PURCHASE AGREEMENT

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

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

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

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

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

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

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

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

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

4.1   INTENTIONALLY OMITTED.

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

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

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

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

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

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

8.1   Seller covenants and agrees with Purchaser that:

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

8.2   Purchaser covenants and agrees with Seller that:

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

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

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

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

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

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

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

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

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

10.4   Notwithstanding anything in this Agreement to the contrary, if (a) Purchaser discovers or i