated damages for Buyer's breach. Buyer and Seller hereby agree that actual damages would be difficult or impossible to ascertain and that such amount is a reasonable estimate of the damages for such breach. 9.2 Seller's Default and Buyer's Remedy. If Closing is not completed by reason of Seller's breach or other failure to perform all obligations and conditions to be performed by Seller, Buyer, as Buyer's sole and exclusive remedy, may either (i) terminate this Contract by giving a Termination Notice to Seller, which shall have the Termination Effects and the Earnest Money shall be delivered to Buyer, or (ii) enforce specific performance of this Contract, Buyer and Seller stipulating that the Property is unique. 10. A77'ORNEYS' FEES. Any signatory to this Contract who is the prevailing party in any legal proceeding against any other signatory brought under or with respect to this Contract or the transaction contemplated by this Contract shall be additionally entitled to recover court costs and reasonable attorneys' fees from the non -prevailing party. 11. DAMAGE TO PROPERTY: Seller agrees to give Buyer prompt notice of any fire or other casualty affecting the Property between the Effective Date of this Contract and the Closing. Notwithstanding any other agreement between the parties or which may be related to the Property, Seller shall bear all risk of loss with respect to the Property before the Closing Date. If before the Closing Date, there shall occur damage to the Property caused by fire or other casualty, then in any such event, either Buyer or Seller may, at its option, elect to terminate this Contract by written notice to the other party within five (5) days after the date of Seller's notice to Buyer of the casualty or at the Closing, whichever is earlier, in which case the Earnest Money shall be delivered to Buyer, and neither party shall have any further rights or obligations hereunder, other than as set forth herein with respect to rights and obligations which survive termination. If neither Buyer nor Seller timely makes its election to terminate this Contract, then the Closing shall take place as provided herein without reduction of the Purchase Price, and there shall be assigned to Buyer at the Closing all interest of Seller in and to any casualty insurance proceeds. 12. CONDEMNATION. If before the Closing Date, condemnation proceedings are commenced against any portion of the Property, then, at Buyer's option exercisable within five (5) days after Seller notifies Buyer of the condemnation proceedings, Buyer may terminate this Contract by written notice to Seller, whereupon the Earnest Money shall be promptly delivered to Buyer and neither party shall have any further right or obligation hereunder, other than as specified herein with respect to rights or obligations that survive termination. If Buyer chooses not to terminate this Contract, or if Buyer does not exercise its right to terminate this Contract within the five (5) day period, then (i) the Closing shall proceed, (ii) Buyer shall accept title to the Property subject to the condemnation proceeding, (iii) at Closing Seller shall assign to Buyer any condemnation award and (iv) the Purchase Price shall not be reduced. 4 1446034v.5 0017758/00051 13. MISCELLANEOUS. 13.1 Notices. Any notice required or permitted to be delivered hereunder shall be deemed received when (i) personally delivered, (ii) two (2) Business Days after being sent by United States mail; postage prepaid; registered, certified or express mail; and properly addressed or (iii) one (1) Business Day after being deposited with a nationally recognized overnight courier service, charges prepaid and properly addressed., For purposes of this Subsection, the address of each party shall be that set forth below the signature of such party hereto with a copy to the other addressees (if any) named below the signature of such party. 13.2 Party Choice of Law. This Contract shall be construed under and in accordance with the laws of the State of Arkansas. 13.3 Binds and Benefits Successors, Etc. This Contract shall bind and benefit the parties hereto, their respective heirs, executors, administrators, legal representatives, successors and assigns. 13.4 Illegal, Invalid or Unenforceable Provisions. If any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Contract shalt be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 13.5 Sole Agreement. This Contract constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting this Contract's subject matter and cannot be changed except by their written consent. 13.6 Time is of the Essence. Time is of the essence in this Contract. 13.7 Gender and Number of Words. Words of any gender used in this Contract shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 13.8 Exhibits. Except where otherwise specified, all exhibits referred to in this Contract are attached to it (or intended by the parties so to be) and by such references are made a part of this Contract. 13.9 Counterparts. The parties may execute this Contract in one or more identical counterparts, all of which when taken together will constitute one and the same instrument. 13.10 Extension to Business Day. Whenever any determination is to be made or action to be taken on a date specified in this Contract, if such date shall fall upon a day that is not a Business Day, the date for such determination or action shall be extended to the first Business Day immediately thereafter. 14. ASSIGNMENT. Buyer may assign this Contract without Seller's prior written consent and without consideration to Seller, including to the City of Fayetteville or another party related to the City (collectively "Airport Related Party") to effectuate development/redevelopment of the 5 1446034v.5 0017758100051 City of Fayetteville Airport. Upon any such assignment, Buyer and the assignee shall execute and deliver to Seller an assignment and assumption of this Contract, and all references herein to the Buyer shall be deemed to be references to such assignee. In the event of any such assignment to and assumption by an Airport Related Party, CPS shall be relieved of all obligations and liability under this Contract. 15. EFFECTIVE DATE. The "Effective Date" of this Contract shall be the date an original of this Contract, or original counterparts of this Contract, executed by both Seller and Buyer together with the Earnest Money are delivered to the Title Company, as reflected by the date the Title Company executes this Contract. EXECUTED in multiple originals effective as of the date executed by the Title Company as shown below. BUYER: COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: Attention: Phone: Fax: TITLE COMPANY: Receipt of $ SELLER: KEARNEY-NATIONAL, INC., a Delaware corporation By: Name: Title: Ce MEM Attention: 14/ 14. Le;h00,c t, Phone: 2 (2-- &to 1— '/6. qD Fax: a1 QPin — 7/6q Earnest Money is acknowledged in the form of By: Name: Title: Date Signed: (the Effective Date of the Contract) 6 1446034v.5 0017758/00051 City of Fayetteville Airport. Upon any such assignment, Buyer and the assignee shall execute and deliver to Seller an assignment and assumption of this Contract, and all references herein to the Buyer shall be deemed to be references to such assignee. In the event of any such assignment to and assumption by an Airport Related Party, CPS shall be relieved of all obligations and liability under this Contract. 15. EFFECTIVE DATE. The "Effective Date" of this Contract shall be the date an original of this Contract, or original counterparts of this Contract, executed by both Seller and Buyer together with the Earnest Money are delivered to the Title Company, as reflected by the date the Title Company executes this Contract. EXECUTED in multiple originals effective as of the date executed by the Title Company as shown below. BUYER: COOPER POWER SYSTEMS, LLC, a Delaware limited liability compa By. Name: Title: Terrance V. Helz Corporate Secreta Attention: Phone: Fax: TITLE COMPANY: SELLER: KEARNEY-NATIONAL, INC., a Delaware corporation By: Name: Title: Attention: Phone: Fax: Receipt of $ Earnest Money is acknowledged in the form of By: Name: Title: Date Signed: (the Effective Date of the Contract) 6 446034v.5 0017758/00051 City of Fayetteville Airport. Upon any such assignment, Buyer and the assignee shall execute and deliver to Seller an assignment and assumption of this Contract, and all references herein to the Buyer shall be deemed to be references to such assignee. In the event of any such assignment to and assumption by an Airport Related Party, CPS shall be relieved of all obligations and liability under this Contract. 15. EFFECTIVE DATE. The "Effective Date" of this Contract shall be the date an original of this Contract, or original counterparts of this Contract, executed by both Seller and Buyer together with the Earnest Money are delivered to the Title Company, as reflected by the date the Title Company executes this Contract. EXECUTED in multiple originals effective as of the date executed by the Title Company as shown below. BUYER: COOPER POWER SYSTEMS, LLC, a Delaware limited liability com.any 1 B _ I AP Name: Terrance V. H71 1 Title: Cor. orate Secret Attention: Phone: Fax: TITLE COMPANY: Receipt of $ SELLER: KEARNEY-NATIONAL, INC., a Delaware corporation By: Name: Title: Attention: Phone: Fax: Earnest Money is acknowledged in the form of By: JO S.� �` YR Name: Irk1‘.1I~(4 .Q1,�D►�S1h S� Title: i 2%NSD%) , lIKI (" ??CM Date Signed: -1'G \DZ� (the Effective ate of the Contract) 6 1446034v.50017758/00051 Exhibit A Airport Tract DRAKE FIELD! HWY 71B Tract No. 6 Parcel No. 765-15533-000 PROPERTY DESCRIPTION: (Deed Record 830-628) A part of the Southwest Quarter (SW 34) of the Northeast Quarter (NE 34) of the Southwest Quarter (SW v.) of Section 33, T -16-N, R -30-W, as described kt Deed Record 830-628 of the records of the Circuit Cleric, Washington County, Arkansas, being more particularly described as follows: From the Southwest corner of said Southwest Quarter (SW 3:) of tate Northeast Quarter (NE %) of the Southwest Quarter (SW 14), thence South OrOS3r East along the South Zine of said Southwest Quarter (SW %) of the Northeast Quarter (NE 34) of the Southwest Quarter (SW 34) a distance (1 20.09 feet to a point on the existing East Right of Way fine of Arkansas Highway 71B for the Point of Beginning, thence North 4.35'50" East along said East Right of Way line a distance of 336.70 feet; thence leaving said East Right of Way line South 65'48'18" East - 630.94 feet to a point on the East line of said Southwest Quarter (SW Y4) of the Northeast Quarter ME 34) of the Southwest Quarter (SW %X thence along the East line of said Southwest Quarter (SW %) of the Northeast Quarter (NE 14) of the Southwest Quarter (SW 341 South 2°56i r West - 322.00 feet to the Southwest Comer of said Southwest Quarter (SW 34) of the Northeast Quarter (NE 14) of the Southwest Quarter (SW 34); thence along the South line of said Southwest Quarter (SW 14) of the Northeast Quarter (NE Y,) of the Southwest Quarter (SW 34) North 87.0517" West - 640.34 feat to the Point of Beginning, containing 4.81 acres. more or fess. Q4ddsZASEMENTSMINO2164 Dine not HWY 111 peetyrroi e6Kvaixrhv Exhibit 13 Deed This Instrument Was Prepared By: Douglas A. Yeager 600 Travis Street, Suite 2800 Houston, Texas 77002 SPECIAL WARRANTY DEED THE STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THAT KEARNEY NATIONAL INC., a Delaware corporation ("Grantor"), for TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration paid to Grantor by The City of Fayetteville, a municipality formed under the laws of the State of Arkansas ("Grantee"), the receipt and sufficiency of which consideration are hereby acknowledged and confessed by Grantor, has GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents does GRANT, BARGAIN, SELL, and CONVEY unto Grantee certain lands lying in the County of Washington and the State of Arkansas, and more particularly described on Exhibit A attached hereto and made a part hereof for all purposes, together with any and all fixtures and improvements thereon (collectively, the "Property"). This Special Warranty Deed (this "Deed") is expressly made subject to the matters described on Exhibit B attached hereto and made a part hereof for all purposes, and to other restrictions and encumbrances of record, if any, shown of record in the county clerk's office where the Property is located, to the extent and only to the extent the same are valid and subsisting and affect all or any part of the Property (the "Permitted Exceptions"). TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereunto in anywise belonging, unto Grantee, Grantee's successors and assigns, forever, and Grantor, for itself and its successors and assigns, does hereby covenant with Grantee, Grantee's successors and assigns, that Grantor will forever WARRANT and DEFEND all and singular the title to the Property unto Grantee, Grantee's successors and assigns, against all claims whatever by, through or under Grantor, but not otherwise, subject to the Permitted Exceptions. 1454135v.3 0017758/00051 WITNESS Grantor's hand and seal day of , 2010. Grantee's Address; GRANTOR: ATTEST: Secretary After Recording Return To: 1454135v.3 0017758100051 KEARNEY NATIONAL INC., a Delaware corporation By Name: Title: STATE OF COUNTY OF ACKNOWLEDGMENT § On this day of , 2010, before me, , a Notary Public, duly commissioned, qualified and acting, within and for said County and State, appeared in person the within named and , to me personally well known, who stated that they were the and Secretary of KEARNEY-NATIONAL INC., a Delaware corporation, and were duly authorized in their respective capacities to execute the foregoing Special Warranty Deed for and in the name and behalf of said Corporation, and further stated and acknowledged that they had so signed, executed and delivered said foregoing Special Warranty Deed for the consideration, uses and purposes therein mentioned and set forth. EN TESTIMONY WHEREOF, 1 have hereunto set my hand and official seal this day of ,2010. Notary Public My Commission Expires: (SEAL) 1459 135v.3 001775g/00051 EXHIBIT A PROPERTY 1454135v.3 0017758100051 DRAKE FIELD rtWY718 Trsor No. i) Pond No. 763.15133- 000 PROPERTY DESCRIPTION: (oeod Record 830-628) A pod of the Southwest Quarter (SW Y.) of the Northeast Quarter (NE II) of tho Southwest Quarter (SW Y.)ofSocIJcn99,T1e44.R INW,as;describedhRead Record 830-11451of the towrds of tiro Cirwdl Ciork, Washington Gounly, Arkansas. bstng amore patticularly described os follows: From the Southwest cornet of said Southwest Qualls (SW )4} of Urs Northeast Quarter (NE 14) of the Southwest Qwmter ($W d4), Orono South 87'85'37' East along the South fine of said Soutter asf Quarter (SW 4) of tte Northeast Quarter (NE 14) of the Southwest Quarter (SW 14)a dfslenco of 20.08 foal to a point on pre erdsl ng East Rigid of %May Ens of Arkansas FQghwiy 715 for the Point of Beginning, Sumo North 41560` East along said East light of Way Eno a dieters= of 338.70 teo1; theses leaving said East Right of Way Ono South 85'4618' Bast - 830.84 fool to a fault on the East lire of Bald SoUth west Quarter (SW )4} of the Northeast Quarter (NE Y.) of lhs Soulhwost Quarter (SW 14); (hence atone the F.ast Ono of said Southwost Quarter (SW 14 of Iha Nun hood Qealtor (NE Y.) of the Southwest Nader (SW 14) 5014 2'88'17' West - 322.00 feat to Iho Southwest minor bf said SSulhwast Quarter (SW Y.) of the Northeast Quarter (NE 34) of Ihs Soulhwcst Wader (SW 1U fhonco along the South tine of said $otin+rost Qusrtar (SW t6) of the Northeast quarter (NE 14) of the Southwest Qoarler (SW Y.) North 87'0597' Wast - 040.34 fool to the Point of Beginning, containing 4.81 acres, more or less. CYrdKaallifISOOMT II4 ON. nurawY WAN. tried 1 EXHIBIT B PERMITTED EXCEPTIONS 1454135y.3 0017758/00051 Fayetteville Permitted Exceptions 1. General and special taxes for the year 1997 and subsequent years, which are not yet due and payable. 2. Special taxes and/or assessments payable in installments, to -wit: NONE. 3. Loss arising from oil, gas and/or other minerals, conveyed, retained, leased, assigned or any other activity concerning the sub -surface rights or ownership, including but not limited to the right of ingress and egress for said sub -surface purposes. 4. Encroachment addressed in Section 8.30 of that certain Amended and Restated Stock Purchase Agreement, dated June 26, 1997, by and between Kearney -National Inc. and Cooper Power Systems, Inc. DECLARATION OF RESTRICTIVE COVENANTS (Entire Acreage) STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of , 2010, by KEARNEY NATIONAL INC., a Delaware corporation (hereinafter referred to as "Declarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECTTALS: A. Declarant is the owner of the real property (the "Pronerty") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated , by and among Declarant, Cooper Power Systems, LLC and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 1454118x.4 0017758/00051 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certiftcate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). Existing monitoring and other wells shall remain in place during any period required by the ADEQ. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or. entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Kearney -National Inc. and its successors and assigns, and "Enforcement Party_" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. S. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 1454118v.4 0017758/00051 EXECUTED this day of 2010. KEARNEY NATIONAL, INC. a Delaware corporation By: Name: Title: STATE OF § § COUNTY OF § This instrument was acknowledged before me on the day of 2010. by , the of KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires 3 1454118v.4 OQ 17758100051 EXECUTED this day of , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the 2010, by the SYSTEMS, LLC, a Delaware limited liability company. on company. Exhibit A — Property 1454118vA 0017758/00051 _day of of COOPER POWER behalf of said limited liability Notary Public, State of Notary's Printed Name Commission Expires Exhibit A Property Preit The South Half (S/s) of the North Half (N/3) of the Northeast Quarter (NE/.) of the Southwest Quarter (sW/h) of •section 33, Township 3.6 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Bids thereof. The Southwest Quarter {SW/¼) of the Northeast Quarter (NS/,) of the Southwest Quarter (SW/%of Section 33, Township 16 North, Range 30 West, lass that portion thereof located within the U.S. Highway No. 71 right -of -Tway which bounds the property on the West, containing 9.6a acres, more or lase, Washington county, Arkansas. DECLARATION OF RESTRICTIVE COVENANTS (Airport Tract) STATE OF ARKANSAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON § THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of , 2010,, by KEARNEY-NATIONAL INC., a Delaware corporation (hereinafter referred to as "Declarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: I. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138,. dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated , by and among Declarant, Cooper Power Systems, LLC and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 1454124v,4 0017758/00051 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: • The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. • No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ") • Existing monitoring and other wells shall remain in place during any period required by the ADEQ. • The Property shall only be used for roadway purposes. • No buildings or other structures shall be constructed on the Property. • The subsurface of the Property shall only be used to the extent necessary to construct a roadway on the Property, re -channel an abutting drainage ditch, and reroute a water line on the southeast corner of the Property. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Kearney -National Inc. and its successors and assigns, and ' ;Enforce meat Path" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 1454124v.4. 0017758/0005 7 EXECUTED this day of , 2010. KEARNEY-NATIONAL, INC. a Delaware corporation By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by , ' the of KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires 1454124v.4 0011758100051 EXECUTED this day of , 2010, COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by , the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company, on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property (4.81 Acres) 4 1454124v.a 0017758/00051 Exhibit A Property Di1KE FISLO f HWY 715 'del Na.6 Fwool Nv, 7665-15533.000 (Deed Record 630-620) A part of the Southwest Quarter (SW 14) of the Northeast Quarter (NEY) of the Southwest Quarter (SW Y.) of Motion 33, 7-16-N, R -30•W, as described In Deed Record 630.028 of the records of theClroultCledc, Washlngton Bounty, Ad®reae, bete more particulady described as fellows: From the Seughwesl comer of saki 8cughrvest Quarter (SW 34) of the Northeast Quarter (NE Y.) at the SoUOstnes1 Quarter (SW Y.), thence South 6T0537' East along the South lI►e of sett Southwest Quader (SW Y4 of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW 34)a distance of 20.09 toot to a point on the eidsling East Right of Way line of Arkansas Highway 710 for the Point of Begirmhng, thence North 4-35W East tJg sold East Right of Way One a dlutsrtcu of 336.70 feat; thence leaving said Vast Right of Way One South 06 4!x18" East - 630.54 feat to a point oil ttta East Ape of said Southwest Quader (SW V.) of the Northeast Quarter (NE 14) of the Southwest anarter (SW wk thence along the East lino or said Southwest Quarter (SW 14) of the Northeast Quarter (NE Y.) or the Southwest Quarter (SW 14) South 2'5817" Wost -322.00 feet to the Southwest corner bf sold Southwest Quarter (SW Y) of the Northeast Quarter (NE y) of the Southwest Quarter (SW Y.); thence along the South Ina of said Southwest Quarter (.4W 34) of the Nodhoast Quarter (NE Y4} of the Southwest Quarter (SW Y.) North 07'45'37" West - 640.34 fuel to Ilia Point of Beginning, containing 4.61 acres, more or less. Cu4.C,5eM6Wf5 ~1n$h. Q., F1W 1HW NWhr.,gtTnhi r K..tn.yAw City of Fayetteville Staff Review Form City Council Agenda Items and Contracts, Leases or Agreements $'118%o1D 018/2010 City Council Meeting Date Agenda Items Only Ray M. Boudreaux Aviation Transportation Submitted By Division Department to construct the $ 218,907.87 $ 3,141,436.00 Correct Runway 16 RSA Cost of this request Category / Project Budget Program Category I Project Name 5550.3960.7820.38 $ 2,790,750.75 D8100_AVED Account Number Funds Used to Date Program / Project Category Name 07039 3 $ 350,685.25 Airport Project Number Remaining Balance Fund Name Budgeted Item 0 Budget Adjustment Attached Previous Ordinance or Resolution # 119-09 Date Original Contract Date: ' IO Original Contract Number: Date -� t- . LL Finance and Internal Services Director Date Received in City ,.,_ Clerk's Office K.�lAw� Chief of Staff Date Received in Mayor's Office Mayor ate Comments: AIP Grant #38 95/5% FAA/AR Dept Aeronautics $6� 4 - 4Q Kvifs7o- a , Gvuw4crc .JTL Revised January 15, 2009 aettvll1e ARKANSAS® CITY COUNCIL MEMO To: Mayor Jordan Thru: Chief of Staff, Don Marr Thru: Transportation Director, Ter: From: Ray M. Boudreaux, Aviation Date: April 12, 2010 THE CITY OF FAYETTEVILLE, ARKANSAS AVIATION DIVISION 4500 S School Ave, Ste F Fayetteville, AR 72701 P (479) 718-7642 Subject: Approve Real Estate Contract for purchase of Kearney National/Cooper Power property for construction of Ernest Lancaster Rd in conjunction with the RSA 16 Improvement Project at Fayetteville Executive Airport, Drake Field. Signature of the Mayor. PROPOSAL: In August 2009, the Mayor approved the Offer and Acceptance Contract for purchase of Kearney/Cooper land to accommodate the RSA 16 Improvement Project at the airport. Due to internal negotiations between Cooper Power and Kearney National, Cooper Power did not sign the contract and the purchase was delayed until an acceptable agreement could be reached between the companies. Kearney National is in the process of final ground water monitoring following cleanup activity concerning solvent contamination prior to 1995 at the plant. The property needed for the RSA Project is not contaminated by the spill but contains monitoring wells that will pick up any contamination should it migrate from the initial spill site. The option held by Cooper Power allows the company to consummate the purchase once the monitoring period is complete and a "no further action needed declaration" is issued by ADEQ. Cooper Power has worked diligently to reach an agreement with ADEQ and Kearney National to limit any potential liability that might occur should the contamination leach into the City property. The Implementing Agreement between ADEQ and Cooper Power is recognition of Cooper Power's entry into the Brownfields Program and outlines any potential actions necessary in the future to protect human health and the environment. All actions are complete and this item requests approval of the purchase contracts and the Mayor's signature on the documents for the City to purchase the property for the RSA 16 Improvement Project. There are several documents needed to consummate this transaction to insure the City is protected from liability in the future. The Real Estate contract sells the property to Cooper Power from Kearney National. The Assignment Contract assigns the sale to the City of Fayetteville for the agreed upon price of $217,200 plus closing costs. Integral to the contract are the deed restrictions which limit the use of the property to the designed improvement project, restricted use of the groundwater, and unrestricted access to the monitoring wells. These deed restrictions are acceptable as the airport only needs the property to realign Ernest Lancaster and the Airport Branch Drainage Ditch out of the Safety Area and associated utilities relocations. We will also allow certain landscaping that will facilitate the elimination of contaminates in the soil. Telecommunications Device for the Deaf TDD {479) 521-1315 113 West Mountain - Fayetteville, AR 72701 THE CITY OF FAYETTEVILLE, ARKANSAS Secondary Documents provided for your information are the Implementing Agreement (IA), the Comprehensive Site Assessment (CSA) and the Phase I Environmental Assessment. The IA outlines actions that might be necessary in the future should contamination leach into the City Property. It is developed from information gathered in the CSA and the Phase I Environmental Assessment both provided by the prospective buyer to ADEQ for approval. Once approved, ADEQ publishes the IA which contains the Property Development Plan and the Property Development Decision Document. This method of acquisition of the property needed for the RSA 16 Improvement Project was dictated by our desire to eliminate any potential liability for the previous owner's ground contamination and to assure proper and sufficient environmental protection of the property. RECOMMENDATION: Approve the Real Estate Transaction that transfers the property to the City for the RSA 16 Improvement Project. Signature of the Mayor. BUDGET IMPACT: This project is funded by FAA/AlP at 95% and Arkansas Aeronautics at 5%. Attachments: Staff Review Real Estate Contract Assignment Agreement Draft Deed Draft Settlement Statement Implementing Agreement between ADEQ and Cooper Power Phase I Environmental Report Comprehensive Site Assessment Property Development Plan Telecommunications Device for the Deaf TDD (479) 521-1316 113 West Mountain - Fayetteville, AR 72701 RESOLUTION NO. A RESOLUTION AUTHORIZING PURCHASE IN LIEU OF CONDEMNATION PROCEEDINGS AUTHORIZED IN RESOLUTION 52-10 AND APPROVING A CONTRACT FOR THE PURCHASE OF LAND ADJOINING THE FAYETTEVILLE EXECUTIVE AIRPORT -DRAKE FIELD FROM KEARNEY- NATIONAL, INC., THROUGH AN ASSIGNMENT FROM COOPER POWER SYSTEMS, LLC, IN THE AMOUNT OF $218,907.87, INCLUDING APPLICABLE CLOSING COSTS, AS PART OF THE RUNWAY 16 SAFETY AREA IMPROVEMENT PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby authorizes purchase in lieu of condemnation proceedings authorized in Resolution 52-10 and approves a contract, a copy of which is attached to this Resolution as Exhibit "A" and incorporated herein as if set out word for word, with Kearney -National, Inc., through an assignment from Cooper Power Systems, LLC, for the purchase of land adjoining the Fayetteville Executive Airport -Drake Field in the total amount of $218,907.87, including applicable closing costs, as part of the Runway 16 Safety Area Improvement Project. PASSED and APPROVED this 18th day of May, 2010. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer CHECK REQUEST Date: 4118!2010 Vendor Number: 1830 Payable to: BRONSON ABSTRACT RMTI 3810 FRONT ST STE 5 FAYETTEVILLE AR 72703 Manual Check l Mail Yes [] No ❑ Return Check to: Ray M Boudreaux Send Copy to: For. LAND PURCHASE - KEARNEY-NATIONAL, INC _ Separate Check Code A AlP 38 RUNWAY 18 SAFETY AREA IMPROVEMENTS PROJECT Bank Number 012 Payable From: Fund Name AIRPORT # Amount of Check $ 218907.87 Charred as follows: Account Name Amount Fund Dept Sub Dept Base Detail Project Sub Proect RUNWAY 16 SAFETY PHASE 3 215907.87 5550 3960 7820 38 07039 3 MANUAL CHECK TO BE PROCESSED 4!19110 CONTINGENT ON COUNCIL APPROVAL. CLOSING DATE SCHEDULED FOR 4121110 TOTAL $218,907.87 Accounting Use - Receipting Prepared by: GIL Account Number pproved by: Entered: Key Code Approval: Does Not Meet Purchasing Policy El Contract Payment ❑ Other Approved: A. SETTLEMENT STATEMENT (}IUD —I ) L 1 PHA 2. I i FNMA 3. I CONY. UNINS. 4, VA 5. � ' CONY. INS. 6, FILE NUMBER: 7. LOAN NUMBER 8. MORTGAGE INS. CASE NO,: C. NOTE: This form is furnished to give you a statement of actual settlement costs. Amounts paid to and by the settlement agent are shown. Items marked "(p.o.e.)" were paid outside the closing; they are shown her: for informational nutensea and are not included in the totals, D. NAME & ADDRESS The City of Fayetteville OF BORROWER: E. NAME & ADDRESS Exhibit "A" Attached Hereto OF SELLER: F. NAME & ADDRESS OF LENDER: C. PROPERTY LOCAT€ON: Pt SW NE SW 33-16-30, Fayetteville, AR 72701 H. SETTLEM ENT AGENT: Bronson Abstract Company, Inc. PLACE OF SETTLEMENT: 3810 Front Street, Suite 5, Fayetteville, AR 72703 (479) 442-2700 1. SETTLEMENT DATE: 5/2112010 DISBURSEMENT DATE: 5/21/2010 J. Summary of Borrower's Transaction K. Sam,nary of Seller's Transaction 100. Gross Amount Due From Borrower: 400. Gross Amount Due To Seller: 101. Contraetsales rice 500.00 401. Contract sales rice 500.00 102. Personal property 402. Personal propetty 103. Settlement charges to borrower line 1400 1.920,41 403. 104. 404. 105. 405, Adjustments For Items Paid By Seller In Advance: Adluetmecnts For Items Paid By Seller In Advance: 106, City/town taxes to 406, City/town taxes to 107. County taxes to 407. Count taxes to 108. Assessments to 408. Assessments to 109. 409, ! 10. 410. ! I I. 411, 112. 412. 113. 413. 114. 414, 115. 415. 116. 416. 120. Gross Amount Due From Borrower: 2,420.40 420. Gross Amount Due To Seller: 500.00 2 0. n 201. Deposit or earnest money 501. 0xcess do sit see instructions 202. Principal amount of new loans 502. Settlement charges to salter (line 1400) 203. Existing Ioan(s) talents subject to 503. Existing loans) taken subject to 204. 504. Payoff at Mtg. Ln. 205. 505. Payoff 2nd MIg. Ln. 206. 506. 207. 507. 208. 508, 209, 509. Adjustments For Items Unpaid By Seller: 210. City/town taxes to Adjustments For Items Unpaid By Seller: 510. City/town taxes to 211. County taxes to 511. County taxes to 212. Assessments to 512. Assessments to 213, 513. 214, 514. 215. 515. 216, 516. 217, 517. 218. 518. 219. 519. 220. Total Paid By/For Borrower: 520. Total Reductions In Amount Due Seller: 200. CaskAjSetthnteutFromtTo Borrower: 301. Gross amount due from borrower Tine 120 2 420,40 601. Gross amount due to seller (line 420)_500.00 302. Less amount paid /for borrower(line 220) 6(12. Lean reductions in amount duoseller{line 520) 303, Cash (IX' FROM) r: TTO) Borrower: 2,420.40 603. Cash (XIPO) ti :FROM) Seller: 500.00 Previous Edition Is Obsolete f umt No. 1581 3186 Page 1 of 3 SB-4-3538-00O-I HUD -I (3-86) RESPA, HO 4305.2 F.. CI rrl.rMrNT r'UAor`_rc f..,.......•. IQ{11. In., 700. Total SalesBrokcr's Commission: Based On Price $ a = Paid From Borrower's Funds At Settlement Paid From Seller's Funds At Settlement DI'i'ision of Cotsuuissio (line 70(11 As Fo8ojsa 702.5 703. Commission oaid at settlement 704. n Ori ination fee 82 0 803. al fee 1o: 804. Credit report to" 805.Lender's inspection 806. Motlease insurance 807. sum ti 810 611. !4. i 8 901. r Ma 902. Mortennp insurance premiumfor 903. 11azard insurance ium for Flood insurancepremium 9 Soh. 1001. Hazard inmsrance 0jjontha6b 0.00 pmmrmth 1002. Mortasea insurance 0 months CL 0r00er5v taxes 0 months 1004. Contv propcliv taxes 0 months 5 0.00 ncr 1005. AnnuI per month 1006d insurance months @ 0month 07. 0 months 0.00 er i Asarepate Adjustment 1 Ol. Settltsneot or closing fee to Bronson A 3 I tract or title search to Bronscm AbsUatt.Craocenyjnc. 0. 4 .1103,T' ination I104. Title insurance binder to 1105. Document preparation IC Bronson Abstract Comoatsy.Inc 5o 1106. N 1107. Attorney's fees to (includes above item Numbers: 1108. Title insurance to Bronson Abstract Company, Inc. (includes above item Numbers: ) 676.00 100. s co e 1110. s coverase 5500.00 Premium: 11 ! l . Fed ha es to Bronscmn Abstract Comnaiw. Inc. 1112. 4. Re 1IIgDeed 25.00 1202. / m : Dee •M 1203. DeedS 719.40 12 2 1301. Sury 1302 a ins ection t 0 04 1308. Saciion J• a - 1.920.411 Form No. 1582 Page 2 of3 SB4-3538-000-t SELLER'S AND/OR BORROWER'S STATEMENT Escrow: 19533-10a I have carefully reviewed the HUD -I Settlement Statement and to the best of my knowledge and belief, it is a true and accurate statement of all receipts and disbursements made on my account or by mein this transaction. I further certify that I have received a copy of the HUD- I Settlement Statement. Borrowers/Purchasers Sellers The City of F ethyl llc Keam moral, c. By: By: The MUD -I Settlement Statement which I have prepared is a true and accurate account of this transaction. I have caused or will cause the funds to be disbursed in accordance with this statement, Settlement Agent: Lela R. Davis, Bronson Abstract Company, Inc. WARNING: It is a crime to knowingly make false statements to the United States on this or any other similar form. Penalties upon conviction can include a line or imprisonment. For details see: Title 1 S U.S. Code Section 1001 and Section 1010. Date: Page 3 of J ATTACHMENT TO HUD I Escrow No.: 19533-1Da Settlement Date: 5/21/2010 Title No.: 19533.10a Page: 1 EXHIBIT A: Name & Address Of Setter: Kearney -National, Inc. C/O Patterson Planning & Services, Inc., 565 Fifth Avenue, 4th Floor, New York, NY 10017-2413 A. SETTLEMENT STATEMENT (HUD -1) FHA 2. 1 1 FHMA 3- (, 1 CONY. UNINS. 4, I VA 5. LI CONV.INS. 6- FILE NUMBER: 7. LOAN NUMBER S. MORTGAGE INS, CASE NO.: C. NOTE: This form is furnished to give you a statement of actual settlement costs. Amounts paid to and by the settlement agent are shown. Items — — _ ntmrkod "(p.o.e.)" woes paid outside the closing; they are shown hem for informational purposes and are not included in thetotals. D. NAME & ADDRESS The City of Fayetteville OF BORROWER: E. NAME & ADDRESS Cooper Power Systems, LLC OF SELLER: PO Box 4446, Houston, TX 72210 F. NAME& ADDRESS OF LENDER: G. PROPERTY LOCATION: Pt SW NE SW 33-16-30, Fa etteville, AR 72701 H. SETTLEMENT AGENT: PLACE OF SETTLEMENT: I. SETTLEMENTDATE: 5121/2010 DISBURSEMENT DATE: 5/21/2010 J. Summary of Borrower's Transaction I K. Summary of Seller's Transnrtinn 100, Gross Amount Due From Borrower: 400. Gross Amount Due To Seller: (01. Contract sales price 216 700.00 401. Contest sales price 216 700,00 102. Personal plperly402. Personal pmlsely (03. Settlement charges to borrower (line 1400) 403. 104- 404, 105. 405. Adjustments For Items Paid By Seller In Mssts e: Ad ustments For Items Paid By Seller In Advance: 106. City/town taxes to 406. City/town taxes to 107. County taxes to 407. County taxes to (08. Assessments to 408. Assessments to 109. 404). 110. 410, I 11. 411. 112. 412. 113. 413. 114. 414. 115, 415. 116. 416. I20. Gross Amount Due From Borrower: 216,700.00 420. Gross Amount Due To Seller: 216,700.00 a 500. Reductions In 201. Deposit or eamest money 501. Excess deposit (see instructions) 202. Principal amount of stew loans 502. Settlement cba es to seller line 1400 203. Existing loan(s) taken subject to 503. Existing loo s taken subject to 204, 504. Payoff tat Mtg. La. 205. 505. Payoff 2nd MIg. 1-n. 206. 506. 207. 507. 2118. 508. 209. 509. Adjustments For Items Unpaid By Seller: 210. City/town taxes 10 Adjustments For Items Unpaid By Seller: 510. City/town taxes to 211. County taxes OU01/lO to 05121/10 212.53 511. Cowuty taxes 01/01!10 to 05/21/10 212.53 212. Assessments to 512. Assessments to 213. 513. Allowance to KNt 11,000.00 214. 514. Rentals to KNI 9,000.00 215. 515. 216. 516. 217. 517. 2(8. 518. 219. 519. 220. Total Paid By/For Borrower: 212'53 570. Total Reductions In Amount Due Seller: 20,212.53 ash At 301. Gross amount duo from borrows, -(line 120) 216 700.00 601. Gross amount duc to seller (line 420) 216 700.00 302. Less amount paid b /farborrower(tine 220) 212.53 602. Less reductions in amount due seller(line 520) 20 212.53 303. Cash (sX;FROM) r. FFO) Borrower: 216.487.47 603. Cash 4XTO) 4 FROM) Seller: 196,487.47 Previous Edition Is Obsolete Fomt No. 1581 3/86 Page 1 of 3 SB-4-3538-000-1 HUD -1 (3.86) RESPA, H9 4305.2 f CRTTI.RMRNT C'/IAI PC Fcr.rnw• 1057Z.,tf1 700. Total Sales/Broker's Commission: Based On Price $ yu = Paid From Borrower's Funds At Settlement Paid From Seller's Funds At Settlement 701 5 to. 702.5to 703. Commiaon paid at settlement 704. I0iLflQtjginatiotLfeen 802. Lono Discount0 1103. sisal fee to: 804. Credit ort o: 805. Lender's r inspection 1106. Moilesee inauraeeeapplication 807. Assumption fee 809. 810. 812. 1 Ills. 17. 19. 20. 21. 901. Interest • r /d 902. Mort e c insurance premium for 903 Hazard insurance premium for to 904. Flood insurancFlooil insurancepremium for "ta. to 905. 1001 Hazard insurance 0 monthsper month 1 ce 0mcinthsc$ 0.00 ncr 1003. City taxes nthoar month 1004. Cosjntv oronerty taxes 0 months 0.00 ncrmonth 1003. Ann 1 sn.cesmllenls 0 months 0.00 oer month 1006. Flood insurance 0 months e month 1007. 0 months e 1009. r cl sin 1102. Abstract 1103. Title exarn' ' n 1104. Title insurance binder to 1105. Document c 1106. Notary fees 1107. Attorney's fees to (includes above item Numbers: ) 1108. Title insurance to (includes above item Numbers: ) 109. IiIi. 1113. 1114. i e t tsxlstam s: Deed 5 0,00 .Mortsaee. 1203. n e, 1204. 1301, r t 1302. i 130 5. 1306. I307. 131)8, ectr - line 502. Section K Form No, 1582 Page 2 of3 SELLER'S AND/OR BORROWER'S STATEMENT F_scrow: 19533-10 I have carefully reviewed the HUD -I Settlement Statement and to the best of my knowledge and belief, it is a true and accurate statement of all receipts and disbursements made on my account or by me in this transaction. I further certify that I have received a copy of the HUD -I Settlement Statement. B orrow ers/ Pu rch users The Cit Of ' etteville By: Sellers Cooper Power Systems, LLC The HUD -I Settlement Statement which I have prepared is a true and accurate account of this transaction. I have caused or will cause the funds to be disbursed in accordance with this statement. Settlement Agent: . Date: WARNING: It is a crime to knowingly make false statements to the United States on this or any other similar form. Penalties upon conviction can include a fine or imprisonment. For details sec: Title l8 U.S. Code Section 1001 and Section 1010, Page 3 of 3 ASSIGNMENT OF REAL ESTATE CONTRACT THIS ASSIGNMENT OF REAL ESTATE CONTRACT, hereinafter referred to as this "Assi ne ment," dated as offfl tUj 21. 2010, is made and entered into by and between COOPER POWER SYSTEMS, LC, a Delaware limited liability company ("Assignor"), and THE CITY OF FAYETTEVILLE, ARKANSAS, a municipality formed under the laws of the State of Arkansas ("Buyer"). RECITALS: Kearney -National Inc., a Delaware corporation ("Seller"), and Assignor entered into that certain Real Estate Contract dated - as of j; 2 , 2010 (as amended, the "Contract"), which provides for the potential purclihse and sale of certain real property ("Property"), described on Exhibit A hereto attached, to Assignor. Assignor now desires to assign the Contract to Buyer. CONTRACTS: NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Buyer do hereby agree as follows: Section 1. Assignment of Contract. Assignor hereby assigns all of its rights, duties and obligations under the Contract to Buyer, and Buyer assumes all of Assignor's duties and obligations under the Contract. All references in the Contract to "Buyer" shall hereafter be deemed to refer to Buyer herein. Section 2. Consideration. Buyer hereby agrees to remit to Assignor contemporaneously with its execution hereof the sum of $216,700.00 in currently collected funds, as consideration for Assignor's rights in and to the Contract. Section 3. Prorations. Assessments, taxes, and similar charges for the current year will be prorated between Assignor and Buyer as of the Closing Date. Section 4. Definitions and References. Terms used herein, which are not otherwise defined or modified herein but which are defined in the Contract shall have the meanings therein ascribed to them. The term "Contract" as used in the Contract or any other instrument, document or writing furnished to Seller by Buyer shall mean the Contract as hereby assigned. Section 5. "As -Is" Transaction, BUYER ACKNOWLEDGES AND AGREES THAT BUYER IS EXPERIENCED IN ACQUIRING AND OWNING REAL ESTATE SIMILAR TO THE PROPERTY COVERED BY THE CONTRACT AND THAT BUYER, PRIOR TO THE CLOSING DATE WILL HAVE INSPECTED THE PROPERTY (INCLUDING ITS ENVIRONMENTAL CONDITION) TO ITS SATISFACTION. BUYER ACKNOWLEDGES THAT IT IS FULLY RELYING ON BUYER'S (OR BUYER'S REPRESENTATIVES') INSPECTIONS OF THE PROPERTY AND NOT UPON ANY STATEMENTS (ORAL OR WRITTEN) WHICH MAY HAVE BEEN MADE OR MAY H O t J :001775 $/00051:144 6173 173v5 BE MADE (OR PURPORTEDLY MADE) BY ASSIGNOR OR ANY OF ITS REPRESENTATIVES. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS ASSIGNMENT, BUYER HEREBY AGREES TO THE ASSIGNMENT OF THE CONTRACT AS -IS, WHERE -IS, WITH ALL FAULTS, AND WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND INCLUDING REGARDING THE PROPERTY, ATTRIBUTABLE TO ASSIGNOR, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING. BUYER HEREBY EXPRESSLY ASSUMES ALL RISKS AND LIABILITIES INCLUDING ANY LIABILITY WITH RESPECT TO ENVIRONMENTAL LAWS AND BUYER EXPRESSLY WAIVES, RELEASES, AND AGREES NOT TO SUE ASSIGNOR (TO THE EXTENT ALLOWED BY APPLICABLE LAW) FOR ANY CLAIMS UNDER FEDERAL, STATE OR OTHER LAW (INCLUDING, BUT NOT LIMITED TO, COMMON LAW, WHETHER SOUNDING IN CONTRACT OR TORT, AND ANY AND ALL ENVIRONMENTAL STATUTORY LAWS) THAT BUYER MIGHT OTHERWISE HAVE OR LATER ACQUIRE RELATING TO THE USE, CHARACTERISTICS OR CONDITION OF THE PROPERTY. Section 6. Miscellaneous. This Assignment (a) shall be binding upon and inure to the benefit of Seller, Assignor and Buyer, and their respective heirs, legal representatives, successors, assigns, receivers and trustees; (b) may be modified or amended only by a writing signed by each party hereto; (c) shall be governed by and construed in accordance with the laws of the State of Arkansas; (d) may be executed by facsimile signatures and in several counterparts, and by the parties hereto on separate counterparts, and each counterpart, when so executed and delivered, shall constitute an original Assignment, and all such separate counterparts shall constitute but one and the same Assignment; and (e) embodies the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, consents and understandings relating to such subject matter. The headings herein shall be accorded no significance in interpreting this Assignment. IN WITNESS WHEREOF, Assignor and Buyer have caused this Assignment to be executed effective as of the date first written above. ASSIGNOR: BUYER: COOPER POWER SYSTEMS, LLC, a Delaware limited liability company THE CITY OF FAYETTEVILLE, ARKANSAS, a municipality formed under the laws of the State of Arkansas ml By: N e• 2. Title: ✓ 2 HOU:0017758/00051:1446173v5 Exhibit A Airport Tract DRAKE FIELD! HWY 713 Tract No. 6 Parcel Mo. 765-15533-000 PROPERPROPERW DESCRIPTION: (Deed Record 830.628) A part of the Southwest Quarter (SW Y.) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW %) of Section 33, T -16-N, R -30•W, as described in Deed Record 830-628 of the records of the Circuit Clerk, Washington County, Arkansas, being more particularly described as follows: From the Southwest comer of said Southwest Quarter (SW Y,) or the Northeast Quarter (NE Y) of the Southwest Quarter (SW'/). thence South 8705'97" East along the South One of said Southwest Quarter (SW 14) of the Northeast Quarter (NE y) of the Southwest Quarter (SW'/.) a distance of 20.09 feet to a point on the existing East Right of Way line of Arkansas Highway 713 for the Point of Beginning, thence North 435'50" East along said East Right of Way line a distance of 338.70 feet thence leaving said East Right of Way line South 8548'18" East - 63D.94 feet to a point on the East line of said Southwest Quarter (SW Y) of the Northeast Quarter (NE Y) cf the Southwest Quarter (SW Y.); thence along the East In of said Southwest Quarter (SW Y) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW %) South 2°58`17" West - 322.00 fret to the Southwest comer bf said Southwest Quarter (SW Ys) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW Y.); thence along the South tine of said Southwest Quarter (SW Y.) of the Northeast Quarter (NE V.) of the Southwest Quarter (SW %) North 87'0537" West'- 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less. r51an""myThMper TietrXWWAaa This Instrument Was Prepared By: Douglas A. Yeager 600 Travis Street, Suite 2800 I-Iouston, Texas 77002 SPECIAL WARRANTY DEED THE STATE OF ARKANSAS I Illllll llllll 111 lull lull lull lull lull lull llllllllll lull ll�ll lull 1111 llll Doc ID: 019452580019 Type: REL Kind: WARRANTY DEED Recorded: 05/21/2010 at 02:41:44 PM Fee Amt: $105.00 Pace 1 of 19 Washinatan County. AR Bette Stamas Circuit Clerk File2Q10-00013898 KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THAT KEARNEY-NATIONAL INC., a Delaware corporation ("Grantor"), for TEN AND NOI100 DOLLARS ($10.00) and other good and valuable consideration paid to Grantor by The City of Fayetteville, a municipality formed under the laws of the State of Arkansas ("Grantee"), the receipt and sufficiency of which consideration are hereby acknowledged and confessed by Grantor, has GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents does GRANT, BARGAIN, SELL, and CONVEY unto Grantee certain lands lying in the County of Washington and the State of Arkansas, and more particularly described on Exhibit A attached hereto and made a part hereof for all purposes, together with any and all fixtures and improvements thereon (collectively, the "Property"). This Special Warranty Deed (this "Deed") is expressly made subject to the matters described on Exhibit B attached hereto and made a part hereof for all purposes, and to other restrictions and encumbrances of record, if any, shown of record in the county clerk's office where the Property is located, to the extent and only to the extent the same are valid and subsisting and affect all or any part of the Property (the "Permitted Exceptions"). TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereunto in anywise belonging, unto Grantee, Grantee's successors and assigns, forever; and Grantor, for itself and its successors and assigns, does hereby covenant with Grantee, Grantee's successors and assigns, that Grantor will forever WARRANT and DEFEND all and singular the title to the Property unto Grantee, Grantee's successors and assigns, against all claims whatever by, through or under Grantor, but not otherwise, subject to the Permitted Exceptions. 1454135v.3 0017758/00051 WITNESS Grantor's hand and seal day of 11 L , 2010. Grantee's Address: GRANTOR: I1 VJ • Y1aWL-+Lift foe*e) !vie, O K . 7L7Q1 KEARNEY-NATIONAL INC., a Delaware corporation ATT Secretary After Rec rdin Retur To: I t IA} • ( I454135v.3 0017758!00051 By -� Name: Q r4 C4QJe(Th') Title: f eSr ACKNOWLEDGMENT STATE OF Wgw VDR iL COUNTY OF L) \ viQJC On this day of utj , 2010, before me, Ji≥2b� lu /a Notary Public, duly commissioned, qual'fiec and acting, ithin and for said County and State, appeared in person the within named yJprf*nd r44 ft5ieoS, to me personally well known, who stated that they were the Ze 10Te(;d4id Secretary of KEARNEY-NATIONAL INC., a Delaware corporation, and were duly authorized in their respective capacities to execute the foregoing Special Warranty Deed for and in the name and behalf of said Corporation, and further stated and acknowledged that they had so signed, executed and delivered said foregoing Special Warranty Deed for the consideration, uses and purposes therein mentioned and set forth. pj TESTIMONY WHEREOF, I have hereunto set my hand and official seal this 1? daYofML 2010. 7I/4o otary Public My Commission Expires: VICTORIA MCCOOL NOTARY PUBLIC - State of Now York Reg. No. 02MC6102414 Qualified In Kings County Commission Expires December 8, 2011 (SEAL) 1454135v.3 0017758/00051 EXHIBIT A PROPERTY 14S4I35v.3 0017758100051 DRAKE FIELD / HWY 716 Tract No. 6 Panel No. 765-! 5533-000 PROPERTY DESCRIPTION: (Deed Record 830-(i2B) A part of the Southwest Quarter (SW Y.) