2011-03-14_REVISION - M1977493 (67)

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503635 B-607 P-553 04128193 13:44 CaCgg87a?12 OF 99 • enlargement thereof, or the EPR Water Facilities, including without limitation, any delivery facilities, infrastructure or easements associated therewith; and (iii) any other bodies or sources of water owned or operated by Climax and used in connection with the AW Water Rights or Eagle Park Reservoir; provided that Climax shall not be responsible for hazardous- substances, pollutants or contaminants introduced into any of the foregoing facilities by third parties if not within the reasonable control of Climax. 4.2 Representations and Warranties of Climax. Climax represents and warrants to VA that: (a) Climax is a corporation duly formed, validly existing and in good standing in the State of Delaware and is in good standing in the State of Colorado; (b) At the Closing the AW Priority Water will be free and clear of all liens, encumbrances, leases, contracts,. assessments, charges, interests or adverse claims of any person or entity; (c) Climax has good and marketable title to the AW Water Rights, the AW Delivery Facilities, Eagle Park Reservoir and the EPR Water Facilities free and clear of liens and encumbrances; (d) Except as listed on Schedule 2 hereto, and to the best of Climax's knowledge after reasonable investigation, there is no action, suit, investigation or proceeding by or before any court, arbitrator, administrative agency or other governmental authority either threatened or pending that threatens or involves the AW Water Rights, the AW Delivery Facilities, Eagle Park Reservoir or the EPR Water Facilities, and Climax is not a party to, bound by or the subject of any writ, injunction or order of any court or government instrumentality; (e) Climax has no notice or knowledge of any violation of any federal, state or local law or regulation pertaining to health, safety, environmental protection or hazardous substances, or pollutants or contaminants.in the AW Delivery Facilities, Eagle Park Reservoir or the EPR Water Facilities other than those listed on Schedule 3 hereto; (f) Climax has full right, power and authority to enter into this Agreement and to perform its obligations hereunder, and this Agreement and all other documentation required hereunder, when duly executed and delivered, shall constitute the valid and binding obligations of Climax; is FUD:M9 -24- 0