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW 'A) of Section 33, T -18-N, R -$0-W, as described In Dead Record 830-628 of the records of the Circuit Clerk, Washington County, Arkansas, being more particularly described as follows: From the Southwest corner of said Southwest Quarter (SW Y.) of the Northeast Quarter (NE'/.) of the Southwest Quarter (SW'/.), thence South 87053T' East along the South line of said Southwest Quarter (SW 1/4) of the Northeast Quarter (NE /a) of the Southwest Quarter (SW 34) a distance of 20.09 feet to a point on the existing East Right of Way line of Arkansas Highway 71B for the Point of Beginning. thence North 435'50" East along said East Right of Way line a distance of 336.70 feet; thence leaving said East Right of Way line South 6540'l 6' East - 630.94 foot to a point on the East line of said Southwest Quarter (SW Y) of the Northeast Quarter (NE %) of the Southwest Quarter (SW %). thence along the East line of said Southwest Quarter (SW A) of the Northeast Quarter (NE'/.) of the Southwest Quarter (SW'/.) South 2.58117a West - 322,00 feet to the Southwest corner of said Southwest Quarter (SW Y,) of the Northeast Quarter (NE %.) of the Southwest Quarter (SW 1.); thence along the South line of said Southwest Quarter (SW Y.) of the Northeast Quarter (NE V) of the Southwest Quarter (SW'/..) North 8705'37" West - 040,34 reel to the Point of ieginning, containing 4.81 acres, more or less. CWrd&txt�iCHrguOQ7 57Y161 Oak. FId4 $tWY 7I5mp.,p5Yne 6 X.un.r.d.v EXHIBIT I3 PERMITTED EXCEPTIONS 1454135v.3 0017758100051 Fayetteville Permitted Exceptions General and special taxes for the year 1997 and subsequent years, which are not yet due and payable. 2. Special taxes and/or assessments payable in installments, to -wit: NONE. 3. Loss arising from oil, gas and/or other minerals, conveyed, retained, leased, assigned or any other activity concerning the sub -surface rights or ownership, including but not limited to the right of ingress and egress for said sub -surface purposes. 4. Encroachment addressed in Section 8.30 of that certain Amended and Restated Stock Purchase Agreement, dated June 26, 1997, by and between Kearney -National Inc. and Cooper Power Systems, Inc. DECLARATION OF RESTRICTIVE COVENANTS (Entire Acreage) STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of ,2010, 2010, by KEARNEY-NATIONAL INC., a Delaware corporation (hereinafter referred to as "Declarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "P�erty") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Kearney -National, Inc. shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated , by and among Declarant, Kearney -National, Inc. and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order, 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 1454118v.3 0017758/00051 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). Existing monitoring and other wells shall remain in place during any period required by the ADEQ. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement o€ the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and Kearney -National Inc. and "Enforcement Party" shall mean each of them. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 1454 I 18v.3 0017758100051 EXECUTED this day of > 2010. KEARNEY-NATIONAL, INC. a Delaware corporation By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by , the of KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires 14$4118v.3 0017758/00051 EXECUTED this day of , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of _ 2010, by , the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property 4 I454118v.3 0017758!00051 Exhibit A Property riremisee The South }al€ (S/b) of the North Half (N/½) of the Northeast Quarter (NE/;) of the Southwest Quarter (SW/;) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter (SW/;) of the Northeast Quarter (NE/�) of the Southwest Quarter (SW/½) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas, DECLARATION OF RESTRICTIVE COVENANTS (Airport Tract) STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of , 2010, by KEARNEY-NATIONAL INC., a Delaware corporation (hereinafter referred to as "Declarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT; NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Kearney -National, Inc. shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated _____________,by and among Declarant, Kearney -National, Inc. and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. _ Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding I454124v.3 0017758100051 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). • Existing monitoring and other wells shall remain in place during any period required by the ADEQ. • The Property shall only be used for roadway purposes. • No buildings or other structures shall be constructed on the Property. • The subsurface of the Property shall only be used to the extent necessary to construct a roadway on the Property, re -channel an abutting drainage ditch, and reroute a water line on the southeast comer of the Property. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and Kearney -National Inc. and "Enforcement Party" shall mean each of them. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 1454124v.3 0017758/00051 EXECUTED this day of , 2010. KEARNEY-NATIONAL, INC. a Delaware corporation By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of , 2010, by the of KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires 1454124v.3 001775$!00051 EXECUTED this STATE OF COUNTY OF day of .2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: This instrument was acknowledged before me on 2010, by , the SYSTEMS, LLC, a Delaware limited liability company. company. Exhibit A — Property (4,81 Acres) 4 1454124v.3 0017758100051 the day of , of COOPER POWER on behalf of said limited liability Notary Public, State of Notary's Printed Name Commission Expires Exhibit A Property DMKC FIELD f HWY 71S6 Trace No. 6 Perael No. 703-t 5533.000 (Deed Record 630-526) A part of the southwest Quarter (SW'h) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW'/.) of Section 33, T16 -N. R -30•W, as described In Deed Record 630-928 of the rocords of the Circuit Clerk, Washington County, Arkansas, being more particularly described as follows; From the Southwest corner of said Southwest Quarter (SW '4) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW '6). thence South 87'05'57' East along the South line of said Southwest Quarter (SW %) of the Northeast Quarter (NE Y+) of the Southwest Quarter (SW Y4) a distance 0(20.09 feat to a point on the existing East Right of Way fine of Arkansas Highway 718 for the Point of Beginning. thence North 4.35'50" East abng sold East Right of Way line a distance of 335.70 feet; thence leaving said East Right of Way line South 654018East - 530.94 feet to a point on the East line of said Southwest Quarter (SW %) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW Y4); thence along the East line of said Southwest Quarter (SW '.4) of the Northeast Quarter (NE'/.) or the Southwest Quarter (SW 16) South 2.5817" West.- 322.00 feet to the Southwest corner of said Southwest Quarter (SW 1) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW Y.); thence along the South Tina of said Southwest Quarter (SW y) of Iho Northeast Quarter (NE 14) of the Southwesl Quarter (SW Y4) North 6705'37" West - 640.34 feel to the Point of 5091nn1ng, containing 4.81 acres, more or loss. C.�daI,IEA><EMENYSU0D7107=16. Dnkc ndd H WY rI rrpc,ry'1,HI r Ksr"q-dw I, 8ett Stamps ' tt Clerk and �c-vflrcio That this fns w filed oun ansas, do hereby ecorder T catid ereco trument for recordfy in Aeoord wfttj thea ecfgemsame is now e and er iduly recordedn my once Book certl$cats thereon and p5ge as indked thereon. hand andr frt WHEREOF, ! hake hereunto set cued hereon, the seat of said Court on the date lnnly di- Curt CieA and & icio Recorder by I1II III I1IIiIlII IIII IIIIHH III II1P1IFO IIII ll! Doc ID: 013460190009 Type: LIE Kind: LIS PENDENS Recorded; 05/27/2010 at 10:16:21 AM Fee Amt: Page 1 of 9 Washington County. AR Bette Stamps Circuit Clerk File F00N-00000669 ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY IN THE MATTER OF: COOPER POWER SYSTEMS, LLC. PARTICIPANT REGARDING: APPROXIMATELY 19.42 ACRE TRACT OF LAND 3660 SOUTH SCHOOL STREET FAYEI-FEVILLE, WASHINGTON COUNTY, ARKANSAS AFIN: 72-00681 LIS No. - IMPLEMENTING AGREEMENT This Implementing Agreement (hereinafter "IA") shall establish remedial requirements and financial liabilities of Cooper Power Systems, LLC (hereinafter the 'PARTICIPANT' or "CPS") associated with the Property located at 3660 South School Street, Fayetteville, Washington County, Arkansas (hereinafter the ";Property"). This IA is entered into by the PARTICIPANT and the Arkansas Department of Environmental Quality (hereinafter "ADEQ") pursuant to the authority of the Hazardous Waste Management Act (Act 406 of 1979, as amended; A.C.A. §§ 8-7-201 et. seg.), the Arkansas Remedial Action Trust Fund Act (Act 479 of 1985, as amended; A.C.A. §§ 8-7-501 et. seg.), the Arkansas Pollution Control and Ecology Commission ("APC&EC") Regulation Number 23, Hazardous Waste Management, (hereinafter "Regulation 23"), the Arkansas Voluntary Cleanup Act (Act 1042 of 1997, as amended; A.C.A. §§ 8-7-1101 et. seq.)) (hereinafter the "Arkansas Brownfields Program"), and the APC&EC Regulation Number 29, Brownfields Redevelopment. FINDINGS OF FACT The Property is located at 3660 South School Street, Fayetteville, Washington County, Arkansas. The legal description of the 19.42 -acre tract, which is comprised of two (2) parcels is: The South Half (S/4) ofthe North Ralf (N/%) of the Northeast Quarter (NEf'/h) ofthe Southwest Quarter'(SW/f/) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S Highway No. 71 right-qf-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right -of way along the East Side thereof. The Southwest Quarter (S/'/a) of the Northeast Quarter (NR/%) of the Southwest Quarter ('W/%4)gfSection 33, Township I6 North, Range 30 West, less that portion FAN ��`� thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. 2. PARTICIPANT meets the requirements for participation in the Arkansas Brownfields Program as described in Arkansas Code Annotated ("A.C.A.") § 8-7-1104(a) and is competent and authorized to execute this IA. 3. The Property is a parcel located in the southeastern part of the City of Fayetteville in roughly the central part of Washington County, Arkansas. The Property was used historically for industrial purposes from approximately 1954 until the present. Kearney National, Inc. ("KNI") conducted industrial operations at the Property from 1954 until 1997, when it thereafter leased the property to PARTICIPANT. KNI plant operations included metal plating, tin dipping, solvent degreasing, and lead fusing associated with the electrical equipment manufacturing business. In 1997 CPS leased the Property from KNI and has used it for assembly and warehousing of components used in the electrical power industry. 'fhe Property remains developed with an approximate 135,000 s.f. electrical equipment assembly facility, and an approximate 30,000 s.f. warehouse. Two parking lots are allocated on the property. Since 1997, KNI as responsible party, has undertaken response action at the property and in August 2000 entered into a Consent Administrative Order ("CAO") with ADEQ, which outlined the regulatory, legal, and timing issues of the remediation to be performed. The buildings are currently occupied by PARTICIPANT pursuant to its lease with KNI. Through the implementation of the CAG, the releases of hazardous substances at the Property do not pose either (i) an unacceptable risk, either acute or chronic to the health of employees or other person likely to be exposed to the release from the Property based upon the site use contemplated hereby or (ii) an unacceptable risk to degrade either ground waters or surface waters or any risk to degrade Arkansas' extraordinary resource waters. 4. In December of 2009, the PARTICIPANT submitted a letter of intent and Brownfields Application, which set forth the Participant's desire to take title to the Property and retain eligibility for participation in the Brownfields Program as described in A.C.A. § 8-7-1101 (8). 5. In January 2010, ADEQ sent a letter declaring the PARTICIPANT's eligibility for participation in the Arkansas Brownfields Program as described in A.C.A. § 8-7-1104 (a), therefore authorizing the 2 PARTICIPANT to acquire title to all or part of the Property and still retain its eligibility for the Arkansas Brownfields Program. 6. The PARTICIPANT warrants it is not responsible for any preexisting pollution at or contamination on any of the Property. Additionally, the PARTICIPANT did not, by actor omission, cause or contribute to any release or threatened release of hazardous substances on or from the Property and ADEQ has concluded PARTICIPANT is not otherwise considered to be a responsible party pursuant to A.C.A. § 8-7-512(a). 7. The PARTICI PAN1agrees the Property will not, at any time, be transferred to any party responsible for such pollution or contamination on the Property. If such transfer is made, this IA and any certificate of completion issued hereunder shall be null and void. 8. In February 2010, Land Recycling Company, Inc. ("LRC") submitted a Phase I Environmental Site Assessment ("ESA") that was approved by ADEQ in March 2010 in compliance with PARTICIPANT'S Brownfield Application. In March 2010, LRC on behalf of the PARTICIPANT, conducted a Comprehensive Site Assessment ("CSA") dated March 2010, on the Property as part of the requirements of the Arkansas Brownfelds Program. In conducting the CSA, LRC reviewed the Phase I ESA and sampling data compiled by KNI in connection with the work it was performing under the CAO. Based on the results of KNI's soil and groundwater sampling, trichloroethylene ("ICE") was detected in soil and ground water samples. Gasoline Range Organics ("GRO") were also detected in soil samples and compounds were initially detected in 1997 in soil samples. Subsequent groundwater sampling in 1998 indicated the presence of benzene, TCE and other chlorinated solvents which in some cases exceeded MCLs. The 1998 sampling event again indicated that both soils and shallow groundwater were impacted. A former Aboveground Storage Tank operated by Kearney was determined to be the source of the benzene and GRO in groundwater; and TCE was a cleaning solvent, which according to records reviewed by LRC, was commonly used by Kearney. 9. The ADEQ Hazardous Waste Division personnel reviewed the CSA and the findings and report were approved April 7, 2010. 10. Consequently, the PARTICIPANT has committed at this time to a particular future land use for the Property and has agreed to execute a real estate contract to buy 4.81 acres more or less, (described in Exhibit A hereto as the "Airport Tract"), which shall be used by the City of Fayetteville ("City") as part of the City's plan to further develop improvements to its airport facility. PARTICIPANT shall assign such contract to the City so the City may utilize the tract as needed for airport development. PARTICIPANT has agreed to release the Airport Tract from its lease with KNI which shall further enable the City to construct roadway, rechannel the drainage ditch, and reroute water service lines. PARTICIPANT has agreed to restrict or cause the entire Property, including the Airport Tract, to be restricted for use not inconsistent with commercial/light industrial zoning uses, as well as to prohibit the use of groundwater on the Property as described herein. AGREEMENT The issues herein, as they pertain to the Property, having been settled by the agreement of the PARTICIPANT and ADEQ, it is hereby agreed and stipulated by all Parties the IA be entered herein and that the PARTICIPANT comply with the following provisions. The PARTICIPANT, within ten (10) days of the effective date of this IA, shall publish notice of this IA in a newspaper of general circulation that serves the City of Fayetteville area. The notice shall be subject to approval by ADEQ and shall identify the Property, the intended future land use, and the nature of the activities to be conducted on the Property. The PARTICIPANT shall provide proof of this publication to ADEQ within thirty (30) days of the effective date of this IA. A.C A. §8-7-1104(d) 2. The PARTICIPANT has submitted a Property Development Plan (PDP) pertaining to the Airport Tract to ADEQ for review and approval. The approved PDP shall become an amendment to this IA. ADEQ shall issue a Property Development Decision Document ("PDDD"), as necessary, to address any contamination identified in the CSA. Pursuant to A.C.A. §8-7-I 104(h)(1), ADEQ shall provide public notice and opportunity for hearing on any such PDDD. 4 4. ADEQ shall issue a final PDDD, considering all comments submitted, pursuant to the public notice discussed in Paragraph 3 above. The approved final PDDD shall become an Amendment to this IA. S. The PARTICIPANT shall complete or cause to be completed the Remedial Action Activities (defined below in Para rah 7), as addressed in the final PDDD. 6. The PARTICIPANT shall file, within thirty (30) days of it or the City acquiring legal title to the Property, a notice of the IA with the clerk of the Circuit Court in Washington County, Real Estate Section. A.C.A. §8-7-1104(0)(1). Notice of any amendments to this IA also shall be filed by PART[CIPANTwith the Clerk of the Circuit Court in Washington County within thirty (30) days after their effective dates. A.C.A. §8-7-1104(o)(2). The Clerk of the Circuit Court shall docket and record the notices so they appear in the purchaser's chain of title. A.C.A. §8-7-1104(0)(3). A file marked copy shall be submitted to ADEQ, within forty-five (45) days of PARTICIPANT or the City acquiring legal title to the Property. The Remedial Action Activities required to be conducted by PARTICIPANT hereunder are: a. Cooper Power Systems, LLC (CPS) shall establish institutional controls which shall run with the land through deed recordation of the following restrictions pursuant to the Declaration of Restrictive Covenants attached hereto as Exhibit B: (i) Restricting usage of the Property solely to commercial/light industrial zoning regulations; (ii) Limiting the use of the Airport Tract to roadway purposes; (iii) Prohibiting the use of groundwater beneath the Property; (iv) Providing access to KNI so it may conduct the work in accordance with the Remedial Action Decision Document (RADD) per the CAO LIS No. 00-138; and (v) Requiring that monitoring and other wells remain in place during any period required by the ADEQ. CPS shall cause to be planted reasonable vegetative cover, plants and shrubs on the Airport Tract to facilitate natural attenuation. c. Except for the Remedial Action Activities described above, CPS shall have no further responsibility with regard to any past contamination of the Property. 8. The PARTICIPANT shall submit a completion report to ADEQ within forty-five (45) days of completing the Remedial Action Activities associated with the PDP and the PDDD. The completion report should include information to document the site has been redeveloped according to the provisions mutually agreed upon in the IA, the approved PDP and the PDDD. After ADEQ receives this information and verifies the work has been completed, a Certificate of Completion will be issued. 9. The PARTICIPANT shall file a deed restriction for the Property, in the form attached hereto as Exhibit C, to restrict the use of the Property to activities and compatible uses which will protect the integrity of any remedial action measures implemented on the Property. A.C.A. §8-7-1104(1). 10. The PARTICIPANT shall provide a copy of this IA to all prospective owners, or successors before either (i) any contract it executes to acquire all or part of the Property is assigned to a third party, including the City as to the Airport Tract or (ii) all or part of the Property is transferred to the prospective owner or successor. 11. The PARTICIPANT shall take all reasonable steps necessaryto prevent aggravating or contributing to the contamination of the air, land or water, including downward migration of contamination, from any existing contamination on the site. The term existing contamination shall include any contamination set forth in the CSA approved by ADEQ. A.C.A. §8-7-1104(k)(1). 12. The PARTICIPANT shall not use or redevelop the site in a manner that differs from the terms or procedures established under this IA. A.C.A. §8-7-1104(k)(2). 13. The PARTICIPANT shall not be responsible for paying any fines or penalties related to the past contamination of the Property, nor shall the PARTICIPANT be responsible for any past contamination on the Property, other than the Remedial Action Activities. The term "past contamination" shall include any contamination set forth in the CSA approved by ADEQ. A.C.A. §8-7-1104(j). M 14. Nothing in this IA shall be construed as a waiver of liability for future contamination of the Property by the PARTICIPANT, subsequent owners, or third -parties. A.C.A. §8-7-1104(i). 15. This IA, including all rights and clean-up liabilities, is transferable, with written approval by ADEQ, to any and all subsequent owners of the Property who did not, by act or omission, cause or contribute to any release or threatened release of hazardous substances on the Property. A.C.A. §8-7-1104(m). By its execution hereof, the ADEQ hereby approves its transfer to the City, upon PARTICIPANT'S request, in which event both the PARTICIPANT and City shall be entitled to the benefits hereof. 16. Subsequent owners shall receive a copy of the IA from the Property owner and shall not develop or use the Property in a manner which is inconsistent with the terms or procedures contained herein unless agreed to by all Parties to this IA, including ADEQ. A.C.A. §8-7-1104(n). In the event the intended use of the Property is to be altered from the use described in the IA, PDP and PDDD, ADEQ will evaluate the protectiveness of the remedial action to determine if the proposed use would be protective of human health and the environment. Absent such a determination by ADEQ, any liability assurances contained in this IA and amendments thereto or certificates of completion issued hereunder, shall be null and void. 17, Participation in the Arkansas Brownfields Program can be withdrawn by the PARTICIPANT at any time upon written notification to ADEQ. In turn, if the PARTICIPANT fails to complete the terms and conditions set forth in this IA, and at the time of withdrawal has acquired the property and is considered to be the legal owner of the property, the ADEQ reserves the right to deem the PARTICIPANT in violation of this IA and the PARTICIPANT will be notified in writing that their enrollment in the Arkansas Brownfields Program is no longer valid and the PARTICPANT will be liable for any past contamination found on the site. I8. This IA shall become effective upon the signature of the Director of ADEQ. 7 IT IS SO AGREED. ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY Director Teresa Marks Date: /f 7/to PARTICIPANT COOPER POWER SYSTEMS, Date: I y �C7 f Cw Title RECORDED EXHIBITS Exhibit A and B: Declaration of Restrictive Covenants (Airport Tract) File 2010-00013897 Exhibit C: Declaration of Restrictive Covenants (Entire Acreage) File 2010-00013896 ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY IN TILE MATTER OF: COOPER POWER SYSTEMS, LLC. PARTICIPANT RF GARDING: APPROXIMATELY 19.42 ACRE TRACT OF LAND 3660 SOUTH SCHOOL STREET FAYE7"I'EVILLE, WASHINGTON COUNTY, ARKANSAS AFIN; 72-00681 LIS No.— t J O%3 IMPLEMENTING AGREEMENT This Implementing Agreement (hereinafter "IA") shall establish remedial requirements and financial liabilities of Cooper Power Systems, LLC (hereinafter the "PARTICIPANT' or "CPS") associated with the Property locatcd at 3660 South School Street, Fayetteville, Washington County, Arkansas (hereinafter the "Property"). This IA is entered into by the PARTICIPANT and the Arkansas Department of Environmental Quality (hereinafter "ADEQ") pursuant to the authority of the Hazardous Waste Management Act (Act 406 of 1979, as amended; A.C.A. §§ 8-7-201 et. seg.), the Arkansas Remedial Action Trust Fund Act (Act 479 of 1985, as amended; A.C.A. §§ 8-7-501 et etseq.), the Arkansas Pollution Control and Ecology Commission ("APC&EC") Regulation Number 23, Hazardous Waste Management, (hereinafter "Regulation 23"), the Arkansas Voluntary Cleanup Act (Act 1042 of 1997, as amended; A.C.A. §§ 8-7-1101 et. s .) (hereinafter the "Arkansas Brownfields Program"), and the APC&EC Regulation Number 29, Brownlelds Redevelopment. FINDINGS OF FACT 1. The Property is located at 3660 South School Street, Fayetteville, Washington County, Arkansas. The legal description of the 19.42 -acre tract, which is comprised of two (2) parcels is: The South Half (S/%) ofthe North Half(N/%) ofthe Northeast Quarter (NE/'/s) ofthe Southwest Quarter (SW/1/) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S Highway No. 71- right-gf=way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-oj-way along the East Side thereof The Southwest Quarter (S/'/e) of the Northeast Quarter (NE/'4) of the Southwest Quarter (SW/'%) ofSection 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. 2. PARTICIPANT meets the requirements for participation in the Arkansas Brownfields Program as described in Arkansas Code Annotated ("A.C.A.") § 8-7-1104(a) and is competent and authorized to execute this IA. 3. The Property is a parcel located in the southeastern part of the City of Fayetteville in roughly the central part of Washington County, Arkansas. The Property was used historically for industrial purposes from approximately 1954 until the present. Kearney National, Inc. ("KNI") conducted industrial operations at the Property from 1954 until 1997, when it thereafter leased the property to PARTICIPANT. KNI plant operations included metal plating, tin dipping, solvent degreasing, and lead fusing associated with the electrical equipment manufacturing business. In 1997 CPS leased the Property from KNI and has used it for assembly and warehousing of components used in the electrical power industry. The Property remains developed with an approximate 135,000 s.f. electrical equipment assembly facility, and an approximate 30,000 s.f. warehouse. Two parking lots are allocated on the property. Since 1997, KNI as responsible party, has undertaken response action at the property and in August 2000 entered into a Consent Administrative Order ("CAO") with ADEQ, which outlined the regulatory, legal, and timing issues of the remediation to be performed. The buildings are currently occupied by PARTICIPANT pursuant to its lease with KNI. Through the implementation of the CAO, the releases of hazardous substances at the Property do not pose either (i) an unacceptable risk, either acute or chronic to the health of employees or other person likely to be exposed to the release from the Property based upon the site use contemplated hereby or (ii) an unacceptable risk to degrade either ground waters or surface waters or any risk to degrade Arkansas' extraordinary resource waters. 4. In December of 2009, the PARTICIPANT submitted a letter of intent and Brownfields Application, which set forth the Participant's desire to take title to the Property and retain eligibility for participation in the Brownfields Program as described in A.C.A. § 8-7-1101 (8). 5. In January 2010, ADEQ sent a letter declaring the PARTICIPANT's eligibility for participation in the Arkansas Brownfields Program as described in A.C.A. § 8-7-I 104 (a), therefore authorizing the `A PARTICIPANT to acquire title to all or part of the Property and still retain its eligibility for the Arkansas Brownfields Program. 6. The PARTICIPANT warrants it is not responsible for any preexisting pollution at or contamination on any of the Property. Additionally, the PARTICIPANT did not, by act or omission, cause or contribute to any release or threatened release of hazardous substances on or from the Property and ADEQ has concluded PARTICIPANT is not otherwise considered to be a responsible party pursuant to A.C.A. § 8-7-512(a). 7. The PAR'T'ICIPANT agrees the Property will not, at any time, be transferred to any party responsible for such pollution or contamination on the Property. If such transfer is made, this IA and any certificate of completion issued hereunder shall be null and void. 8. In February 2010, Land Recycling Company, Inc. ("LRC") submitted a Phase I Environmental Site Assessment ("ESA") that was approved by ADEQ in March 2010 in compliance with PARTICIPANT'S Brownfield Application. In March 2010, LRC on behalf of the PARTICIPANT, conducted a Comprehensive Site Assessment ("CSA") dated March 2010, on the Property as part of the requirements of the Arkansas Brownfields Program. In conducting the CSA, LRC reviewed the Phase I ESA and sampling data compiled by KNI in connection with the work it was performing under the CAO. Based on the results of KNI's soil and groundwater sampling, trichloroethylene ("TCE") was detected in soil and ground water samples. Gasoline Range Organics ("GRO") were also detected in soil samples and compounds were initially detected in 1997 in soil samples. Subsequent groundwater sampling in 1998 indicated the presence of benzene, TCE and other chlorinated solvents which in some cases exceeded MCLs. The 1998 sampling event again indicated that both soils and shallow groundwater were impacted. A former Aboveground Storage Tank operated by Kearney was determined to be the source of the benzene and GRO in groundwater; and TCE was a cleaning solvent, which according to records reviewed by LRC, was commonly used by Kearney. 9. - The ADEQ Hazardous Waste Division personnel reviewed the CSA and the findings and report were approved April 7, 2010. 10. Consequently, the PARTICIPANT has committed at this time to a particular future land use for the Property and has agreed to execute a real estate contract to buy 4.81 acres more or less, (described in l:;xhibit A hereto as the "Airport Tract"), which shall be used by the City of Fayetteville ("City") as part of the City's plan to further develop improvements to its airport facility. PARTICIPANT shall assign such contract to the City so the City may utilize the tract as needed for airport development. PARTICIPANT has agreed to release the Airport Tract from its lease with KNI which shall further enable the City to construct roadway, rechannel the drainage ditch, and reroute water service lines. PARTICIPANT has agreed to restrict or cause the entire Property, including the Airport Tract, to be restricted for use not inconsistent with commercial/light industrial zoning uses, as well as to prohibit the use of groundwater on the Property as described herein. AGREEMENT The issues herein, as they pertain to the Property, having been settled by the agreement of the PARTICIPANT and ADEQ, it is hereby agreed and stipulated by all Parties the IA be entered herein and that the PARTICIPANT comply with the following provisions. The PARTICIPANT, within ten (10) days of the effective date of this IA, shall publish notice of this IA in a newspaper of general circulation that serves the City of Fayetteville area. The notice shall be subject to approval by ADEQ and shall identify the Property, the intended future land use, and the nature of the activities to be conducted on the Property. The PARTICIPANT shall provide proof of this publication to ADEQ within thirty (30) days of the effective date of this IA. A,C A. §8-7-1104(d) 2. The PARTICIPANT has submitted a Property Development Plan (PDP) pertaining to the Airport Tract to ADEQ for review and approval. The approved PDP shall become an amendment to this IA. 3. ADEQ shall issue a Property Development Decision Document ("PDDD"), as necessary, to address any contamination identified in the CSA. Pursuant to A.C.A. §8-7-1104(h)(1), ADEQ shall provide public notice and opportunity for hearing on any such PDDD. H 4. ADEQ shall issue a final PDDD, considering all comments submitted, pursuant to the public notice discussed in Paragraph 3 above. The approved final PDDD shall become an Amendment to this IA. 5. The PARTICIPANT shall complete or cause to be completed the Remedial Action Activities (defined below in Paragraph 7), as addressed in the final PDDD. 6. The PARTICIPANT shall file, within thirty (30) days of it or the City acquiring legal title to the Property, a notice of the IA with the clerk of the Circuit Court in Washington County, Real Estate Section. A.C.A. §8-7-1104(oxl). Notice of any amendments to this IA also shall be filed by PARTICIPANT with the Clerk of the Circuit Court in Washington County within thirty (30) days after their effective dates. A.C.A. §8-7-1104(o)(2). The Clerk of the Circuit Court shall docket and record the notices so they appear in the purchaser's chain of title. A.C.A. §8-7-1104(o)(3). A file marked copy shall be submitted to ADEQ, within forty-five (45) days of PARTICIPANT or the City acquiring legal title to the Property. 7. The Remedial Action Activities required to be conducted by PARTICIPANT hereunder are: a. Cooper Power Systems, I.1.C (CPS) shall establish institutional controls which shall run with the land through deed recordation of the following restrictions pursuant to the Declaration of Restrictive Covenants attached hereto as Exhibit B: (i) Restricting usage of the Property solely to commercial/light industrial zoning regulations; (ii) Limiting the use of the Airport Tract to roadway purposes; (iii) Prohibiting the use of groundwater beneath the Property; (iv) Providing access to KNI so it may conduct the work in accordance with the Remedial Action Decision Document (RADD) per the CAO LIS No. 00-138; and (v) Requiring that monitoring and other wells remain in place during any period required by the ADEQ. b. CPS shall cause to be planted reasonable vegetative cover, plants and shrubs on the Airport Tract to facilitate natural attenuation. c. Except for the Remedial Action Activities described above, CPS shall have no further responsibility with regard to any past contamination of the Property. The PARTICIPANT shall submit a completion report to ADEQ within forty-five (45) days of completing the Remedial Action Activities associated with the PDP and the PDDD. The completion report should include information to document the site has been redeveloped according to the provisions mutually agreed upon in the IA, the approved PDP and the PDDD. After ADEQ receives this information and verifies the work has been completed, a Certificate of Completion will be issued. 9. The PARTICIPANT shall file a deed restriction for the Property, in the form attached hereto as Exhibit C, to restrict the use of the Property to activities and compatible uses which will protect the integrity of any remedial action measures implemented on the Property. A.C.A. §8-7-1104(1). 10. The PARTICIPANT shall provide a copy of this IA to all prospective owners or successors before either (i) any contract it executes to acquire all or part of the Property is assigned to a third party, including the City as to the Airport Tract or (ii) all or part of the Property is transferred to the prospective owner or successor. 11. The PARTICIPANT shall take all reasonable steps necessary to prevent aggravating or contributing to the contamination of the air, land or water, including downward migration of contamination, from any existing contamination on the site. The term existing contamination shall include any contamination set forth in the CSA approved by ADEQ. A.C.A. §8-7-I 104(k)(1). 12. The PARTICIPANT shall not use or redevelop the site in a manner that differs from the terms or procedures established under this IA. A.C.A. §8-7-1104(k)(2). 13. The PARTICIPANT shall not be responsible for paying any fines or penalties related to the past contamination of the Property, nor shall the PARTICIPANT be responsible for any past contamination on the Property, other than the Remedial Action Activities. The term "past contamination" shall include any contamination set forth in the CSA approved by ADEQ. A.C.A. §8-7-1104(j). 6 14. Nothing in this IA shall be construed as a waiver of liability for future contamination of the Property by the PARTICIPANT, subsequent owners, or third -parties. A.C.A. §8-7-1104(i). 15. This IA, including ail rights and clean-up liabilities, is transferable, with written approval by ADEQ, to any and all subsequent owners of the Property who did not, by act or omission, cause or contribute to any release or threatened release of hazardous substances on the Property. A.C.A. §8-7-1104(m). By its execution hereof, the ADEQ hereby approves its transfer to the City, upon PARTICIPANT'S request, in which event both the PARTICIPANT and City shall be entitled to the benefits hereof. 16. Subsequent owners shall receive a copy of the IA from the Property owner and shall not develop or use the Property in a manner which is inconsistent with the terms or procedures contained herein unless agreed to by all Parties to this IA, including ADEQ. A.C.A. §8-7-1104(n). In the event the intended use of the Property is to be altered from the use described in the IA, PDP and PDDD, ADEQ will evaluate the protectiveness of the remedial action to determine if the proposed use would be protective of human health and the environment. Absent such a determination by ADEQ, any liability assurances contained in this IA and amendments thereto or certificates of completion issued hereunder, shall be null and void. 17. Participation in the Arkansas Brownfields Program can be withdrawn by the PARTICIPANT at any time upon written notification to ADEQ. In turn, if the PARTICIPANT fails to complete the terms and conditions set forth in this IA, and at the time of withdrawal has acquired the property and is considered to be the legal owner of the property, the ADEQ reserves the right to deem the PARTICIPANT in violation of this IA and the PARTICIPANT will be notified in writing that their enrollment in the Arkansas Brownfields Program is no longer valid and the PARTICPANT will be liable for any past contamination found on the site. 18. This IA shall become effective upon the signature of the Director of ADEQ. 7 IT IS SO AGREED. ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY Director Teresa Marks PARTICIPANT COOPER POWER SYSTEMS, Im Title: c &rcjiF i&' Date: _//7//7/10 Date: MAC'? t R t (7 Exhibit A Airport Tract RAKE FIELD I HWY 718 Tract Na 6 Facet No. 765-15533.000 PROPERTY DESCRIPTION: (Deed Record 830.628) A partofthe Southwest Quarter (SW)/,) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW y) o(Sedlon 33. T -16-N, R -30-W, as described in Dead Record 830-828 of the records of the Circuit Ctedk, Washington County, Arkansas. being mom particularly descrined as follows: From the Southwest corner of 6atd Southwest Quarter (SW Y.) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW'/.} thence South 87'0537" East along the South Inc of said Southwest Quarter (SW t.) of the Northeast Quarter (NE Y.) of the Southeast Quarter (SW Y.) a distance of 20.03 feet to a point on the eodstaig East Right of Way line of Arkansas Highway 71 B for the Point of Beginning, thence North 4.35'50East along said East Right of Way One a distance of 335.70 feet; thence leaving said East Right of Way line South 65.46'18' East - 630.94 Feet to a pointon the East line of said Southwest Quarter (SW Y) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW Y.); thence along the East line of said Southwest Quarter (SW Y.) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW Y.) South 2.5817" West - 322.00 feet to the Southwest corner bf said Southwest Quarter (SW'/.) of the Northeast Quarter (NE'/.) of the southwest Quarter (SW Y+); thence along the South line of said Southwest Quarter (SW 14) of the Northeast Quarter (NE Y.) or the Southwest Quarter (SW'/.) North 87'0537' West - 540.34 feet to Ilia Point of Beginning. containing 4.81 acres, rnore or less. CdddffAswetns1700'+�W 7161 b..rWd kWY llftap47a,, 6 X.., q.6ac Exhibit B - Declaration of Restrictive Covenants DECLARATION OF RESTRICTIVE COVENANTS (Entire Acreage) STATE OF ARKANSAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON § THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of _ 2010, by KEARNEY-NATIONAL INC., a Delaware corporation (hereinafter referred to as "Declarant'), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: I. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-13S, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated by and among Declarant, Cooper Power Systems, LLC and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 145411Sv.4 0017758100051 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). Existing monitoring and other wells shall remain in place during any period required by the ADEQ. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Kearney National Inc. and its successors and assigns, and "Enforcement Party" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 1454118x.4 0o17758/00d51 EXECUTED this day of____________________ , 2010. KEARNEY-NATIONAL, INC. a Delaware corporation By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by , the offI{EARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires 14541 I SvA 0017758/00051 EXECUTED this day of , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by the ___ of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A -- Property 4 1454118v.4 0017758100051 Exhibit A Property Premises The South Half (s/N) of the North Half (N/¼) of the Northeast Quarter (HE/.) of the Southwest Quarter (SW/½) of Section 33, Township i6 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9,80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The southwest Quarter (5W1¼) of the Northeast Quarter (NE/:) of the Southwest Quarter (SW/h) of Section 33, Township 16 Korth, Range 3D West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. DECLARATION OF RESTRICTIVE COVENANTS (Airport Tract) STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of _ . 2010, by KEARNEY-NATIONAL INC., a Delaware corporation (hereinafter referred to as "Declarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated , by and among Declarant, Cooper Power Systems, LLC and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 1454124x.4 0017758!00051 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: • The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. • No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). + Existing monitoring and other wells shall remain in place during any period required by the ADEQ. • The Property shall only be used for roadway purposes. • No buildings or other structures shall be constructed on the Property. • The subsurface of the Property shall only be used to the extent necessary to construct a roadway on the Property, re -channel an abutting drainage ditch, and reroute a water line on the southeast comer of the Property. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Kearney -National Inc. and its successors and assigns, and "Enforcement" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 14541?Av.4 0017758/00051 EXECUTED this day of , 2010. KEARNEY-NATIONAL, INC. a Delaware corporation By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of , 2010, by , the of KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires 1454124x.4 OOI7758IM51 EXECUTED this day of STATE OF COUNTY OF 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: This instrument was acknowledged before me on the 2010, by , the SYSTEMS, LLC, a Delaware limited liability company. or company. Exhibit A — Property (4.81 Acres) 4 1454124x.4 0017755 0051 day of of COOPER POWER behalf of said limited liability Notary Public, State of Notary's Printed Name Commission Expires Exhibit A Property EKE FIELD 1 HVYfl Tr irx No. 6 Parcel N. 765-15533.000 PROPER1Y DESCRII 1 N (Deed Record 830.029) Apart of the soulfwvaet Ouerier (SW 14) or the Ncxl east Quarter (NE 34) of the Southwest Quarter (SW 14) of Section 33,116-N. R -30-W, as described In Deed Renard 830.028 of the records of the Circuit Clerk Waatdngon County. Arkansas, being more paNeutedy descried as fo1ows: From the Southwest corner of said Sout wost Quarter (SW %) of the No hesetQ iwler (NE %) of the Southwest Quarter (SW x), thence South 8T053r East atong the South tine of said Soutliweet Quarter (SW '4) of the Northeast Quarter ([CIE 36) of the Southwest Quarter (SW '4) a distance of 20.09110110 a potnl on the wwaslnhg East Right ciWay foe of Arksamsae Highway 715 for the Point of Beginning, thence Nodh 4'3580East slang said East Right of Way line a distance of 339.70 feet; thence having said East Right of Way he South 05`49'18` East - 030.94 (oat to a point on the East Ins of sped southwest Quarter (SW Y,) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW Y.); thence afortg lire East too of said Southwest Quarter (SW Y4 of the Northeast Quarter (NE Y.) of the Southwest Ouatter(SW %) South 250'17" West - 322.00 feet to Ilia Soutthwest oomcrof said Southwest Quarter (SW'/.) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW Y.): thence along the South too of said Southwest Quarter (SW Y.) of lire Northeast Quarter (NE Y.) of the Southwest Quarter (SW V.) North uro53T" West - 640.34 feet to the Point of Seginnkhg, apritalning 4.01 earns. more or loss. cu.o.�thvaru.rsuaonor+h p s,.r< n,u n wr e+v�rrurhnw.ry Exhibit C — Deed Restrictions DECLARATION OF RESTRICTIVE COVENANTS (Entire Acreage) STATE OF ARKANSAS § 8 KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Decl�ar tion") is made and entered into this day of 2010, by KEARNEY NATIONAL INC., a Delaware corporation (hereinafter referred to as "Declarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "Propert?') more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated , by and among Declarant, Cooper Power Systems, LLC and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 1454118x.4 0017758!00051 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. • No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). • Existing monitoring and other wells shall remain in place during any period required by the ADEQ. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Kearney National Inc. and its successors and assigns, and "Enforcement Party" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. S. �y�ablli4. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, whim shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 1454118v.4 OOt77S8/OOO31 EXECUTED this day of , , 2010. KEARNEY NATIONAL, INC. a Delaware corporation By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by the of KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires 1454 ! 18v.4 0017758100051 EXECUTED this day of 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: STATE OF § COUNTY OF § This instrument was acknowledged before me on the day of 2010, by the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company on behalf of said limited liability company. Notary Public, State of_________ Notary's Printed Name Commission Expires Exhibit A — Property 4 1454118v.4 0017758100051 Exhibit A Property �*tses The South Half (S/3) of the North Half (N/) of the Northeast Quarter (NE/:) of the Southwest Quarter (SW/¼) of •Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S- Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the county Road right-of-vay along the East Side thereof. The Southwest Quarter (SW/�) of the Northeast Quarter (NE/%) of the Southwest Quarter (SW/%) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway Ho. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington county, Arkansas. DECLARATION OF RESTRICTIVE COVENANTS (Airport Tract) STATE OF ARKANSAS § 8 KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of 2010, by KEARNEY-NATIONAL INC., a Delaware corporation (hereinafter referred to as "Declarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the ") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated _ , by and among Declarant, Cooper Power Systems, LLC and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 1454]?4v.4 0017758/00051 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: • The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. • No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). • Existing monitoring and other wells shall remain in place during any period required by the ADEQ. • The Property shall only be used for roadway purposes. • No buildings or other structures shall be constructed on the Property. • The subsurface of the Property shall only be used to the extent necessary to construct a roadway on the Property, re -channel an abutting drainage ditch, and reroute a water line on the southeast corner of the Property. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement. Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Kearney -National Inc. and its successors and assigns, and "Enforcement Party" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect, 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 1454 I24v.4 0017755(00051 EXECUTED this day of 2010. KEARNEY-NATIONAL, INC. a Delaware corporation By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by , the of KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires 3 1454124v.4 0017758/00051 EXECUTED this ,____ _ day of 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: STATE OF § COUNTY OF This instrument was knowledgCd before me on the day offC00PER POWER 2010, by thon behalf of said limited liability SYSTEMS, LLC, a Delaware limited liability company. company. Notary Public, State Notary's Printed Name Commission Expires Exhibit A — Property (4.81 Acres) 4 I454124v.4 0017758!00051 Exhibit A Property DRAKE FIELD 1_HWY 718 Tram N. 6 Prr«i No. 765.15333.000 PROPERTY DESCRIPTSON: (Deed Record 530-528} Aped of the Southwest Quarter (SW Y.) of the Northoast Quarter (NE Y.} of the Southwest Quarter (SW V) of Section 33, T -16-N. R.3O.W, as described to Deed Record 83826 of the rocords of the {2roult Clerk Washington County, Arkansas, being more pwticefartyr described as fors: From the Southwest corner of veld SouWiwest Quarter (SW %) of the Northeast Quarter (NE 9) of the Southwest Quarter (SW %). thence South 8T053r East along the South line of said Southwest Querfer (SW Ys)of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW 34) a distance of 20,09 foot to a pohd on the existing EastRight of Way One of Arkansas Ftghwoy T1 B for the Point of Beginning. thence North 4.3550' East slang said East Right of Way line a distance Of 336.70 foes thence leaving raid East Right of Way line South 65,46'16' East - 850.84 feet to a point on the East line of sold Southwest Quarter (SW 16) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW '4) thence ebng the East lino of said Southwest Quarter (SW Y)of the Northeast Quarter (NE Y5) of the Southwest Quarter (SW Y) South r58'ir' Wont- 322.00 feet to Ilse Southwest corner bf said Southwest Quattur (SW Ya of the Northeast Quarter (NE Y:)of the Southwest Quarter (SW Y.i; thence along the South t'ere or said Southwest Quarter (SW Y.) of the Northeast Quarter (NE y.) of the Southwest Quarter (SW Y.) North 87bd'37" West- 640.34 foot to 8w Point of BeglnnIng. conlalnitg 4.81 aces, recta or loss. C;V,L "MrWMN n1INOM.Y,M HWY Wadi ,.me4. ADEQ ARKANSAS Department of Environmental Quality HAZARDOUS WASTE DIVISION ROUTING SLIP May 14, 2010 Subject: Cooper Power Systems, LLC AFIN: 72-00681 The Implementing Agreement has been signed by the Participant & is ready for the Director's signature. From: Karen Yoder 683-0822 Route in turn to: Action Needed Initials Date Valerie Hays AlConcurrence,eit`teview 0 . ( O Clyde Rhodes ,Concur nce ncurrence eview ,_Ir€`� Of la 7,k -��— Ryan Benefield Concurrence Review �14//& Teresa Marks ❑ ❑ *Note: Marking the Concurrence box indicates the individual agrees with the applicable text as It relates to their Individual discipline and Work Section (e.g., Engineer; Risk Assessor; Geology; Compliance; Policy/Management), as applicable. Marking the Review box Indicates the Individual has read the document DISPOSITION: Return to Karen Yoder COMMENTS: Director's signature required. I1III IIoIII1 III Hill lilIII liii II 0 0 1IHfI Doc ID: 013482590008 Type: REL Kind: AGREEMENTS CIF Recorded: 05/21/2010 at 02:42:18 PM Fee Amt: $50.00 Pace 1 of S Washington County. AR Bette Stamos Circuit Clerk F1le2O10-00013899 RIGHT OF ACCESS LICENSE AGREEMENT THE STATE OF ARKANSAS COUNTY OF WASHINGTON RECITALS: KNOW ALL MEN BY THESE PRESENTS: A. The CITY OF FAYETTEVILLE, WASHINGTON COUNTY, ARKANSAS, a municipality formed under the laws of the State of Arkansas ("Grantor"), is the owner of the real property described in Exhibit A attached hereto (the"Property"). Pro a "). B. Pursuant to a Consent Administrative Order with the Arkansas Department of Environmental Quality ("ADEQ"), KEARNEY-NATIONAL INC., a Delaware corporation ("Grantee"), is required to perform certain environmental investigative and response activities on the real property described in Exhibit B attached hereto (the "Adjacent Property"). C. Grantor desires to grant and convey to Grantee a non-exclusive license on, in, under and across the Property and surrounding properties owned by Grantor for the use and benefit of and to serve the Adjacent Property. NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. Grantor and Grantee do hereby grant, convey, covenant and agree as follows: LICENSE: 1. Grantor does hereby GRANT and CONVEY to Grantee and its consultants, contractors and subcontractors, a nonexclusive license on, in, under and across the Property and surrounding properties owned by Grantor (the Property and such surrounding properties being referred to herein as the "License Property") for the purpose of the construction, maintenance, operation, repair, replacement, sampling, planting and removal of all devices, vegetation, fixtures and equipment now or hereafter necessary or appropriate in Grantee's judgment to perform Grantee's environmental investigative and response activities arising under the certain Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), issued by the ADEQ and any other applicable laws, rules, orders, or agreements, including, without limitation, water treatment equipment, vegetative cover and other potential remediation- enhancing plants and shrubs, utility lines, monitoring and recovery wells, pumping equipment and housings, soil borings, injection points, storage containers, and related equipment and appurtenances (collectively, the "Facilities"), together with a construction license for work, staging and storage space from time to time, on, in and across those portions of the License Property and I438644v3 4/8/2010 1:40:48 PM rights of ingress, egress, and access on, over and across the License Property for purposes of pedestrian and vehicular access to and from the Facilities for the herein specified purposes (collectively, the "License"). TO HAVE AND TO HOLD the License, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Grantee, its successors and assigns, until such time as Grantee has received the No Further Action Letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order or other applicable laws or rules (the "Termination Event") (at which time Grantee shall, upon Grantor's request, execute an instrument in recordable form terminating the License); and Grantor does hereby bind itself, its successors and assigns, to WARRANT and DEFEND, until the Termination Event, all and singular the License unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. 2. The License shall run with the License Property, be binding upon Grantor and inure to the benefit of Grantee. Until the Termination Event, Grantor agrees that any subsequent conveyance or transfer of the License Property, or any portion thereof, shall be subject to the License, and Grantor agrees to include a reference to the same in any subsequent conveyance or transfer of the License Property and provide evidence of the same to Grantee prior to such conveyance or transfer, 3. Grantor shall afford Grantee, at Grantee's expense, with reasonable access on the Property to utilities and power related to any work called for by the Consent Administrative Order. Prior to the installation of any Facilities on the License Property not present as of , 2010 (the "Effective Date"), or the exercise or use of the rights granted herein, Grantee and the owner(s) of the affected License Property shall confer in good faith and agree on mutually acceptable locations for the Facilities that will not unreasonably interfere with such owner(s) use of the License Property. Grantee's consultants shall carry and maintain insurance coverage reasonably consistent with prevailing industry standards in the Property's geographic area. 4. The License is not exclusive, and Grantor reserves the right to use the License Property in any manner it may elect and to grant such other licenses, easements, rights or privileges to such persons and for such purposes as Grantor in its discretion may select, so long as such purposes do not unreasonably interfere with the License granted herein. 5. This Right of Access License Agreement may be amended, modified, rescinded or terminated only by an instrument in writing, executed and acknowledged in a manner suitable for recording by all of the then record owners of the License Property and the Adjacent Property, which instrument, to be fully effective, must be filed for record in the Real Property Records of Washington County, Arkansas. 6. All exhibits attached hereto are incorporated herein by reference for all purposes. ra 1438644v3 4/8/2010 1:40:48 PM IN WITNESS WHEREOF, Grantor and Grantee have executed this instrument as of `2, ,2010. GRANTOR: THE CITY OF FAYETTEVILLE, ARKANSAS, a municipality formed under GRANTEE; KEARNEY-NATIONAL INC., a Delaware corporation By: Name: ttv Title: C e iP P -t Exhibit A - Property Exhibit B - Adjacent Property 1438644v3 4/8/2010 1:40:48 PM THE STATE OF ARKANSAS COUNTY OF § C;—Thi instrument was acknowledged before me on__� , 2010, by 1 eld�01 of the CITY OF FAYETTEVILLE, WASHINGTON COUNTY, ASAS, a municipality formed under the laws of the State of Arkansas, on behalf of said municipality. �jalhuyl-bamc(-) Notary Public in and for y ,�ItrllMll?I`y �� The State of Ar ansasl, ,����pPWN.�� Printed Name: US0. u0LU_ 0�11S �� .���s5�aN a4 My Commission Expires:-1'0LDII. ;�` t% TA 4 THE STATE OF YO/,IC § § COUNTY OF 11l✓D OIL/C- § T is instrument was ac owtedg d bef re me on CC , 2010, by ce, pce , of the KEARNEY-NATIONAL INC., a Delaware corporation, on behalf of said corporation . C, Notary Public in and for The State of Printed Name: My Commission Expires; VICTORIA MCCOOL NOTARY PUBLIC - State of New York Reg. No, 02MCSI 02414 Qualified in Kings County Commission Expires December 8, 20 jj 4 1438x,44 v3 4/812010 1:40:48 PM Exhibit A Property PRAKE FIEf.D ( HWl(71 B71 B Tract No. 6 Parcel No. 765-15533-000 PROPERTY DESCRIPTION: (Deed Record 830-628) A part of the Southwest Quarter (SW '4) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW Y4) of Section 33, T. -16-N, R 30-W, as described in Deed Record 830-628 of the records of the Circuit Clerk, Washington County, Arkansas, being more particularly described as follows From the Southwest corner of said Southwest Quarter (SW Y.) of the Northeast Quarter (NE 14) of the Southwest Quarter (SW 'A). thence South 87°05'37" East along the South line of said Southwest Quarter (SW %) of the Northeast Quarter (NE '4) of the Southwest Quarter (SW Y4) a distance of 20.09 feet to a point on the existing Fast Right of Way line of Arkansas Highway 7113 for the point of Beginning, thence North 4°35'50" East along said East Right of Way line a distance of 336.70 feet; thence leaving said East Right of Way line South 85°4818" East - 630.94 feet to a point on the East line of said Southwest Quarter (SW %) of the Northeast Quarter (NE 'f) of the Southwest Quarter (SW '/.), thence along the East line of said Southwest Quarter (SW'/) of the Northeast Quarter (NE'!.) of the Southwest Quarter (SW Y) South 2°58'17" West - 322.00 feet to the Southwest corner of said Southwest Quarter (SW 14) of the Northeast Quarter (NE %) of the Southwest Quarter (SW'/); thence along the South line of said Southwest Quarter (SW '4) of the Northeast Quarter (NE Y4) of the Southwest Quarter (SW '4) North 87°05'3T' West - 840.34 feet to the Point of Beginning, containing 4.81 acres, more or less. Doke Field HWY 71lP+epoe y Trul r Lney.doc Exhibit B Adjacent Property Premises The South Half (S/;) of the North Half (N/1) of the Northeast Quarter (NE/;) of the Southwest Quarter (SW/;) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter (SW/,) of the Northeast Quarter (NZ/) of the Southwest Quarter (SW/;) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. Star, I3ette f Ps, CPrcuit Clerk and for Washington -Mere Recorder that this instru Amy, Arkarrs do hereby indictat this here nt was thpied for record in my office reon in scold W the acknowledgement ae is now duly the as RBook and and riled hand IN W WHEREOF'Clourhave hereunto set my s8id. on the date indi- on Be Stamps coif Clerk and E -offi* Recorder by I TEMPORARY ACCESS EASEMENT AGREEMENT THE STATE OF ARKANSAS § COUNTY OF WASHINGTON § This Temporary Access Easement Agreement ("Agreement") is made and entered into as of May 2010, by and between KEARNEY-NATIONAL INC., a Delaware corporation ("Grantor"), and THE CITY OF FAYETTEVILLE, ARKANSAS, a municipal corporation ("Grantee"). FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor has GRANTED, BARGAINED, and CONVEYED and by these presents does GRANT, BARGAIN, and CONVEY unto Grantee a temporary, non-exclusive easement over and across that certain tract of land (the "Easement Area") more particularly described on Exhibit A, attached hereto and incorporated herein by this reference, for the purpose of allowing access for construction and grading activities related to improvements to be made to U.S. Highway 71 (the "Easement"). TO HAVE AND TO HOLD the Easement unto the Grantee and its successors and assigns from time to time for the purposes set forth above. This Easement is subject to all encumbrances and other matters: (i) of record in the county where the Easement is located as of the date hereof and/or (ii) visible and on the ground that a correct survey would reveal, to the full extent same exist and affect the Easement herein granted. The Easement shall terminate upon the earlier to occur of (i) one (1) year from the date of this Agreement or (ii) when the construction of the improvements have been completed and accepted by the Grantee. Grantee agrees to execute such additional documents as may be necessary to evidence the completion of the improvements and the expiration of the Easement set forth herein. Grantor hereby expressly reserves unto itself and Grantor's successors, assigns, and lessee's the right to use and enjoy the Easement Area for any purposes whatsoever, except insofar as such use and enjoyment unreasonably interferes with the rights hereby granted to Grantee. Grantee and Grantee's employees, agents and contractors shall comply at all times with all applicable federal, state and local laws, rules, regulations and safety standards in connection with Grantee's use of the Easement and Easement Area. Grantee shall not disturb or otherwise impair Grantor's use or any lessee's use of any property owned by Grantor, including, without limitation, any property adjacent to the Easement Area. Grantee shall and hereby does agree to indemnify, defend and hold harmless Grantor, its successors, assigns, agents, directors, officers, employees, lessees and contractors, from and against any and all liability, damages, suits, actions, costs and expenses whatsoever, including reasonable attorneys' fees, with respect to bodily injury or property damage caused by or arising IJililli 111111III !1111Ill!11111 IIIIJllllIII !1111 ll1 liii 1101 liii liii Jill 1 Doc 1°D: r 03452600006 Type: REL Kind: EASEMENT HOU:0017758/00051:1457581v2 Recorded: O5/21/2010 at 02:43:11 PM Fee Amt: $40.00 Paae 1 of 6 Kashlnaton County. AR Bette Stamps Circuit Clerk File2O 010-00013900 out of Grantee's or its agent's, employee's or contractor's use of the Easement or entry upon the Easement Area or Grantee's or its agent's employee's or contractor's failure to comply at all times with all applicable federal, state and local laws, rules, and regulations in connection with the Easement. It is understood and agreed that this Agreement is a grant of an easement only and in no way grants or conveys any part of the underlying fee simple estate or any other interest in and to any lands owned by Grantor. This Agreement shall be governed by the laws of the State of Arkansas without giving effect to the principles of conflicts of laws. This Agreement may be executed in one or more counterparts which when taken together shall constitute one and the same Agreement. [End of Document — Signature Pages Follow] 2 HOU:0017758/00051:1457581 v2 CONSENT OF LESSEE The undersigned lessee of the real property encumbered by the Easement hereby consents to the grant of the Easement for the limited purposes set forth herein. The undersigned makes no representation or warranty of any kind concerning this Agreement, any of its terms or provisions, or the legal sufficiency thereof, and does not assume, and is not responsible for, any of the obligations or liabilities of the parties thereto. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company B• Name: Terrance Title: Corporate Sec tart' THE STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on the day of May, 2010 by k4 Ac e.. V. /e /Z of COOPER POWER SYSTEMS, LLC, a Delaware limited liability comp .ny, for and on behalf of said company. t y Public in and or State of Texas P ' ted Name: My Commission Expires:©I - 9 - 'Loi k1OU:0017758/00051:1457581v2 EXECUTED as of the (___ day of May, 2010. KEARNEY-NATIONAL INC., a Delaware corporation By: - Name: /htr Pi- Title: i- rri4 THE CITY OF FAYETTEVILLE, ARKANSAS, a municipal corporation THE STATE OF /A1J Yic § COUNTY OF 1k § is nstrqment was ackn wledged before me on the 3 i 1 day of May, 2010, by /'jar . Q Pt1'Qr,, i s of KEARNEY-NATIONAL INC., a Texas corporation, on behalf of said corporation. f4,Jio. Z(2/ Notary Public in and for the State of Printed Name: My Commission Expires: VICTORIA MCCOOL NOTARY PUBLIC - State of New York 02414 Qualified in K-gs1County j Commission Expires December 8. 20 I 1 HOU:0017758/00051:1457581 v2 THE STATE OF ARKANSAS COUNTY OF WASHINGTON h in trument was acknowledged before me on the day of May, 2010, by as 0 of THE CITY OF FAYETTEVILLE, ARKANSAS, a municipal corpor on, on behalf of said corporation. 11��fcr Notary Public Printed Name: My Commissil H O U:00 1775 8/00051:1457581 v2 Exhibit A Easement Area TEMPORARY CONSTRUCTION EASEMENT MAP TRACT MAP NO. 7 ICE - 9,60 50. FT. (0.22 AC.) EXHIBIT me Y . ,OO' 9AS1S OF BEARING wwR cuy OF FAY£TIFNI.I.E ¢iw:m oerr GPS MONUJAENTATION sm-s» MAC ML 1 1 I I 5,11 I N P J S 87'21'61" E 35.02 �!/ N 8T21'41' W - 1257.00 1458' :• ..,., .-............. _... - _ _ _. ,... - ________ 21.03_" .'-::.ri N 8TO4'30" W .. 1282.42' KEAfENEY NATIONAL ' I 3; Ix I "`3 "'��0a• I y • N 70"3703 W 4.70' } ILI SWI w°"wrrxnnawu OR SW 1/4 T —le —N. R-ZC-•W I STATE MONUMENT I I — r • -•-- Corner of Temporary Construotion Easement Temporary Construction Easement 765-15532-000 -•- Tax Parcel Number TOE — Temporary Construction Easement 97-55181 — Deed Record 9&-13185 Property Owner; Kearney National Project Name CITY OF Drawn by: McClelland Consulting Engineers4 D.S. Nl way 71 Reeocatton y�I vy�+iR+Ew] Y7 LLE Date: July 2009 Scale: 1" - 100 No. Revisions Date i� [i i fS R R li Li Ri Project No. 072164 Tract No. =7 HOU:0017758/00051: 145758 1v2 1, Bette Stamps, Circuit Clerk and E)t-oflldo Recorder for Washington County, Arkansas, do hereby certify that this instrument was filed for record In my office as indicated hereon and the same Is now duly recorded with the acknowledgement and certifloate thereon in Record Book and page as Indicated thereon. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said Court on the date indi- cated hereon. Circuit Clerk and Ex -officio Recorder by — PROPERTY DEVELOPMENT PLAN Kearney -National, Inc. Property Fayetteville, Arkansas I. INTRODUCTION This Property Development Plan (POP) is being prepared for the Kearney -National, Inc. ("KNI") property located at 3660 South School Street, Fayetteville, Washington County, Arkansas ("the Property" or "the Kearney Property") by Cooper Power Systems, LLC ("Cooper") of Houston, Texas. Cooper was approved by Arkansas Department of Environmental Quality ("ADEQ") into the Brownfields Program on January 25, 2010 under Arkansas Code Anotated ("ACA") & 8-7-1104(a) and qualifies as a prospective purchaser of the 4.81 acres ("Airport Tract") of Kearney Property for subsequent purchase and development by the City of Fayetteville ("City") into an airport facility tract It is contemplated that Cooper will enter into a real estate contract to acquire the City Tract and then assign such Contract to the City who shall acquire the City Tract directly from KNI. The Kearney Property and the Airport Tract are described on the documents attached hereto as Exhibits A and B respectively. Cooper has submitted and revised with technical comments received from ADEQ, as part of the requirements of the ADEQ Brownfield Program, a Phase I Environmental Site Assessment ("ESA") and a Comprehensive Site Assessment ("CSA"), prepared by The Land Recycling Company, Inc. ("LRC"). The Phase I ESA and the CSA were approved by ADEQ in March 2010 and April 2010, respectively in order to retain the applicants Comprehensive Environmental Response, Compensation and Liability Act liability relief under the All Appropriate Inquiry rule set for the in 40 CFR Part 312. II, SITE DESCRIPTION The site is a parcel located in the southeastern part of the City of Fayetteville approximately in the central part of Washington County, Arkansas. The Property was used historically for industrial purposes from approximately 1954 until the present. KNI conducted industrial operations at the Property from 1954 until 1997, when it leased the property to Cooper. KNI plant operations included metal plating, tin dipping, solvent degreasing, and lead fusing associated with the electrical equipment manufacturing business. In 1997 Cooper leased the Property from KNI for assembly and warehousing of components used in the electrical power industry and did not use any chlorinated solvents in its operation. The Property remains developed with an approximate 135,000 square foot electrical equipment assembly facility, and an approximate 30,000 square foot warehouse. Two parking lots are also located on the property. Property Development Plan Prepared by The Land Recycling Company, Inc. Kearney -National, Inc. Property for Cooper Power Systems, LLC Fayetteville, Arkansas Houston, Texas III. PREVIOUS INVESTIGATIONS AND REMEDIATION Since 1997, KNI, as the responsible party for the chlorinated solvent contamination and other contamination identified on the Property, has undertaken response actions at the site and in August 2000, entered into a Consent Administrative Order (CAO) with ADEQ, which outlined the regulatory, legal, and timing issues of the soil and groundwater removal and remediation activities completed and yet to be performed on the Property. In conducting the CSA, LRC reviewed the sampling data compiled by KNI in connection with the work it was performing under the CAO. Based on the results of KN1's soil and groundwater sampling, trichloroethylene ("TCE") and other chlorinated compounds were detected in soil and ground water samples. Gasoline Range Organics ("GRO") were also detected in soil samples. Subsequent groundwater sampling in 1998 indicated the presence of TCE, benzene, and other chlorinated solvents which in some cases exceeded Maximum Contaminant Levels ("MCLs"). The 1998 sampling event again indicated that both soils and shallow groundwater were impacted. A former AST operated by Kearney was determined to be the source of the benzene and GRO in groundwater; TCE is a cleaning solvent, which was commonly used by KNI. In 2005 extensive soil remediation was completed by KNI with ADEQ's approval. The groundwater remediation is on going process with KNI proposing a Monitored Natural Attenuation Plan ("MNAP") in January 2006, with semiannual groundwater monitoring for five years. The five year MNA monitoring period expires the end of 2010. IV. HUMAN HEALTH & ECOLOGICAL RISK Documentation prepared by KNI indicates that the only current exposure pathway, from a human health and ecological risk standpoint, is the vapor intrusion pathway from on -site groundwater for indoor on -site workers. However, indoor air sample results indicate contaminant concentrations in indoor air were well below established guidelines and standards. V. PLANNED PROPERTY DEVELOPMENT Planned development on the southern 4.81 acres of the Kearney Property ("the Airport Tract") by the City of Fayetteville consists of the expansion of the adjacent Fayetteville Executive Airport. The proposed airport expansion activities will include construction of a roadway (relocation of Lancaster Drive), rechanneling of a drainage ditch and the re- routing of underground water lines. The use of the remainder of the Kearney Property will remain unchanged for the foreseeable future. The attached drawing illustrates the planned development of the Airport Tract by the Fayetteville Executive Airport (McClelland Consulting Engineers, 2009). Property Development Plan Prepared by The Land Recycling Company, Inc. Kearney -National, Inc. Property for Cooper Power Systems, LLC Fayetteville, Arkansas Houston, Texas V. PROPOSED REMEDIAL ACTION A. Cooper will establish working with the City of Fayetteville and KNI, institutional controls on the airport tract through deed recordation of the following property restrictions and requirements which will run with the land: 1. Restricting usage of the Kearney Property solely to commercial/light industrial zoning regulations; 2. Limiting the use of the Airport Tract to roadway purposes; 3. Prohibiting the use of groundwater beneath the Kearney Property; 4. Providing access to KNI so it may conduct the work contemplated by the CAO; 5. Requiring that monitoring wells remain in place during any period required by ADEQ; 6. Allow the City of Fayetteville to move or install at KNI's direction, one shallow downgradient well for volatile organic monitoring and plume definition; 7. All soils generated by the City's contractors for the road construction and utility work will be disposed of off -site as •nonhazardous; and 8. Provide access for KNI and its representatives, including the ADEQ, for monitoring and conducting any remedial field work required by KNI to comply with the CAO. B. Cooper will coordinate with the City and cause KNI personnel to plant certain vegetative cover, plants and shrubs on the Airport Tract in order to seek to facilitate natural attenuation. C. Once the property development is finished by the City of Fayetteville and documented by their consultant, McClelland Consulting Engineers, Cooper along with the City of Fayetteville will ask for a Certificate of Completion from ADEQ. D. The Remedial Action described in this Article VI shall be the sole response action/remedial action required of Cooper and/or the City with regard to the Kearney Property and the City Tract. Property Development Plan Prepared by The Land Recycling Company, Inc. '? for Cooper Power Systems, Inc. Property x; p LLC Fayetteville, Arkansas Houston, Texas • Exhibit A Kearney Property P�reinises The South Half (S/½) of the North Half (N/½) of the Northeast Quarter (NE/4) of the Southwest Quarter (SW/'J) of •Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter (SW/�) of the Northeast Quarter (NE/,) of the Southwest Quarter (SW/;) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. Exhibit B Airport Tract DRAKE FIELD (_I-1WY 71 B TraaetNo. 6 Parcel No. 765-15533-000 PROPERTY DESCRI PTlON: (Deed Record 830-628) A part of the Southwest Quarter (SW 'l.) of the Northeast Quarter (NE %) of the Southwest Quarter (SW'/.) of Section 33, T -16-N, R -30-W. as described to Deed Record 830-628 of the records of the Circuit Clark, Washington County, Arkansas, being more particularly described as follows: From the Southwest corner of said Southwest Quarter (SW'/.) of the Northeast Quarter (NE '/4 of the Southwest Quarter (SW'/.), thence South 8705'37" East along the South line of said Southwest Quarter (SW Ya) of the Northeast Quarter (NE Y) of the Southwest Quarter (SW'/.) a distance of 20 O9 feet to a point on the existing East Right of Way line of Arkansas Highway 71 B for the Point of Beginning, thence North 4°35'50" East along said East Right of Way line a distance of 336.TO feet thence leaving said East Right of Way line South 85°46`18" East - 630.94 feet to a point on the East One of said Southwest Quarter (SW '/4)01 the Northeast Quarter (NE Ya) of the Southwest Quarter (SW Y); thence along the East One of said Southwest Quarter (SW'/) of the Northeast Quarter (NE 1/4) of the Southwest Quarter (SW '/4 South 2°58'17West - 322.00 feet to the Southwest corner of said Southwest Quarter (SW'/) of the Northeast Quarter (NE 1/4) of the Southwest Quarter (SW 14); thence along the South line of said Southwest Quarter (SW'/) of the Northeast Quarter (NE Y+) of the Southwest Quarter (SW 1/4) North 87°05'37" West - 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less. CMii.5ASEMEKTSlOITO72I64 Drake FicM HWY 7ltirrapci ylT 6 Kc y4 c Comprehensive Site Assessment -Revised Kearney -National, Inc. Property The Land Recycling Company, Inc. March 2010 KEARNEY-NATIONAL, INC. PROPERTY FAYETTEVILLE, ARKANSAS COMPREHENSIVE SITE ASSESSMENT -REVISED 1.0 EXECUTIVE SUMMARY The Land Recycling Company, Inc. (LRC) was retained by Cooper Power Systems, LLC (Cooper) to prepare a Comprehensive Site Assessment (CSA) of the Kearney -National, Inc. Property ("the Kearney Property") located at 3660 South School Street in Fayetteville, Washington County, Arkansas. Kearney is a subsidiary of the Dyson- Kissner-Moran Corp. A Phase I Environmental Site Assessment (ESA) was performed by LRC in October 2008; an Updated Phase I ESA was completed by LRC in February 2010 for ADEQ review and approval. Kearney -National, Inc. (Kearney) has been pursuing an environmental investigation and clean up at the subject property since 1997. The investigation and clean up activities are a result of a release of hazardous materials (chlorinated solvents) and gasoline from a former above ground storage tank (AST) to the soil and groundwater on the subject property during past operations conducted by Kearney from 1954 to June 1997, when Cooper Power Systems, Inc. ("CPS") purchased the business, but not the property. Cooper discovered the release as part of its Phase II soil and groundwater investigation work performed by HSI GeoTrans, Inc. in 1997. Kearney entered into a Consent Administrative Order (CAO) with the Arkansas Department of Environmental Quality (ADEQ) regarding the clean up of on site soils and groundwater in August 2000 (LIS 00- 138). According to a review of available records, the soil remediation was completed in 2005 with ADEQ's approval; the groundwater remediation is on going with Kearney proposing a Monitored Natural Attenuation Plan (MNAP) in January 2006, and semiannual groundwater monitoring for five years approved by ADEQ. The five year MNA monitoring period expires the end of 2010. Cooper is currently leasing only the structure and the land's surface for assembly and warehousing of components used in the power supply (electric fuses and breakers) industry. Cooper has entered the Arkansas Department of Environmental Quality ("ADEQ") Brownfield Program so that it may qualify for the protection offered by the program should it ultimately purchase all or part of the Kearney Property. On January 25, 2010 ADEQ approved Cooper's Letter of Intent and Brownfield's application for purchasing the Kearney property. The Fayetteville Executive Airport, which is located directly adjacent to the south of the Kearney Property, has expressed an interest in purchasing the southern 6.5 acres of the Kearney Property so that Earnest Lancaster Drive can be relocated so that it will be out of the airport runway safety zone. The 6.5 acre tract is open land, surrounded by a chain link fence, and is not occupied by any plant structures (other than groundwater monitoring wells) or plant operations. 1 Comprehensive Site Assessment -Revised The Land Recycling Company, Inc. Kearney -National, Inc. Property March 2010 Cooper has an option to purchase the entire Kearney Property but plans on contracting to acquire the 6.5 acre tract immediately to accommodate the Fayetteville Executive Airport expansion activities and explore its options to purchase the remaining property. Operations on the remainder of the Kearney Property will remain unchanged for the foreseeable future. The information contained in this report, which includes available ADEQ documentation, interviews and assessment work performed by Kearney and Cooper, presents a comprehensive view of the environmental conditions at the Kearney Property, both past and present. Documentation prepared by Kearney indicates there are no known exposure pathway receptors associated with the Kearney Property. Based on the content of this report, it is our conclusion that the planned sale and redevelopment of the southern 6.5 acre tract by the Fayetteville Executive Airport will not present an unacceptable risk to human health and/or the environment. It is our understanding that Kearney will continue to work with ADEQ under the 2000 CAO to monitor the groundwater in 2010 as part of the five year MNAP. In 2011, Kearney will summarize the MNAP results for the five year period and recommend additional monitoring and/or remedial action, as necessary. 2 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property 2.0 INTRODUCTION 2.1 Site and Project Identification The Land Recycling Company, Inc. March 2010 The Land Recycling Company, Inc. (LRC) was retained by Cooper Power Systems, LLC (Cooper) to prepare a Comprehensive Site Assessment (CSA) of the Kearney -National, Inc. Property ("the Kearney Property") located at 3660 South School Street in Fayetteville, Washington County, Arkansas. Kearney is a subsidiary of the Dyson- Kissner-Moran Corp. A Phase I Environmental Site Assessment (ESA) was performed by LRC in October 2008; an Updated Phase I ESA was completed by LRC in February 2010 for ADEQ review and approval. A Site Location Map is presented as Figure Number 1 in Appendix A. Kearney -National, Inc. (Kearney) has been pursuing an environmental investigation and clean up at the subject property since 1997. The investigation and clean up activities are a result of a release of hazardous materials (chlorinated solvents) and gasoline from a former above ground storage tank (AST) to the soil and groundwater on the subject property during past operations conducted by Kearney from 1954 to June 1997, when Cooper Power Systems, Inc. ("CPS") purchased the business, but not the property. Cooper discovered the release as part of its Phase II soil and groundwater investigation work performed by HSI GeoTrans, Inc. in 1997. Kearney entered into a Consent Administrative Order (CAO) with the Arkansas Department of Environmental Quality (ADEQ) regarding the clean up of on site soils and groundwater in August 2000 (LIS 00- 138). According to a review of available records, the soil remediation was completed in 2005 with ADEQ's approval; the groundwater remediation is on going with Kearney proposing a Monitored Natural Attenuation Plan (MNAP) in January 2006, and semiannual groundwater monitoring for five years approved by ADEQ. The five year MNA monitoring period expires the end of 2010. Cooper is currently leasing only the structure and the land's surface for assembly and warehousing of components used in the power supply (electric fuses and breakers) industry. Cooper has entered the Arkansas Department of Environmental Quality ("ADEQ") Brownfield Program so that it may qualify for the protection offered by the program should it ultimately purchase all or part of the Kearney Property. On January 25, 2010 ADEQ approved Cooper's Letter of Intent and Brownfield's application for purchasing the Kearney property. 2.2 Planned Site and Project Development The subject property is approximately 19 acres in size and is shaped like an inverted "L". The subject property includes an approximate 135,000 square foot electrical equipment assembly facility, offices and an approximate 30,000 square foot warehouse. Two parking lots are also located on the Kearney Property. The Fayetteville Executive Airport, which is located directly adjacent to the south of the Kearney Property, has expressed an interest in purchasing the southern 6.5 acres of the 3 Comprehensive Site Assessment -Revised The Land Recycling Company, Inc. Kearney -National, Inc. Property March 2010 Kearney Property so that Earnest Lancaster Drive can be relocated so that it will be out of the airport runway safety zone. The 6.5 acre tract is open land, surrounded by a chain link fence, and is not occupied by any plant structures (other than groundwater monitoring wells) or plant operations. Cooper has an option to purchase the entire Kearney Property but plans on contracting to acquire the 6.5 acre tract immediately to accommodate the Fayetteville Executive Airport expansion activities. Operations on the remainder of the Kearney Property will remain unchanged for the foreseeable future. A proposed property acquisition map is presented as Figure Number 2 in Appendix B. 2.3 Participants in the Site and Project Kearney -National, Inc. currently owns the subject property. Cooper is the prospective purchaser of the Kearney Property; but is interested in immediately contracting to purchase the southern 6.5 acres of the Kearney Property to accommodate the Fayetteville Executive Airport expansion activities. 2.4 Objectives of the CSA The objective of this CSA is to satisfy the requirements of the ADEQ Brownfield Program so that Cooper, as the prospective purchaser, may qualify for the protection offered by the program should Cooper and the Airport consummate a deal to purchase 6.5 acres of the Kearney Property for airport expansion and the remainder of the property at such time as Cooper may exercise its option. This CSA summarizes the environmental investigation data that has been generated in relation to the Kearney Property, to date, so that a comprehensive report is presented to ADEQ for review. No new environmental investigation or sampling is planned as part of this CSA as agreed to by ADEQ. 3.0 INTENDED LAND USE 3.1 Previous Site Use Records indicate that Kearney began operations at the subject property in 1954. Former Kearney plant operations included metal plating, tin dipping and lead fusing. Prior to Kearney's ownership, property records indicate that the vacant land was owned by the Fayetteville Chamber of Commerce, Inc. In 1997, Cooper purchased the equipment, but not the real property, from Kearney. Cooper has leased the structures and land surface from Kearney since 1997 for the assembly and warehousing of components used in the electrical power supply industry. n Comprehensive Site Assessment -Revised The Land Recycling Company, Inc. Kearney -National, Inc. Property March 2010 3.2 Current Institutional Controls Current easements on the Kearney Property include an easement along the western side associated with U.S. Highway 71. 3.3 Past and Current Land Use Controls . The Kearney Property is currently zoned I-1 by the City of Fayetteville. This designation is for heavy commercial/light industrial. The surrounding properties are also zoned I -1, with the exception of the Miller property to the east, which is zoned for agricultural purposes. The August 2000 CAO with ADEQ requires that Kearney provide a copy of the CAO to any prospective purchasers, lessees, or successors and a notice of the CAO is to be placed on the deed of the Kearney Property at the time of any transfer of ownership. 3.4 Future Planned Use Cooper is currently leasing the structure and the land's surface for assembly and warehousing of electrical fuses and breakers. This current land use (which occurs on approximately 12.5 of 19 acres) of the Kearney Property will remain unchanged for the foreseeable future. The Fayetteville Executive Airport, which is located directly adjacent to the south of the Kearney Property, has expressed an interest in purchasing the southern 6.5 acres of the Kearney Property so that Earnest Lancaster Drive can be relocated so that it will be out of the airport runway safety zone. 4.0 SITE DESCRIPTION 4.1 Location 4.1.1 Site Location and Legal Description The Kearney Property is located at 3660 South School Street in the southeastern part of Fayetteville, Arkansas, in roughly the central part of Washington County, Arkansas. A General Site Plan is presented as Drawing Number 1 in Appendix C. A legal description along with a property survey is presented in Appendix D. This document contains information about the Kearney Property itself as well as an adjacent strip of land to the north which the Kearney Property encroaches upon. This strip of land is identified on the property survey as "National Guard Property to be Obtained." The legal description for the main part of the Kearney Property is as follows: Comprehensive Site Assessment -Revised Kearney -National, Inc. Property The Land Recycling Company, Inc. March 2010 Part of the NE 1/, SW '/ of Section 33, T -16-N, R -30-W in Washington County, Arkansas and being more particularly described as follows: Commencing at the NE Corner of said NE 1/, SW 1/ thence S00°04'39"W 329.46 feet to the POB: thence S00°04'39"W 329.45 feet, thence N89°59'29"W 660.56 feet, thence S00°05'33"W657.82 feet, thence S89059 06"W 641.53 feet, thence N01°51'35"E 464.73 feet, thence 589°44' 09"W 10.05 feet, thence N01°31'30"E 522.73 feet, thence N89°59' 18"E 1284.70 feet to the POB: Containing 19.3 acres more or less subject to easements and R/W of record. The legal description for the adjacent strip of land to the north upon which the Kearney Property encroaches is as follows: Part of the NE 'A, SW '/ of Section 33, T -16-N, R -30-W in Washington County, Arkansas and being more particularly described as follows: Commencing at the NE Corner of said NE '/, SW 1/ thence S00°04'39"W 308.43 feet to the POB: thence S00°04'39"W 21.03 feet, thence S89°59'18"W 1284.70 feet, thence N01°31'30"E 14.80 feet, thence N89°42'37"E 1284.36 feet, to the POB: Containing .53 acres more or less subject to easements and R/W of record. 4.1.2 Topography A review of the most current United States Geological Survey (USGS, Fayetteville, Arkansas, 1995) topographic map indicates that the elevation of the Kearney Property is approximately 1,254 feet above mean sea level (msl). The topographic gradient in the study area generally slopes to the south; the Kearney Property is situated within an intervening valley typical of the Ozark Mountains region. A copy of a portion of the topographic map depicting the study area is presented in Appendix E as Figure Number 3. 4.1.3 Contaminant Exposure Pathways Documentation prepared by Kearney indicates there are no contaminant exposure receptors associated with the Kearney Property. The two media affected by the past release of contaminants at the site are soil and groundwater. According to the review of ADEQ records, the remediation of the soil was completed in 2005 with ADEQ approval; groundwater MNA remediation is on going. However, no groundwater receptors currently exist. The Kearney Property and surrounding properties are supplied by water from the City of Fayetteville, which obtains its municipal water from Beaver Lake. Sampling in a nearby creek to the south and in a pond on the adjacent property to the southeast (currently Scurlock Industries) was performed by Kearney's consultant to assess any impact on ecological receptors. Neither the creek nor the pond was determined to have been impacted by the contamination at the Kearney Property. The pond on the Scurlock Industries property has subsequently been filled in, thus eliminating the associated exposure pathway. 6 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property 4.2 Current Conditions 4.2.1 Size of Site and Current Use The Land Recycling Company, Inc. March 2010 The Kearney Property is approximately 19 acres in size and is shaped like an inverted "L". The land surface and structures are currently leased by Cooper for assembling electrical switchgear, fusing equipment, tools and connectors. The structure contains a machine shop, assembly area, small wastewater treatment plant, administrative offices, shipping and receiving. 4.2.2 Surface Property Improvements The Kearney Property includes an approximate 135,000 square foot electrical equipment assembly facility, administrative offices and an approximate 30,000 square foot warehouse. The manufacturing portion of the facility is comprised of a concrete foundation, concrete block walls and metal roofing which is covered with foam insulation and rubber. Two parking lots are also located on the subject property. The subject property is surrounded by chain link fence and has a secure gated entrance on South School Street. Nitrogen and hydrogen tanks, which are located on the north east exterior of the manufacturing plant, are used in an interior annealing oven. The annealing process is utilized for softening of metals before they are worked in the various assembly processes. Two sets of electrical transformers, which are the responsibility of Southwest Energy Power Company (SWEPCO), are located at the Kearney Property. Three pole -mounted transformers are located on the eastern exterior of the facility. A pad -mounted transformer is located on the northwest exterior of the administrative office portion of the facility (LRC, 2008). 4.2.3 Subsurface Property Improvements According to a review of ADEQ records and interviews with on site personnel, there are currently no tanks, tank piping or production wells located on the Kearney Property. 4.2.4 Site Utilities and Location Electrical power lines are situated "overhead" at the Kearney Property. Major utility, water and sewer lines are located along side and parallel to U.S. Highway 71 to the immediate west of the Kearney Property. 7 Comprehensive Site Assessment -Revised The Land Recycling Company, Inc. Kearney -National, Inc. Property March 2010 4.2.5 Topography and Surface Water Flow Paths The Kearney Property is located within the Ozark Mountains region of Arkansas which is characterized by eroded plateaus (hills) and intervening valleys. The topography of the subject property is relatively flat as it is located in a valley. A review of the most current United States Geological Survey (USGS, Fayetteville, Arkansas, 1995) topographic map indicates that the elevation of the Kearney Property is approximately 1,254 feet above mean sea level (msl). The topographic gradient generally slopes to the south. Surface water flows toward an unnamed tributary south of the Kearney Property. 4.2.6 Photographs Photographs of the Kearney Property and surrounding properties are presented in Appendix F. 4.3 Surrounding Land Use & Environmental Conditions 4.3.1 Adjoining Properties During the Phase I ESA and Phase I ESA Update process, LRC observed the properties which currently adjoin the Kearney Property. The Phase I ESA and Phase I ESA Update reports are presented in Appendices G and H, respectively. Following is a list of current adjoining property and their uses: North: The adjacent property to the north of the subject property is occupied by the Fayetteville Armory. East: The adjacent property to the east of the subject property consists of McCollum Road and thence vacant agricultural property. South: The adjacent property to the south of the subject property is Drake Field and its runway system. Southeast: The adjacent property to the southeast of the subject property consists of Scurlock Industries (formerly known as EnviroSearch Company d/b/a Tri-State Pre -Cast). Both TCE and petroleum hydrocarbons were detected in groundwater samples collected by Kearney on the Scurlock Industries property. The extent of TCE contamination on Scurlock was not assessed due to property access restrictions imposed by the owner of the property at that time. Petroleum hydrocarbon compounds were also detected on the Scurlock property, but were determined to not be attributable to the Kearney Property. It should be noted that there are currently no Comprehensive Site Assessment -Revised Kearney -National, Inc. Property The Land Recycling Company, Inc. March 2010 known groundwater receptors associated with the Kearney Property West: Property to the west consists of South School Street (U.S. Highway 71) thence The Standard Register Company. 4.3.2 Adjacent Properties with Possible Environmental Conditions During the Phase I ESA process, including the update of the Phase I ESA, two of the properties which adjoin the Kearney Property were identified in LRC's search of available federal and state environmental records. Following is a description of each property in relation to available environmental records. Standard Register Company 3655 South School Avenue The Standard Register facility is listed as an AST (Above Ground Storage Tank) site. The database indicates that the capacity of the AST is 4,030 gallons, is made of steel with copper piping and was installed in 1989. However, the contents and use of the tank is not reported. The Standard Register Company, which is located west of the Kearney Property (across Highway 71), is listed as a Conditionally Exempt Small Quantity Generator (CESQG) of hazardous waste. A CESQG normally generates 100 kg or less of hazardous waste per calendar month and accumulates 1,000 kg of hazardous waste at any time. Ignitable Hazardous Wastes (D001), are addressed under Standard Register's status as a CESQG. The Standard Register Company is listed as a FINDS site. The FINDS database contains both facility information and "pointers" to other sources of information that contain more detail. The EDR search includes the Arkansas Permit Data System, National Emissions Inventory, US EPA Toxic Release Inventory System, National Pollutant Discharge Elimination System, RCRA information and the Permit Compliance System. Fayetteville Armory 3590 South School Street The Fayetteville Armory is listed as a RCRA-CESQG site. The Fayetteville Armory property is located directly north and adjacent to the Kearney Property. CESQG sites are conditionally exempt small quantity generators of hazardous wastes. The database indicates that this facility generates small quantities of Ignitable Hazardous Wastes (D001). Z Comprehensive Site Assessment -Revised Kearney -National, Inc. Property 4.4 The Land Recycling Company, Inc. March 2010 The Fayetteville Armory is listed as having an AST on the property. The tank's capacity is 8,000 gallons and is of steel, double wall construction. The tank was apparently installed in 1997; however, its contents and use are not reported. The Fayetteville Armory is also listed as a FINDS site. The FINDS database contains both facility information and "pointers" to other sources of information that contain more detail. The EDR search includes the Arkansas Permit Data System, National Emissions Inventory, US EPA Toxic Release Inventory System, National Pollutant Discharge Elimination System, RCRA information and the Permit Compliance System. Site Inspection 4.4.1 Methodology and Limiting Conditions In October 2008 and in February 2010, LRC conducted site inspections at the Kearney Property for the Phase I ESA and the Phase I ESA Update, respectively. The Kearney Property and surrounding properties were inspected for the presence or evidence of recognized environmental conditions (RECs). Observations were noted in the field and photographs were taken, both of which were presented in the Phase I ESA and Phase I ESA Update reports. No limiting conditions were encountered. 4.4.2 General Site Setting The Kearney Property is approximately 19 acres in size and is shaped like an inverted "L". The subject property includes an approximate 135,000 square foot electrical equipment assembly facility, offices and an approximate 30,000 square foot warehouse. Two parking lots are also located in the Kearney Property. Facility operations include a machine shop, assembly area, small closed loop wastewater treatment plant, administrative offices, shipping and receiving. 4.4.3 Exterior Observations The assembly and warehouse portion of the Kearney Property is comprised of concrete block wall and metal roofing which is covered with foam insulation and rubber. The office portion of the facility has a brick exterior; the warehouse exterior is of metal construction. Two asphalt parking lots are located on the Kearney Property. A ditch runs between the plant building and the eastern parking lot. The Kearney Property is surrounded by chain link fence and has a secure gated entrance on South School Street (which is also known as U.S. Highway 71). A series of monitoring wells are located across the Kearney Property. Six injection wells are located within the former remediation area. Nitrogen and hydrogen tanks, which are located on the northeast exterior of the facility, are used in annealing ovens located within the exterior of the facility. 10 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property The Land Recycling Company, Inc. March 2010 Two sets of electrical transformers are located at the Kearney Property. Three pole -mounted transformers are located on the eastern exterior of the facility. A pad -mounted transformer is located on the northwest exterior of the administrative office portion of the facility. A large, grass covered area on the eastern portion of the Kearney Property is the location of the soils remediation. Man made drainage ditches and utility chases are located to the west of the Kearney Property, parallel to South School Street. 4.4.4 Interior Observations Major processes at the plant include assembly, shipping and warehousing. Interviews with plant personnel indicated that the plant building has had three additions over time. Interior observations made by LRC during the Phase I ESA and Phase I ESA Update site inspections include the following: • 12 x 12 tan, white & brown marble pattern floor tile in various office spaces • Suspended ceiling tiles located in various areas within the office spaces and lavatories • Finished goods area in plant • Former cut out area in plant • Various finished products including switches, aluminum connectors, block and wheel components • Interior metal roof in plant • Concrete floor in plant • "Hi Line" electrical component assembly area • "Hot Stick" assembly area • Machine Shop • Parts washer • Wastewater treatment system • Drummed chemical storage area • Shipping and receiving areas • Warehouse 11 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property 5.0 ENVIRONMENTAL SETTING 5.1 Soils and Hydrology 5.1.1 Soils Description and Classification The Land Recycling Company, Inc. March 2010 Soils in this part of the Ozark Mountains region are characterized by unconsolidated deposits consisting of silty clays, clays, silt foams, stony sandy foams, and channery silty clay to the top of weathered shale (LRC, 2008). 5.1.2 Hydrology 5.1.2.1 Description of Lithological Units Lithological units at the Kearney Property include approximately 18 feet of silty clay, underlain by up to 5.5 feet of weathered shale. The weather shale is underlain by competent shale bedrock (HSI Geotrans, 1997). 5.1.2.2 Description of Groundwater The depth to the shallow groundwater underlying the Kearney Property ranges from less than one foot to more than four feet below the surface. The uppermost confining layer consists of the Fayetteville Shale, which is locally 250 feet thick. Available groundwater data indicates that the groundwater flow in the shallow water bearing unit is toward the southwest (Burt Geology & Environmental Applications, PLLC, 2010). 5.2 Surface Water 5.2.1 Surface Water Flow Path/Nearest Surface Water Body The topographic gradient generally slopes to the south. Surface water flows toward an unnamed tributary of the West Fork of the White River, which is located directly south of the Kearney Property. 5.2.2 100 Year Flood Plain Location Based on information obtained during the Phase I ESA conducted by LRC, no 100 year flood plain areas are located within a one mile radius of the Kearney Property. 5.2.3 Potential Surface Water Receptors There are no potential surface water receptors associated with the Kearney Property. The City of Fayetteville and the area surrounding the Kearney 12 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property The Land Recycling Company, Inc. March 2010 Property are supplied municipal water from Beaver Lake, which is located in the northern part of Washington County and in Benton County. According to information obtained during the Phase I ESA, there are no recreation areas or conservation areas within the vicinity of the Kearney Property. 5.3 Ecology 5.3.1 On Site and Off Site Plant and Animal Populations Identification of site specific plant and animal populations has not been conducted at the Kearney Property due to a lack of any ecological exposure pathways and the lack of any sensitive animal or plant life receptors on site. Typical to the Ozark Mountains Physiographic Region is a forest belt of oak, hickory and pine. Arkansas' native animals include 15 varieties of bat, and three each of rabbit and squirrel. Common throughout the state are mink, armadillo, white tailed deer and eastern chipmunk. Black bear commonly roam the mountain regions of Arkansas. Among the 300 native bird species are eastern wild turkey, mourning dove and bobwhite quail. Common native fish include catfish, gar and paddle fish. Arkansas has 20 species of frogs and toads; 23 varieties of salamander and 36 kinds of snakes (City-Data.com, 2010). 5.3.2 Sensitive or Endangered Plant or Animal Species Identification of site specific sensitive or endangered plant or animal species has not been conducted at the Kearney Property due to a lack of any ecological exposure pathways and the absence of any sensitive receptors. There are currently six listed endangered species in Washington County, Arkansas (U.S. Fish & Wildlife Service, 2010). These species include the Ozark Big Eared Bat, Florida Panther, Missouri Bladderpod, Gray Bat, Indiana Bat, Cave Crayfish, Neosho Mucket and the Arkansas Darter. Habitats suitable to these species do not occur on or adjacent to the Kearney Property. 5.3.3 Protective Areas No protective areas such as wetlands, wildlife refuges, flood plains, scenic rivers or parks were identified during the Phase I ESA or Phase I ESA Update (LRC, 2008, 2010). [Ki Comprehensive Site Assessment -Revised Kearney -National, Inc. Property 6.0 SITE HISTORY 6.1 Operational History 6.1.1 Business Description The Land Recycling Company, Inc. March 2010 Records indicate that Kearney began operations at the subject property in 1954. Former Kearney plant operations include metal plating, tin dipping, solvent degreasing and lead fusing associated with the electrical equipment manufacturing business. In 1997, Cooper purchased the equipment, but not the real property, from Kearney. Cooper has leased the structures and land surface from Kearney since 1997 for the assembly and warehousing of components used in the power industry. 6.1.2 Products Produced and Materials Used Current operations by Cooper at the Kearney Property consist of the assembly and warehousing of components used in the power industry. Materials used by Cooper in current operations include: • Water -based Lubricants • Synthetic Lubricants • Cleaners & Degreasers (Soap only, no chlorinated solvents) • Gear Oil • Petroleum Hydrocarbon Cleaner • Hydraulic Oil • Metal Working Fluid • Nitrogen • Blastoff Part O (potassium hydroxide solution) • Blastoff Part B • Valcool (metal working oil fluid concentrate) • Simple Green All Purpose Cleaner & Scrubbing Pad • Petroleum Hydrocarbon Solvent • Chevron Elite -Cut Metal Working Fluid • Citgo Hydraulic Oil • Tide Granular Laundry Detergent • Parks Gum Turpentine • High Calcium Hydrated Lime • Acetylene • Hydrogen • Oxygen • Coagulant for Wastewater Treatment 14 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property The Land Recycling Company, Inc. March 2010 Products produced by Cooper's operations at the Kearney Property include electrical fuses and breakers, hand cutters, taps, terminals, splices and single phase switches (LRC 2008). 6.2 Ownership History 6.2.1 Real Estate and Property Ownership History The Kearney Property is currently owned by Kearney -National, Inc. Prior to Kearney's ownership, property records indicate that the vacant land was owned by the Fayetteville Chamber of Commerce, Inc. In 1997, Cooper purchased the equipment, but not the real property, from Kearney. Cooper is currently leasing only the on site structures and the land's surface (LRC, 2008, 2010). 6.3 Past Environmental Regulatory Involvement 6.3.1 Permits, Licenses and Certificates The search of environmental records conducted during the Phase I ESA and Phase I ESA Update indicated that Kearney historically had four permits. The first permit was a National Pollutant Discharge Elimination Permit (NPDES) which was required during the period when plant operations involved metal plating. The metal plating operations ceased before Cooper began its current lease in 1997. The NPDES permit has since been voided by ADEQ (LRC, 2008, 2009). The Kearney Property also historically operated under a waste water discharge permit with the City of Fayetteville before metal plating operations ceased. This permit is no longer active (LRC, 2008, 2010). The Phase I ESA process also indicated that the Kearney Property operated under a Resource Conservation and Recovery Act (RCRA) Treater, Storer, or Disposal Facility (TSDF) permit during the site soil remediation project. The RCRA TSDF permit has been changed to "non -generator" status, indicating that the soil remediation project is complete pursuant to ADEQ's approval and no longer generating hazardous waste (LRC 2008, 2010). 6.3.2 Investigation and Inspection Reports The initial Phase II environmental investigation at the Kearney Property was conducted by HSI GeoTrans in 1997 on behalf of Cooper when they purchased the equipment at the site, but not the real property. HSI GeoTrans installed twelve subsurface soil borings using a direct push device. Five "grab" groundwater samples were collected from the borings using 15, Comprehensive Site Assessment -Revised Kearney -National, Inc. Property The Land Recycling Company, Inc. March 2010 temporary piezometers. Trichloroethylene (TCE) was detected in all of the soil samples and in two of the groundwater samples. These two groundwater samples indicated levels of TCE in excess of Maximum Contaminant Levels (MCLs) for drinking water. TCE is a cleaning solvent and according to records reviewed was commonly used during past operations by Kearney. Gasoline Range Organics (GRO) were also detected in all soil samples, two of which exceeded state - established standards for Total Petroleum Hydrocarbons (TPH). TCE and its daughter compounds have subsequently been identified as the Contaminants of Concern (COCs) at the Kearney Property. A copy of the HSI GeoTrans report is located in Appendix I. Cooper required that Kearney report the release and data to ADEQ. As a follow up to the initial GeoTrans investigation, Kearney contracted with FTN Associates (FTN) to conduct additional field investigations at the subject property in March 1998. The additional work by FTN again indicated the presence of TCE, benzene and other chlorinated solvents which in some wells exceeded the established MCLs for drinking water; some concentrations of chlorinated compounds indicated the possible presence of Dense Non -Aqueous Phase Liquids (DNAPLs). Again, both soils and shallow groundwater were determined to have been impacted. A former AST was determined to be the source of the benzene and GRO in groundwater and soil; the tank was subsequently removed by Kearney. In April 1998 Kearney began meeting voluntarily with ADEQ regarding environmental conditions at the subject property. Additional delineation of the contamination was performed by FTN, including sampling in a nearby creek and on the EnviroSearch/Tri-State property, which was located directly adjacent to the Kearney Property to the southeast (currently the location of Scurlock Industries). Neither the creek nor EnviroSearch/Tri-State was determined to have been impacted by the contamination at the Kearney Property. Kearney and ADEQ subsequently entered into a CAO in August 2000 which outlined the regulatory, legal and timing issues of the remediation to be performed at the subject property. The CAO required that Kearney submit a Site Investigation (SI) Report, Remedial Alternatives Analysis (RAA) Report, and Remedial Action Plan (RAP) Application. All of these documents were submitted to ADEQ in December 2000. The SI Report, RAA Report and RAP Application are presented in Anuendices J. K and L, respectively. Based on the known presence of TCE and its degradation products in the shallow groundwater beneath the site, Kearney conducted an air sampling investigation in 2009. Air sampling was performed both inside and outside of the plant building. The objective of this study was to sample the indoor airof the building to determine if TCE and its degradation products 1,1-dichloroethylene (1,1-DCE), cis- 1,2-dichloroethylene (cis-1,2-DCE), trans-1,2-dichloroethylene (trans -1,2- DCE), and vinyl chloride (VC) were present at levels that pose a health concern. 16 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property The Land Recycling Company, Inc. March 2010 The U.S. Environmental Protection Agency (USEPA), the Occupational Safety and Health Administration (OSHA) and the American Conference of Governmental Industrial Hygienists (ACGIH) establish workplace exposure concentrations that serve to protect the safety and health of workers. Each of these established concentrations consider a typical work scenario (8 hours a day/40 hours a week). The air sampling conducted at the Kearney Property indicated that the detected concentrations of TCE and cis-1,2-DCE in indoor air were below established guidelines and standards. The reporting limits for all of the non -detected chemicals were also below the established guidelines and standards. In conclusion, the results indicate that the levels of TCE and cis-1,2-DCE are below established guidelines and standards. Other chlorinated solvents were not detected in indoor or outdoor air. Based on these results and a comparison to current air standards and guidelines, TCE and its degradation products do not pose a health concern to workers at the Kearney building. The air sampling investigation report is presented in Annendix M. A Phase I ESA and Phase I ESA Update were conducted by LRC in 2008 and 2010, respectively. 6,3.3 Current and Past Environmental Response Activities Agency records indicate that Low Temperature Thermal Desorption (LTTD) remediation of approximately 6500 cubic yards of VOC contaminated soils at the subject property was completed in November 2005. The remediation consisted of excavation of two areas east of the eastern most parking lot; one area of excavation was beneath a former concrete pad (140 ft x 60 ft x 12.5 ft deep) and the second area of excavation (35 ft x 35 ft x 16 ft deep) was formerly used, to dispose of clay residues. The depth of excavation was determined by the depth of the shale layer beneath the property. In addition, concrete areas were decontaminated, screening materials unacceptable for LTTD were characterized and disposed of off -site, LTTD treated soils were backfilled onsite, waste pile areas were lined underneath, LTTD and all equipment was decontaminated prior to leaving the site, and the LTTD never exceeded 250 tons per hour to stay below the 10 lb/hr VOC permit exemption. ADEQ required Kearney to obtain financial assurance and a RCRA permit to implement this remediation work. A Closure Plan was submitted to ADEQ on March 15, 2002, pursuant to the voluntary cleanup CAO addressing the decontamination monitoring and cleanup of the LTTD unit and excavation equipment used to excavate the soils (LRC, 2008). Excavated soils were treated on the subject property via LTTD. The established clean up goal was five milligrams per kilogram (mg/kg) TCE. Treated soils were subsequently backfilled on the subject property and the excavated areas have been graded and seeded. Approximately 98,000 gallons of excavation water was 17 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property 6.4 The Land Recycling Company, Inc. March 2010 treated through carbon filtration and discharged under a NPDES permit (LRC, 2008). Kearney had initially proposed remedial action for the contaminated groundwater at the Kearney Property consisting of the injection of chemicals that will enhance the natural attenuation process. Injection wells have been installed for this purpose; however, no actual injection of the enhancement materials had occurred at the time of this report (LRC, 2008). A Monitored Natural Attenuation Plan (MNAP) was submitted by Kearney and approved by ADEQ in 2006. The MNAP requires periodic groundwater sampling and data collection by Kearney. Specifically, the site monitoring wells are to be sampled semi-annually for volatile organic compounds (VOCs) and annually for key natural attenuation parameters for five years following the soil remediation work. The MNAP is presented in Appendix N. The fourth of five annual groundwater monitoring reports required by the MNAP was submitted to ADEQ in January 2010 (Burt Geology and Environmental Applications, PLLC, 2010). The January 2010 Annual Groundwater Monitoring Report is presented in Appendix O. The fifth annual groundwater monitoring will be completed in 2010 and a final report is expected to be issued to ADEQ in January 2011 by Kearney. 6.3.4 Legal Actions Kearney and ADEQ entered into a CAO in August 2000 which outlined the regulatory, legal and timing issues of the remediation to be performed at the subject property. The CAO required that Kearney submit a Site Investigation (SI) Report, Remedial Alternatives Analysis (RAA) Report, and Remedial Action Plan (RAP) Application. The CAO outlined protection to subsequent property owners. The CAO is presented in Appendix P. Interviews As part of the Phase I ESA in 2008, LRC interviewed Mr. Downie Grim, Cooper Power Systems Plant Manager at the Kearney Property. Mr. Grim has been at the plant since 2006. He indicated that the major plant processes currently include assembly, machine shop, shipping and receiving. Assembled items include line installation products for electrical processes and power poles. Examples of the assembled products are hand cutters, taps, terminals and splices. Most of the assembly is by hand, with some automation. Mr. Grim stated that the Kearney plant originally opened in the 1950's and that in the 1990's operations were taken over by Cooper Power Systems. 18 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property The Land Recycling Company, Inc. March 2010 Mr. Grim indicated that the current use of chemical products at the plant include machine lube oil and soap for parts washing. He indicated that Material Safety Data Sheets (MSDS) were available for LRC review. Mr. Grim stated that there were no underground storage tanks currently on the Kearney Property. The plant utilizes the local municipal water supply and sanitary sewer system. He could not recall any spills or leaks associated with plant processes other than the past Kearney operations which resulted in the soil and groundwater contamination currently being remediated by Kearney. Mr. Grim knew of no fires that had occurred at the plant. LRC also interviewed Mr. Roger Baird, the Supervisor of Tool & Die, Maintenance and Productions Supervisor at the Kearney plant. He provided LRC with a completed tour of the Kearney Property. Mr. Baird has been employed at the plant since 1996. Mr. Baird stated that the major processes at the plant include assembly, shipping and warehousing. Mr. Baird indicated that the plant has had three additions over time. He reiterated that components for single phase switches are shipped to their Mexico facility. Some of the components also come from China, according to Mr. Baird. Mr. Baird stated that during the former Kearney plant operations, ,wastewater discharge from the plating operation was permitted; however, those operations were never used by Cooper and were moved to another Kearney facility. The waste water currently generated by Cooper's plant operations is recycled, thus making the discharge permit unnecessary. Former Kearney plant operations included metal plating, tin dipping and lead fusing. All former floor drains were sealed by Cooper with the exception of the sinks and toilets in the lavatories. Mr. Baird provided LRC with a detailed description of the parts washer used in the plant. The parts washer uses soap in the cleaning process. Wash water and rinse water is re -used for three to four weeks, depending on the parts washed in the process. Then, the used water is filtered and placed in an oil -water separator with a skimmer. Any collected oil is drummed and removed for off -site disposal. The used water is then placed in a settling tank where fines and sludge are collected. The water is then placed in a holding tank and subsequently treated with aluminum chloride and lime, followed by a polymer solution for reuse. Mr. Baird stated that he was not aware of any underground storage tanks on the Kearney Property. He indicated that there are two sets of transformers on the subject property, both of which are approximately seven years old. He was not aware of any testing for PCBs and that any incidents related to the transformers would be the responsibility of SWEPCO. 19 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property The Land Recycling Company, Inc. March 2010 Municipally -supplied water is used for cooling machinery; however, the water is "jacketed" and never touches the machinery so it is not considered a wastewater. Cooling water is also used in the parts finishing process but is recycled. Chemicals used in plant operations which were observed by LRC in an interior chemical storage area include: • Water -based Lubricants • Synthetic Lubricants • Cleaners & Degreasers (Soap only, no chlorinated solvents) • Gear Oil • Petroleum Hydrocarbon Solvent • Hydraulic Oil • Metal Working Fluid After the site visit, plant personnel provided LRC with MSDS sheets for the following chemicals used in the plant processes: • Nitrogen • Blastoff Part O (potassium hydroxide solution) • Blastoff Part B • Valcool (metal working oil fluid concentrate) • Simple Green All Purpose Cleaner & Scrubbing Pad • Petroleum Hydrocarbon Cleaner • Chevron Elite -Cut Metal Working Fluid • Citgo Hydraulic Oil • Tide Granular Laundry Detergent • Parks Gum Turpentine • High Calcium Hydrated Lime • Acetylene • Hydrogen • Oxygen • Coagulant for Wastewater Treatment In addition to plant personnel, LRC interviewed Ms. Jane Spellman, who is the project manager for Kearney on the remediation of soils and groundwater at the Kearney Property. Ms. Spellman is a Vice President and Senior Hydrogeologist with FTN Associates, Inc. (FTN). Ms. Spellman stated that the environmental investigation began in 1997. TCE is the contaminant of concern (COC) along with some of its degradation products. High concentrations of contaminants have been detected in the vicinity of the southeast corner of the plant; Ms. Spellman informed LRC that, according to anecdotal evidence, the contamination in this area may have come from 55 -gallon drums of spent degreaser which were placed outside so the liquids could evaporate. 20 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property The Land Recycling Company, Inc. March 2010 Another area of high concentration of TCE is to the north of the southeast corner in what was formerly a pit. According to Ms. Spellman, anecdotal evidence indicates that this area of contamination may have resulted from the disposal of defective clay collars. Ms. Spellman described other areas of contamination including TCE concentrations under the plant building which may have resulted from chemicals being disposed of on the ground surface over time; also, contamination on the eastern part of the Kearney Property may have resulted from a former septic tank. Ms. Spellman noted that, before environmental regulations were established, these types of disposal methods were common in manufacturing operations. Ms. Denise Georgiou, the Industrial Pretreatment Coordinator for the City of Fayetteville, was interviewed by LRC with respect to wastewater discharge issues at the Kearney Property. Ms. Georgiou stated that since the metal plating operations at the plant had been discontinued, a discharge permit was no longer required. Ms. Robin Reed, Director of the Washington County office of Environmental Affairs was interviewed by LRC. Ms. Reed stated that her agency has no records on file with respect to the Kearney Property. During the Phase I ESA Update, LRC interviewed Mr. John Rose, Manager of Purchasing for Cooper at the Plant. Mr. Rose stated that the operational changes at the facility since the Phase I ESA was conducted in October 2008 consisted of the following: A new compressor has been purchased. The assembly areas have been re -configured for Lean improvements. The forklifts have been upgraded. Mr. Rose further stated that recycling of process materials remains unchanged. 21 Comprehensive Site Assessment -Revised Kearney -National, Inc. Property 7.0 CONCLUSIONS The Land Recycling Company, Inc. March 2010 The information contained in this report, which includes available ADEQ documentation, interviews and assessment work performed by Kearney and Cooper, presents a comprehensive view of the environmental conditions at the Kearney Property, both past and present. Documentation prepared by Kearney indicates there are no contaminant exposure receptors associated with the Kearney Property. The two media affected by the past release of contaminants at the site are soil and groundwater. According to the review of ADEQ records, the remediation of the soil was completed in 2005 with ADEQ approval; groundwater monitoring is on going. However, no groundwater receptors currently exist. A Monitored Natural Attenuation Plan (MNAP) for groundwater was submitted by Kearney and approved by ADEQ in 2006. The MNAP requires periodic groundwater sampling and data collection by Kearney. Specifically, the site monitoring wells are to be sampled semi-annually for volatile organic compounds (VOCs) and annually for key natural attenuation parameters for five years following the soil remediation work. The fourth of five annual groundwater monitoring reports required by the MNAP was submitted to ADEQ in January 2010. The fifth annual groundwater monitoring will be completed in 2010 and a final report is expected to be issued to ADEQ in January 2011 by Kearney. The Fayetteville Executive Airport, which is located directly adjacent to the south of the Kearney Property, has expressed an interest in purchasing the southern 6.5 acres of the Kearney Property so that Earnest Lancaster Drive can be relocated so that it will be out of the airport runway safety zone. The 6.5 acre tract is open land, surrounded by a chain link fence, and is not occupied by any plant structures (with the exception of groundwater monitoring wells) or plant operations. Cooper has an option to purchase the entire Kearney Property but plans on contracting to acquire the 6.5 acre tract immediately to accommodate the Fayetteville Executive Airport expansion activities and explore its options on the remaining Kearney property. Operations on the remainder of the Kearney Property will remain unchanged for the foreseeable future. Based on the content of this report, it is our conclusion that the planned sale and redevelopment of the Kearney Property, especially the southern 6.5 acre, tract by the Fayetteville Executive Airport will not present an unacceptable risk to human health and/or the environment. It is our understanding that Kearney will continue to work with ADEQ under the 2000 CAO to monitor the groundwater in 2010 as part of the five year MNAP. In 2011, Kearney will summarize the MNA results for the five year period and recommend additional monitoring and/or remedial action as necessary. WJ LP DECLARATION OF RESTRICTIVE COVENANTS (Airport Tract) STATE OF ARKANSAS § COUNTY OF WASHINGTON § KNOW ALL MEN BY THESE PRESENTS: THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this `t \ day of , 2010, by KEARNEY-NATIONAL INC., a Delaware corporation (hereinafter referred to as "Declarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder, Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated iWv ZI 'th , by and among Declarant, Cooper Power Systems, LLC and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 1454124v.4 0017758100051 I IlIIIIIIIIIIIIII IIIIIIIIII VIII VIII IIIIIIIIII IIIIIIIIII VIII VIII IIIIIIIII IIII Doc TD: 013452570006 Type: REL Kind: PROTECTIVE T Recorded: 05/21/2010EatNO2:39:29 PM Fee Amt: $40.00 Pane 1 of 6 Washington County. AR Bette Stamps Circuit Clerk File201Q_00013897 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: • The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. • No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). • Existing monitoring and other wells shall remain in place during any period required by the ADEQ. • The Property shall only be used for roadway purposes. • No buildings or other structures shall be constructed on the Property. • The subsurface of the Property shall only be used to the extent necessary to construct a roadway on the Property, re -channel an abutting drainage ditch, and reroute a water line on the southeast corner of the Property. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Kearney -National Inc. and its successors and assigns, and "Enforcement Party" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 1454124v,4 0017758/00051 EXECUTED this 1 day of , 2010. KEARNEY-NATIONAL, INC. a Delaware corporation By: Name: Gi z ei �IiG Title: c TPSr STATE OF COUNTY OF k) VoL This i7O1file/C rume t was acknowledged 2010, by NATIONAL, INC., a Delaware corporation, before me on the„/ay of Gt the Alec %' of CEARNEY- on behalf of said limited liability company j4i &('. - Notary Public, State of Notary's Printed Name Commission Expires VICTORIA MCCOOL NOTARY PUBLIC - Stab of New York Rep. No. 02MCOI 02414 Qualified in Kings County Commission Expires December 8, 20 1 1454124v.4 001 7758/0005 1 EXECUTED this day of , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company B Name: Terrance V. Helz Title: Corporate Secret ry STATE OF § COUNTY OF § This instrument was acknowledged before me on the (7 day of 2i 2010, by evve, ctc 1l, eiz , the 14i of COOPE4& POWER SYSTEMS, LLC, a Delaware limited liability company. o behalf of said limited liability company. Exhibit A — Property (4.81 Acres) 4 1454124v.4 0017758/00051 4 � , NoJ,b1ic, State of_ m '✓ otary's Printed Nathd p) -O oi4 Commission Expires JEANETTAAGUIRRE NOTARY PUBLIC ' STATE OF TEXAS ky Gomm. Face. 01419-2014 Exhibit A Property DRAKE FIELD / HWY 718 Trace No. 6 Paroet No. 765-15533.000 PROPERTY DESCRIPTION' (Deed Record 830-628) A part of the Southwest Quarter (SW'/.) of the Northeast Quarter (NE `/) of the Southwest Quarter (SW'/.) of Section 33, T -16-N, R -30•W, as described in Deed Record 830-628 of the records of the Circuit Clerk, Washington County, Arkansas, being more particularly described as follows; From the Southwest corner of said Southwest Quarter (SW %) of the Northeast Quarter (NE `14) of the Southwest Quarter (SW %), thence South 870}537" East along the South line of said Southwest Quarter (SW %:) of the Northeast Quarter (NE %) of the Southwest Quarter (SW %) a distance of 20,09 feet to a point on the existing East Right of Way line of Arkansas Highway 71 B for the Point of Beginning, thence North 4°35'50" East along said East Right of Way line a distance of 335.70 feet; thence leaving said East Right of Way line South 56461 r East - 830.94 feet to a point on the East line of said Southwest Quarter (SW Y.) of the Northeast Quarter (NE'/.) of the Southwest Quarter (SW '/4); thence along the East line of said Southwest Quarter (SW Y+) of the Northeast Quarter (NE %.) of the Southwest Quarter (SW %) South 2°5817' West - 322,00 feet to the Southwest corner of said Southwest Quarter (SW `/.) of the Northeast Quarter (NE 1/4) of the Southwest Quarter (SW Y.); thence along the South line of said Southwest Quarter (SW'/) of the Northeast Quarter (NE '/4) of the Southwest Quarter (SW ') North 87°05'37' West -j 640,34 feet to the Point of Beg€nning, containing 4.81 acres, more or less, C:b i.CASEMEWT$2507e7i164 Pnkc Ficld !ICY 7IVmpng5Tnct 6 Kc,wnay.doc: I, Bette Stamps, Circuit Clerk and Ex -officio Recorder for Washington County, Arkansas, do hereby certify that this instrument was fled for record in my office as indicated hereon and the same is now duly recorded with the acknowledgement and certificate thereon in Record Book and page as indicated thereon. IN hand andaf£oced the wail off said Court on the date indi cated hereon. Betty Stamps Circuit Clerk and Ex- officio Recorder by DECLARATION OF RESTRICTIVE COVENANTS (Entire Acreage) STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of , 2010, by KEARNEY-NATIONAL INC., a Delaware corporation (hereinafter referr d to as "Declarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "Pr. opertx") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated '1k,i is ,by and among Declarant, Cooper Power Systems, LLC and the City of Fayettevill , Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property. binding _ .... I4541I8v.4 0017758/00051 S1fO: rPivIvu' Recorded: 06/21/2010 at 02:36:24 PM Fee Amt: $40.00 Paae I of 6 Washington County. AR Bette Stamps Circuit Clerk File20i0"'00013896 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). Existing monitoring and other wells shall remain in place during any period required by the ADEQ. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Kearney -National Inc. and its successors and assigns, and "Enforcement Party" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 14541I8v.4 0017758/00051 EXECUTED this `Z 1 day of _ , 2010. KEARNEY-NATIONAL, INC. a Delaware corporation By:_ Name: STATE OF Er GJ (41L1- § COUNTY OF IQ& kL-IL This instrument was ackr#owledged before me °R the day of _, 2010, by fr,4IC 1w?1Ot1?i. the j,Iic e. IBS of KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability compare . Notary Public, State of Notary's Printed Name Commission Expires VICTORIA MCCOOL NOTARY PUBUC - State of New York Rag. No. 02MC61 02414 Qualified In Kings County Commission Expires December 8.20 454118v.4 001 7758/0005 1 EXECUTED this 2� day of AA , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company Name: Terrance V. Het Title: Corporate Seer to y STATE OF -- § s § COUNTY OF § This instrument was acknowledged before me on the day of 2010, by V. lfe.1z- theof COOPER. POWER SYSTEMS, LLC, a Delaware limited liability company. o behalf of said limited liability company, Public, Stat of�� �.J ctii S& ,r -v' Notary's Printed e Commission Expires Exhibit A — Property 4 I4S4118v.4 0017758/00051 Exhibit A Property Premiss The South Half (8/3,) of the North Half (N/k,) of the Northeast Quarter (NE/ ¼) of the Southwest Quarter (SW/4) of -Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter (SW/) of the Northeast Quarter (NE/.) of the Southwest Quarter (SW/;) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington county, Arkansas. i, SettStamps, Cirouf Clerk and Ex-offlolo Recorder for Washington County, Arkansas, do hereby certify that this instrument was Red far record in my office as indicated hereon and the same is now duty recorded with the acknowledgement and cerUflcate thereon in Record Book and page as Indicated thereon. IN my hand and affixed used of said Court on the dateeltnd� crated hereon. Betty Stamps Ci�rt Clerk and Ex-oificio Recorder by Phase I ESA Update -Revised Kearney National Property March 2010 The Land Recycling Company, Inc. 1.0 INTRODUCTION The Land Recycling Company, Inc. (LRC) was retained by Cooper US, Inc., parent of Cooper Power Systems, LLC (Cooper) to perform a Phase I Environmental Site Assessment (ESA) Update of the real estate owned by Kearney -National, Inc. ("the subject property" or "the Kearney Property") located at 3660 South School Street in Fayetteville, Washington County, Arkansas. A Site Location Map is presented as Figure Number 1 in Appendix A. Kearney -National, Inc. ("Kearney") has been pursuing an environmental investigation and clean up at the subject property since approximately 1997. According to ADEQ records, the investigation and clean up activities are a result of a release of hazardous materials (chlorinated solvents) and gasoline from a former above ground storage tank ("AST") to the soil and groundwater on the subject property during past operations conducted by Kearney. Based on our review of the ADEQ files, the soil remediation is complete; the groundwater remediation is on going. Cooper Power Systems, LLC, a division of Cooper US, Inc., is currently leasing only the structure and the land's surface for assembly and warehousing of electrical fuses and breakers. Cooper has entered the Arkansas Department of Environmental Quality ("ADEQ") Brownfield Program so that it may qualify for the protection offered by the program should it ultimately purchase the Kearney Property. 1.1 Purpose LRC performed this Phase I ESA Update according to the standard for Phase I ESAs published by the American Society of Testing and Materials (ASTM Standard E 1527- 05). Phase I ESAs which are more than six months old must be updated according to the ASTM Standard. The goal of this process is to define good commercial and customary practice in the United States of America for conducting an environmental site assessment of a parcel of commercial real estate with respect to the range of contaminants within the scope of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and petroleum products. This practice is intended to allow the User to satisfy one of the requirements to qualify for the innocent landowner, contiguous property owner or bona fide prospective purchaser limitations on CERCLA liability, that is, the practice constitutes all appropriate inquiry into the previous ownership and uses of the Property consistent with good commercial or customary practice. 1.2 Detailed Scope of Services • An updated visual inspection of the subject property and surrounding properties was conducted by LRC for this Phase I ESA Update on February 2, 2010. The subject property and surrounding properties were inspected for the presence or evidence of recognized environmental -conditions. The term "recognized environmental conditions" or "RECs" means the presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of a release of 1 Phase I ESA Update -Revised Kearney National Property March 2010 The Land Recycling Company, Inc. any hazardous substances or petroleum products into structures on the property or into the ground, ground water, or surface water of the property (ASTM Standard E 1527-05). An updated computer database search was performed by Environmental Data Resources, Inc. (EDR) on behalf of LRC. This search provides information regarding compliance with environmental regulations for the subject property and nearby properties. LRC reviewed the database for potential environmental concerns. Representatives of Cooper Power Systems, LLC, the City of Fayetteville and the Washington County Environmental Affairs office were interviewed by LRC regarding past and current conditions of the subject property. We also reviewed available online ADEQ records. An updated environmental lien search was conducted by EDR and reviewed by LRC for evidence of potential environmental concerns. 2.0 SITE DESCRIPTION 2.1 Location The Kearney Property is located at 3660 South School Street in the southeastern part of the City of Fayetteville, in roughly the central part of Washington County, Arkansas. A General Site Plan is presented as Drawing Number 1 in Appendix B. 2.2 General Site and Vicinity Characteristics The Kearney Property is approximately 19 acres in size and is shaped like an inverted "L". The subject property includes an approximate 135,000 square foot electrical equipment assembly facility, offices and an approximate 30,000 square foot warehouse. Two parking lots are also located in the Kearney Property. The land surrounding the subject property is predominantly used for industry. The subject property is located within the Ozark Mountains region of Arkansas which is characterized by eroded plateaus (hills) and intervening valleys. The topography of the subject property is relatively flat as it is located in a valley. Photographs from the site visit conducted by LRC are presented in Appendix C. 2.3 Current Uses of the Property The surface of the land and structures are currently leased Cooper Power Systems, LLC for assembling electrical switchgear, fusing equipment, tools and connectors. Facility operations include a machine shop, assembly area, small wastewater treatment plant, 2 Phase I ESA Update -Revised March 2010 Kearney National Property The Land Recycling Company, Inc. warehouse, administrative offices, shipping and receiving. Chlorinated solvents have not been used at the site, nor has Cooper operated any gasoline storage tanks on site. 2.4 Description of Site Related Structures The Kearney Property includes an approximate 135,000 square foot electrical equipment assembly facility, administrative offices and an approximate 30,000 square foot warehouse. The manufacturing portion of the plant is comprised of a concrete foundation, concrete block walls and metal roofing which is covered with foam insulation and rubber. Two parking lots are also located on the subject property. The subject property is surrounded by chain link fence and has a secure gated entrance on South School Street. Nitrogen and hydrogen tanks, which are located on the north east exterior of the manufacturing plant, are used in an interior annealing oven. The annealing process is utilized for softening of metals before they are worked in the various assembly processes. The nitrogen and hydrogen gases displace oxygen within the oven so that a reducing atmosphere is created. Two sets of electrical transformers, which are the responsibility of Southwest Energy Power Company (SWEPCO), are located at the Kearney Property. Three pole- mounted transformers are located on the eastern exterior of the facility. A pad -mounted transformer is located on the northwest exterior of the administrative office portion of the facility. 2.5 Current Uses of Adjoining Properties During the site visit, LRC observed the current uses of the properties which currently adjoin the Kearney Property for recognized environmental conditions. Following is a list of current adjoining property uses: North: The adjacent property to the north of the subject property is occupied by the Army National Guard l421d1 Fire Brigade. East: The adjacent property to the east of the subject property consists of McCollum Road and thence vacant agricultural property. South: The adjacent property to the south of the subject property is Drake Field and its runway system. Southeast: The adjacent property to the southeast of the subject property consists of Scurlock Industries (formerly known as EnviroSearch Company d/b/a Tri- State Pre -Cast). West: Property to the west consists of South School Street (U.S, Highway 71) thence The Standard Register Company. 9 Phase I ESA Update -Revised March 2010 Kearney National Property The Land Recycling Company, Inc. 2.6 Previous Environmental Investigations and Remediation LRC completed a Phase I ESA of the Kearney Property in January 2009 (Revised February 2009). Recommendations by LRC in the Phase I ESA report included: That Cooper enter the State of Arkansas Brownfield Program prior to purchase of the property in order to obtain a release of liability for past contamination caused by Kearney or other prior owners/operators. That asbestos containing materials (ACM) located within the on site building should be replaced as necessary utilizing qualified outside contractors, and appropriate plant personnel should be adequately trained in the applicable asbestos regulations. Additional environmental assessment includes subsurface investigations at the Kearney Property beginning in 1997. The initial investigation was conducted by HSI GeoTrans on behalf of Cooper when they purchased the equipment, but not the real property. HSI GeoTrans installed twelve subsurface soil borings using a direct push device. Five "grab" groundwater samples were collected from the borings using temporary piezometers. Trichloroethylene ("TCE") was detected in all of the soil samples and in two of the groundwater samples. These two groundwater samples indicated levels of TCE in excess of Maximum Contaminant Levels ("MCLs") for drinking water. TCE is a cleaning solvent and, based on ADEQ records, was commonly used during past operations by Kearney. Gasoline Range Organics ("GRO") were also detected in all soil samples, two of which exceeded state -established standards for Total Petroleum Hydrocarbons ("TPH"). TCE. and its daughter compounds have subsequently been identified as the Contaminants of Concern ("COCs") at the Kearney Property. As a follow up to the initial GeoTrans investigation, according to records we received, Kearney contracted with FTN Associates ("FTN") to conduct additional field investigations at the subject property in March 1998. The additional work by FTN again indicated the presence of TCE, benzene and other chlorinated solvents which in some wells exceeded the established MCLs for drinking water; some concentrations of chlorinated compounds indicated the possible presence of Dense Non -Aqueous Phase Liquids ("DNAPLs"). Again, both soils and shallow groundwater were determined to have been impacted. A former AST was determined to be the source of the benzene and GRO in groundwater and soil; the tank was subsequently removed by Kearney. In April 1998 ADEQ records show that Kearney began meeting voluntarily with ADEQ regarding environmental conditions at the subject property. Additional delineation of the contamination was performed by FTN, including sampling in a nearby creek and on the EnviroSearch/Tri-State property, which was located directly adjacent to the Kearney Property to the southeast (currently the location of Scurlock Industries). Neither the creek nor EnviroSearch/Tri-State was determined to have been impacted by the contamination at the subject property. 4 Phase I ESA Update -Revised March 2010 Kearney National Property The Land Recycling Company, Inc. ADEQ records reviewed show that Kearney contracted with Brown and Caldwell (BC) to evaluate remedial alternatives; Kearney and the ADEQ subsequently entered into a Consent Administrative Order ("CA0"), with FTN as the consultant, in August 2000 which outlined the regulatory, legal and timing issues of the remediation to be performed at the subject property. We understand that remediation of the contaminated soils at the subject property is complete. Based on records made available to us and interviews, the remediation consisted of excavation of two areas on the eastern side of the plant building; one area of excavation was beneath a former concrete pad (140 ft x 60 ft x 12.5 ft deep) and the second area of excavation (35 ft x 35 ft x 16 ft deep) was formerly used to dispose of clay residues. The depth of excavation was determined by the depth of the shale layer beneath the property. Excavated soils were treated on the subject property via low temperature thermal desorption. The established clean up goal was five milligrams per kilogram (mg/kg). Treated soils were subsequently backfilled on the subject property and the excavated areas have been graded and seeded. Planned remedial action for the contaminated groundwater at the Kearney Property consists of injection of chemicals which will enhance the natural attenuation process. Injection wells have been installed for this purpose; however, no actual injection of the enhancement materials had occurred at the time of this report. The 1997 HSI GeoTrans report also included the results of an asbestos inspection. The asbestos inspection report indicated the presence of Asbestos Containing Materials (ACM) which exceed 1% asbestos in floor tiles and mastic throughout the office areas, as well as in insulation on a 2 -inch water pipe and gasket material on a cooling chamber in the production area. All the ACM was classified in good condition at the time of the inspection. The report recommended maintenance of the ACM. An "Annual ACM Examination Form" dated May 8, 2006 which was provided to LRC by Cooper personnel indicates that ACM is contained only in "black mastic underneath non asbestos containing 12 x 12 tan, white & brown marble pattern floor tile" in various office spaces and "coating material" on ceiling tiles located above the suspended ceilings in various areas within the office spaces and lavatories. 5 Phase I ESA Update -Revised Kearney National Property 3.0 RECORDS REVIEW 3.1 Standard Environmental Records Sources March 2010 The Land Recycling Company, Inc. LRC obtained an updated environmental records database for the Kearney Property from EDR, a nationally recognized provider of this type of information. The EDR database contains information on both federal and state environmental records, and uses search distances from the subject property in accordance with current ASTM standards. LRC reviewed the updated database for potential environmental concerns. A copy of the updated database is located in Appendix D. The EDR database includes the following environmental data and search distances: Database Information Records Search Distance (Miles) US Brownfields 0.5 NPL 1.0 Proposed NPL 1.0 NPL Liens TP* CERCLIS 0.5 CERLIS-NFRAP 0.5 Liens 2 TP CORRACTS 1.0 RCRA-TSDF 0.5 RCRA-Large Quantity Generator 0.25 RCRA-Small Quantity Generator 0.25 RCRA CESQG 0.25 RCRA NON-GEN 0.25 US ENG CONTROLS 0.5 US INST CONTROL 0.5 ERNS TP DOT OPS TP US CDL TP SHWS 1.0 SWF/LF 0.5 LTANKS 0.5 UST 0.25 SWRCY 0.5 SWID 0.5 CONSENT 1.00 ROD 1.0 Delisted NPL 1.0 FINDS TP HMIRS TP MLTS TP MINES 0.25 DOD 1.0 PADS TP 6 Phase I ESA Update -Revised March 2010 Kearney National Property The Land Recycling Company, Inc. Database Information Records Search Distance (Miles) RAD INFO TP FUDS 1.0 LUCIS 0.5 ODI 0.5 UMTRA 0.5 DEBRIS REGION 9 0.5 Indian Reservations 1.0 RAATS Ti' SCRD DRYCLEANERS 0.5 TRIS TP TSCA TP FTTS TP HIST FTTS Ti' SSTS TP ICIS TP AST 0.25 SPILLS TP INST CONTROL 0.5 VCP 0.5 STATE BROWNFIELDS 0.5 AR Sludge 0.5 PERMITS 0.5 ENF TP AIRS Ti' ASBESTOS Ti' INDIAN ODI 0.5 INDIAN LUST 0.5 INDIAN UST 0.25 INDIAN VCP 0.5 Manufactured Gas Plants 1.0 COAL ASH 0.5 COAL ASH EPA 0.5 PCB TRANSFORMER TP COAL ASH DOE TP *TP = Target Property i.e., the subject property. 3.2 Environmental Records Review Results The Kearney National Property was listed in a number of the environmental databases searched by EDR. Following is a brief discussion of those findings: 7 Phase I ESA Update -Revised March 2010 Kearney National Property The Land Recycling Company, Inc. CORRACTS (Corrective Action Report) The Kearney Property (listed as the "Kearney National Inc. Remediation Project") was identified as a CORRACTS site. This database lists hazardous waste handlers with RCRA Corrective Action activity. This designation is related to past environmental investigations and remediation at the subject property. RCRA-TSDF (Transporters, Storage and Disposal) The Kearney Property (listed as the "Kearney National, Inc. Remediation Project") was identified as a RCRA TSDF site. This database includes information on sites which generate, transport, store, treat and/or dispose • of hazardous waste. Again, this designation is related to the remediation at the subject property. RCRA-NonGen (Non -Generators) The Kearney Property (listed as the "Kearney National Inc. Remediation Project" and "Cooper Power Systems, Inc.") were both identified as a Non -Generators of hazardous waste, which indicates that neither the remediation project nor the current plant operations generate hazardous waste at the present time. PADS (PCB Activity Database System) The Kearney Property was identified as a PADS site. This database lists generators, transporters, commercial storers and/or brokers and disposers of Polychlorinated Biphenyls (PCBs) who are required to notify EPA of these activities. However, the EDR document does not specify any details regarding any PCB -related activities at the Kearney National Property. Two sets of electrical transformers, which sometimes contain PCBs, are located at the Kearney Property. Three pole- mounted transformers are located on the eastern exterior of the facility. A pad -mounted transformer is located on the northwest exterior of the administrative office portion of the facility. FINDS (Facility Index System/Facility Registry System) The Kearney Property was identified as a FINDS site. The FINDS database contains both facility information and "pointers" to other sources of information that contain more detail. The EDR search includes the Arkansas Permit Data System, National Emissions Inventory, US EPA Toxic Release Inventory System, National Pollutant Discharge Elimination System, RCRA information and the Permit Compliance System. E:3 Phase I ESA Update -Revised Kearney National Property March 2010 The Land Recycling Company, Inc. ENF (Consent Administrative Order, Notice of Violations Database) The Kearney Property was identified as an Enforcement site. The Enforcement database is a listing of CAOs and violations issued to facilities by various state environmental programs including Air, Hazardous Waste, Regulated Storage Tanks, Solid Waste and Water. This particular reference is to the CAO issued to Kearney in relation to the contaminated soils on the property which have subsequently been remediated. Groundwater remediation is on going. PERMITS (Permits Data System) The Kearney Property was identified as a PERMITS site. This database lists sites permitted by various ADEQ environmental programs, including Air, Mining, Solid Waste and Water. The PERMITS listing for Kearney appears to be for hazardous waste and water. The hazardous waste listing identifies "68 LBS GENERATED IN 2006 AND SHIPPED IN 2007." The water permitting information in the PERMITS listing indicates that a National Pollution Discharge Elimination System (NPDES) permit was issued to the facility for stormwater runoff. A subsequent PERMITS listing, under "Kearney National Inc." indicates that the NPDES permit has since been voided and is no longer required. In addition to the Kearney Property, the EDR environmental database indicated that regulatory information is available for the following properties within the ASTM Search Distance: Standard Register Company 3655 South School Avenue The Standard Register facility is listed as an AST (Above Ground Storage Tank) site. The database indicates that the capacity of the AST is 4,030 gallons, is made of steel with copper piping and was installed in 1989. However, the contents and use of the tank is not reported. The Standard Register Company, which is located west of the Kearney Property (across Highway 71), is listed as a Conditionally Exempt Small Quantity Generator (CESQG) of hazardous waste. A CESQG normally generates 100 kg or less of hazardous waste per calendar month and accumulates 1,000 kg of hazardous waste at any time. Ignitable Hazardous Wastes (D001), are addressed under Standard Register's status as a CESQG. The Standard Register Company is listed as a FINDS site. The FINDS database contains both facility information and "pointers" to other sources of information that contain more detail. The EDR search includes the Arkansas Permit Data System, National Emissions Inventory, US EPA Toxic Release Inventory System, National Pollutant Discharge Elimination System, RCRA information and the Permit Compliance System. Phase I ESA Update -Revised Kearney National Property March 2010 The Land Recycling Company, Inc. Fayetteville Armory 3590 South School Street The Fayetteville Armory is listed as a RCRA-CESQG site. The Fayetteville Armory property is located directly north and adjacent to the Kearney Property. CESQG sites are conditionally exempt small quantity generators of hazardous wastes. The database. indicates that this facility generates small quantities of Ignitable Hazardous Wastes (D001). The Fayetteville Armory is listed as having an AST on the property. The tank's capacity is 8,000 gallons and is of steel, double wall construction. The tank was apparently installed in 1997; however, its contents and use are not reported. The Fayetteville Armory is also listed as a FINDS site. The FINDS database contains both facility information and "pointers" to other sources of information that contain more detail. The EDR search includes the Arkansas Permit Data System, National Emissions Inventory, US EPA Toxic Release Inventory System, National Pollutant Discharge Elimination System, RCRA information and the Permit Compliance System. EZ Mart #102 3608 South School Street This facility is listed as a Leaking Tank site (LTANKS). The EZ Mart is located north of the Kearney Property, but is not an adjoining property. A leak was documented in the database as occurring in 1992. The apparent cause was vandalism which resulted in gasoline product flowing from a nozzle across the facility parking lot to a nearby storm sewer. The parking lot and sewer were subsequently cleaned and a No Further Action letter was issued to the facility by ADEQ in 1996. A second incident is documented as occurring in 1996; a tank at the EZ Mart failed a tightness test which was reported to ADEQ. A second tightness test indicated that the tank's integrity was acceptable and ADEQ issued a No Further Action letter for this incident. A third incident at the EZ Mart, also in 1996, indicates that a line leak caused gasoline product to surface through seams in the concrete and flow across the parking lot. After several respondents took action, the incident was deemed to have no completed exposure pathways and ADEQ issued a No Further Action letter in December 1996. Further information in the database for the EZ Mart indicates that three additional tank tightness failures, all of which were subsequently repeated with passing results. 10 Phase I ESA Update -Revised Kearney National Property March 2010 The Land Recycling Company, Inc. ORPHAN SITES Eleven facilities were not mapped by EDR due to inadequate location information. These facilities are listed in the database for review. None of these orphan sites are adjoining properties and are therefore not considered to have any potential for environmental impact on the Kearney Property. ON LINE ADEQ RECORDS SEARCH LRC conducted an updated on line records search on the ADEQ web page. The on line search indicated that the Kearney Property and Cooper Power Systems have been issued permits under the ADEQ Hazardous Waste and Water Division programs. The ADEQ web page listed an inactive Hazardous Waste Generator Permit for the remediation project for the contaminated soil and groundwater on site. The Water Division program permit is an NPDES permit; however, the ADEQ database indicates that this permit was voided by the agency in 2006. 4.0 INTERVIEWS LRC interviewed Mr. John Rose, Manager of Purchasing for Cooper at the Plant. Mr. Rose stated that the operational changes at the facility since the Phase I ESA was conducted in October 2008 consisted of the following: A new compressor has been purchased. The assembly areas have been re -configured. The forklifts have been upgraded. Mr. Rose further stated that recycling of process materials remains unchanged. Ms. Denise Georgiou, the Industrial Pretreatment Coordinator for the City of Fayetteville, was interviewed by LRC with respect to wastewater discharge issues at the Kearney Property. Ms. Georgiou stated that since the metal plating operations at the plant had been discontinued, a discharge permit for the city sanitary sewer system was no longer required. Ms. Robin Reed, Director of the Washington County office of Environmental Affairs was interviewed by LRC. Ms. Reed stated that her agency has no records on file with respect to the Kearney Property. 11 Phase I ESA Update -Revised Kearney National Property March 2010 The Land Recycling Company, Inc. 5.0 UPDATED ENVIRONMENTAL LIEN SEARCH An updated environmental lien search was conducted by EDR on behalf of LRC. The updated lien search included research of available land title documents recorded at jurisdictional agencies such as recorders' offices, registries of deeds, county clerks' offices, etc. The EDR lien search found a warranty deed on file with the Washington County Clerk's office. The deed conveyed the subject property from the Fayetteville Chamber of Commerce, Inc. to Kearney National, Inc., and is dated April 4, 1972. The 1972 deed states that it is a replacement for a deed involving the same parties dated January 6, 1969, which had been misplaced, lost or destroyed prior to being recorded. The lien search did not produce any other deeds regarding the subject property. No environmental liens were found for the Kearney Property. A copy of the lien search documentation is located in Appendix E. 6.0 SITE RECONNAISANCE LRC performed an updated site inspection of the Kearney Property and surrounding properties on February 2, 2010. The objective of the inspection was to obtain information indicating any new recognized environmental conditions in connection with the subject property and surrounding properties. No new RECs were identified in connection with the subject property or the surrounding properties. LRC interviewed plant personnel and was provided with a detailed tour of the plant and grounds. Photographs were taken by LRC with notes being recorded and incorporated into this report. 7.0 FINDINGS LRC has performed this Phase I ESA Update in accordance with accepted ASTM standards. No new.RECs were revealed during the Phase I ESA Updated conducted by LRC; however, LRC would rate the Kearney Property as having a high environmental concern due to past contamination of the site prior to 1997 when Kearney was still in operation at this location. This rating is based on the following RECs identified during the site assessment process: Kearney has been pursuing an environmental investigation and clean up at the subject property since 1997. The investigation and clean up activities are a result of a release of hazardous materials (chlorinated solvents) from metal degreasers as well as from a release from a former above ground gasoline storage tank (AST) to the soil and groundwater on the subject property during past operations conducted by Kearney. Soil remediation was completed in 2006; however, groundwater remediation is on going. 12 Phase I ESA Update -Revised Kearney National Property March 2010 The Land Recycling Company, Inc. Subsurface soil samples have indicated elevated concentrations of TCE; groundwater samples indicated levels of TCE in excess of MCLs for drinking water. TCE is a cleaning solvent and was commonly used during past operations by Kearney. It was not used by Cooper. TCE and its daughter compounds have subsequently been identified as the COCs at the Kearney Property. Asbestos Containing Materials gave been identified at the Kearney Property. All ACM have been reported as being in "good" condition. 8.0 CONCLUSIONS We have performed a Phase I Environmental Site Assessment in conformance with the scope and limitations of ASTM Practice E 1527 of 3660 South School Street, Fayetteville, Arkansas, the Kearney -National, Inc. Property. This assessment revealed no new evidence of recognized environmental conditions (RECs) in connection with the Property except for the following historical RECs: Kearney has been pursuing an environmental investigation and clean up at the subject property since 1997. The investigation and clean up activities are a result of a release of hazardous materials (chlorinated solvents) from metal degreasers as well as from a release from a former above ground gasoline storage tank (AST) to the soil and groundwater on the subject property during past operations conducted by Kearney. Soil remediation was completed in 2006; however, groundwater remediation is on going. Subsurface soil samples have indicated elevated concentrations of TCE; groundwater samples indicated levels of TCE in excess of MCLs for drinking water. TCE is a cleaning solvent and was commonly used during past operations by Kearney. It was not used by Cooper. TCE and its daughter compounds have subsequently been identified as the COCs at the Kearney Property. Asbestos Containing Materials gave been identified at the Kearney Property. All ACM have been reported as being in "good" condition. 9.0 RECOMMENDATIONS Based on the findings of this Phase I ESA, LRC has observed and/or recommends the following: Cooper should continue to pursue the ADEQ Brownfield Program process in order to obtain a release of liability for past contamination caused by Kearney, if Cooper ultimately purchases the Kearney Property. 13 Phase I ESA Update -Revised Kearney National Property March 2010 The Land Recycling Company, Inc. Cooper Power Systems, LLC is conducting its warehousing and assembly operational practices in a manner that will avoid causing contamination. Cooper Power Systems, LLC is maintaining the condition of ACM in the facility; ACM should be replaced as necessary utilizing qualified outside contractors, and appropriate plant personnel should be adequately trained in the applicable asbestos regulations. 10.0 LIMITATIONS OF REPORT There is no information contained in this report regarding an evaluation of hazards associated with radon gas, wetlands, lead in drinking water, indoor air pollution, electromagnetic fields, mold or other fungi or anything not mentioned in the specific scope of work. LRC has performed this work under the Scope of Work and ASTM E-1527-05; no guarantees are either expressed or implied. LRC assumes that all information provided to LRC during this work is correct. This report is for the sole use of Cooper and may not be reproduced without written consent of LRC. Unless site conditions change, this document is valid for 180 days according to the ASTM E-1527-05 Standard and has been prepared solely for the use of Cooper. Any reliance on this report by other parties without written consent of Cooper and LRC is not permitted. 11.0 STATEMENT OF ENVIRONMENTAL PROFESSIONAL Environmental Professional Statement: I declare that, to the best of my professional knowledge and belief, I meet the definition of Environmental Professional as defined in Section 312.10 of 40 CFR 312 and I have the specific qualifications based on education, training and experience to assess a property of the nature, history and setting of the subject Property. I have developed and performed all the appropriate inquiries in conformance with standards and practices set forth in 40 CFR Part 312. Signature: M. Jean Koeninger, P.G. 14 Phase I ESA Update -Revised Kearney National Property March 2010 The Land Recycling Company, Inc. 15 AGREEMENT REGARDING PURCHASE OPTION This Agreement Regarding Purchase Option (this "Agreement") is entered into on and effective as of May, 2010 (the "Effective Date") by and among COOPER POWER SYSTEMS, LLC, a Delaware limited liability company or its assigns ("CPS"), KEARNEY- NATIONAL INC., a Delaware corporation ("KNI"), and the . CITY OF FAYETTEVILLE, WASHINGTON COUNTY, ARKANSAS, a municipality formed under the laws of the State of Arkansas (the "G�"). CPS, KNI, and the City are collectively referred to herein as the "Parties". RECITALS WHEREAS, KNI owns the real property described on Exhibit A attached hereto and located in Fayetteville, Washington County, Arkansas (the "Property"); WHEREAS, pursuant to a certain Amended and Restated Stock Purchase Agreement, dated as of June 26, 1997, Cooper Power Systems, Inc. acquired the stock of Kearney Company, Inc. from KNI and agreed to lease the surface of certain land in Fayetteville, Arkansas; WHEREAS, on or about December 18, 2007, Cooper Power Systems, Inc. was converted to CPS, pursuant to a Certificate of Conversation filed for record with the Secretary of State of the State of Delaware, and CPS is the successor to Cooper Power Systems, Inc. WHEREAS, CPS leases the surface of the Property as successor to the interests of the tenant under that certain Lease, dated effective June 27, 1997, by and between KNI and Kearney Company, Inc. (the "Lease"). WHEREAS, the Lease grants CPS an option to purchase the Property for the consideration set forth in Paragraph 27 of the Lease; WHEREAS, KNI is and has been undertaking environmental investigative and response activities at and near the Property under the terms of that certain Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "CAO"), issued by the Arkansas Department of Environmental Quality (which together with any successor agencies, is referred to as the "ADEO"); WHEREAS, the City desires to acquire approximately 4.81 acres of the Property, as described more fully on attached Exhibit B (which tract, as ultimately designated and surveyed, shall be referred to as the "Airport Tract") in connection with the expansion of its municipal airport, sometimes referred to as the Drake Field Airport; WHEREAS, to facilitate the acquisition of the Airport Tract without the time and expense of formal condemnation proceedings and to facilitate KNI's uninterrupted performance of response activities at the Property, the Parties desire to enter into this Agreement setting forth the terms under which CPS may exercise its purchase option under the Lease and negotiate with the City to convey the Airport Tract to the City; Page 1 of 9 HOU:0017758/00051,1434163v9 NOW, THEREFORE, in consideration of the mutual covenants, agreements and undertakings herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: AGREEMENTS 1. Amendment, Ratification and Re -Affirmation. With regard to Sections 8.29 and 9.01(o) of the Stock Purchase Agreement, KNI and CPS agree as follows: a. KNI and CPS hereby ratify and confirm their obligations under Sections 8.29 (a) -(d) of the Stock Purchase Agreement. b. KNI and CPS agree that Section 8.29(c) is amended by deleting the last sentence and replacing it with the following sentences: Seller shall continue to keep Purchaser informed in the event Purchaser exercises its option to purchase all or part of the Fayetteville Facility, If Purchaser terminates the Lease without exercising said option, Seller shall continue to keep Purchaser informed to the extent there is any allegation that Purchaser has any Environmental Liability with respect to the Facility. c. Both KNI and CPS ratify and confirm their respective obligations under Section 8.29(e) of the Stock Purchase Agreement. d. KNI and CPS agree that Section 8.29 of the Stock Purchase Agreement is amended -by deleting Section 8,29(f) and further agree Seller's obligations under Section 8.29 shall survive and continue, notwithstanding the exercise by Purchaser of its option to purchase the Airport Tract or all of the Property in accordance with this Agreement. e. KNI and CPS agree that notwithstanding anything to the contrary in Section 9.05(b) of the Stock Purchase Agreement, Seller's indemnity obligations in Section 9.01(o) shall survive any exercise by Purchaser of its option hereunder. In accordance herewith, the last sentence of Section 9.05(b) is hereby amended to read and be as follows: "The Seller's obligation to defend, indemnify, and hold the Purchaser Indemnified Parties harmless pursuant to Section 9.01(o) shall survive for a period of ninety-nine (99) years after Closing. 2. Pa meat of Proceeds. KNE acknowledges and agrees that, as provided under Paragraph 12 of the Lease, subject to withholding for the Vegetation and Work Funding (defined below) under Paragraph 12 and rentals to be paid to KNI under Paragraph 12 hereof, all proceeds associated with the condemnation of all or part of the Property shall be paid to CPS, and accordingly such shall be the case in the event that CPS exercises its option and negotiates a sale of the Airport Tract to the City in connection with the Drake Field Airport expansion in lieu of condemnation. In such case, KNI grants CPS the sole and exclusive right to negotiate the terms, including without limitation the purchase price, associated with the acquisition of the Airport Tract by the City. Page 2 of 9 HOU:00177581©005 I : 1434163v9 3. Provision of Consent Administrative Order. CPS acknowledges that KNI has provided CPS with a copy of the CAO, and the parties agree that KNI and CPS have provided a copy of the same to the City contemporaneously with the execution hereof, by virtue of a copy of such CAO being attached hereto as Exhibit C. 4. Use Restrictions. CPS, and the City, as applicable, hereby consent to the placing of deed restrictions (x) limiting the use of its respective property to industrial and/or commercial purposes and (y) prohibiting the use of groundwater beneath its respective property, provided that KNI limit any such deed restrictions to the minimum area or depth required to obtain the No Further Action letter contemplated by Paragraph 32 of the CAO. Moreover, the City agrees to develop the Airport Tract in a manner consistent with the construction specifications and other documents attached as Exhibit D, and consents to the placement of deed restrictions on the Airport Tract (i) restricting use of the Airport Tract to roadway uses, (ii) prohibiting the construction of any structure on the Airport Tract, and (iii) restricting use of the subsurface of the Airport Tract to uses necessary to construct a roadway, re -channel an abutting drainage ditch, and reroute a water service line on the southeast corner of the Airport Tract (such deed restrictions (i) -- (iii) being collectively referred to as the "Airport Tract Restrictions"). If KNI wishes to use institutional controls other than the restrictive covenants listed in (x) and (y) above or the Airport Tract Restrictions ("Other Institutional Controls"), KNI may seek CPS's and/or the City's consent for the use of these Other Institutional Controls for their respective property, such consent not to be unreasonably withheld, as long as such Other Institutional Controls do not, in CPS's and the City's reasonable judgment, as applicable, unreasonably interfere with the use of their property. CPS and the City shall cooperate in all reasonable respects with KNI in establishing the deed restrictions listed in (x) and (y), the Airport Tract Restrictions, or Other Institutional Controls approved by CPS and the City by, among other things, executing restrictive covenants that comply with this Agreement and that are reasonably necessary to be signed by CPS and/or the City, and permitting such covenants to be filed by KNI in the Real Property Records of Washington County, Arkansas. Notwithstanding the foregoing, any conveyance of all or part of the Property to CPS (or its designee under Paragraph 11 of this Agreement) shall be subject to additional restrictions including (i) a statement that the Property is the subject of the CAO and any remedial actions conducted thereunder, or, if applicable, that the Property is the subject of a "No Further Action" letter; (ii) a restriction that any property use must be consistent with heavy commercial/light industrial zoning regulations; and (iii) that existing monitoring wells be allowed to remain in place during any period required by ADEQ for monitored natural attenuation. A copy of the Use Restrictions is attached hereto as Exhibit E, which shall be recorded in the applicable real property records. Rights of Access. CPS ratifies and re -affirms the provision of access to those portions of the Property that it may own from time to time, as set forth in Section 8.29(e) of the Stock Purchase Agreement. At such time as the City acquires the Airport Tract, the City hereby grants unto KNI and its consultants, contractors and subcontractors, a non- exclusive license for the construction, maintenance, operation, repair, replacement, sampling, planting, and removal of all devices, vegetation, fixtures and equipment now or Page 3 of 9 HOU:o0 17758=051:14341630 hereafter necessary or appropriate in KNI's judgment to perform KNI's environmental investigative and response activities pursuant to the Stock Purchase Agreement and the CAO, including, without limitation, water treatment equipment, vegetative cover and other potential remediation-enhancing plants and shrubs, utility lines, monitoring and recovery wells, pumping equipment and housings, soil borings, injection points, storage containers, and related equipment and appurtenances (collectively, the "Facilities") on, in, under and across the Airport Tract and surrounding properties owned by the City (the Airport Tract and such surrounding properties being sometimes referred to herein as the "License Property"), together with a construction license for work, staging, and storage space from time to time, on, in and across those portions of the License Property and rights of ingress, egress, and access on, over and across the License Property for purposes of pedestrian and vehicular access to and from the Facilities for the herein specified purposes. Until receipt of the No Further Action Letter contemplated by the CAO, the City and CPS shall reserve KNI's licenses and rights of access herein granted in any subsequent conveyance or transfer of the License Property to another person or entity and provide evidence of the same to KNI prior to such conveyance or transfer. Further, the City shall afford KNI (at KNI's expense) reasonable access on the Airport Tract to utilities and power related to any work called for by the CAO. Prior to the installation of any Facilities on the License Property not present as of the Effective Date, or the exercise or use of the rights granted in this Paragraph 5 KNI and the owner(s) of the affected License Property shall confer in good faith and agree on mutually acceptable locations for the Facilities that will not unreasonably interfere with owner(s) use of the License Property. KNI's consultants shall carry and maintain insurance coverage reasonably consistent with prevailing industry standards in the Property's geographic area the parties agree KNI may record the Right of Access License Agreement attached hereto as Exhibit F, which memorializes the terms and conditions set forth in this Paragraph 5. 6. Allowance for Work and Vegetative Cover/Shrubs. As additional consideration for KNI to enter into this Agreement with CPS and the City, CPS shall remit to KNI $11,000 in the aggregate ("Vegetation and Work Funding") from sale or condemnation proceeds contemplated by Paragraph 2 hereof which KNI may use for such vegetative cover, plants, and shrubs and other remedial work uses in its reasonable discretion. The $11,000 Vegetation and Work Funding shall be withheld from the sale or condemnation proceeds provided for in Paragraph 2 hereof and shall be remitted to KNI by CPS and at least a portion of such sum shall be used for vegetative cover on the Airport Tract. The nature of such vegetative cover, plants, and shrubs shall be within KNI's discretion, subject to reasonable approval by fee interest holder, including the City as to the Airport Tract and to the extent necessary, the ADEQ. 7. Equipment and Well Protection and Repair/Non-Interference/and Well Relocation or Installation. Neither CPS nor the City will relocate, disturb, damage, or interfere with KNI's Facilities (including without limitation any monitor, recovery, or injection wells) located on their respective property that are now or hereafter used in KNI's performance of its• environmental investigative and response obligations under the CAO and/or the Stock Purchase Agreement without, in each such instance, obtaining KNI's prior written consent (which shall not be unreasonably withheld). The current location of monitor, Page 4 of 9 FIO{J:0017758/00051:1434163v9 recovery, or injection wells is depicted on the site map attached hereto as Exhibit G. CPS and the City shall use good faith efforts to protect and be responsible for any cost or expense to abandon, relocate, repair, modify, or replace such Facilities resulting from their respective requests or actions. The City agrees with KNI that the City at the City's expense after its acquisition of the Airport Tract shall either (i) relocate a single monitor well currently existing on the Airport Tract to another area on the Airport Tract or (ii) install a single new monitor well on the Airport Tract, in either case as reasonably directed by KNI. KNI shall properly plug and abandon, or otherwise remove, monitoring wells and all other Facilities present at the License Property within ninety (90) days after receipt of notification from ADEQ reasonably indicating that use of such equipment will no longer be required by ADEQ. Within the same period, KNI, to the extent practicable, will reasonably restore the License Property affected by KNI's environmental investigative and response activities to substantially the same condition that existed prior to the installation of such Facilities. 8, Airport Tract Soil Management and Post Acquisition Responsibility. In the event the City acquires the Airport Tract, the City shall bear all responsibility for management, transportation, and disposal of any and all soils it excavates or disturbs on the Airport Tract in connection with its use and ownership thereof. Further, the City shall bear responsibility for any wastes, materials, or substances released or disposed (if any) at or on the Airport Tract after its acquisition thereof, provided, however, the preceding sentence is not intended to impose responsibility upon the City for any wastes, materials, or substances (if any) that are or become situated on or under the Airport Tract being addressed by KNI under the CAO. 9. Remedial Strategy. Any and all decisions relating to remedial strategy that affect the Property, including timing and implementation of any remedy (including, but not limited to natural attenuation and groundwater monitoring) are and shall remain within KNI's sole discretion. 10. Contractors and Subcontractors. In the event the City acquires the Airport Tract, it shall bear responsibility for the acts or omissions of its contractors/subcontractors who perform work at the Airport Tract, and shall advise such parties of the obligations contained in Paragraph 8 hereof. 11. Exercise of Option. KNI agrees that CPS may exercise its option under Paragraph 27 of the Lease and notwithstanding anything to the contrary in such Paragraph 27 of the Lease, KNI may exercise its option as to the Airport Tract or all of the Property, and that CPS's option to purchase shall continue with respect to any part of the Property for which CPS has not yet exercised its option to purchase. In the event that CPS, in exercising its option from time to time, acquires only a part of the Property, then the purchase price to be paid for such part of the Property shall be the same proportion of the aggregate purchase price under Paragraph 27 of the Lease that the acreage of the Property to be purchased is in relation to the total acreage of the Property. In exercising its option(s) to purchase all or part of the Property, CPS may designate a separate entity to which title of such property will be conveyed provided such entity controls, or is directly or indirectly Page 5 of'9 1-101.3:0017758/00051:1434163v9 controlled by, or under common control with, CPS. To the extent this Agreement alters the terms of Paragraph 27 of the Lease, KNI and CPS agree the Lease is deemed to be and agreed to be amended hereby. The parties agree that the form of Real Estate Contract ("Airport Tract Sale Agreement") attached hereto as Exhibit H. shall be used in the event. CPS electsto exercise its option to acquire the Airport Tract. 12. Rentals. CPS shall remit to KNI the sum of $9,000 which shall constitute full and complete satisfaction of all annual rent and penalties and interest thereon due and owing under the Lease through October 11, 2011. The rental payment shall be made from sale or condemnation proceeds as set forth in Paragraph_ 2 hereof, provided if such sale or condemnation shall not occur, in such event CPS shall remit same to KNI on or before June 1, 2010. Rent shall continue to accrue under the Lease after October 11, 2011 at the rate of $600 per year until the Lease expires or has been terminated. 13. Notices. Any notice, consent, approval, waiver, or election that any party shall be required or permitted to make or give under this Agreement shall be effective only if in writing and hand -delivered, or sent by telecopy with confirmation, or sent by United States certified mail, postage prepaid, or by nationally recognized overnight delivery service, to the respective parties at the addresses below: If to KNI: Kearney -National Inc. Attn.: General Counsel C/o Patterson Planning & Services, Inc. 565 Fifth Avenue, 4a' Floor New York, NY 10017 Fax: 212.599.5109 Phone: 212.885,1626 Email: jfltasimons@dkmcorp.com If to CPS: Cooper Power Systems, L.L.C. ATTN: Bruce M. Taten, General Counsel P.O. Box 4446 Houston, Texas 77210-4446 Fax No.: 713.209.8989 Phone No: 71 3.209.8612 Email: Bruce.taten@cooperindustries.com If to the City: Fayetteville Executive Airport, Drake Field Attn: Ray M. Boudreaux, Director of Aviation 4500 S. School Ave., Suite F Fayetteville, AR 72701 Fax: 479.718.7646 Phone: 479.718.7642 Email: roudreaux@ci.fayetteville.ar.us Page 6 of 9 HOU:0017758100051:1434163v9 All notices so given shall be effective upon the date of hand -delivery (if between 8:00 a.m. and 5:00 p.m. on a business day, or if not, on the next succeeding business day), the date sent by telecopy or two (2) business days after the date deposited in the mail, or the date of confirmed delivery by overnight delivery service. 14. Duty to Read. Each of the Parties specifically agrees that it has a duty to read this Agreement and agrees that it is charged with notice and knowledge of the terms of this Agreement, that it has in fact read this Agreement and is fully informed and has full notice and knowledge of the terms, conditions and effect of this Agreement, that it has been represented by independent legal counsel of its choice throughout the negotiations prior to its execution of this Agreement and has received the advice of its attorney in entering into this Agreement and it recognizes that certain of the terms of this Agreement result in one party assuming the liability inherent in some aspects of the transaction and relieving the other party of its responsibility for such liability. Each party agrees and covenants that it will not contest the validity or enforceability of any indemnity or exculpatory provision of this Agreement on the basis that the party had no notice or knowledge of such provisions or that the provision is not "conspicuous." 15. Governing Law. This Agreement shall be governed by the laws of the State of Arkansas. Venue for any legal proceeding shall be Washington County, Arkansas. 16. Authority to Sign. Each person signing this Agreement on behalf of the Parties hereto warrants and represents to the other party that he is fully authorized to do so. 17. Multiple Copies. Multiple copies and counterparts of this Agreement may be executed by the Parties hereto. Each such copy shall have the full force and effect of an original. 18. Term. The term of this Agreement shall commence on the Effective Date. KNI's access under this Agreement shall expire on the date ninety (90) days after the date on which the ADEQ issues a final "No Further Action" letter as contemplated by the CAO. KNI's indemnity obligations survive the expiration and/or termination of this Agreement, and the date on which the No Further Action letter is obtained. 19. Successors and Assigns. KNI shall not assign or delegate its rights or obligations under this Agreement to any other person or entity without the prior written consent of the other Parties. CPS and the City may assign, in whole or in part, their rights and obligations under this Agreement to any other person or entity with prior written notice to KNI, and KNI expressly agrees that CPS may assign to the City, CPS' rights under the Airport Tract Sale Agreement. While the Airport Tract Sale Agreement contains an "as -is" clause, it shall not affect any contractual agreements between KNI and CRS concerning the environmental remediation and indemnity regarding the property. This Agreement shall apply to, be binding upon and inure to the benefit of the Parties and their respective grantees, successors, permitted assigns, and any lessee of the Property, provided, however, that this Agreement shall be binding upon any grantee, successor, permitted assign, or lessee only with respect to that portion of the Property in which that party has obtained an interest. It shall be a continuing obligation of each owner of the Property to Page 7 of 9 I1OU:00 1 77 58/0005 1:1434 163v9 disclose to its grantees, lessees, successors and permitted assigns the existence of this Agreement and to obtain, and provide to KNI, an express written consent by such grantee, lessee, successor or permitted assign to be bound by the terms and conditions of this Agreement upon transfer of title or occupancy to such grantee, lessee, successor or permitted assign. 20. Exhibits. All Exhibits attached hereto are incorporated herein by reference. To the extent of any conflict between the body of this Agreement and the Exhibits hereto, the body of the Agreement shall control. 21. Amendments. No amendments, waivers, or alterations of this Agreement shall be effective unless in writing and signed by the Parties and any other party against whom enforcement of such amendment, waiver, or alteration is sought. 22. Time is of the Essence. Time is of the essence with this Agreement. 23. Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof. No other amendments or modifications thereto have been made, and no further amendments or modifications shall be effective unless in writing and signed by the Parties. In the event of any conflict between this Agreement and the Lease or Stock Purchase Agreement, this Agreement shall control. IN TESTIMONY WHEREOF, this instrument is executed effective as of the Effective Date set forth above. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company Title: Page 8 of 9 fIOU00I7758100051:1434163v9 KEARNEY-NATIONAL INC., a Delaware corporation By: Name: Title; THE CITY OF FAYETTEVILLE, ARKANSAS, a municipality formed under the laws of Arkansas B N Ti The undersigned execute below to ratify and confirm their guaranty obligations set forth in Section XIII of the Stock Purchase Agreement. THE DYSON-KISSNER-MORAN CORPORATION By: Name: Title: COOPER INDUSTRIES LLC Successor to Cooper Industries c By: Name: Terrance V. Het Title: Cor orate Secre a Exhibit A — Property Description Exhibit B — Airport Tract Description Exhibit C — Copy of CAO Exhibit D — Airport Construction Documents Exhibit E — Use Restrictions Exhibit F — Right of Access License Agreement Exhibit G — Site Map Depicting Monitor, Recovery, and Injection Wells Exhibit H — Airport Tract Real Estate Contract Page 9 of 9 HOtJ:0017758/00051:1434163 v9 KEARNEY-NATIONAL INC., a Dela Corp ation �] f Name: N- i k6c- Title: Ac fr THE CITY OF FAYETTEVILLE, ARKANSAS, a municipality formed under the laws of Arkansas The undersigned execute below to ratify and confirm their guaranty obligations set forth in Section XIII of the Stock Purchase Agreement. THEISSNELMOEAN CORPORATION By: Name: Itar €+ 'c Title: -P e PreS,c CA4 COOPER INDUSTRIES LLC Successor to Cooper Industries, Inc. By: — Name: Title: Exhibit A — Property Description Exhibit B — Airport Tract Description Exhibit C — Copy of CAO Exhibit D — Airport Construction Documents Exhibit E — Use Restrictions Exhibit F — Right of Access License Agreement Exhibit G — Site Map Depicting Monitor, Recovery, and Injection Wells Exhibit H — Airport Tract Real Estate Contract Page 9 of 9 H OU:0017758/00051:1434163v9 Exhibit A Property Description Prenise.s The South Half (S/;) of the North Half (N/½) of the Northeast Quarter (NE/,) of the Southwest Quarter (SW/�) of •Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter (SW/3) of the Northeast Quarter (NE/ ¼) of the Southwest Quarter (SW/;) of Section 33, township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. Exhibit B Airport Tract Description DRAKE FIELD HWY 71 B Tract No. 6 Peace[ No. 765-!5533-000 PROPERTY DESCRIPTKON: (Weed Record 1330-628) A part of the Southwest Quarter (SW N) of Rite Northeast Quarter (NE '/4) of the Southwest Quarter (SW 16)0! Section 33, Tie -N. R -30-W, as described in Deed Record 830-628 of the records of the Circuit Cleric, Washington County, Arkansas. being more particularly described as follows; From the Southwest corner of said Southwest Quarter (SW Y) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW %), thence South 8T05'37East along the South One of said Southwest Quarter (SW Y.) of the Northeast Quarter (NE'/.) of the Southwest Quarter (SW ''/s) a distance of 20.09 feat to a point on the existing East Right of Way line of Arkansas Highway 71 B for the Point of Beginning, thence North 4.35'50` East along said East Right of Way line a distance of 336.70 feet; thence leaving said East Right of Way One South 6546'18" East - 630.84 teat to a point on the East One of said Southwest Quarter (SW Y.) of the Northeast Quarter (NE %) of the Southwest Quarter (SW '/); thence along the East One of said Southwest Quarter (SW Y+) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW '/s) South 2`58'47" West- 322.00 feat to the Southwest comer of said Southwest Quarter (SW Y.) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW Y.); thence along the South line of said Southwest Quarter (SW Y<) of the Northeast Quarter (ME Y) of the Southwest Quarter (SW Y.) North 670537" West - 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less. Cdd"ASEM@HTSUQTAW 1r6. Ogre F7eid HWY ?IVMMrW%Twq 6 Xw q.d- Exhibit C Copy of CAO 1C! 'fD7$3 L 1NC , • ptba�nt; `/rolvo • m p r1.i ; Oyu • 'ARtKANSAS DEPARmU NT O1 ENVIRQ1�i1VWNTAI. QUALITY In The Matter Of: KEA1 U YAT1QNA [c LIS 00. /3 3660 SOUTh:S OOL TREET FAYEDrEVJLu, AS EM Ui 1'O A1Ut00O0O576 flis (cmsnt•Ax t seta ve Oder 'QA0") j5 i' . .. ? •. pursuant to theutltta�.ty:oF•the ' Arkansas Hazardous Waste Manageinept: Ark ' � . • t -877 0. i sW= ,Rewediaj -Actioa'Tnist Fund `Act, Ark Code Ann. g::8-7-501,i.Ok .: Arkansas . olio bi outrol and Ecology Co" iss16fi'("Al?C C) Re ti abon o 23 the Arkansas Water and Mr Pollution . .. Cout of Mt, Ark Code.Ann §§ 8-4101, thesis Iles herein lmv been e e 'b a $ 3''. Of Lice (' (eauzy;National") and the Arkansas :D ariie of En .. . YarbisnentlQualify ("ADQ ), u hereby agreed and °stipulated ttt t €he fo l yrg Findings: of Fact andOrder and Agreement be catered herein. In n as' Pact i■ 311t: r i do 1' i -. nY sated : 36 60 00iti'Srhedl $t; err Y • Iayettcviltc, �L• ngton County, :�?�{the " '�,tope , * otr • _.. ,.E..•: • 5t.g apprw? umately twenty .acres of laicman ;inverted L atape, 'Thc'Iiroperty a'soinliides an approkimately ;135,t3OQ square loot ckecttic•cquipme.nt r[iaaufacruring building with administrative o€fices, an approximately 30,000, square toot warehouse, •and two. parking lots. 2. The Property is bordered on the north by lard and a.faacility owned and berated by the State Military Departmecit of the State of Arkansas, referred to as the National Guard Armory, and on the south by Drhke Field Airport. which #s owned by the City of.Paydtteville. U.S. Highway 71 forms the Propetty's wesecrn border. The Iatul to the southeast of the Property, more or less in the area underneath the inverted'L, is deeded to •: nvitosearctt Company("Erivimscarch")UBA/T5tatc'Precast ("Tri-Stag"). Trt fate operates a concre.Ee product malufaeurug busiaess, VicCoileim Avenue forms. the eastern -most ou i ry of the property, at the top of the inverted L. On the -cast side of Mcfai1uria Avenue is tincy4oped property owned .'W► Ac hurtXp a r, 7c. tee of tiaa and 4RIe `Trust, T. I'io�e tyha b et �ttned Csraian h by �����axaii�.ap,Ptoimte# 1954, rney nttonaalso OWE and operated a electric i ;.: y ':. ` • the , i4CthC ,tl181#f3,taCta i1u ,4W 3Sat the Property frog ts. 1ceplouin appro3ateJy 1954 untIXu0e 27,-1 7, whei Wiper Power Systems, : i y , p $ Gas but theProperty ,.,`: ..: , • � 1 �' eel f; :00 r eases• the Property from tne3.Natiojc tl,'ai4bas conU sited she June 27, 1497; = io _Rperate the electric equipment iriant fa�tnr3n h [siess at thPProperty. 4. Capper contracsed With flSL •tjeoT'raixr (" "). to assess efi ri pt eittal condi[Qps.atthe Yro in May • - .. .. .. .. •. :.. Y + . June 1997, prior toitspurchase of business As a fi1v:p to this.p l muar r iiav Sri ttga.T : < � �' �at��na1.contir�d. �►.tti'PTAssociat Ltd. e�- :('PIN") to co u 4diofie e$t gatlga-aci ties n 14arch °199&, nvetigatjo, ctiIonated; gents wrerc detected, some of w uch were recorded t concentrations. exceedmg their respeeflve maximum contaminant ie ej ' " w) for dr ipLing water. Some chlorinate -d solvents were detected at conCentC tions which'indieate that dense nonaqueous phase liquid(DNAPLs) may be present, 5. • FTN prepared an enviianmental site -assessment report dated April 13, 1998 (the "ESA Report). Represen ttvcs of kearnpy-National tntaiity met w)tlr At.EQ management end staff on April 21199$; todiscuss the Ptop�1y and to submit the ESA. Report for A 9Q reflew, The ESA Report coldes as *preb` • t„ oiys at the Property apparently have 1macted arg�as- o iti[ and shallow groumiwater::beneath 't the opettlt, but that further *14 investigation •anon would be necessary *Pad to define the extent 01 '•t _.iite6iacc and to delmeate the ;souicezone(s) • The ESA ]wort uich des a Screening Level Risk ASsessrtitnE at; • . 'e:r 6. P iN conducted further field investigation activities at the Property and in hunted areas of cijaent nvwaThte:pmpetty, ue and r1998. The • sampling p rose tr taIeV as _- r.w. . cOnd#ct'pursuant to the tgtms Vii=.. . . 4 he des i1ae Pxc Q£rl�►li5ahTT Si to was provided a f.: :.. B zan plt locaudn map 't ana1yticl data frQm the ;sa ipitugb : letter Lett f,Cotii'F1'Nj,tted: ° idy 1$, Z98: ' ' resuhsott1j 3uad Jul 198 ivesfi t ga were r iorated by FTT. to an' 1dCqdum to the Aprtl .Z99 L AddCndwn")..The .ESA ;r dci iitti was uiitt = ` t c.o Ai'.by lsib`ds •:a Ciotti• : on .Iiajf o"f. Kcery y :l atio f . - + 7. a dy=rietional.subsc eatiy ntrdnt _w E Brow rr►:and ;Cald *11('Bc ) to evaluate:repiedial alkernatives at ttte,) roperty.- 8. ADEQ staff perfod'a review of.he ESA. Repott•and the ESA Addendum. Subsequently, on February 18, 1999, AA1�Q and;Kearnty;Nat%onal repre entatives, inciudin, FTN -and BC, met to discuss 4 tore actions ••regardi the Properry. 3 9. Addltionai field investigation activities were conducted by FEM at the Property - between April and Octq r 199g. Prior to th• e iaitigtion of the April 19.99 fief i.VestJgatibin, Kearney. -1 atiD�al sought perinis ion fron nv rosearcWTrt Late tQ conduct additional Sampling of its pond and property ;Fnvuo earcti►Tri;Statc Through Dzigli authorized repr$seritativ, refusd'to:allow gcces to its propry: se Viat :•y�Joiwas p escnt to observe tl d f eiii iaYe�st tiaa• aeti itit s dri Apii1 '7,199 10 a it y ila on l irnderstands t a'i CcQpet'I future ntc add use otlj Property is for itid strial` ` es"`Tbe 1�$ ��pe isxolied -i=1, heavy -caaii�erpfVl usia3, .iy . the City of Fayetteville:. The surrDund. D s also trig p ine s c . zoned wi0i the exetption of. the Miller property, which is ,zoned A-I,.agricultural. and winch is uggradieni fcom itbn propety Order anti#¢reetrient '. 11lthin fifteen (15) days 9f'Oie tivo d tc:oi•this:CA©; mQ_ aliofthe•• (1) obtain an: Order of the t)trector fOr ccea pursuant to Ark;Co4a'Mn, 8-7.Q9 to nduc, field nve ation activities o iroseatch 'ri=fit prpety or (2) . • . :. • .. • • • :: id .•�` 'v.': • .�� :•�.-• _ :.. •tike •:::-•. , w• , :Wy pi't}G1rL3�'r9� �ti5etiairrG>�"t''rrrakl�f ����,� cqsts ormnatural: resource dattiges 3ncludin but not Th mitt to,, habflir p1mnaztt to the Remedial Action •Trust Fund Act, Ark .Code Ann :$ g=Qi..tq,ctcrticY Response Fund Act, Ark. Code Ann. §.: -7-4Q1,, arad thet1atu'tal Rtavurces Damages Trust Fund Act, §§ 8-12-101 Sq.; and which instructs (comity-National:to proceed with the action specified. in paragraph 13 of this CAO. 4 12. In the dent that lin Order of -the Director for access tQ the Envirosearchll`ri- Stag propertjt is obtained by ADBQ, AP 3Q snail, within thirty (30) days of the date of the 'Order o€ the' Dire' tor, consult wlth'Kearney-National to devctop and agree upon a Work plan containing a Sa` rr�pti g' and Analysis Plan for EoyitoseaiQTr-State's property and 'sbau . implement; or duct XCea ey�' aiio4�1 to imp eaiignt, the Work Plan Ktarney-National shall eun1urse .for its reasonb1e csIs:of the iiecess ,' d:h iofield '1 i$Iilatioi acttvitre and related anal , ad for its :Te ►n alt ie Csts, e)iudirsg attorney obtailungecesa i djerfy 13a Withiri sixty 6O) days of the receipt by KcaneyNatiouaj of either the analytical • data for• all, samples tarn 1 t�x.E virosc a�'t''�Stiate'$'propertY,brw-iten. .• notiictiori from Q uaii ii ol this'GAO, Kcar*c44ational haI su1it the following to ADEQ=: (1)a SiteItiva art. . ': ,.. cltslliitrciitte updated ai}d're 1sed'ver5ioas of the information containedcontaancd in th BSA Re . F ,-; 1 8A$ F?i. Addendwri, rncludmg revised -SIcree' g Level Risk Assessment and tonclusions aecticzns (t) Remedial Alternative , a y it'.{ . • • �►�# Repot •�� �) a.1lal.ACdotl Plan ('RAP'),Appticatiou, which sbfl uicde ascl%eduie for iupeuIc4aton 14, 3 : Upon eaotati : ► royal Y DQ ot"the pph4 i n:sUb#ttted pmsuant t paIagapl313 abovC wlicluapprQv a l not be eason j ,... Withheld, Wilt rtpaace drat RAP The draft RAPwill b4 s t tr 'by 1 With public notice that pte itt s for public co;nnt purse n{6 thG[WIR Media Itule iitcorp.oratcd in APCEG Rt:glatioi} No. 23, Section • 270. Following AQ's review of say properly+ subntittdd public•co mer ADMQ will prepare and issue a response to the public comingnts and;be final RAP. The final and effective RAP shall be incorporated into and become pan of this CAO, t. Wit da forty flvc.(45) days of the efective.date-of the RAP, keariMey-Nat Qijal shall beg.ia implementation of the RAP. Por tbe pposc of this paiagraph, the terms •"b glt< ilemcptation sl l dean atiy di'fintiative action isycyfilntio i tetaLetptd commencerine t of -remedial acit& at't the I'rppeciP, Ii litdimg' i:sign wort or't a exec i oh f apprropnate cofitracts.: 7 4:jn the event that _any o the reniedl actions t bet e i at the:$i'opei ! are subject to ►AZ+¢ perrnuwg. o -w* l for t aEacdaill1 waste treafleit, ai}H er'or di pos$ the RAP shalt iservc s a ..the permit a:nti?d', the etl o a APoFtr Regulationo 23,, Section 27p, In th event that ajiy.o taken at the Property are 'subject to'othez E{ ; i st s n upon tea & ` written tequest:b, AI saa1#.to consi4ej u s rt a wivcr px:aiiance for said . . . :r, ms's• •S�'i�. •'�C Y ..a : • :S.'i> •. • requirements t9 eit•;all oaie b:� $ �' �'�` � '' � • ` �.����: !_ •- }o .<• ;�,y.�,.:: 7.2l r 84-230, and:84.313. 17 ,dunng the course o ap, actzvtyg..: it c uiide ibis AQ the etr lecernines that .a riase a pqtential'release' fhazilutefiom 4e!perty that waS natised pr cQntribut�d to by i s €final. ' ' .: ; .. ' 3:- ;; ': •." ::. Y mat =fig health and is 3L#At.. *nip:t1e:. 44. c+o mayT L S,.. e8#n y1`Taupr l an any othpr rcspU4e:Darty T" "i e may ne the measures and thea�bedule: of lm e entat on Qf therequited..'.,. t' ic�ime S Th� cIot Will notify'Kearney I+ ational in writing of the re4u' men't to perform �su ii ihtetiri meastlress . tom.. , AAi~Q and Kear<iey_National may modify the EA0 io iuoo porats~ such Interim weasures into the GAS, but actua. implemeritanan 61 11 begin inmcdiaifcly'for eegval of pcaEectin human 6 ti• health and the environment, Kearney -National does not, however, waive Its xight•pursuant to § 8-7-214; or any other applicable law, .to contest such requirement: • 18. All submittals •required by this CAO ire subject to approval .by ADE , which approval shall not be unreasoiaa'l�ly withheld. AJdEQ $hall es ondto an. submittal P i..y'iiy Kearney National in writing and A1} Q's response shall provide a tli r;'• -its .a tonal of the submittal, or. (2) any questions ,Objections, or Cher'cQmmcnts tit with 'zerfb the stibmtttaj; ADEQ aball.endeavor to revIew "i = t to►:si}ttai days of ADEQa receipt $f the subs ttai:'All ADEQap ... bznivab° .. ++pGrated into ... and bee0inc'part .of.this CAO. 19 .My objections, questions; or otheicoiinieots'%y"ADEQily rh tespeet to a submiti,st bsu tied by supported complete witten ezlo [i tu; K riic.Yp, NaiieiiaY; sI> Trespond in witi ig:to'the comments of ADE( within t$u y ' lays of receipt A Q sal Win.: endeavor to notify' Kearney Nataoua1• in writing of its approval or disapproval o the'sulimittal witlini thirty ( 0) days.of Its receipt of Tane-Nano 'a resp01ise. d a 5ubm1tt4, 1t sal . t •that tune provide rn�yNtona1 with h cqgplt�;;wrjttn.::' lettanon of the • reasons for its: disapproval.:• 4 disapprovedaubnit or any other tter:a t pr tt 3 ?:t low, fa perio of • " fifteen 1) days '. , `. .. . •..., .• .• ... ...; .. .. _ . �� effort to reach aecmeIt on the submittal or other rimat T, If a agreement cannot be -reached •between-ADQ .and Kearney= tatio al'by the `c d of the fifueii-. day negotiation period, the matter shall be referred to the ADEQ Director. 7 I- 2:1. The Direcror shall attempt to resolve the differenos tietwen'ADEQ and Kearney -National within t'riteaa (f 5) days of the rerertal of the tnatter.to- him or her. Zf that attempt is unsuccessful, :Keautej-National shalt have the option of tither.. (1) reierrmg the matter to an fudependent mediator' to be s1cted b agreement bctvcen Ke y-Natioaal and ADEQ and paid fot:by Kearney Natii 1; pr () a al g:the eeision of - c Pi ton to the C s its adjudicatory r :proceeuig uitiier APCC'f# ilati NttiAbet 8. 2; In Ute event oil ny° a m t ea:• - and cairhe +Nataoai that c�s t. na pertmn vvzttten submis `city ptvQlce �oatRot c:•i`tin' roves ..r ; .. c e r i. $8 i 720 and 21 above`TrY si vile +irtt it tot;c o the other party winch identifies the subect: of ds .ire and acate .the ostUou Of the party net iti IesAlutxoa .. 2, .` Any time j5rtos sbi flied -in :CAOor in.M3Q-approva documents fncorparated byretbrence It re n may be ectended by written• agreement of.A #E a • c; :. •e: considerat} t3 of die tonal' 9 y=ht'lds Man is but •not .l1nuted to i?atur t: tia t s., it cause de - �-�es �..`. y1fl t:ae1ieiu of comphaice.by Kea y- {annual` with.the requlremcxts'o ea r t tltai al:s al .softy A)EQ, i w$tiig, as n as ciidbgb1y pgsbtc aftrt I appara d1ay Will r •ilr but in:no sae ae a deadJbi has pacd The:'w itteioicc Chair d cpbe jib 4eta'rl :the . . ant ci atdd• Xe d .. . f - � �� - .. . �. i f≤.4sa1 d of 4c7ay�'Ttte a sureS >a and/or Co betaken to m1rfinsze the delay and the timetable by Which ftlb.itiea$utes'w 1i he-irtiplerhernted: 8 24 • AD1 C and Kearney' -National hereby designate respective Project Managers who. will be responsible. foi overseeing the implementation of all activi�tle subject to t14e reguiremenits of•this CAO; ADVQ and } earney National Pro ect )&rogeis yui11 con nicate on all technical issues wink arise -~•' ' it urycler this 4A0� and will be empowered to ee In witting, on minor nno4ificationss ni the bn i aentaiion of any ctivity°described In this qAO When. such modifications are de med by 41)EQ andKearney.Nationaj tplUrther the p;t p se of this SAO: The Initial Proje'ct.Managers will be: For ADi Iaz r ou Was Division ' A k s arhnent of&vltonmetital'Quality P0 Bait :$913 •Little I ock,: Arkmas 7221 913 Phone; =501.6825 Fax :. 501.6&2-O56 For Keanieyattonati ' flMspciatei U4 2949 SPoint Cffcie1 Suite 1 atti ;M 7l Y•. P ne' 34 Fax (501) 5fl48 2$, l K it =1cqied by bs: l `.~;ba1l.be ii ' either er tt%f mail, corrztn rclal delivery service g:; Fedei press).or laid d lveiy to AZEQ'Urject Manager at=the addres . set forth n paragraph 24written i • s i . = • •l�a�g � abctXe. -AEI wr���-e4���t��:it4 this t between acid eal ey; a ona to The Project r matter fil hall led. above addresses and to counsel for ADi+Q and Kearney -National at the, fo1:l*Witi•atidre s sf 9 For ADEQ: Mid tic Kinder 1E.c a1 Division • .. Arkansas Deparimeni of'Eavironmental Quality 1?.O.;Bo)e 89 I,ittie Rock, Ansats 7'2219.8913 PhoG:SOIL 68 4{9$3.0 Fax (50.1 683.0891 ForTCcarrtey N2tiorial., • .:O #14', 18• ADEQ and Ccarac - a i 1 .yChange:.tU 3 sectiviti" v eci. Managers :iii tour cI r vidutg Written notceof such cbange to the other party.: 26 KearneyNatiQnaj aball pvle copy ofWsCAS to any of Its lei'of the Profe-'rty and to prospective Qwters: f the Property oflo:ai sso f ionaj prior to tr sfur f ow ex b p to Thepzbspective owlier of successor l: At the time -ofany :itanS%r of owzieislup of the Pro yKe ueyhti*a1.k1}sail place s notice on the ��d •; •..': M . . for i :lk9perty. ii7} ch states that thePjoperty is .thesubject of this CAO and anyre1edaaj ctoneQudu�ted dunder -iii y : ; s...6etyjs the .... subject of� r fete'fe '14o 1 urtlierActt : _ M1 " . • = so •..•..a:. ' : ;:. r' o... 4�±`= i AoC�e ot�dlp.•.• 11n at"ij+- way :that :thtfer from :the existi-hvr.coi3u:ieciaegt #uril..e.for wbch tt� )topetty is zoned 9Keamey i ationa1 shati'stat be responsbl'foe paying any fines or penalties related to the past contamination of the Property. The term "past 4OntarninAdon" shall inelude'any Contamination described in the SAReport, J SA Adderrdurn, St Re ort, RAA Report; RAP 10 Application and RAP (inc€uding all resrislons submitted to AD)), or arising from said contamination. 30.. Nothing in this CAO shall be construed as a waiver of liability for future contamination of the Property by Kearney.Natwna1, tibsacluent owners, lessees, tarbr third patties. 31. This Q, inctud itg. all rig its and cleanup aiabttities. is transfelTablc at the option oU(eame i-Natwnal ajd with 'written nptice to AT Q, o ny i Sequent, owner c file and l� �: Property who did not, uat:4i•,omassi in; causeof tontnlnitc tc aiy rCla or threate'Acd :. •: of hazardous sttb t t s oitle rQ 32 fcargcy.Naiorml bstantI1yperfon the irequircinents tlifs:CAD usiing imp1ementaton'of the`RAP O be Pry" •sua it ° :.. , E QA , #1Q=at. within ≥ '( Q) day of `reeeipr of : ritiel 'request.by y4Tatial, provide'Keaniey- Nati 1 with -a`. arate:tNo Further n' Iettct in 41e lorm of th� model letter - -. , ' ,;. �" , ' ". .. �... ' . ." . tit - - • -'''' ^' attached tvthis CAL) as bi€'A.' 3• ear y-Nationai r by cxecutlngthis CAO, 400§-#5adrmt:any 'alegatios1fact. or cirenmstatc�es. i;:ex forth herein . , a€ioa !s. ' �- c �:- � 4R?tt5,cAO shall not be used as an admission o liability in ny future preedIp. wJiether' .. tract .•.. otherwise 34. ® llgwing .ecuion of.tins :C4Q; b, -Keanley-Nat10n48v4 ADEQ, oci�eand an opportunity fo •comment.du 1public omspelit Denod 01* least • e :;: :..ays shall be published by AT EQ This CAO shall • be effective upott signatureure by i ptli l rbe !1'atin l and ADEQ; and unless otherwise specified • in.this CAQ;- tattles: for Verforniance ofthe ordered activities shall be calculated -from'this effective date. At]$Q,;:hwevei, retains The right to. 11 ri Exhibit D Airport Construction Documents CITY OF FAYETTEVILLE RUNWAY 16 SAFETY AREA IMPROVEMENTS FAYETTEVILLE EXECUTIVE AIRPORT ROUTE 71 SECTION 16 WASHINGTON COUNTY mclHIT MAP 9 fiMM a PtCACT fl n05 Th R1MI W Pn0.[CT %R 3MF9 DIN DI MO.t l 5tA 4NN em Palima nw sal. u1� mw STR CT17RRS AVER —O SPAN u•a• RG w -r otINT Oftr W R N1.. IN4 s¢r 1].14 bIQa7 omvn^l wwwY ,. WGAOI Uti rw WLT.F Swm MIDPOINT OF PROJECT LAT 36' Op' 54,22" N LOFNG. 94' TO' 27.44 W AIP NUMBER 3-05-0020-038-2009 Fay`el-le RRKRSAS PREPARED BY: rnracre srielen ONSl47TNG T �IG11Y�Rfy WC LOCATION SEC 4 SEC 33 volor W NOfl fl_ osalar er::n --'--� SEA. 12+25 R,,,NT� mnaic u7 H36 Op' S7 r N 30 LOHO. 94' 17 2 19' J� 93 Iq Y. 38' Or 10.26' H O4-,. 94' 10' 21.7r W } iNT i0 6Lµt (MOSS 1 VJC R (JF PROJECT ............... ..... .............5.70.00 FT- OR 0.637 IIILNN NET LENTTW OF R9ANWAT--.,_.....................................3470.90 FT. OR N,6J7 MUSS .. 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EB na,w n _ LOCATE ) Ci2E�E ENTR ._----0 TSE.JO3' + !N N 1243. tin IN E 1243.67 P4 latcna!$!WU IRR.I�IRwMBRLLM FI•u � F FS �l •� p �P 235.72 i $IFAY.L 4 a 0 Ci •t21..ii yp G' li1F.C1 # � -- RIM £LCV 8" CLAY Ii / I I j 8" CLAY 1 12,,.l9- I 1 !! i t R.. 12 ,21U0 -- -. 7 $1} � 1 1„ 24 jj ii 1 j Isom / 1 t �I ro _ c �� ���iii R MYAYN BAFM �Fd1TBT1EN.l� Fll$gf11PEJ1�Oli� McCL�LLAMII �ONSULRAfQ �IN�ERS,IAfQ • ,�� 14. pA1Elr�1'1,I,%IgKi1NA9 E Tv -2 wn ope vae �" = ___ ___ ___ ___ ___ ___ ___ -f- nJm ___ ___ ___ ox na ri f� �1r U Wti I �__ ar---.w — —. --" Ei�/L YZC ens vn wn it AN awe a-www-w 94J_- son — _ // / ,7i I//i/ - 1h7_fLDER... ± __ _�1F Fppy rymSNG �SAILg .W 1.r wr • � 'n�rn 1 ... • wK-r..rw bRIV TAY WIA'S[ZION D V.1L [S ►e'�,r t�rnra ..r �� jowywLY 1I CAC. AV&NYRKC MAE$ wertrd[ ��aflfrR dllo `fig � M1�1 I��� �wlv.ew0 wr-r I noM - II rfliv O ISW4D FOR CBAdNCI Z*I:IN ME= ISLL" a>ttaNa Max R cAA41��RppR wwar wR GtT.�Ls o[�.bs a nR[w[vArs t [aiwoe �.w.r a °i°1°row[m.C%m k Lm��ii8pp{PegVBl15'tTliS vm ml R.C. CURTIIN &LL 0S[AR8 aattew. 1R1' •LaC rteIi afeee ®eae seeMsER! • ai c�.. rf'f Yrriar a%�T%�iyi ��fa�rlwr-.rare %"•ajw !SAN ei_T"�il�.yw viii rr"gym �� rft��%R ii : _ _____ Sr?�w _ 11111 flhli'!I I!!!IIII� a � III:lalll�li� II KU I 1��� �Ia���tr�t�l:Ilo IIIII� aI E� zl�l li• 11�,�wII�I�II� k I�.yIyI�IIC • 'IE_��j�IIII® - I!/ 9lll��161I� 'l�aa���I3I311� �NM�1i�M�Y� fl y'yRNy7: eL�e` /]tln]��y]Y ,' r rwwisn11,1.n.1.� . n � '-' •' nnu�uu_rm �T wlwlw•�� I���� 4'-P [SA[R was MLA aw AM1ar Claaeo : __ ______ "e ..`�ra.R owa�.r e 1 oevo a Baru �, �w .�c •e.. w•.. 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Ii i - •j i ° i i•k j i f .q.r...�I. ig.:. ; i t �•' I' .''f•11 .,.. i.. ! i 1 I. klir ..; k : 11 i Is II I ST • FI i1rl III 1 i , i'1 1 1 1 ! 1 riii i ! ... ;.i !.? Exhibit E Use Restrictions DECLARATION OF RESTRICTIVE COVENANTS (Entire Acreage) STATE OF ARKANSAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON § THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of _ , 2010, by KEARNEY-NATIONAL INC., a Delaware corporation (hereinafter referred to as "Declarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: I. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00.138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to teens and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated . by and among Declarant, Cooper Power Systems, LLC and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 1454118v.4 0017758100051 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all .or any..portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). Existing monitoring and other wells shall remain in place during any period required by the ADEQ. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Kearney -National Inc. and its successors and assigns, and "Enforcement Party" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 14541 18v.4 0017758/00051 EXECUTED this day of , 2010. KEARNEY NATIONAL, INC. a Delaware corporation By: Name: Title: STATE OF § COUNTY OF § This instrument was acknowledged before me on the day of _ 2010, by the of KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company. Notary Public, State of Notary s Printed Name Commission Expires 3 )454118v.4 0017758/00051 EXECUTED this day of , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By; Name: Title: STATE OF § § COUNTY OF § This instrument was acknowledged before me on the day of _ 2010, by the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property 4 1454118v.4 0017758/00051 Exhibit A Property Premises The South Hall (S/3,) of the North Half (N/¼) of the Northeast Quarter (NH/¼) of the Southwest Quarter (SW/k) of •Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter ($W/;) of the Northeast Quarter (NE/;) of the Southwest Quarter (SW/;) of Section 33, Township 16 North, Range 3o West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. DECLARATION OF RESTRICTIVE COVENANTS (Airport Tract) STATE OF ARKANSAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON § THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of , 2010, by KEARNEY-NATIONAL INC., a Delaware corporation (hereinafter referred to as" eclarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "Pro ') more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated ____________,by and among Declarant, Cooper Power Systems, LLC and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 1454124v.4 0017755100051 upon and observed by Declarant and its successors and assigns as they may acquire an interest in all...or any. portion of the Property: • The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. • No use shall be made of the groundwater underlying the Property, provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). • Existing monitoring and other wells shall remain in place during any period required by the ADEQ. • The Property shall only be used for roadway purposes. • No buildings or other structures shall be constructed on the Property. The subsurface of the Property shall only be used to the extent necessary to construct a roadway on the Property, re -channel an abutting drainage ditch, and reroute a water line on the southeast corner of the Property. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the teen "Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Kearney -National Inc. and its successors and assigns, and "Enforcement Party" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 !454 t24v.4 0017758/00051 EXECUTED this day of_________________ , 2010. KEARNEY-NATIONAL, INC. a Delaware corporation By:_. .� Name: Title: STATE OF § COUNTY OF § This instrument was acknowledged before me on the day of 2010, by the of KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires 3 1454124.4 0017758100051 EXECUTED this day of 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: STATE OF § § COUNTY OF § This instrument was acknowledged before me on the day of 2010, by the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property (4.81 Acres) 4 I454I24v.4 0017755100051 Exhibit A Property Tract No. 6 lineal No. 765- 5533.000 PROPERTY DESORIP71ON: (Deed Record 630626) A part of the Satrlhwost Quarter (SW Y) of the Northeast Quarter (NE 14) of the Southwest Quarter (SW Y) of Section 33, T -16-H. R.30W, as described In Peed Record 830.828 of the records of the ciroult Clerk, Washington County, Arkansas, being more particularly described as follows: From the SwOTwoat cornet of said Southwest Quarter (SW Y) of the Northeast Quarter (NE %) of the Soulinrest Quartet (SW Y) thence South 87'0537" East along Ow South tine of sold Southwest Quarter (SW $4) of the Northeast Quarter WE %) of the Southwest Quarter (SW Yd) a distance of 20.09 feet to a Poled on the esisth09 East Right of Way Inc of Arkansas Highway 715 for the Point of Begkuikig. thence North 435'50" East along said East Right of Way tine a distance of 338.70 fewthence leaving said East Right of Way Ins South 85 4816` East 650.94 feet to a polnt on the East line of sold Southwest Quarter (SW Y.) of the Northeast Quarter (NE Y) of the Southwest Quarter (SW Y4 thence along the East line of said Souulhwest Quarter (SW A) of the Northeast Quarter (NE Ya) of Iha Southwest Quarter (SW Y) South 2'581T' Wost -322.00 feet to the Southwest comer bf said Southwest Quarter (SW $4) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW Y.); thence along the South line of sold Southwest Quarter (SW Y) of the Northeast Quarter (NE $4) of the Southwest Quarter (SW Y.) North 870597" West - 640.34 feel 1a the Point of Beglnnktig. containing 4.81 acres, more or less. cv, saMCNrgH0oro17IN9nka1Wd IIWYTryeernptT11 K."S1' Exhibit F Right of Access License Agreement RIGHT OF ACCESS LICENSE AGREEMENT THE STATE OF ARKANSAS § $ KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON RECITALS: A. The CITY OF FAYETFEVILLE, WASHINGTON COUNTY, ARKANSAS, a municipality formed under the laws of the State of Arkansas ("Grantor"), is the owner of the real property described in Exhibit A attached hereto (the"Property"). Pro '). B. Pursuant to a Consent Administrative Order with the Arkansas Department of Environmental Quality ("ADEQ"), KEARNEY-NATIONAL INC., a Delaware corporation ("Grantee"), is required to perform certain environmental investigative and response activities on the real property described in Exhibit B attached hereto (the "Adjacent Property"). C. Grantor desires to grant and convey to Grantee a non-exclusive license on, in, under and across the Property and surrounding properties owned by Grantor for the use and benefit of and to serve the Adjacent Property. NOW, THEREFORE, for and in consideration of the sum of Ten Dollars (10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. Grantor and Grantee do hereby grant, convey, covenant and agree as follows: LICENSE: I. Grantor does hereby GRANT and CONVEY to Grantee and its consultants, contractors and subcontractors, a non-exclusive license on, in, under and across the Property and surrounding properties owned by Grantor (the Property and such surrounding properties being referred to herein as the "License Property") for the purpose of the construction, maintenance, operation, repair, replacement, sampling, planting and removal of all devices, vegetation, fixtures and equipment now or hereafter necessary or appropriate in Grantee's judgment to perform Grantee's environmental investigative and response activities arising under the certain Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), issued by the ADEQ and any other applicable laws, rules, orders, or agreements, including, without limitation, water treatment equipment, vegetative cover and other potential remediation- enhancing plants and shrubs, utility lines, monitoring and recovery wells, pumping equipment and housings, soil borings, injection points, storage containers, and related equipment and appurtenances (collectively, the "Facilities"), together with a construction license for work, staging and storage space from time to time, on, in and across those portions of the License Property and 1438G44v3 4/8/2010 1:40:48 PM rights of ingress, egress, and access on, over and across the License Property for purposes of pedestrian and vehicular access to and.. from the.. Facilities forthe herein specified.. purposes. ............ (collectively, the "License"). TO HAVE AND TO HOLD the License, together with all and singular the rights and appurtenances thereto in anywise belonging, unto Grantee, its successors and assigns, until such time as Grantee has received the No Further Action Letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order or other applicable laws or rules (the "Termination Event") (at which time Grantee shall, upon Grantor's request, execute an instrument in recordable form terminating the License); and Grantor does hereby bind itself, its successors and assigns, to WARRANT and DEFEND, until the Termination Event, all and singular the License unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. 2. The License shalt run with the License Property, be binding upon Grantor and inure to the benefit of Grantee. Until the Termination Event, Grantor agrees that any subsequent conveyance or transfer of the License Property, or any portion thereof, shall be subject to the License, and Grantor agrees to include a reference to the same in any subsequent conveyance or transfer of the License Property and provide evidence of the same to Grantee prior to such conveyance or transfer. 3. Grantor shall afford Grantee, at Grantee's expense, with reasonable access on the Property to utilities and power related to any work called for by the Consent Administrative Order. Prior to the installation of any Facilities on the License Property not present as of 2010 (the "Effective Date"), or the exercise or use of the rights granted herein, Grantee and the owner(s) of the affected License Property shall confer in good faith and agree on mutually acceptable locations for the Facilities that will not unreasonably interfere with such owner(s) use of the License Property. Grantee's consultants shall carry and maintain insurance coverage reasonably consistent with prevailing industry standards in the Property's geographic area. 4. The License is not exclusive, and Grantor reserves the right to use the License Property in any manner it may elect and to grant such other licenses, easements, rights or privileges to such persons and for such purposes as Grantor in its discretion may select, so long as such purposes do not unreasonably interfere with the License granted herein. S. This Right of Access License Agreement may be amended, modified, rescinded or terminated only by an instrument in writing, executed and acknowledged in a manner suitable for recording by all of the then record owners of the License Property and the Adjacent Property, which instrument, to be fully effective, must be filed for record in the Real Property Records of Washington County, Arkansas. 6. All exhibits attached hereto are incorporated herein by reference for all purposes. 2 I438644v3 4/8/2010 1:40:45 PM IN WITNESS WHEREOF, Grantor and Grantee have executed this instrument as of 2010. . GRANTOR: THE CITY OF FAYETTE'VILLE, ARKANSAS, a municipality formed under the laws of Arkansas By: Name: Titic: GRANTEE: KEARNEY-NATIONAL INC., a Delaware corporation By: Name: Title: Exhibit A - Property Exhibit B - Adjacent Property 3 I43 6644v3 4/8/2010 1:40:48 PM THE STATE OF ARKANSAS § COUNTY OE § This instrument was acknowledged before me on. , 2010, by of the CITY OF FAYETTEVILLE, WASHINGTON COUNTY, ARKANSAS, a municipality formed under the laws of the State of Arkansas, on behalf of said municipality. Notary Public in and for The State of Arkansas Printed Name:__________________ My Commission Expires: THE STATE OF § COUNTY OF § This instrument was acknowledged before me on , 2010, by of the KEARNEY-NATIONAL INC., a Delaware corporation, on behalf of said corporation, Notary Public in and for The State of Printed Name: My Commission Expires: 4 1438644v3 41$12010 1:40:48 PM ....Exhibit A. Property PRAKE FIELD HWY 11 Tr ri No. 6 Psrcel No. 765-t5533-000 PROPERTY DPRCRlPTlOIt (Deed Record 830-626) A pall of the Southwest Quarter (SW 74) of the Northeast Quarter (NE Y4) of the Southwest Quarter (SW Y.) of Section 33, T -16-N. R -30-W, as descA6ed in Dead Record 830628 of the records of the Clrcult Clerk, Washington County, Arkansas. being more partloulady described as follows: From the Southwest corner of sold Southwest Quarter (SW 5G) of the Northeast Quarter (NE Y. of the Southwest Quarter (SW Y.), thence South 870537" East along the South fine of said Southwest Quarter (SW Y4) of the Northeast Quarter (NE '4)of the Southwest Quarter (SW '4) a distance 01 20.09 feet to a point on the existing East Right of Way Pine of Arkansas Iitghway 715 for the Point of Beginning, thence North 4'3550" East along said East Right of Way tine a distance of 336.70 feet; thence leaving said East Right of Way line South 85.46'18" East - 630.94 feet to a point on the Fast line of said Southwest Quarter (SW 4) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW y); thence along the East Inc of said Southwest Quarter (SW %) of the Northeast Quarter (NE !4)O the Southwest Quarter (SW Y.) South 2'58'i7West - 322.00 feet to the Southwest corner of said Southwest Quarter (SW Y4) of the Northeast Quarter (NE '4)01 the Southwest Quarter (SW Y.); thence along the South fine of said Southwest Quarter (SW Y) of the Northeast Quarter (NE 'h) of the Southwest Quarter (SW *) North ST'05'37` West. 640.34 feet to the Point of Puginning. containing 4.81 acres, more or less. CAd. AWV4ENNSO00HCi21S4 e,AsTW HWY 71{Pmye,ryN,ee6Kw,my4o Exhibit B Adjacent Property The South Half (S/,) of the North Half (N/,) of the Northeast Quarter (NE/¼) of the Southwest Quarter (SW/,) of •Section 33, Township 16 North, Range 30 West, lass that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 8.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter (SW/;) of the Northeast Quarter (NE/;) of the Southwest Quarter (SW/,) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. Exhibit G Site Map Depicting Monitor, Recovery, and Injection Wells E i v was �.Iµ� }�N rf ' j V � .i �r�yfy ! — s. LEGEND 4 UcnQdr wen Attachment ES yTM W "ON c s 1-2 DCE Ssopfeft da i,x oce cencerifaasbn pgiQ Oct 20D9 Keamsy-National inc, Fayetteville, Arkansas BGEA pec Exhibit H Airport Tract Real Estate Contract REAL ESTATE CONTRACT THIS REAL ESTATE CONTRACT (this "Contract') is made and entered as of the Effective Date (defined in Section 15) by and between COOPER POWER SYSTEMS, LLC, a Delaware limited liability company ("Buyer"), and KEARNEY-NATIONAL INC., a Delaware corporation ("Seller"). For and in consideration of the mutual covenants and agreements contained in this Contract and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller agree as follows: 1. PURCHASE AND SALE. Seller agrees to sell and convey to Buyer, and Buyer agrees to buy from Seller, the Property (defined in the next sentence) for the consideration, upon the terms and subject to the provisions and conditions hereinafter set forth. The "Property" means all or any portion of the land situated in Washington County, Arkansas, described in Exhibit A and commonly called by the parties, the "Airport Tract", together with any and all fixtures and improvements thereon. Not less than ten (10) days before the Scheduled Closing Date (as defined in Section 5.1), if necessary, Buyer shall cause a metes and bounds description of the Property to be prepared. The description of the Property, as designated by Buyer, shall be used at Closing (as defined in Section 5.1) as the exhibit to the Deed (as defined in Section 5.2(a)). Seller and Buyer agree that Buyer shall not be deemed to have acquired equitable title to any portion of the Property by entering into this Contract or by performing any covenants hereunder. It is the parties' intent that this Contract shall not convey or confer and Buyer shall not have any interest in the Property by virtue of this Contract, unless and until the Property is actually conveyed by Seller to Buyer by the Deed at Closing. Buyer shall acquire legal title to the Property at Closing if it occurs hereunder. The purchase and sale contemplated hereunder shall be "as is" without any representation or warranty as to the Property of any nature whatsoever, including without limitation, the physical condition of the Property, but shall not affect any contractual relationship between Cooper Power Systems LLC and Seller concerning the environmental remediation and indemnity regarding the Property. 2. PURCHASE PRICE. The total purchase price for the Property (the "Purchase Price") is $500 and shall be paid at Closing in cash. 3. EARNEST MONEY. On or before two (2) Business Days (as defined in Section 5.1) after the date this Contract is executed by both Buyer and Seller, Buyer shall deliver to the office of Bronson Abstract Company, Inc. (the "Title Company"), as escrow agent, at 3810 Front Street, Suite 5, Fayetteville, Arkansas 72703, (by certified or cashier's check) the sum of $100.00 as earnest money (together with any interest earned thereon, the "Earnest Money"). 4. TERMINATION OPTION ALTERNATIVES, EFFECTS AND CONSIDERATION. Wherever in this Contract, Buyer or Seller is given the option to terminate this Contract, that party may either (1) waive such termination option (either by exercising an alternative election, if this Contract provides for one under the circumstances, or in any case by giving a written waiver notice to the other party) or (2) exercise it (i) at any. time (x) after the occurrence of the 1446034v.5 0017758!00051 event or circumstances giving rise to that option and (y) before the applicable deadline specified herein, if any, for exercise of such option, (ii) by giving a written notice sufficient in form and substance to communicate to the other party that the electing party terminates this Contract (a "Termination Notice") and (iii) with the effects (the "Termination Effects") that the Title Company shall promptly deliver the Earnest Money to the party entitled to it as provided in the Section of this Contract granting such termination option (or, if not specified, to Buyer) and that neither party shall have any further right or obligation under or in respect of this Contract other than as specified in this Contract with respect to rights or obligations that survive termination; provided that upon any termination, the Title Company shall deliver One Hundred Dollars ($1 D0) of the Earnest Money to Seller as independent and sufficient consideration for this option contract. 5. CLOSING 5.1 Place and Time. The closing of the purchase and sale of the Property (the "Closing") shall take place at the Title Company at 10:00 AM on the first "Business Day" (a day that is not a Saturday, Sunday or another day when national banks in the State of Arkansas are required or permitted to be closed) next following the expiration of ten (10) days after the last day of the Feasibility Period (as defined in Section 6.1), unless such date is changed in writing by Seller and Buyer. The date for which the Closing is scheduled to occur is herein called the "Scheduled Closing Date" and the date on which the Closing actually occurs is herein called the "Closing Date". 5.2 Seller's Closing Deliveries. At the Closing, Seller shall deliver to Buyer the following: (a) a duly executed and acknowledged special warranty deed (the "Deed") conveying to Buyer fee simple title to the Property, free and clear of any and all liens, assessments and encumbrances other than those matters set forth on Exhibit B; (b) a nonforeign affidavit as permitted by Section 1445(b)(2) of the Internal Revenue Code of 1986, as amended; (c) evidence of Seller's and its closing representative's capacity and authority for the Closing; and (d) all other papers necessary for proper completion of the Closing, duly executed. 5.3 Buyer's Closing Deliveries. At the Closing, Buyer shall pay or perform and deliver, at Buyer's sole cost and expense, the following: (a) the Purchase Price in cash; (b) evidence of Buyer's and its closing representative's capacity and authority for the Closing; and (c) all other papers necessary for proper completion of the Closing. 2 I446034v.5 0017758100051 5.4 Closing Costs. Buyer shall pay all escrow fees; costs of tax certificates; fees for preparation of the conveyance documentation; Buyer's attorneys' fees associated with this sale; Title insurance or survey; recording fees for the Deed and other expenses stipulated to be paid by Buyer under other provisions of this Contract. Seller shall pay Seller's attorneys' fees associated with the conveyance and other expenses stipulated to be paid by Seller under other provisions of this Contract. 6. FEASIBILITY STUDY AND INSPECTION. Buyer is responsible for all assessments, taxes and maintenance fees and there are no other rents, royalties or profits. 6.1 Buyer's Feasibility Study and Feasibility Study Period/Seller's Termination Rights. Buyer is hereby granted the right to conduct physical inspection of the Property (the "Feasihili ► Period") commencing on the Effective Date and ending at 5:00 PM, Central time, on the third (3re)day after the Effective Date or sooner if Buyer so provides notice to Seller. Buyer or its designated agents may enter upon the Property for purposes of such analyses, tests and inspections as Buyer deems necessary for the Feasibility Study. If Buyer determines, in its sole judgment, that the Property for any reason is not suitable for Buyer's intended use or purpose, or is not in satisfactory condition, then Buyer may terminate this Contract by giving a Termination Notice to Seller at any time before expiration of the Feasibility Period, which shall have the Termination Effects and the Earnest Money shall be delivered to Buyer. The Feasibility Study shall be conducted at Buyer's expense. Likewise, Seller shall have the right to terminate this Contract at any time during the Feasibility Period by providing a Termination Notice to Buyer before the expiration of the Feasibility Period, whereupon the Earnest Money shall be delivered to Buyer. 6.2 , Indemnity re Feasibility Study. Whether or not the Closing occurs, Buyer agrees to indemnify, defend and hold Seller harmless from all claims, liabilities, damages and causes of action (other than for or because of pre-existing conditions) arising out of the Feasibility Study performed by Buyer, its agents, independent contractors, servants or employees, unless due to the negligence of Seller, its agents, independent contractors, servants or employees. Seller must bring any claim for indemnity within thirty (30) days after the expiration of the Feasibility Period, or such claim shall be irrevocably lost. 7. TITLE AND SURVEY. Buyer may, at its option and expense, obtain (i) an Owner's Policy of Title Insurance insuring Buyer's fee simple title to the Property to be good and marketable and/or (ii) a current survey of the Property. $, BROKER. Buyer and Seller represent and warrant to each other that no real estate commissions, finders' fees or brokers' fees have been or will be incurred in connection with the sale of the Property by Seller to Buyer. Buyer and Seller shall each indemnify, defend and hold each other harmless from any claim, liability, obligation, cost or expense (including reasonable attorneys' fees and expenses) for fees or commissions relating to Buyer's purchase of the Property asserted against such party by any broker or other person claiming by, through or under the indemnifying party or whose claim is based on the indemnifying party's acts. 9. DEFAULT. I446034v.5 0017758/00051 9.1 Buyer's Default and Seller's Remedy. Unless otherwise provided for herein, if Closing is not completed by reason of Buyer's breach or other failure to perform all obligations and conditions to be performed by Buyer, Seller, as Seller's sole and exclusive remedy, may terminate this Contract by giving a Termination Notice to Buyer, which shall have the Termination Effects and the Earnest Money shall be delivered to Seller as liquidated damages for Buyer's breach. Buyer and Seller hereby agree that actual damages would be difficult or impossible to ascertain and that such amount is a reasonable estimate of the damages for such breach. 9.2 Seller's Default and Buyer's Remedy. If Closing is not completed by reason of Seller's breach or other failure to perform all obligations and conditions to be performed by Seller, Buyer, as Buyer's sole and exclusive remedy, may either (i) terminate this Contract by giving a Termination Notice to Seller, which shall have the Termination Effects and the Earnest Money shall be delivered to Buyer, or (ii) enforce specific performance of this Contract, Buyer and Seller stipulating that the Property is unique. 10. ATTORNEYS' FEES. Any signatory to this Contract who is the prevailing party in any legal proceeding against any other signatory brought under or with respect to this Contract or the transaction contemplated by this Contract shall be additionally entitled to recover court costs and reasonable attorneys' fees from the non -prevailing party. ii. DAMAGE TO PROPERTY: Seller agrees to give Buyer prompt notice of any fire or other casualty affecting the Property between the Effective Date of this Contract and the Closing. Notwithstanding any other agreement between the parties or which may be related to the Property, Seller shall bear all risk of loss with respect to the Property before the Closing Date. If before the Closing Date, there shall occur damage to the Property caused by fire or other casualty, then in any such event, either Buyer or Seller may, at its option, elect to terminate this Contract by written notice to the other party within five (5) days after the date of Seller's notice to Buyer of the casualty or at the Closing, whichever is earlier, in which case the Earnest Money shall be delivered to Buyer, and neither party shall have any further rights or obligations hereunder, other than as set forth herein with respect to rights and obligations which survive termination. If neither Buyer nor Seller timely makes its election to terminate this Contract, then the Closing shall take place as provided herein without reduction of the Purchase Price, and there shall be assigned to Buyer at the Closing all interest of Seller in and to any casualty insurance proceeds. 12. CONDEMNATION. If before the Closing Date, condemnation proceedings are commenced against any portion of the Property, then, at Buyer's option exercisable within five (5) days after Seller notifies Buyer of the condemnation proceedings, Buyer may terminate this Contract by written notice to Seller, whereupon the Earnest Money shall be promptly delivered to Buyer and neither party shall have any further right or obligation hereunder, other than as specified heroin with respect to rights or obligations that survive termination. If Buyer chooses not to terminate this Contract, or if Buyer does not exercise its right to terminate this Contract within the five (5) day period, then (i) the Closing shall proceed, (ii) Buyer shall accept title to the Property subject to the condemnation proceeding, (iii) at Closing Seller shall assign to Buyer any condemnation award and (iv) the Purchase Price shall not be reduced. 4 I446034v.5 0017758/00051 13. MISCELLANEOUS. 13.1 Notices. Any notice required or permitted to be delivered hereunder shall be deemed received when (i) personally delivered, (ii) two (2) Business Days after being sent by United States mail; postage prepaid; registered, certified or express mail; and properly addressed or (iii) one (1) Business Day after being deposited with a nationally recognized overnight courier service, charges prepaid and properly addressed. For purposes of this Subsection, the address of each party shall be that set forth below the signature of such party hereto with a copy to the other addressees (if any) named below the signature of such party. 13.2 Party Choice of Law. This Contract shall be construed under and in accordance with the laws of the State of Arkansas. 13.3 Binds and Benefits Successors, Etc. This Contract shall bind and benefit the parties hereto, their respective heirs, executors, administrators, legal representatives, successors and assigns. 13.4 Illegal, Invalid or Unenforceable Provisions. If any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 13.5 Sole Agreement. This Contract constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting this Contract's subject matter and cannot be changed except by their written consent. 13.6 Time is of the Essence. Time is of the essence in this Contract. 13.7 Gender and Number of Words. Words of any gender used in this Contract shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 13.8 Exhibits. Except where otherwise specified, all exhibits referred to in this Contract are attached to it (or intended by the parties so to be) and by such references are made a part of this Contract. 13.9 Counterparts. The parties may execute this Contract in one or more identical counterparts, all of which when taken together will constitute one and the same instrument. 13.10 Extension to Business Day. Whenever any determination is to be made or action to be taken on a date specified in this Contract, if such date shall fall upon a day that is not a Business Day, the date for such determination or action shall be extended to the first Business Day immediately thereafter. 14. ASSIGNMENT. Buyer may assign this Contract without Seller's prior written consent and without consideration to Seller, including to the City of Fayetteville or another party related to the City (collectively "Airport Related Party") to effectuate development/redevelopment of the 1446034x.5 0017758/00051 City of Fayetteville Airport. Upon any such assignment, Buyer and the assignee shall execute and deliver to Seller an assignment and assumption of this Contract, and all references herein to the Buyer shall be. deemed.. to. be references to such assignee. ... In ..the.. event _of ..any such assignment to and assumption by an Airport Related Party, CPS shall be relieved of all obligations and liability under this Contract. 15. EFFECTIVE DATE. The "Effective Date" of this Contract shall be the date an original of this Contract, or original counterparts of this Contract, executed by both Seller and Buyer together with the Lamest Money are delivered to the Title Company, as reflected by the date the Title Company executes this Contract. EXECUTED in multiple originals effective as of the date executed by the Title Company as shown below. BUYER: COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: Attention: Phone: Fax: TITLE COMPANY: SELLER: KEARNEY-NATIONAL, INC., a Delaware corporation By: Name: Title: Attention• Phone: Fax: Receipt of $________ Earnest Money is acknowledged in the form of By: Name: Title: Date Signed: (the Effective Date of the Contract) 6 1446034v.5 0017758100051 Exhibit A Airport Tract DRAKE FIELD I HWY 77 B Tree No. 6 Ferrel No. 765.15533.000 FR9PE TY DI SORIPI1ON (Deed Record 630$26) A part of tine Southwest Quarter (SW 144) of the Northeast Quarter (NE 'k) of 1Ere Southwest Quarter (SW %) of Section 33, TAM R -30.W, as described in Dead Rancid 8'.0-626 of the moods of the Clrauit Clark, Washington County, Arkansas, being awro particularly described as follows: From the Southwest corner of sold Southwest Quarter (SW 14) of the Northeast Quarter (NE %) of the Southwest Quarter (SW 34), thence South 87'0S37" East along the South tine or said Southwest Quarter (SW 34) of the Northeast Quarter (NE Y) of the Southwest Quarter (SW I4) a distance of 20.09 feet to a point on the existing East Right of Way fine of Arkansas HIghway 718 for the Point of Beginning. thence North 4.3550" East along said East Right of Way tine a distance at 336.70 feel; thence leaving said Fast Right of Way line South 88.48'16East - 630.94 feet Ice point on the East fine of sold Southwest Quarter (SW 14) of the Northeast Quarter (NE 3) of the Southwest Quarter (SW t:); thence along the East fine of said Southwest Quarter (SW t.) of the Northeast Quarter (NE y) of the Southwest Quarter (SW Y.) South 2.5817' West -322.00 feet to the Southwest co nerbi said Southwest Quarter (SW Y.) of the Northeast Quarter (NE %) of the Southwest Quarter (SW Y4 thence along the South line of said Southwest Quarter (SW %) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW 14) North B7.05'37- West. 640.34 feet to the Point of Beginning, contalnrng 4.61 acres, more orfess. e5ri.aMrM6rirtQronllal(fD.a PkidHWY 7te, , lTndl1Kse .y4w Exhibit B Deed This Instrument Was Prepared By: Douglas A. Yeager 600 Travis Street, Suite 2800 Houston, Texas 77002 SPECIAL WARRANTY DEED THE STATE OF ARKANSAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON § THAT KEARNEY-NATIONAL INC., a Delaware corporation ("Grantor"), for TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration paid to Grantor by The City of Fayetteville, a municipality formed under the laws of the State of Arkansas ("Grantee"), the receipt and sufficiency of which consideration are hereby acknowledged and confessed by Grantor, has GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents does GRANT, BARGAIN, SELL, and CONVEY unto Grantee certain lands lying in the County of Washington and the State of Arkansas, and more particularly described on Exhibit attached hereto and made a part hereof for all purposes, together with any and all fixtures and improvements thereon (collectively, the "Pronerty"). This Special Warranty Deed (this "Deed") is expressly made subject to the matters described on Exhibit B attached hereto and made a part hereof for all purposes, and to other restrictions and encumbrances of record, if any, shown of record in the county clerk's office where the Property is located, to the extent and only to the extent the same are valid and subsisting and affect all or any part of the Property (the "Permitted Excepions"). TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereunto in anywise belonging, unto Grantee, Grantee's successors and assigns, forever; and Grantor, for itself and its successors and assigns, does hereby covenant with Grantee, Grantee's successors and assigns, that Grantor will forever WARRANT and DEFEND all and singular the title to the Property unto Grantee, Grantee's successors and assigns, against all claims whatever by, through or under Grantor, but not otherwise, subject to the Permitted Exceptions. 1454135v.3 001775500051 W.ITNESS Grantor's hand and seas day of . 2010. Grantee's Address: ATTEST: -- Secretary After Recording Return To: 1454I35v.3 0017751H0005I GRANTOR: KEARNEY-NATIONAL INC., a Delaware corporation By Name: 'title. ACKNOWLEDGMENT STATE OF COUNTY OF § On this day of ___ , 2010, before me, , a Notary Public, duly commissioned, qualified and acting, within and for said County and State, appeared in person the within named and to me personally well known, who stated that they were the and Secretary of KEARNEY-NATIONAL INC., a Delaware corporation, and were duly authorized in their respective capacities to execute the foregoing Special Warranty Deed for and in the name and behalf of said Corporation, and further stated and acknowledged that they had so signed. executed and delivered said foregoing Special Warranty Deed for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto sot my hand and official seal this day of - ,2010. Notary Public My Commission Expires: (SEAL) 1454 I35.3 001775800051 .EXHXBITA . PROPERTY 1434; 35v,3 0017758100051 TrrINa 6 1'+mcl W 7S3.IS3334 (Deed mow 930.62) A Pod Of On SPMMMIQvarlar seullswosl Qpellar (SW 9)of & R.00rd 43MBof tlprooards l ltrk i u. b*, moreP Ii cones (aatd6 i4hWr4Quah 8oalhw MQ er(w3Q.lhm Qw(t�ter ($W) wY4 East ftfyht of Way 1ta o/lrisna Ihsrca North 4'0b>AP' et e&rq a96.ro raac u.ww IiYi1 aald W0.114WeiftapahlothcEaI Norlhaaer Quertar (He 14) of thw Mat Uno of aald Swthwsst Ovm pw sa mweel Du.rtar(SW Y.) I ScU hwal wmar bf asld$ouuw p1E 16) afIho Sowmod Ouster sauihwo.tOwfer(SW Y.) of U. 4wder(SW Y4Uolth tt?'0r contHnlnp 4.81 eoraa, ewr. Qrh h Deed ydeaatbedas [allot r(SW 390roi - we su.lh si'pssr ottlp lfoslh.ist aaastar(NE %i of Ilia A@ feel u e pelnl on lip eudalllaa 716 forthepdelor5.phu". pppht otway e, a dieteaca of o<wey Vie South W45'lr Veil isoudwwatQuarter(SW YO of ow t7oertat (SW %L Ihence along 4r. olthe Nodheiet Quertor (NE Y+) of rWosl-8f1.pofeetlopar (8W Y.} oftho Nosutaoat nest.[ c,lce[bangthe Seib bee or mld Qeolor (NE Ys)of lho Soolh.roat 34 Het lo the PON of fl.phadap. earrarUsnirmtMWMPH a,r. n.kew+ nv+rror*na [ r...y +.r ad I) afVie stint of EXHIBIT II PERMITTED EXCEPTIONS 1451135x.3 0017756f00051 Fayetteville Permitted Exceptions 1. General and special taxes for the year 1997 and subsequent years, which are not yet due and payable. 2. Special taxes and/or assessments payable in installments, to -wit: NONE. 3. Loss arising from oil, gas and/or other minerals, conveyed, retained, leased, assigned or any other activity concerning the sub -surface rights or ownership, including but not limited to the right of ingress and egress for said sub -surface purposes. 4. Encroachment addressed in Section 8.30 of that certain Amended and Restated Stock Purchase Agreement, dated June 26, 1997, by and between Kearney -National Inc. and Cooper Power Systems, Inc. DECLARATION OF RESTRICTIVE COVENANTS (Entire Acreage) STATE OF ARKANSAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON § THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of . 2010, by KEARNEY-NATIONAL INC., a Delaware corporation (hereinafter referred to as clarant"), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made apart hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Adminisative Order. The Property is the subject of a Consent Administrative Order, LIS 00.138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated by and among Declarant, Cooper Power Systems, LLC and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order. 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants') on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 1454115.40017758100051 upon and observed byDeolaram and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light Industrial zoning regulations. No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action .letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). Existing monitoring and other wells shall remain in place during any period required by the ADEQ. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction; either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action, As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Keamey-National Inc. and its successors and assigns, and "Enforcement Party" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 1454118v.4 0017758100051 EXECUTED this day of J2010. KEARNEY NATIONAL, INC. a Delaware corporation By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by the of . KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires 1494118v4 0017758100051 EXECUTED this day of .2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: STATE OFF § COUNTY OF § This isistrunent was acknowledged before me on the day of _, , 2010, by _ the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property 4 1414I18vA 0017738100051 Exhibit A Properly Preiiiee The South Hair (s/j) of the North Halt (N/s) of the Northeast Quarter (tN8/%) of the southwest quarter (9W/%) at •section 33, Township i6 North, Range 30 West, less that portion thereof located within the I.S. Highway No. 71 right -of -gray, which bound* the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter (SW/3) of the Northeast Quarter (NE/�) of the southwest Quarter (8W/�) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 73 tight -oz -way which bounds the property on the West, containing 9.62 auras, more or loss, Washington County, Arkansas. DECLARATION OF RESTRICTIVE CO'V'ENANTS (Airport Tract) STATE OF ARKANSAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON § THIS DECLARATION OF RRSTRICTWE COVENANTS (this "Declaration") is made and entered into this day of 2010, by KEAR EY NATIONAL INC., a Delaware corporation (hereinafter referred to as ""), and is accepted and agreed to by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." Declarant shall have access to the Property pursuant to the terms of that certain Agreement Regarding Purchase Option, dated , by and among Declarant, Cooper Power Systems, LLC and the City of Fayetteville, Washington County, Arkansas for the purposes of conducting the activities required under the Consent Administrative Order, 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding 1454124v.4 0017755/00051 upon and observed by Declarant and its successors and -assigns -as they may acquire an interest in ... all or any portion of the Property: • The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. • No use shall be made of the groundwater underlying the Properly, provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). • Existing monitoring and other wells shall remain in place during any period required by the ADEQ. • The Property shall only be used for roadway purposes. • No buildings or other structures shall be constructed on the Property. • The subsurface of the Property shall only be used to the extent necessary to construct a roadway on the Property, re -channel an abutting drainage ditch, and reroute a water line on the southeast corner of the Property. 3. ' Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties, Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term 'Enforcement Parties" shall mean Cooper Power Systems, LLC and its successors and assigns, and Kearney National Inc. and its successors and assigns, and "Enforcement Party" shall mean each of them and their respective successors and assigns. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas, 5. SSeverabiljty, Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 1454124v.4 0017758100051 EXECUTED this day of __._.. .... 2010. KEARNEY NATIONAL, INC. a Delaware corporation By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by the of KEARNEY- NATIONAL, INC., a Delaware corporation, on behalf of said limited liability company, Notary public, State of Notary's Printed Name Commission Expires 1454124V.4 00t7758/00051 EXECUTED this day of , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: 7wc: STATE OF $ COUNTY OF__________ § This instrwnent was acknowledged before me on the day of___________ 2010, by . the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property (4.81 Acres) 4 1454124v.4 DOJ7758/0005[ Exhibit A Property m q JO 030W 00J0 19'p BWtgalu0 TupulCCB JO tu11Sd e1B of 18814068. t+'M.Jfii4.111111J0N (x MS) Javano IsaMlpne6 am la (4 311) JA11eop Ise018JoN ct ja (m MS) JalJalll] 11am111na3 PLes10&UK 1l006 oq AUO!e aq1:(Ms) dump looMlllhos 01$) to (%3N) JalJanrI 1maldlof 84)10 ('A MS) JMumD110M1IY1OS P)UUJQa§Woo 1s0MymCS a41M1>aJ00'ZZC-1soMwl4,gS. tmoS(%MS)Jau0np1R&WnCSs4J to (% 1)N) JPJJmlp Isea411ON a1d o (P# MS) mpon ) M P62 Plus M oul 1se3 01119ua!o ODUG41 %,A MS) J0)Waap %lMt$$ l0S 041JO (%3N) Jayentp' On10 (% Ms Javmso RIr1 009 PIS aul P1e3 alf 110 Iu!od 0 a))oa166'M • 1103 J1,OP.40 4m0S all AOMPI 108-,9 Plan CUTA al MMaJO{JJ 4001 O1'BCC £0 tP0 aq heM10 $a4 Pigs amp )10 .0g WON aallayl '0upuldaf1101utod 511)303 g +Il419)4 sesem$Jyle 8111 AMM1011m m we NKIP P 04 w tulad 0 O loaf fi0'0rrlo aou9 N Mg) JOPM0 sang no MAP(%3N)JopeMD1 Na4I1aC%MS)JC10n Pawm0SPlan C C41 1$1101) 0 0u *110 JC,9BJ01111106 0011x14 R(7LAA) Jalle111stAMMo$ et$) O ('i1$J0N1p11sa4M+ON 041JO (h4MS)1111snO isaaulnCg Pj�lo lotam la w0nos ap! W0ld 0wa!!C as PagJat0P ApfCJlJed 0J0W 31gaq 'aeatJO sy '+11810 ua1AuPIs.M'p+aN.3V0110.4110 tPJ0:1a184110 BZHCB p1aMb pwa a1 Paglrosep in M1)- '"t-1 'CC 000029 Jo (% MS) sm'enp lsowllgnoS f111I10 (7t aN)Jauano IsaawaN 14110 4:4 MS) JalI0np )ODM4JnOs e41 J0 pd v (929.0C9 Proaa13 Paaa fc9fl-CUS1l 94'01 1'd 4'1M1Jal NOTICE Please read the exceptions and the terms shown or referred to herein carefully. The exceptions are to provide you with notice of matters that are not covered under the terms of the title insurance policy and should be carefully considered. This report is a written representation as to the condition of the title for purposes of providing title insurance and lists all liens, defects, and encumbrances filed for record within the last thirty (30) years that have not been released of record or that are not statutorily expired No title insurance agent or any other person other than a licensed Arkansas attorney may provide legal advice concerning the status of title to the property described in the title commitment. Arkansas Insurance Department Contact Information: Arkansas Insurance Department Consumer Services Division 1200 West Third Street Little Rock, AR. 72201-1904 (800)852-5494 (501)371-2640 41-003 ALTA Commitment (6-17-06) COMMITMENT FOR TITLE INSURANCE ISSUED BY First American Title Insurance Company FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation ("Company'), for a valuable consideration, commits to issue its policy or policies of title insurance, as identified in Schedule A, in favor of the Proposed Insured named in Schedule A, as owner or mortgagee of the estate or interest in the land described or referred to in Schedule A, upon payment of the premiums and charges and compliance with the Requirements; all subject to the provisions of Schedules A and B and to the Conditions of this Commitment. This Commitment shall be effective only when the identity of the Proposed Insured and the amount of the policy or policies committed for have been inserted in Schedule A by the Company. All liability and obligation under this Commitment shall cease and terminate six (6) months after the Effective Date or when the policy or policies committed for shall issue, whichever first occurs, provided that the failure to issue the policy or policies is not the fault of the Company. The Company will provide a sample of the policy form upon request. IN WITNESS WHEREOF, First American Title Insurance Company has caused its corporate name and seal to be affixed by its duly authorized officers on the date shown in Schedule A. t�Ste +ksd • ra a e • e _x r . SEVTEAIRER 24, , mil' 1998 *�gl1f0RR�p*� Ai 41-003 ALTA Commitment (6-17-06) CONDITIONS 1. The term mortgage, when used herein, shall include deed of trust, trust deed, or other security instrument. 2. If the proposed Insured has or acquired actual knowledge of any defect, lien, encumbrance, adverse claim or other matter affecting the estate or interest or mortgage thereon covered by this Commitment other than those shown in Schedule B hereof, and shall fail to disclose such knowledge to the Company in writing, the Company shall be relieved from liability for any loss or damage resulting from any act of reliance hereon to the extent the Company is prejudiced by failure to so disclose such knowledge. If the proposed Insured shall disclose such knowledge to the Company, or if the Company otherwise acquires actual knowledge of any such defect, lien, encumbrance, adverse claim or other matter, the Company at its option may amend Schedule B of this Commitment accordingly, but such amendment shall not relieve the Company from liability previously incurred pursuant to paragraph 3 of these Conditions and Stipulations. 3. Liability of the Company under this Commitment shall be only to the named proposed Insured and such parties included under the definition of Insured in the form of policy or policies committed for and only for actual loss incurred in reliance hereon in undertaking in good faith (a) to comply with the requirements hereof, or (b) to eliminate exceptions shown in Schedule B, or (c) to acquire or create the estate or interest or mortgage thereon covered by this Commitment. In no event shall such liability exceed the amount stated in Schedule A for the policy or policies committed for and such liability is subject to the insuring provisions and Conditions and Stipulations and the Exclusions from Coverage of the form of policy or policies committed for in favor of the proposed Insured which are hereby incorporated by reference and are made a part of this Commitment except as expressly modified herein. 4. This Commitment is a contract to issue one or more title insurance policies and is not an abstract of title or a report of the condition of title. Any action or actions or rights of action that the proposed Insured may have or may bring against the Company arising out of the status of the title to the estate or interest or the status of the mortgage thereon covered by this Commitment must be based on and are subject to the provisions of this Commitment. 5. The policy to be issued contains an arbitration clause. All arbitrable matters when the Amount of Insurance is $2,000,000 or less shall be arbitrated at the option of either the Company or the Insured as the exclusive remedy of the parties. You may review a copy of the arbitration rules at www.alta.org. 41-003 ALTA Commitment (6-17-06) FIRST AMERICAN TITLE INSURANCE COMPANY Inquiries Should Be Directed To: Bronson Commitment No.: 19533-10 SCHEDULE A 1. Effective Date: May 1, 2010 at 7:00 AM 2. Policy or policies to be issued: AMOUNT a. OWNERS POLICY — Form AR 1402.06.A ALTA Owners Policy (6-17-06) Proposed Insured: $ 216,700,00 The City of Fayetteville, Arkansas, a municipal corporation 3. Title to the Fee Simple estate or interest in said land is at the effective date hereof vested in: Kearney National, Inc. 4. The land referred to in this Commitment is located in the County of Washington, State of Arkansas, and described as follows: 41.003 ALTA Commitment (6-17-06) A part of the Southwest Quarter (SW'/) of the Northeast Quarter (NE ¼) of the Southwest Quarter (SW's) of Section 33, T -16-N, R -30-W, as described in Deed Record 830-628 of the records of the Circuit Clerk, Washington County, Arkansas, being more particularly described as follows: From the Southwest corner of said Southwest Quarter (SW '1) of the Northeast Quarter (NE %) of the Southwest Quarter (SW 1/4), thence South 87°05'37" East along the South line of said Southwest Quarter (SW 14) of the Northeast Quarter (NE Y4) of the Southwest Quarter (SW'/) a distance of 20.09 feet to a point on the existing East Right of Way line of Arkansas Highway 71 B for the Point of Beginning, thence North 4°35'50" East along said East Right of Way line a distance of 336.70 feet; thence leaving said East Right of Way line South 85°46'18" East - 630.94 feet to a point on the East line of said Southwest Quarter (SW ¼) of the Northeast Quarter (NE ¼) of the Southwest Quarter (SW'/); thence along the East line of said Southwest Quarter (SW'/) of the Northeast Quarter (NE 1/4) of the Southwest Quarter (SW 1/4) South 2°58'17" West - 322.00 feet to the Southwest corner of said Southwest Quarter (SW 'I) o€ the Northeast Quarter (NE '1) of the Southwest Quarter (SW 1/4); thence along the South line of said Southwest Quarter (SW'/) of the Northeast Quarter (NE ¼) of the Southwest Quarter (SW'/) North 87°05'37" West - 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less. 41-003 ALTA Commitment (6.17-06) FIRST AMERICAN TITLE INSURANCE COMPANY SCHEDULE B Commitment No.: 19533-10 PART I. The following are the requirements to be complied with: 1. Submit proof of the payment to, or for the account of the grantors and/or mortgagors of the full consideration for the estate or interest to be insured. 2. Proper documents creating the estate or interest to be insured must be executed and duly filed for record, to -wit: a) Warranty deed conveying herein described land from Kearney -National, Inc., a Delaware corporation to Cooper Power Systems, LLC, a Delaware limited liability company. b) Warranty deed conveying herein described land from Cooper Power Systems, LLC, a Delaware limited liability company, to The City of Fayetteville, Arkansas, a municipal corporation. c) Payment in full of the 2009 general real estate taxes which are due and payable. 3. Return properly executed Seller/owner Statement to the Company, including satisfactory evidence that all bills for labor and materials furnished for the improvements of said premises have been or will be paid and item (d) of Schedule B- 11, Standard Exceptions will not appear on policy. 4. Obtain a court search as to any entity taking title subsequent to date of this commitment including in Washington County, Arkansas, and satisfy any judgments or liens which might affect the subject property and have releases thereof filed of record. 41-003 ALTA Commitment (6-17-06) FIRST AMERICAN TITLE INSURANCE COMPANY SCHEDULE B CONTINUED Commitment No: 19533-10 Part II. Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company: STANDARD EXCEPTIONS: a. Rights or claims of parties in possession not shown by the public records. b. Easements, or claims of easements, not shown by the public records. c. Encroachments, overlaps, discrepancies or conflicts in boundary lines, shortage in area, or other matters which would be disclosed by an accurate and complete survey or inspection of the premises. The coverage afforded by covered matter 2(c) is hereby deleted. d. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records. SPECIAL EXCEPTIONS: 1. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by this Commitment. 2. Real estate taxes for 2010 and subsequent years, amount of which is not ascertainable, due or payable. 3. Zoning ordinances, resolution, lot -split or lot line adjustment regulations, and subdivision requirements of the municipality or county in which the insured land is located. 4. Subject to a Airport Clear Zone Easement executed by Kearney National, Inc., to The City of Fayetteville, Arkansas, filed for record September 24, 1979 and recorded in record book 1000 at page 537. 5. Subject to a right of way granted by Kearney National Inc., to the City of Fayetteville, Arkansas, filed for record July 6, 1973 at 1:50 PM, and recorded in record book 854 at page 109. 6. Subject to an easement for underground facilities executed by Mill Properties, Inc., and Kearney National, Inc., to Southwestern Bell Telephone filed for record May 13, 1996 at 12:07 PM, and recorded as instrument #96029280. 7. Subject to a clear zone easement granted by the Fayetteville Chamber of Commerce, Inc., to the City of Fayetteville, Arkansas, filed for record August 1, 1966 at 2:45 PM, and recorded in record book 684 at page 102. FIRST AMERICAN TITLE INSURANCE COMPANY Countersigned by: 41-003 ALTA Commilmant (6-17-06) � � 1 Validating Officer or Agent Agent License Number: 27157 State license Number: 325303 41.003 ALTA Commitment (6-17-06) The following items were in the Tentative Agenda Packet and replaced on May 18, 2010 per Assistant City Attorney Jason Kelley. There were minor non -substantive changes made. Replacement documents have been included in Exhibit A. B. . A. SETTLEMENT STATEMENT (IIUD-1) .dam 1 U FHA 2. U FHMA 3. LJ CONV. UNINS. 4_ ❑ VA 5. ❑ CONV.INS. 6. FILE NUMBER: 7, LOAN NUMBER 8. MORTGAGE INS. CASE NO,: C. NOTE: This form is furnished to give you a statement of actual settlement costs. Amounts paid to and by the settlement agent are shown. Items marked "{p_o.c.)" were paid outside the closin ; they are shown here for informational purposes and are not included in the totals, D. NAME & ADDRESS The City of Fayetteville OF BORROWER: H. NAME & ADDRESS Kearney- National, Inc. OF SELLER: P.O. Box 4446, Houston, TX 77210 F. NAME & ADDRESS OF LENDER: G. PROPERTY LOCATION: Pt SW NE SW 33-16-30, Fayetteville, AR 72701 H. SETTLEMENT AGENT: Bronson Abstract Company, Inc. PLACE OF SETTLEMENT: 3810 Front Street, Suite 5, Fayetteville, AR 72703 (479) 442-2700 1. SETTLEMENT DATE: 5/21/2010 ➢ISBURSEMENT➢ATE: 5/21/2010 J. Summary of Borrower's Trancartinn K. C.,n. of T.....:.,.. 100. Gross Amount Due From Borrower: 400. Gross Amount Due To Seller: 101. Contract sales price 217,200.0') 401. Contract sales price 217 200.00 102. Personalproperty 402, Personal property 103. Settlement charges to borrower: pine 1400) 1,920.40 403. 104. 404. 105. 405. Adjustments For Items Paid By Seiler In Advance: Adjustments For Items Paid By Seller In Advance: 106. City/town taxes to 406. City/town taxes to 107. County taxes to 407. County taxes to 108. Assessments to 408. Assessments to 109. 409. 110. 410. III. 411. 112. 412. 113. 413. 114. 414. 115. 415. 116. 416. 120. Gross Amount Due From Borrower: 219,120.40 420. Gross Amount Due To Seller: 217,200.00 200. Amounts r In Bthalf Of Borrower: s In Amount Due To 201. Deposit or earnest 501. Excess deposit (see instructions) 202. Principal amount of new loan(s) 502. Settlement charges to seller pine 1400) 203. Existing loss(s) taken subject to 503. Existing loan(s) taken subject to 204. 504. Payoff 1st Mtg. La. 205. 505, Pa ofl tad Mtg. Lu. 206. 506. 207. 507. 208. 508. 209. 509. Adjustments For Items Unpaid By Seller: 210. City/town taxes to Adjustments For Items Unpaid By Seller: 510. City/town taxes to 211, Countyraxes 01/01/10 to 05/21/10 212.53 511. Countytaxes 01/01/10 to 05/21/10 212.53 212. Assessments to 512. Assessments to 213. 513. 214. 514. 215. 515. 216- 516. 217. 517. 218, 518. 219. 519. 220. Total Paid By/For Borrower: 212 '53 520. Total Reductions In Amount Due Seller: 212.53 00. Cash At en F Borrower: Settlement From/T l 601. Gross amount due to seller (line 420) 217 200.00 301. G5oss amount due from borrower (line 120) 219 120.40 302, Less amount paid byfforborrower (line 220) 212.53 602. Less reductions in amount dueseller(1ne520) 212,53 303. Cash (M FROM) DBorrower: 218,907.87 rPO) 603. Cash fit+ o) p11FROM) Seller: 216,987.47 FreviosS Elation IS Obsolete Form No. 1581 3/86 Page 1 of 3 SB-4-3538-000-I HUD -1 (3.86) RESPA, HB 4305.2 Form No. 1582 Page 2 of 3 SB-4-3538.000-1 SELLER'S AND/OR BORROWER'S STATEMENT Escrow: 19533-10 I have carefully reviewed the HUD -I Settlement Statement and to the best of my knowledge and belief, it is a true and accurate statement of all receipts and disbursements made on my account or by me in this transaction. I further certify that I have received a copy of the HUD -I Settlement Statement. Borrowers/Purchasers The City of Fayetteville By: Sellers Kearney- National, Inc. By: The HUD -1 Settlement Statement which I have prepared is a true and accurate account of this transaction. I have caused or will cause the funds to be disbursed in accordance with this statement. Settlement Date: Lela R. Davis, Bronson Abstract Company, Inc. WARNING: It is a crime to knowingly make false statements to the United States on this or any other similar form. Penalties upon conviction can include a fine or imprisonment. For details see: Title 18 U.S. Code Section 1001 and Section 1010. Page 3 of3 DRAFT AS OF 04/05/10; 5:00 P.M. REAL ESTATE CONTRACT THIS REAL ESTATE CONTRACT (this "Contract") is made and entered as of the Effective Date (defined in Section 15) by and between COOPER POWER SYSTEMS, LLC, a Delaware limited liability company ("Buyer"), and KEARNEY-NATIONAL INC., a Delaware corporation ("Seller"). For and in consideration of the mutual covenants and agreements contained in this Contract and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller agree as follows: 1. PURCHASE AND SALE. Seller agrees to sell and convey to Buyer, and Buyer agrees to buy from Seller, the Property (defined in the next sentence) for the consideration, upon the terms and subject to the provisions and conditions hereinafter set forth. The "Property" means all or any portion of the land situated in Washington County, Arkansas, described in Exhibit A and commonly called by the parties, the "Airport Tract", together with any and all fixtures and improvements thereon. Not less than ten (10) days before the Scheduled Closing Date (as defined in Section 5.1), if necessary, Buyer shall cause a metes and bounds description of the Property to be prepared. The description of the Property, as designated by Buyer, shall be used at Closing (as defined in Section 5.1) as the exhibit to the Deed (as defined in Section 5.2('a1)). Seller and Buyer agree that Buyer shall not be deemed to have acquired equitable title to any portion of the Property by entering into this Contract or by performing any covenants hereunder. It is the parties' intent that this Contract shall not convey or confer and Buyer shall not have any interest in the Property by virtue of this Contract, unless and until the Property is actually conveyed by Seller to Buyer by the Deed at Closing. Buyer shall acquire legal title to the Property at Closing if it occurs hereunder. The purchase and sale contemplated hereunder shall be "as is" without any representation or warranty as to the Property of any nature whatsoever, including without limitation, the physical condition of the Property, but shall not affect any contractual relationship between Cooper Power Systems LLC and Seller concerning the environmental remediation and indemnity regarding the Property. 2. PURCHASE PRICE. The total purchase price for the Property (the "Purchase Price") is $500and shall be paid at Closing in cash. 3. EARNEST MONEY. On or before two (2) Business Days (as defined in Section 5.1) after the date this Contract is executed by both Buyer and Seller, Buyer shall deliver to the officeof Title Company (the "Title Company"), as escrow agent, at , Arkansas _______,(by certified or cashier's check) the sum of $100.00 as earnest money (together with any interest earned thereon, the "Earnest Money"). 4. TERMINATION OPTION ALTERNATIVES, EFFECTS AND CONSIDERATION. Wherever in this Contract, Buyer or Seller is given the option to terminate this Contract, that party may either (1) waive such termination option (either by exercising an alternative election, if this Contract provides for one under the circumstances, or in any case by giving a written 1446034v.5 0017758/00051 waiver notice to the other party) or (2) exercise it (i) at any time (x) after the occurrence of the event or circumstances giving rise to that option and (y) before the applicable deadline specified herein, if any, for exercise of such option, (ii) by giving a written notice sufficient in form and substance to communicate to the other party that the electing party terminates this Contract (a "Termination Notice") and (iii) with the effects (the "Termination Effects") that the Title Company shall promptly deliver the Earnest Money to the party entitled to it as provided in the Section of this Contract granting such termination option (or, if not specified, to Buyer) and that neither party shall have any further right or obligation under or in respect of this Contract other than as specified in this Contract with respect to rights or obligations that survive termination; provided that upon any termination, the Title Company shall deliver One Hundred Dollars ($100) of the Earnest Money to Seller as independent and sufficient consideration for this option contract. 5. CLOSING. 5.1 Place and Time. The closing of the purchase and sale of the Property (the "Closing") shall take place at the Title Company at 10:00 AM on the first "Business Day" (a day that is not a Saturday, Sunday or another day when national banks in the State of Arkansas are required or permitted to be closed) next following the expiration of ten (10) days after the last day of the Feasibility Period (as defined in Section 6.1), unless such date is changed in writing by Seller and Buyer. The date for which the Closing is scheduled to occur is herein called the "Scheduled Closing Date" and the date on which the Closing actually occurs is herein called the "Closing Date". 5.2 Seller's Closing Deliveries. At the Closing, Seller shall deliver to Buyer the following: (a) a duly executed and acknowledged special warranty deed (the "Deed") conveying to Buyer fee simple title to the Property, free and clear of any and all liens, assessments and encumbrances other than those matters set forth on Exhibit B; (b) a nonforeign affidavit as permitted by Section 1445(b)(2) of the Internal Revenue Code of 1986, as amended; (c) evidence of Seller's and its closing representative's capacity and authority for the Closing; and (d) all other papers necessary for proper completion of the Closing, duly executed. 5.3 Buyer's Closing Deliveries. At the Closing, Buyer shall pay or perform and deliver, at Buyer's sole cost and expense, the following: (a) the Purchase Price in cash; (b) evidence of Buyer's and its closing representative's capacity and authority for the Closing; and (c) all other papers necessary for proper completion of the Closing. 2 I446034v.5 0017758/00051 5.4 Closing Costs. Buyer shall pay all escrow fees; costs of tax certificates; fees for preparation of the conveyance documentation; Buyer's attorneys' fees associated with this sale; Title insurance or survey; recording fees for the Deed and other expenses stipulated to be paid by Buyer under other provisions of this Contract. Seller shall pay Seller's attorneys' fees associated with the conveyance and other expenses stipulated to be paid by Seller under other provisions of this Contract. 6. FEASIBILITY STUDY AND INSPECTION. Buyer is responsible for all assessments, taxes and maintenance fees and there are no other rents, royalties or profits. 6.1 Buyer's Feasibility Study and Feasibility Study Period/Seller's Termination Rights. Buyer is hereby granted the right to conduct physical inspection of the Property (the "Feasibility Period") commencing on the Effective Date and ending at 5:00 PM, Central time, on the third (31C)day after the Effective Date or sooner if Buyer so provides notice to Seller. Buyer or its designated agents may enter upon the Property for purposes of such analyses, tests and inspections as Buyer deems necessary for the Feasibility Study. If Buyer determines, in its sole judgment, that the Property for any reason is not suitable for Buyer's intended use or purpose, or is not in satisfactory condition, then Buyer may terminate this Contract by giving a Termination Notice to Seller at any time before expiration of the Feasibility Period, which shall have the Termination Effects and the Earnest Money shall be delivered to Buyer, The Feasibility Study shall be conducted at Buyer's expense. Likewise, Seller shall have the right to terminate this Contract at any time during the Feasibility Period by providing a Termination Notice to Buyer before the expiration of the Feasibility Period, whereupon the Earnest Money shall be delivered to Buyer. 6.2 Indemnity re Feasibility Study. Whether or not the Closing occurs, Buyer agrees to indemnify, defend and hold Seller harmless from all claims, liabilities, damages and causes of action (other than for or because of pre-existing conditions) arising out of the Feasibility Study performed by Buyer, its agents, independent contractors, servants or employees, unless due to the negligence of Seller, its agents, independent contractors, servants or employees. Seller must bring any claim for indemnity within thirty (30) days after the expiration of the Feasibility Period, or such claim shall be irrevocably lost. 7. TITLE AND SURVEY. Buyer may, at its option and expense, obtain (i) an Owner's Policy of Title Insurance insuring Buyer's fee simple title to the Property to be good and marketable and/or (ii) a current survey of the Property. 8. BROKER. Buyer and Seller represent and warrant to each other that no real estate commissions, finders' fees or brokers' fees have been or will be incurred in connection with the sale of the Property by Seller to Buyer. Buyer and Seller shall each indemnify, defend and hold each other harmless from any claim, liability, obligation, cost or expense (including reasonable attorneys' fees and expenses) for fees or commissions relating to Buyer's purchase of the Property asserted against such party by any broker or other person claiming by, through or under the indemnifying party or whose claim is based on the indemnifying party's acts. 9. DEFAULT. 3 1446034v.5 0017758/00051 9.1 Buyer's Default and Seller's Remedy. Unless otherwise provided for herein, if Closing is not completed by reason of Buyer's breach or other failure to perform all obligations and conditions to be performed by Buyer, Seller, as Seller's sole and exclusive remedy, may terminate this Contract by giving a Termination Notice to Buyer, which shall have the Termination Effects and the Earnest Money shall be delivered to Seller as liquidated damages for Buyer's breach. Buyer and Seller hereby agree that actual damages would be difficult or impossible to ascertain and that such amount is a reasonable estimate of the damages for such breach. 9.2 Seller's Default and Buyer's Remedy. If Closing is not completed by reason of Seller's breach or other failure to perform all obligations and conditions to be performed by Seller, Buyer, as Buyer's sole and exclusive remedy, may either (i) terminate this Contract by giving a Termination Notice to Seller, which shall have the Termination Effects and the Earnest Money shall be delivered to Buyer, or (ii) enforce specific performance of this Contract, Buyer and Seller stipulating that the Property is unique. 10. ATTORNEYS' FEES. Any signatory to this Contract who is the prevailing party in any legal proceeding against any other signatory brought under or with respect to this Contract or the transaction contemplated by this Contract shall be additionally entitled to recover court costs and reasonable attorneys' fees from the non -prevailing party. 11. DAMAGE TO PROPERTY: Seller agrees to give Buyer prompt notice of any fire or other casualty affecting the Property between the Effective Date of this Contract and the Closing. Notwithstanding any other agreement between the parties or which may be related to the Property, Seller shall bear all risk of loss with respect to the Property before the Closing Date. If before the Closing Date, there shall occur damage to the Property caused by fire or other casualty, then in any such event, either Buyer or Seller may, at its option, elect to terminate this Contract by written notice to the other party within five (5) days after the date of Seller's notice to Buyer of the casualty or at the Closing, whichever is earlier, in which case the Earnest Money shall be delivered to Buyer, and neither party shall have any further rights or obligations hereunder, other than as set forth herein with respect to rights and obligations which survive termination. If neither Buyer nor Seller timely makes its election to terminate this Contract, then the Closing shall take place as provided herein without reduction of the Purchase Price, and there shall be assigned to Buyer at the Closing all interest of Seller in and to any casualty insurance proceeds. 12. CONDEMNATION. If before the Closing Date, condemnation proceedings are commenced against any portion of the Property, then, at Buyer's option exercisable within five (5) days after Seller notifies Buyer of the condemnation proceedings, Buyer may terminate this Contract by written notice to Seller, whereupon the Earnest Money shall be promptly delivered to Buyer and neither party shall have any further right or obligation hereunder, other than as specified herein with respect to rights or obligations that survive termination. If Buyer chooses not to terminate this Contract, or if Buyer does not exercise its right to terminate this Contract within the five (5) day period, then (i) the Closing shall proceed, (ii) Buyer shall accept title to the Property subject to the condemnation proceeding, (iii) at Closing Seller shall assign to Buyer any condemnation award and (iv) the Purchase Price shall not be reduced. 4 1446034v.5 0017758/00051 13. MISCELLANEOUS. 13.1 Notices. Any notice required or permitted to be delivered hereunder shall be deemed received when (i) personally delivered, (ii) two (2) Business Days after being sent by United States mail; postage prepaid; registered, certified or express mail; and properly addressed or (iii) one (1) Business Day after being deposited with a nationally recognized overnight courier service, charges prepaid and properly addressed. For purposes of this Subsection, the address of each party shall be that set forth below the signature of such party hereto with a copy to the other addressees (if any) named below the signature of such party. 13.2 Party Choice of Law. This Contract shall be construed under and in accordance with the laws of the State of Arkansas. 13.3 Binds and Benefits Successors, Etc. This Contract shall bind and benefit the parties hereto, their respective heirs, executors, administrators, legal representatives, successors and assigns. 13.4 Illegal, Invalid or Unenforceable Provisions. If any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 13.5 Sole Agreement. This Contract constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting this Contract's subject matter and cannot be changed except by their written consent. 13.6 Time is of the Essence. Time is of the essence in this Contract. 13.7 Gender and Number of Words. Words of any gender used in this Contract shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 13.8 Exhibits. Except where otherwise specified, all exhibits referred to in this Contract are attached to it (or intended by the parties so to be) and by such references are made a part of this Contract. 13.9 Counterparts. The parties may execute this Contract in one or more identical counterparts, all of which when taken together will constitute one and the same instrument. 13.10 Extension to Business Day. Whenever any determination is to be made or action to be taken on a date specified in this Contract, if such date shall fall upon a day that is not a Business Day, the date for such determination or action shall be extended to the first Business Day immediately thereafter. 14. ASSIGNMENT. Buyer may assign this Contract without Seller's prior written consent and without consideration to Seller, including to the City of Fayetteville or another party related to the City (collectively "Airport Related Party") to effectuate development/redevelopment of the 5 1446034v,5 0017758/00051 City of Fayetteville Airport. Upon any such assignment, Buyer and the assignee shall execute and deliver to Seller an assignment and assumption of this Contract, and all references herein to the Buyer shall be deemed to be references to such assignee. In the event of any such assignment to and assumption by an Airport Related Party, CPS shall be relieved of all obligations and liability under this Contract. 15. EFFECTIVE DATE. The "Effective Date" of this Contract shall be the date an original of this Contract, or original counterparts of this Contract, executed by both Seller and Buyer together with the Earnest Money are delivered to the Title Company, as reflected by the date the Title Company executes this Contract. EXECUTED in multiple originals effective as of the date executed by the Title Company as shown below. BUYER: COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: Attention: Phone: Fax: TITLE COMPANY: SELLER: KEARNEY-NATIONAL, INC., a Delaware corporation By: Name: Title: Attention: Phone: Fax: Receipt of $ Earnest Money is acknowledged in the form of By: Name: Date Signed: (the Effective Date of the Contract) 6 1446034v.5 0017758100051 Exhibit A Airport Tract DRAKE FIELD / HWY_ 71 B Tract No. 6 Parcel No. 765-15533-000 PROPERTY DESCRIPTION: (Deed Record 8330-628) A part of the Southwest Quarter (SW 1<) of the Northeast Quarter (NE 1/4 o€ the Southwest Quarter (SW Y.) of Section 33, T -16-N, R -30-W, as described in Deed Record 830-828 of the records of the Circuit Cleric, Washington County, Arkansas, being more particularly described as follows: From the Southwest comer of said Southwest Quarter (SW %) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW '4), thence South 87.053r East along the South tine of said Southwest Quarter (SW '/4 of the Northeast Quarter (NE'/) of the Southwest Quarter (SW '''A) a distance of 20.09 feet to a point on the existing East Right of Way line of Arkansas Highway 71 B for the Point of Beginning, thence North 4°35'50" East along said East Right of Way line a distance of 336.70 feet; thence leaving said East Right of Way line South 8546'18' East - 530.94 feet to a point on the East tine of said Southwest Quarter (SW '/4)01 the Northeast Quarter (NE'/4) of the Southwest Quarter (SW'/,); thence along the East One of said Southwest Quarter (SW '/4) of the Northeast Quarter (NE %) of the Southwest Quarter (SW'/.) South 2°58'17" West - 322.00 feet to the Southwest corner of said Southwest Quarter (SW Ya) of the Northeast Quarter (NE 'A) of the Southwest Quarter (SW Ye); thence along the South line of said Southwest Quarter (SW') of the Northeast Quarter (NE') of the Southwest Quarter (SW '/4) North 87°05'37" West 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less. c aMEA8EMENTS12OW 072164 D,, FicJ HWY 7I1#, p ry,Tacl6Kumey.doc Exhibit B Deed This Instrument Was Prepared By: Douglas A. Yeager 600 Travis Street, Suite 2800 Houston, Texas 77002 SPECIAL WARRANTY DEED THE STATE OF ARKANSAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON § THAT KEARNEY-NATIONAL INC., a Delaware corporation ("Grantor"), for TEN ANT) NO/100 DOLLARS ($10.00) and other good and valuable consideration paid to Grantor by [COOPER POWER SYSTEMS, LLC] [The City of Fayetteville], a Delaware limited liability company ("Grantee"), the receipt and sufficiency of which consideration are hereby acknowledged and confessed by Grantor, has GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents does GRANT, BARGAIN, SELL, and CONVEY unto Grantee certain lands lying in the County of Washington and the State of Arkansas, and more particularly described on Exhibit A attached hereto and made a part hereof for all purposes, together with any and all fixtures and improvements thereon (collectively, the 'Property"). This Special Warranty Deed (this "Deed") is expressly made subject to the matters described on Exhibit B attached hereto and made a part hereof for all purposes, and to other restrictions and encumbrances of record, if any, shown of record in the county clerk's office where the Property is located, to the extent and only to the extent the same are valid and subsisting and affect all or any part of the Property (the "Permitted Exceptions"). TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereunto in anywise belonging, unto Grantee, Grantee's successors and assigns, forever; and Grantor, for itself and its successors and assigns, does hereby covenant with Grantee, Grantee's successors and assigns, that Grantor will forever WARRANT and DEFEND all and singular the title to the Property unto Grantee, Grantee's successors and assigns, against all claims whatever by, through or under Grantor, but not otherwise, subject to the Permitted Exceptions. 1454135v.2 0017758100051 WITNESS Grantor's hand and seal day of , 20W. Grantee's Address: GRANTOR: KEARNEY-NATIONAL INC., a Delaware corporation ATTEST: Secretary After Recording. Return To: 1454135v.2 0017758100051 By — Name: Title: _ ACKNOWLEDGMENT STATE OF COUNTY OF On this day of , 2010, before me, , a Notary Public, duly commissioned, qualified and acting, within and for said County and State, appeared in person the within named and , to me personally well known, who stated that they were the and Secretary of KEARNEY-NATIONAL INC., a Delaware corporation, and were duly authorized in their respective capacities to execute the foregoing Special Warranty Deed for and in the name and behalf of said Corporation, and further stated and acknowledged that they had so signed, executed and delivered said foregoing Special Warranty Deed for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of ,2010. Notary Public My Commission Expires: (SEAL) I454135v 2 0017758/00051 EXHIBIT A PROPERTY 1454135v.2 0017758100051 DRAKE FIELDI HWY 718 Treat No. 6 Psrcci No. 705-15533.000 PROPERTY DESCRIPTION: (Deed Record 830-628) A part of the Southwest Quarter (SW 344) of the Northeast Quarter (NE Y4) of the Southwest Quarter (SW Y.) of Section 33, T -16-N, R -30-W, as described in Deed Record 830-628 of the records of the Circuit Cleric Washington County. Arkansas, being more particularly described as follows: From the Southwest comer of said Southwest Quarter (SW'/.) of the Northeast Quarter (NE'/) of the Southwest Quarter (SW'/.), thence South 87'0537" East along the South line of said Southwest Quarter (SW Y) of the Northeast Quarter (NE '/6) of the Southwest Quarter (SW %) a distance of 20.09 feet to a point on the existing East Right of Way line of Arkansas Highway 718 for the Point of Beginning, thence North 43550" East along said East Right of Way tine a distance of 336.70 feet; thence leaving said East Right of Way line South 8546'18" East - 630.94 feet to a point on the East line of said Southwest Quarter (SW'/.) of the Northeast Quarter (NE 1/4) of the Southwest Quarter (SW'/.); thence along the East Fine of said Southwest Quarter (SW %) of the Northeast Quarter (NE '/<) of the Southwest Quarter (SW Y.) South 258'17" West - 322.00 feet to the Southwest comer of said Southwest Quarter (SW 1/4) of the Northeast Quarter (NE %) of the Southwest Quarter (SW 1/4); thence along the South line of said Southwest Quarter (SW 'A) of the Northeast Quarter (NE Y.) of the Southwest Quarter (SW Y ) North 87°0537' West - 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less, C:5d,I�1EASFMENr&OOo7 72164 Onke Field IMY 7ilPOPMATaq 6 Kramey.dae EXHIBIT I3 PERMITTED EXCEPTIONS 1454135v.2 0017758100051 DRAFT OF 04/23/10; 4:00 PM DECLARATION OF RESTRICTIVE COVENANTS (Entire Acreage) STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of 2010, by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company (hereinafter referred to as "Declarant"). RECITALS: A. Declarant is the owner of the real property (the 'Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Coven�uits") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. DRAFT OF 04/23/10; 4:00 PM No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). Existing monitoring and other wells shall remain in place during any period required by the ADEQ. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and Kearney -National Inc. and "Enforcement Party" shall mean each of them. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. DRAFT OF 04/23/10; 4:00 PM EXECUTED this day of $ 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by , the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property 3 Exhibit A Property Premises The South Half (S/N) of the North Half (N/½) of the Northeast Quarter (UE/<) of the Southwest Quarter (SW/;) of Section 33, Township 1.6 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter (SW/:) of the Northeast Quarter (NE/¼) of the Southwest Quarter (SW/¼) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. DRAFT OF 04/23/10; 4:00 PM DECLARATION OF RESTRICTIVE COVENANTS (Airport Tract) STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of ,2010, 2010, by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company (hereinafter referred to as "Declarant"). RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: I. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. DRAFT OF 04/23110; 4:00 PM No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). + Existing monitoring and other wells shall remain in place during any period required by the ADEQ. • The Property shall only be used for roadway purposes. • No buildings or other structures shall be constructed on the Property. • The subsurface of the Property shall only be used to the extent necessary to construct a roadway on the Property, re -channel an abutting drainage ditch, and reroute a water line on the southeast corner of the Property. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and Kearney -National Inc. and "Enforcement Party" shall mean each of them. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of thernotherRestrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 DRAFT OF 04123110; 4:00 PM EXECUTED this day of , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: — Name: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by , the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property (4.81 Acres) 3 Exhibit A Property DRAKE FIELD I HWY 71 B Traci No. 6 Parcel No. 765-15533-000 PROPERTY DESCRIP ON: (Deed Record 530-628) A part of the Southwest Quarter (SW '/4)01 the Northeast Quarter (NE Y.) of the Southwest Quarter (SW 14) of Section 33, T -16-N, R -30-W, as described in Deed Record 830-628 of the records of the Circuit Clerk, Washington County, Arkansas. being more particularly described as follows: From the Southwest corner of said Southwest Quarter (SW '4) of the Northeast Quarter (NE '4) of the Southwest Quarter (SW l), thence South 87.05'37" East along the South line of said Southwest Quarter (SW Yd) of the Northeast Quarter (NE '.4) of the Southwest Quarter (SW '/4a distance of 20.09 feet to a point on the existing East Right of Way line of Arkansas Highway 7113 for the Point of Beginning, thence North 43550" East along said East Right of Way line a distance of 336.70 feet; thence leaving said East Right of Way line South 85 4618" East - 630.54 feet to a point on the East line of said Southwest Quarter (SW %) of 1he Northeast Quarter (NE Y.) of the Southwest Quarter (SW Ys); thence along the East fine of said Southwest Quarter (SW /4) of the Northeast Quarter (NE `/.) of the Southwest Quarter (SW'/.) South 2"58'17" Was( - 322.00 feet to the Southwest corner bf said Southwest Quarter (SW V) of the Northeast Quarter (NE '4) of the Southwest Quarter (SW Y:); thence along the South line of said Southwest Quarter (SW Y) of the Northeast Quarter (NE %) of the Southwest Quarter (SW /1) North 87°0537' West - 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less. C: 1d.I��ASFMBK[S0007'O 2r6$ Duke ridd f{WY N W 4$try4Tnul6 Kwmq.du Draft of 4/05/10; 5:00 PM ASSIGNMENT OF REAL ESTATE CONTRACT THIS ASSIGNMENT OF REAL ESTATE CONTRACT, hereinafter referred to as this "Assignment," dated as of 2010, is made and entered into by and between COOPER POWER SYSTEMS, LLC, a Delaware limited liability company ("Assignor"), and THE CITY OF FAYETTEVILLE, ARKANSAS a ("Buyer"). RECITALS: Kearney -National Inc., a Delaware corporation ("Seller"), and Assignor entered into that certain Real Estate Contract dated as of , 2010 (as amended, the "Contract"), which provides for the potential purchase and sale of certain real property ("Property"), described on Exhibit A hereto attached, to Assignor. Assignor now desires to assign the Contract to Buyer. CONTRACTS: NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Buyer do hereby agree as follows: Section 1. Assignment of Contract. Assignor hereby assigns all of its rights, duties and obligations under the Contract to Buyer, and Buyer assumes all of Assignor's duties and obligations under the Contract. All references in the Contract to "Buyer" shall hereafter be deemed to refer to Buyer herein. Section 2. Consideration. Buyer hereby agrees to remit to Assignor contemporaneously with its execution hereof the sum of $ in currently collected funds, as consideration for Assignor's rights in and to the Contract. Section 3. Prorations. Assessments, taxes, and similar charges for the current year will be prorated between Assignor and Buyer as of the Closing Date. Section 4. Definitions and References. Terms used herein, which are not otherwise defined or modified herein but which are defined in the Contract shall have the meanings therein ascribed to them. The term "Contract" as used in the Contract or any other instrument, document or writing furnished to Seller by Buyer shall mean the Contract as hereby assigned. Section 5. "As -Is" Transaction. BUYER ACKNOWLEDGES AND AGREES THAT BUYER IS EXPERIENCED IN ACQUIRING AND OWNING REAL ESTATE SIMILAR TO THE PROPERTY COVERED BY THE CONTRACT AND THAT BUYER, PRIOR TO THE CLOSING DATE WILL HAVE INSPECTED THE PROPERTY (INCLUDING ITS ENVIRONMENTAL CONDITION) TO ITS SATISFACTION. BUYER ACKNOWLEDGES THAT IT IS FULLY RELYING ON BUYER'S (OR BUYER'S REPRESENTATIVES') INSPECTIONS OF THE PROPERTY AND NOT UPON ANY STATEMENTS (ORAL OR WRITTEN) WHICH MAY HAVE BEEN MADE OR MAY BE MADE (OR PURPORTEDLY MADE) BY ASSIGNOR OR ANY OF ITS r IOU:00I 7758/00051:14461 73v4 REPRESENTATIVES. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS ASSIGNMENT, BUYER HEREBY AGREES TO THE ASSIGNMENT OF THE CONTRACT AS -IS, WHERE -IS, WITH ALL FAULTS, AND WITHOUT REPRESENTATIONS AND WARRANTIES OF ANY KIND INCLUDING REGARDING THE PROPERTY, ATTRIBUTABLE TO ASSIGNOR, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING. BUYER HEREBY EXPRESSLY ASSUMES ALL RISKS AND LIABILITIES INCLUDING ANY LIABILITY WITH RESPECT TO ENVIRONMENTAL LAWS AND BUYER EXPRESSLY WAIVES, RELEASES, AND AGREES NOT TO SUE ASSIGNOR (TO THE EXTENT ALLOWED BY APPLICABLE LAW) FOR ANY CLAIMS UNDER FEDERAL, STATE OR OTHER LAW (INCLUDING, BUT NOT LIMITED TO, COMMON LAW, WHETHER SOUNDING IN CONTRACT OR TORT, AND ANY AND ALL ENVIRONMENTAL STATUTORY LAWS) THAT BUYER MIGHT OTHERWISE HAVE OR LATER ACQUIRE RELATING TO THE USE, CHARACTERISTICS OR CONDITION OF THE PROPERTY. Section 6. Miscellaneous. This Assignment (a) shall be binding upon and inure to the benefit of Seller, Assignor and Buyer, and their respective heirs, legal representatives, successors, assigns, receivers and trustees; (b) may be modified or amended only by a writing signed by each party hereto; (c) shall be governed by and construed in accordance with the laws of the State of Arkansas; (d) may be executed by facsimile signatures and in several counterparts, and by the parties hereto on separate counterparts, and each counterpart, when so executed and delivered, shall constitute an original Assignment, and all such separate counterparts shall constitute but one and the same Assignment; and (e) embodies the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, consents and understandings relating to such subject matter. The headings herein shall be accorded no significance in interpreting this Assignment. IN WITNESS WHEREOF, Assignor and Buyer have caused this Assignment to be executed effective as of the date first written above. , ASSIGNOR: BUYER: COOPER POWER SYSTEMS, LLC, THE CITY OF FAYETTEVILLE, ARKANSAS a Delaware limited liability company a By: By: Name• Name: Title• Title: 2 I -JO U:0o 17758/00051:1446173 v4 Exhibit A Airport Tract DRAKE FIELD / HWY 71 B Ti of No. 6 Parcel No. 765-15533-000 P OPERTY DESCRIPTION: (Deed Record 830-628) A part of the Southwest Quarter (SW 'A) of the Northeast Quarter (NE 1/4) of the Southwest Quarter (SW Y.) of Section 33, T -16-N, R -30-W, as described in Deed Record 830-628 of the records of the Circuit Cletk, Washington County, Arkansas. being more particularly described as follows: From the Southwest comer of said Southwest Quarter (SW''/.) of the Northeast Quarter (NE '4) of the Southwest Quarter (SW'/.), thence South 87'0537" East along the South line of said Southwest Quarter (SW'/) of the Northeast Quarter (NE 1/4) of the Southwest Quarter (SW 1/4) a distance of 20.09 feet Co a point on the existing East Right of Way One of Arkansas Highway 71 B for the Point of Beginning, thence North 43550" East along said East Right of Way line a distance of 336.70 feet thence leaving said East Right of Way One South 85 46'18East - 6'30.94 feet to a point on the East One of said Southwest Quarter (SW'/.) of the Northeast Quarter (NE'/} of the Southwest Quarter (SW 4); thence along the East line of said Southwest Quarter (SW'/) of the Northeast Quarter (NE %) of the Southwest Quarter (SW 1/4) South 2°58'17" West - 322.00 feet to the Southwest comer of said Southwest Quarter (SW'/.) of the Northeast Quarter (NE ¼) of the Southwest Quarter (SW Y!); thence along the South line of said Southwest Quarter (SW'/) of the Northeast Quarter (NE 'A) of the Southwest Quarter (SW 1/4) North 870537" West - 640.34 feet 10 the Point of Beginning, containing 4.81 acres, more or less. C1dr&V:ASFMFN:5OOO7W72164 nuke FWd HWY TlfPi+operoTmu 6Keungy.doc This Instrument Was Prepared By: Douglas A. Yeager 600 Travis Street, Suite 2800 Houston, Texas 77002 SPECIAL WARRANTY DEED THE STATE OF ARKANSAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON § THAT KEARNEY-NATIONAL INC., a Delaware corporation ("Grantor"), for TEN AND NO/100 DOLLARS ($10.00) and other good and valuable consideration paid to Grantor by [COOPER POWER SYSTEMS, LLC] [The City of Fayetteville], a Delaware limited liability company ("Grantee"), the receipt and sufficiency of which consideration are hereby acknowledged and confessed by Grantor, has GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents does GRANT, BARGAIN, SELL, and CONVEY unto Grantee certain lands lying in the County of Washington and the State of Arkansas, and more particularly described on Exhibit A attached hereto and made a part hereof for all purposes, together with any and all fixtures and improvements thereon (collectively, the "Property"). This Special Warranty Deed (this "Deed") is expressly made subject to the matters described on Exhibit B attached hereto and made a part hereof for all purposes, and to other restrictions and encumbrances of record, if any, shown of record in the county clerk's office where the Property is located, to the extent and only to the extent the same are valid and subsisting and affect all or any part of the Property (the "Permitted Exceptions"). TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereunto in anywise belonging, unto Grantee, Grantee's successors and assigns, forever; and Grantor, for itself and its successors and assigns, does hereby covenant with Grantee, Grantee's successors and assigns, that Grantor will forever WARRANT and DEFEND all and singular the title to the Property unto Grantee, Grantee's successors and assigns, against all claims whatever by, through or under Grantor, but not otherwise, subject to the Permitted Exceptions. 1454135v.2 0017758/00051 WITNESS Grantor's hand and seal day of , 2010. Grantee's Address: GRANTOR: KEARNEY-NATIONAL INC., a Delaware corporation ATTEST: , Secretary After Recording Return To: 1454135v.2 0017758/00051 By_ Name: Title: ACKNOWLEDGMENT STATE OF COUNTY OF On this day of , 2010, before me, , a Notary Public, duly commissioned, qualified and acting, within and for said County and State, appeared in person the within named and , to me personally well known, who stated that they were the and Secretary of KEARNEY-NATIONAL INC., a Delaware corporation, and were duly authorized in their respective capacities to execute the foregoing Special Warranty Deed for and in the name and behalf of said Corporation, and further stated and acknowledged that they had so signed, executed and delivered said foregoing Special Warranty Deed for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of , 2010. Notary Public My Commission Expires: (SEAL) 1454135v.2 0017758!00051 EXHIBIT A PROPERTY I454I35v.2 0017758/00051 DRAKE FIELD 1 HWY 718 Tract No. 6 Parcel No- 765-l5533-000 PROPERTY DESCRIPTION: (Deed Record 830-628) A part of the Southwest Quarter (SW %) of the Northeast Quarter (NE %) of the Southwest Quarter (SW %) of Section 33, 1-16-N, R -30-W; as described to Deed Record 830-628 of the records of the Circuit Clerk, Washington County, Arkansas, being more particularly described as follows: From the Southwest corner of said Southwest Quarter (SW %) of the Northeast Quarter (NE %) of the Southwest Quarter (SW "/a), thence South 870537" East along the South line of said Southwest Quarter (SW `/s) of the Northeast Quarter (NE 1/4) of the Southwest Quarter (SW '/4) a distance of 20.09 feet to a point on the existing East Right of Way line of Arkansas Highway 718 for the Point of Beginning, thence North 435'50" East along said East Right of Way line a distance of 336.70 feet: thence leaving said East Right of Way line South 854618" East - 630.94 feet to a point on the East line of said Southwest Quarter (SW ¼) of the Northeast Quarter (NE'/) of the Southwest Quarter (SW %); thence along the East line of said Southwest Quarter (SIN ) of the Northeast Quarter (NE Y) of the Southwest Quarter (SW '/4) South 2°58'17West - 322.00 feet to the Southwest corner bf said Southwest Quarter (SW ') of the Northeast Quarter (NE ¼) of the Southwest Quarter (SW %); thence along the South line of said Southwest Quarter (SW %) of the Northeast Quarter (NE l) of the Southwest Quarter (SW ¼) North 87°0537" West - 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less. C:WM& AssMeh rSl20D7V7216! Dmk.Fidd HWY 714PropcarylTr*ct 6IC .w y -dos EXHIBIT B PERMITTED EXCEPTIONS 1454135v.2 0017758/00051 DRAFT OF 04/23/10; 4:00 PM DECLARATION OF RESTRICTIVE COVENANTS (Entire Acreage) STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of , 2010, by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company (hereinafter referred to as "Declarant"). RECITALS: A. Declarant is the owner of the real property (the "Pro ert ") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial//light industrial zoning regulations. DRAFT OF 04/23/10; 4:00 PM No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). Existing monitoring and other wells shall remain in place during any period required by the ADEQ. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and Kearney -National Inc. and "Enforcement Party" shall mean each of them. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 DRAFT OF 04123/10; 4:00 PM EXECUTED this day of , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By:_ Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by , the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability companyon behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property 3 Exhibit A Property Prep se9 The South Half (S/�) of the North Half (N/s) of the Northeast Quarter (NE/;) of the southwest Quarter (SW/,) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter (SW/;) of the Northeast Quarter (NEI;) of the Southwest Quarter (SW/,) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. DRAFT OF 04/23/10; 4:00 PM DECLARATION OF RESTRICTIVE COVENANTS (Airport Tract) STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of , 2010, by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company (hereinafter referred to as "Declarant"). RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. . B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: I. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive • covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. DRAFT OF 04/23/10; 4:00 PM No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). • Existing monitoring and other wells shall remain in place during any period required by the ADEQ. • The Property shall only be used for roadway purposes. • No buildings or other structures shall be constructed on the Property. • The subsurface of the Property shall only be used to the extent necessary to construct a roadway on the Property, re -channel an abutting drainage ditch, and reroute a water line on the southeast corner of the Property. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and Kearney -National Inc. and "Enforcement Party" shall mean each of them. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation, This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 DRAFT OF 04/23/10; 4:00 PM EXECUTED this day of , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: STATE OF § COUNTY OF § This instrument was acknowledged before me on the day of 2010, by , the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property (4.81 Acres) 3 Exhibit A Property DRAKE FIELD! HWY 71 B Tract No. 6 Parcel No. 765-t 5533-000 PROPERTY DESCRIPTION: (Deed Record 830-628) A part of the Southwest Quarter (SW'/.) of the Northeast Quarter (NE') of the Southwest Quarter (SW Y) of Section 33, T -16-N. R -30-W, as described in Deed Record 830-828 of the records of the Circuit Cleric, Washington County, Arkansas, being more particularly described as follows: From the Southwest corner of said Southwest Quarter (SW'/,) of the Northeast Quarter (NE ¼) of the Southwest Quarter (SW N). thence South 87°053T' East along the South fine of said Southwest Quarter (SW'/,) of the Northeast Quarter (NE ¼) of the Southwest Quarter (SW %) a distance of 20.09 feet to a point on the existing East Right of Way line of Arkansas Highway 7113 for the Point of Beginning, thence North 4°35'50" East along said East Right of Way line a distance of 338.70 feet; thence leaving said East Right of Way line South 85'4818" East - 630.94 feet to a point on the East line of sold Southwest Quarter (SW %4) of the Northeast Quarter (NE Y4) of the Southwest Quarter (SW'/); thence along the East fine of said Southwest Quarter (SW '/4) of the Northeast Quarter (NE %4) of the Southwest Quarter (SW '/4) South 2°58'17" West - 322.00 feet to the Southwest corner bf said Southwest Quarter (SW Y4) of the Northeast Quarter (NE'/.) of the Southwest Quarter (SW N); thence along the South line of said Southwest Quarter (SW N) of the Northeast Quarter (NE ¼) of the Southwest Quarter (SW Y) North 87°0537" West - 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less. CM.%T,ASEME ins aDM 2164 D.Ike Fidd HWY 711Pmpu i TM%a 6 Kewmy doc ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY IN THE MATTER OF: COOPER POWER SYSTEMS, LLC. PARTICIPANT REGARDING: APPROXIMATELY 19.42 ACRE TRACT OF LAND 3660 SOUTH SCIIOOL STREET FAYETTEVILLE, WASHINGTON COUNTY, ARKANSAS AFIN: LIS No. — IMPLEMENTING AGREEMENT This Implementing Agreement (hereinafter "IA") shall establish remedial requirements and financial liabilities of Cooper Power Systems, LLC (hereinafter the "PARTICIPANT") associated with the Property located at 3660 South School Street, Fayetteville, Washington County, Arkansas (hereinafter the "Property"). This IA is entered into by the PARTICIPANT and the Arkansas Department of Environmental Quality (hereinafter "ADEQ") pursuant to the authority of the Hazardous Waste Management Act (Act 406 of 1979, as amended; A.C.A. §§ 8-7-201 et. sea.), the Arkansas Remedial Action Trust Fund Act (Act 479 of 1985, as amended; A.C.A. §§ 8-7-501 et. seq.), the Arkansas Pollution Control and Ecology Commission ("APC&EC") Regulation Number 23, Hazardous Waste Management, (hereinafter "Regulation 23"), the Arkansas Voluntary Cleanup Act (Act 1042 of 1997) (as aniended),(A.C.A. §§ 8-7-1101 et. sea.) (hereinafter the "Arkansas Brownfields Program"), and the APC&EC Regulation Number 29, Brownfields Redevelopment. FINDINGS OF FACT The Property is located at 3660 South School Street, Fayetteville, Washington County, Arkansas. The legal description of the 19.42 -acre tract, which is comprised of two (2) parcels: The South Half (S/%3) of the North Half (N/4) of the Northeast Quarter (NE/'%) of the Southwest Quarter {SW/'/e) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof The Southwest Quarter (S/1) of the Northeast Quarter (NE/%) of the Southwest Quarter (SW/'/e) of Section 33, Township 16 North, Range 30 West, less that portion 1451807v.2 0017758/00051 thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. 2. PARTICIPANT meets the requirements for participation in the Arkansas Brownfields Program as described in Arkansas Code Annotated ("A.C.A.") 18-7-1104(a) and is competent and authorized to execute this IA. 3. The site is a parcel located in the southeastern part of the City of Fayetteville in roughly the central part of Washington County, Arkansas. The Property was used historically for industrial purposes from. approximately 1954 until the present. Kearney National, Inc. ("KNI") conducted industrial operations at the Property from 1954 until 1997, when it leased the property to Participant. KNI plant operations included metal plating, tin dipping, solvent degreasing, and lead fusing associated with the electrical equipment manufacturing business. In 1997 Cooper leased the Property from KNI and has used it for assembly and warehousing of components used in the electrical power industry. The Property remains developed with an approximate 135,000 s.f. electrical equipment assembly facility, and an approximate 30,000 s.f. warehouse. Two parking lots are allocated on the property. Since 1997, KNI as responsible party, has undertaken response action at the property and in August 2000 entered into a CAO with ADEQ, which outlined the regulatory, legal, and timing issues of the remediation to be performed. The buildings are currently occupied by PARTICIPANT pursuant to its lease with KNI. Through the implementation of the CAO, the releases of hazardous substances at the Property do not pose either (i) an unacceptable risk, either acute or chronic to the health of employees or other person likely to be exposed to the release from the Property based upon the site use contemplated hereby or (ii) an unacceptable risk to degrade either ground waters or surface waters or any risk to degrade Arkansas' extraordinary resource waters. 4. In December of 2009, the PARTICIPANT submitted a letter of intent and Brownfields Application, which set forth the Participant's desire to take title to the Property and retain eligibility for participation in the Brownfields Program as described in A.C.A. § 8-7-1101 (8). 5. In January 2010, ADEQ sent a letter declaring the PARTICIPANT's eligibility for participation in the Arkansas Brownfields Program as described in A.C.A. § 8-7-1104 (a), therefore authorizing the PARTICIPANT to acquire title to all or part of the Property and still retain its eligibility for the Arkansas Brownfields Program. 1451207v.2 0017758/00051 6. The PARTICIPANT warrants it is not responsible for any preexisting pollution at or contamination on any of the Property. Additionally, the PARTICIPANT did not, by act or omission, cause or contribute to any release or threatened release of hazardous substances on or from the Property and ADEQ has concluded PARTICIPANT is not otherwise considered to be a responsible party pursuant to A.C.A. § 8-7-512(a)(1 1. 7. The PARTICIPANT agrees the Property will not, at any time, be transferred to any party responsible for such pollution or contamination on the Property. If such transfer is made, this IA and any certificate of completion issued hereunder shall be null and void. 8. In February 2010, Land Recycling Company, Inc. ("LRC") submitted a Phase I Environmental Site ("ESA") that was approved by ADEQ in March 2010 in compliance with PARTICIPANT'S Brownfield Application. In March 2010, LRC on behalf of the PARTICIPANT, conducted a. Comprehensive Site Assessment ("CSA") dated March 2010, on the Property as part of the requirements of the Arkansas Brownfields Program. In conducting the CSA, LRC reviewed the Phase I ESA and sampling data compiled by KNI in connection with the work it was performing under the CAO. Based on the results of KNI's soil and groundwater sampling, trichloroethylene ("TCE") was detected in soil and ground water samples. Gasoline Range Organics ("GRO") were also detected in soil samples and compounds were initially detected in 1997 in soil samples. Subsequent groundwater sampling in 1998 indicated the presence of TCE, benzene, and other. chlorinated solvents which in some cases exceeded MCLs. The 1998 sampling event again indicated that both soils and shallow groundwater were impacted. A former AST operated by Kearney was determined to be the source of the benzene and GRO in groundwater; and TCE was a cleaning solvent, which according to records reviewed by LRC was commonly used by Kearney. 9. The ADEQ Hazardous Waste Division personnel reviewed the CSA and the findings and report were approved April 19, 2010. 10. Consequently, the PARTICIPANT has committed at this time to a particular future land use for the Property and has agreed to execute a real estate contract to buy 4.81 acres more or less (described on Exhibit A hereto ("Airport Tract"), which shall be used by the City of Fayetteville ("City") as part of the City's plan to further develop improvements to its airport facility. PARTICIPANT shall assign 3 1451807v.2 0017758/00051 such contract to the City so the City may utilize the tract as needed for airport development. PARTICIPANT has agreed to release the Airport Tract from its lease with KNI which shall further enable the City to construct roadway, rechannel the drainage ditch, and reroute water service lines. PARTICIPANT has agreed to restrict or cause the entire Property, including the Airport Tract, to be restricted for use not inconsistent with commercial/light industrial zoning uses, as well as to prohibit the use of groundwater on the Property as described herein. AGREEMENT The issues herein, as they pertain to the Property, having been settled by the agreement of the PARTICIPANT and ADEQ, it is hereby agreed and stipulated by all Parties the IA be entered herein and that the PARTICIPANT comply with the following provisions. 1. The PARTICIPANT, within ten (10) days of the effective date of this IA, shall public notice this IA in a newspaper of general circulation that serves the City of [Fayetteville] area. The notice shall identify the Property, the intended future land use, and the nature of the activities to be conducted on the Property. The PARTICIPANT shall provide proof of this publication to ADEQ within thirty (30) days of the effective date of this IA. 2. A Property Development Plan ("PDP") pertaining to the Airport Tract has been submitted to ADEQ and is attached as Exhibit B and is hereto as an Amendment to this IA. Such PDP is deemed approved. 3. ADEQ shall issue a Property Development Decision Document ("PDDD"), as necessary, to address any contamination identified in the CSA. Pursuant to Ark. Code Ann. §S -7-1104(h)(1), ADEQ shall provide public notice and opportunity for hearing on any such PDDD. [Note: to Terry Sligh — is this necessary in light of KNI's agreements under the CAO; is the PDDD required by the statute?] 4. ADEQ shall issue a final PDDD, considering all comments submitted, pursuant to the public notice discussed in Paragraph 3 above. The approved final PDDD shall become an Amendment to this IA. 5. The PARTICIPANT shall complete or cause to be completed the Remedial Action Activities (defined below in Paragraph 7), as addressed in the final PDDD. 6. The PARTICIPANT shall file, within thirty (30) days of the effective date of this IA, or within thirty 4 1451807v.2 0017758/00051 (3 0) days of it or the City acquiring legal title to the site, a notice of the IA with the clerk of the Circuit Court in Washington County, Real Estate Section. Notice of any amendments to this IA also shall be filed by PARTICIPANT with the Clerk of the Circuit Court in Washington County within thirty (30) days after their effective dates. The Clerk of the Circuit Court shall docket and record the notices so they appear in the purchaser's chain of title. A file marked copy shall be submitted to ADEQ, within forty-five (45) days of this IA. 7. The Remedial Action Alternatives required to be conducted by PARTICIPANT hereunder are: a. CPS shall establish institutional controls through deed recordation of the following restrictions pursuant to the Declaration of Restrictive Covenants attached hereto as Exhibit C, which shall run with the land: (i) Restricting usage of the Property solely to commercial/light industrial zoning regulations. (ii) ' Limiting the use of the Airport Tract to roadway purposes; (iii) Prohibiting the use of groundwater beneath the Property; (iv) Providing access to KNI so it may conduct the work contemplated by the CAO; and (v) Requiring that monitoring and other wells remain in place during any period required by the ADEQ. b. CPS shall cause to be planted reasonable vegetative cover, plants and shrubs on the Airport Tract to facilitate natural attenuation. c. Except for the Remedial Action Alternatives described above, CPS shall no further responsibility with regard to any past contamination of the Property. S. The PARTICIPANT shall submit a completion report to ADEQ within forty-five (45) days of completing the Remedial Action Activities associated with the PDP and the PDDD. The completion report should include information to document the site has been redeveloped according to the provisions mutually agreed upon in the IA, the approved PDP and the PDDD. After ADEQ receives this information and verifies the work has been completed, a Certificate of Completion will be issued. 5 1451s07v,2 0017758/00051 9. The PARTICIPANT shall file a deed restriction for the Property, in the form attached hereto as Exhibit C, to restrict the use of the Property to activities and compatible uses which will protect the integrity of any remedial action measures implemented on the Property. 10. The PARTICIPANT shall provide a copy of this IA to all prospective owners or successors before either (i) any contract it executes to acquire all or part of the Property is assigned to a third party, including the City as to the Airport Tract or (ii) all or part of the Property is transferred to the prospective owner or successor. 1 I . The PARTICIPANT shall take all reasonable steps necessary to prevent aggravating or contributing to the contamination of the air, land or water, including downward migration of contamination, from any existing contamination on the site. The term existing contamination shall include any contamination set forth in the CSA approved by ADEQ. 12. The PARTICIPANT shall not use or redevelop the site in a manner that differs from the terms or procedures established under this IA. 13. The PARTICIPANT shall not be responsible for paying any fines or penalties related to the past contamination of the Property, nor are responsible for any past contamination on the Property, other than the Remedial Action Activities. The term "past contamination" shall include any contamination set forth in the CSA approved by ADEQ. 14. Nothing in this IA shall be construed as a waiver of liability for future contamination of the Property by the PARTICIPANT, subsequent owners, or third -parties. 15. This IA, including all rights and clean-up liabilities, is transferable, with written approval by ADEQ, to any and all subsequent owners of the Property who did not, by act or omission, cause or contribute to any release or threatened release of hazardous substances on the Property. By its execution hereof, the ADEQ hereby approves its transfer to the City, upon PARTICIPANT'S request, in which event both the PARTICIPANT and City shall be entitled to the benefits hereof. 16. Subsequent owners shall receive a copy of the IA from the Property owner and shall not develop or use the Property in a manner which is inconsistent with the terms or procedures contained herein unless agreed to by all Parties to this IA, including ADEQ. In the event the intended use of the Property is to be altered from the use described in the IA, PDP and PDDD, ADEQ will evaluate the R 1451807v.2 0017758/00051 protectiveness of the remedial action to determine if the proposed use would be protective of human health and the environment. Absent such a determination by ADEQ, any liability assurances contained in this IA and amendments thereto or certificates of completion issued hereunder, shall be null and void. 17. Participation in the Arkansas Brownfields Program can be withdrawn by the PARTICIPANT at any time upon written notification to ADEQ. In turn, if the PARTICIPANT fails to complete the terms and conditions set forth in this IA, and at the time of withdrawal has acquired the property and is considered to be the legal owner of the property, the ADEQ reserves the right to deem the PARTICIPANT in violation of this IA and the PARTICIPANT will be notified in writing that their enrollment in the Arkansas Brownfields Program is no longer valid and the PARTICPANT will be liable for any past contamination found on the site. 18. This IA shall become effective upon the signature of the Director of ADEQ. IT IS SO AGREED. ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY By: Director Teresa Marks PARTICIPANT COOPER POWER SYSTEMS, LLC By: Title: Date: Date: Exhibit A: Airport Tract Exhibit B: Property Development Plan (Airport Tract) Exhibit C: Declaration of Restrictive Covenants 7 451807v.2 0017758/0005 Exhibit A Airport Tract DRAKE FIELDIHWY 71B Tract No. 6 Parcel No. 765-15533-000 PROPERTY DESCRIPTION: (Deed Record 630-628) A part of the Southwest Quarter (SW 'A) of the Northeast Quarter (NE V4) of the Southwest Quarter (SW Y.) of Section 33, T -16-N, R -30-W, as described In Deed Record 830-628 of the records of the Circuit Clerk, Washington County, Arkansas, being more particularly described as follows: From the Southwest comer of said Southwest Quarter (SW 'A) of the Northeast Quarter (NE'/,) of the Southwest Quarter (SW '/4), thence South 870537" East along the South line of said Southwest Quarter (SW'/) of the Northeast Quarter (NE Y:) of the Southwest Quarter (SW 'A) a distance of 20.09 feet to a point on the existing East Right of Way line of Arkansas Highway 716 for the Point of Beginning, thence North 435'50" East along said East Right of Way line a distance of 336.70 feet; thence leaving said East Right of Way line South 8546'18East - 630.94 feet to a point on the East line of said Southwest Quarter (SW Ys) of the Northeast Quarter (NE ¼) o€ the Southwest Quarter (SW 'A); thence along the East One of said Southwest Quarter (SW'!) of the Northeast Quarter (NE 1/4) of the Southwest Quarter (SW '4) South 2°58'17" West - 322.00 feet to the Southwest comer of said Southwest Quarter (SW'/) of the Northeast Quarter (NE Y+) of the Southwest Quarter (SW Y.); thence along the South line of said Southwest Quarter (SW %) of the Northeast Quarter (NE %) of the Southwest Quarter (SW'/) North 87°05'37" West - 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less, CM.l EASBME rTS120Drioi216d Onke FIc,dHWY 711Pmpci 4Trae 6Kamsy d°e Exhibit B Property Development Plan (Airport Tract) PROPERTY DEVELOPMENT PLAN Kearney -National, Inc. Property Fayetteville, Arkansas I. INTRODUCTION This Property Development Plan (PDP) is being prepared for the Kearney -National, Inc. ("KNI") property located at 3660 South School Street, Fayetteville, Washington County, Arkansas ("the Property" or "the Kearney Property") by Cooper Power Systems, LLC ("Cooper") of Houston, Texas. Cooper was approved by Arkansas Department of Environmental Quality ("ADEQ") into the Brownfields Program on January 25, 2010 under Arkansas Code Anotated ("ACA") & 8-7-1104(a) and qualifies as a prospective purchaser of the 4.81 acres ("Airport Tract") of Kearney Property for subsequent purchase and development by the City of Fayetteville ("City") into an airport facility tract It is contemplated that Cooper will enter into a real estate contract to acquire the City Tract and then assign such Contract to the City who shall acquire the City Tract directly from KNI. The Kearney Property and the Airport Tract are described on the documents attached hereto as Exhibits A and B respectively. Cooper has submitted and revised with technical comments received from ADEQ, as part of the requirements of the ADEQ Brownfield Program, a Phase I Environmental Site Assessment ("ESA") and a Comprehensive Site Assessment ("CSA"), prepared by The Land Recycling Company, Inc. ("LRC"). The Phase I ESA and the GSA were approved by ADEQ in March 2010 and April 2010, respectively in order to retain the applicants Comprehensive Environmental Response, Compensation and Liability Act liability relief under the All Appropriate Inquiry rule set for the in 40 CFR Part 312. II. SITE DESCRIPTION The site is a parcel located in the southeastern part of the City of Fayetteville approximately in the central part of Washington County, Arkansas. The Property was used historically for industrial purposes from approximately 1954 until the present. KNI conducted industrial operations at the Property from 1954 until 1997, when it leased the property to Cooper. KNI plant operations included metal plating, tin dipping, solvent degreasing, and lead fusing associated with the electrical equipment manufacturing business. In 1997 Cooper leased the Property from KNI for assembly and warehousing of components used in the electrical power industry and did not use any chlorinated solvents in its operation. The Property remains developed with an approximate 135,000 square foot electrical equipment assembly facility, and an approximate 30,000 square foot warehouse. Two parking lots are also located on the property. Property Development Plan Prepared by The Land Recycling Company, Inc. Kearney -National, Inc. Property for Cooper Power Systems, LLC Fayetteville, Arkansas Houston, Texas III. PREVIOUS INVESTIGATIONS AND REMEDIATION Since 1997, KNI, as the responsible party for the chlorinated solvent contamination and other contamination identified on the Property, has undertaken response actions at the site and in August 2000, entered into a Consent Administrative Order (CAO) with ADEQ, which outlined the regulatory, legal, and timing issues of the soil and groundwater removal and remediation activities completed and yet to be performed on the Property. In conducting the CSA, LRC reviewed the sampling data compiled by KNI in connection with the work it was performing under the CAO. Based on the results of KNI's soil and groundwater sampling, triehloroethylene ("TCE") and other chlorinated compounds were detected in soil and ground water samples. Gasoline Range Organics ("GRO") were also detected in soil samples. Subsequent groundwater sampling in 1998 indicated the presence of TCE, benzene, and other chlorinated solvents which in some cases exceeded Maximum Contaminant Levels ("MCLs"). The 1998 sampling event again indicated that both soils and shallow groundwater were impacted. A former AST operated by Kearney was determined to be the source of the benzene and GRO in groundwater; TCE is a cleaning solvent, which was commonly used by KNI. In 2005 extensive soil remediation was completed by KNI with ADEQ's approval. The groundwater remediation is on going process with KNI proposing a Monitored Natural Attenuation Plan ("MNAP") in January 2006, with semiannual groundwater monitoring for five years. The five year MNA monitoring period expires the end of 2010. IV. HUMAN HEALTH & ECOLOGICAL RISK Documentation prepared by KNI indicates that the only current exposure pathway, from a human health and ecological risk standpoint, is the vapor intrusion pathway from on -site groundwater for indoor on -site workers. However, indoor air sample results indicate contaminant concentrations in indoor air were well below established guidelines and standards. V. PLANNED PROPERTY DEVELOPMENT Planned development on the southern 4.81 acres of the Kearney Property ("the Airport Tract") by the City of Fayetteville consists of the expansion of the adjacent Fayetteville Executive Airport. The proposed airport expansion activities will include construction of a roadway (relocation of Lancaster Drive), rechanneling of a drainage ditch and the re- routing of underground water lines. The use of the remainder of the Kearney Property will remain unchanged for the foreseeable future. The attached drawing illustrates the planned development of the Airport Tract by the Fayetteville Executive Airport (McClelland Consulting Engineers, 2009). Property Development Plan Prepared by The Land Recycling Company, Inc. Kearney -National, Inc. Property for Cooper Power Systems, LLC Fayetteville, Arkansas Houston, Texas VI. PROPOSED REMEDIAL ACTION A. Cooper will establish working with the City of Fayetteville and KNI, institutional controls on the airport tract through deed recordation of the following property restrictions and requirements which will run with the land: Restricting usage of the Kearney Property solely to commercial/light industrial zoning regulations; 2. Limiting the use of the Airport Tract to roadway purposes; 3. Prohibiting the use of groundwater beneath the Kearney Property; 4. Providing access to KNI so it may conduct the work contemplated by the CAO; 5. Requiring that monitoring wells remain in place during any period required by ADEQ; 6. Allow the City of Fayetteville to move or install at KNI's direction, one shallow downgradient well for volatile organic monitoring and plume definition; 7. All soils generated by the City's contractors for the road construction and utility work will be disposed of off -site as nonhazardous; and S. Provide access for KNI and its representatives, including the ADEQ, for monitoring and conducting any remedial field work required by KNI to comply with the CAO. B. Cooper will coordinate with the City and cause KNI personnel to plant certain vegetative cover, plants and shrubs on the Airport Tract in order to seek to facilitate natural attenuation. C. Once the property development is finished by the City of Fayetteville and documented by their consultant, McClelland Consulting Engineers, Cooper along with the City of Fayetteville will ask for a Certificate of Completion from ADEQ. D. The Remedial Action described in this Article VI shall be the sole response action/remedial action required of Cooper and/or the City with regard to the Kearney Property and the City Tract. Property Development Plan Prepared by The Land Recycling Company, Inc. Kearney -National, Inc. Property for Cooper Power Systems, LLC Fayetteville, Arkansas Houston, Texas Exhibit A Kearney Property Prelises The South Half (S/½) of the North Half (N/½) of the Northeast Quarter (NE/�) of the Southwest Quarter (5W/;) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter (5W/�) of the Northeast Quarter (NE/;) of the Southwest Quarter (SW/%) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9,62 acres, more or less, Washington County, Arkansas. Exhibit B Airport Tract DRAKE FIELD! HWY 1i6 Tract No. 6 Parcel No. 765-15533-000 PROPERTY PPS RIP7'ION: (Deed Record 830-628) A part of the Southwest Quarter (SW 1/4) of the Northeast Quarter (NE f) of the Southwest Quarter (SW '/+) of Section 33, T -16-N, R -30-W. as described in Deed Record 830-628 of the records of the Circuit Clerk, Washington County, Arkansas, being more particularly described as follows: From the Southwest corner of said Southwest Quarter (SW Y.) of the Northeast Quarter (NE'/.) of the Southwest Quarter (SW 1/4), thence South 87'05`37" East along the South line of said Southwest Quarter (SW'/.) of the Northeast Quarter (NE '/s) of the Southwest Quarter (SW 'A) a distance of 20.09 feet to a point on the existing East Right of Way line of Arkansas Highway 718 for the Point of Beginning, thence North 4'35'50" East along said East Right of Way line a distance of 336.70 feel; thence leaving said East Right of Way line South 85°4018" East - 630.94 feet to a point on the East line of said Southwest Quarter (SW Y4) of the Northeast Quarter (NE 't) of the Southwest Quarter (SW %); thence along the East line of said Southwest Quarter (SW'/) of the Northeast Quarter (NE 'A) of the Southwest Quarter (SW's) South 2°58'17West - 322.00 feet to the Southwest comer of said Southwest Quarter (SW'/) of the Northeast Quarter (NE %<) of the Southwest Quarter (SW 1/4); thence along the South tine of said Southwest Quarter (SW'/) of the Northeast Quarter (NE %) of the Southwest Quarter (SW ) North 87'05'37" West- 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less. cMd. EA5EMENFS120G7W72I W Dnks Fkld HWY 71lPNpE[ M4916ICaamvy.doc Exhibit C Declaration of Restrictive Covenants DRAFT OF 04/23/10; 4:00 PM DECLARATION OF RESTRICTIVE COVENANTS (Entire Acreage) STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of , 2010, by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company (hereinafter referred to as "Declarant"). RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. DRAFT OF 04/23/10; 4:00 PM No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). Existing monitoring and other wells shall remain in place during any period required by the ADEQ, 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and Kearney -National Inc. and "Enforcement Party_" shall mean each of them. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. S. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 DRAFT OF 04/23/10; 4:00 PM EXECUTED this day of , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By:_ Name: Title: STATE OF COUNTY OF This instrument was acknowledged before me on the day of 2010, by , the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property Exhibit A Property Premises The South Half (S/s) of the North Half (N/½) of the Northeast Quarter (NE/¼) of the Southwest Quarter (SW/¼) of -Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way, which bounds the property on the West, containing 9.80 acres, more or less, Washington County, Arkansas and subject to the County Road right-of-way along the East Side thereof. The Southwest Quarter (SW/;) of the Northeast Quarter (NE/;) of the Southwest Quarter (SW/,) of Section 33, Township 16 North, Range 30 West, less that portion thereof located within the U.S. Highway No. 71 right-of-way which bounds the property on the West, containing 9.62 acres, more or less, Washington County, Arkansas. DRAFT OF 04/23/10; 4:00 PM DECLARATION OF RESTRICTIVE COVENANTS (Airport Tract) STATE OF ARKANSAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WASHINGTON THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made and entered into this day of , 2010, by COOPER POWER SYSTEMS, LLC, a Delaware limited liability company (hereinafter referred to as "Declarant"). RECITALS: A. Declarant is the owner of the real property (the "Property") more particularly described on Exhibit A attached hereto and made a part hereof for all purposes. B. Declarant desires to impose certain restrictive covenants upon the Property as fully set forth herein. C. The restrictive covenants herein contained shall run with the land and be binding upon any and all parties now or hereafter having an interest in the Property. AGREEMENT: NOW, THEREFORE, and in consideration of the foregoing premises, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, Declarant, as owner of the Property, for the benefit of the Enforcement Parties (as hereinafter defined) does hereby stipulate, covenant and agree as follows: 1. Consent Administrative Order. The Property is the subject of a Consent Administrative Order, LIS 00-138, dated August 3, 2000 (the "Consent Administrative Order"), and any remedial actions conducted thereunder. Further upon completion of said remedial actions, the Property will be subject to terms and conditions of a "No Further Action" letter, Certificate of Completion, or similar instrument contemplated by the Consent Administrative Order." 2. Restrictions. Declarant, as the owner of the Property, hereby imposes the following restrictive covenants (hereinafter referred to as the "Restrictive Covenants") on the Property, which Restrictive Covenants shall be covenants running with the Property, binding upon and observed by Declarant and its successors and assigns as they may acquire an interest in all or any portion of the Property: The Property may not be used or redeveloped in any way that is inconsistent with heavy commercial/light industrial zoning regulations. DRAFT OF 04/23110; 4:00 PM No use shall be made of the groundwater underlying the Property; provided that the Enforcement Parties (as defined below) may hereafter amend this restriction to limit it to the minimum area or depth required to obtain the No Further Action letter or Certificate of Completion contemplated by Paragraph 32 of the Consent Administrative Order and/or regulations promulgated by the Arkansas Department of Environmental Quality ("ADEQ"). • Existing monitoring and other wells shall remain in place during any period required by the ADEQ, • The Property shall only be used for roadway purposes. • No buildings or other structures shall be constructed on the Property. • The subsurface of the Property shall only be used to the extent necessary to construct a roadway on the Property, re -channel an abutting drainage ditch, and reroute a water line on the southeast corner of the Property. 3. Enforcement. Enforcement of the Restrictive Covenants shall be by proceedings at law or in equity against any person or entity violating or attempting to violate any of Restrictive Covenants, either to restrain or prevent such violation or proposed violation by an injunction, either prohibitive or mandatory, or to obtain any other relief authorized by law. The only parties entitled to enforce the Restrictive Covenants shall be the Enforcement Parties. Declarant hereby grants each Enforcement Party the right to enforce the Restrictive Covenants. The legal fees incurred by an Enforcement Party in the enforcement of the Restrictive Covenants shall be paid by the person or entity against whom enforcement is sought should such Enforcement Party prevail in such action. As used herein, the term "Enforcement Parties" shall mean Cooper Power Systems, LLC and Kearney -National Inc. and "Enforcement Party" shall mean each of them. 4. Amendment. The Restrictive Covenants may be altered or amended only by a written declaration signed and acknowledged by both Enforcement Parties and recorded in the Real Property Records of Washington County, Arkansas. 5. Severability. Invalidation of any one of the Restrictive Covenants by judgment or court order shall in no way affect any of the other Restrictions, which shall remain in full force and effect. 6. Recordation. This Declaration shall be recorded in the Real Property Records of Washington County, Arkansas. 2 DRAFT OF 04123/10; 4:00 PM EXECUTED this day of , 2010. COOPER POWER SYSTEMS, LLC, a Delaware limited liability company By: Name: Title: STATE OF § COUNTY OF § This instrument was acknowledged before me on the day of 2010, by , the of COOPER POWER SYSTEMS, LLC, a Delaware limited liability company. on behalf of said limited liability company. Notary Public, State of Notary's Printed Name Commission Expires Exhibit A — Property (4.81 Acres) 3 Exhibit A Property DRAKE FIELD / HWY 718 Tract No. 6 Parcel No. 765-15533-000 PROPERTY DESCRIPTION: (Deed Record 830-628) A part of the Southwest Quarter (SW ¼) of the Northeast Quarter (NE'/.) of the Southwest Quarter (SW %) of Section 33, T -16-N, R -30-W, as described in Deed Record 830-628 of the records of the Circuit Clerk, Washington County, Arkansas, being more particularly described as follows: From the Southwest corner of said Southwest Quarter (SW Y4) of the Northeast Quarter (NE Y4) of the Southwest Quarter (SW'/4), thence South 870537" East along the South tine of said Southwest Quarter (SW Y4) of the Northeast Quarter (NE'/) of the Southwest Quarter ($W 34) a distance of 20.09 feet to a point on the existing East Right of Way line of Arkansas Highway TIE for the Point of Beginning, thence North 4.35'50" East along said East Right of Way line a distance of 336.70 feet; thence leaving said East Right of Way line South 85"40'18• East - 630.94 feet to a point on the East line of said Southwest Quarter (SW Y.) of the Northeast Quarter (NE %) of the Southwest Quarter (SW Y.); thence along the East line of said Southwest Quarter (SW ¼) of the Northeast Quarter (NE'/) of the Southwest Quarter (SW 14) South 2°58'f7" West - 322.00 feet to the Southwest comer of said Southwest Quarter (SW'/) of the Northeast Quarter (NE'/) of the Southwest Quarter (SW %); thence along the South line of said Southwest Quarter (SW Y4) of the Northeast Quarter (NE %) of the Southwest Quarter (SW ¼) North 87°05'37" West - 640.34 feet to the Point of Beginning, containing 4.81 acres, more or less, 164 Dank Field HWY 711PropktgATnct 6 Kcanky.das JUN25 5 2010 NORTHWEST OITMOFFAYETfEVII_EE ARKANSAS CITY CLERKS OFFICE EWSPAPERSLLC Northwest Arkansas Democrat Gazette The Morning News of Springdale The Morning News of Rogers Northwest Arkansas Times Benton County Daily Record 212 North East Avenue, Fayetteville Arkansas 727011 PO Box 1607, 72702 PHONE: 479-571-6421 AFFIDAVIT OF PUBLICATION I, Cathy Wiles, do solemnly swear that I am Legal Clerk of the Northwest Arkansas Newspapers LLC. Printed and published in Washington & Benton County, (Lowell), Arkansas and that from my own personal knowledge and reference to the files of said publication, the advertisement of: City of Fayetteville —Public Notice June 7, 2010 Publication Charge : $ 55.59 Signed: _------ tx��---_— — Subscribed and sworn to before me Thisy day of J �, , 2010. dim Mears Washington Comm ss onNumber 12374647 Notary public - Arkansas Notary Public My Commission Expires Jan. 2p, 2020 My Commission Expires: Do not pay from Affidavit, an invoice will be sent