2013/05/29 Council Agenda Packet

4 MAY 10, 2013 DRAFT D. delivery by Polygon to the City of insurance certificates or other evidences of insurance that reasonably demonstrate compliance with Section 19.1 of the PDA, Section 5 of the River Parcels Environmental Agreement, Section 5 of the Mill Property Environmental Agreement, Section 5 of the Simpson Pad Environmental Agreement, and Section 10 of the Landfill Environmental Agreement; E. approval as necessary by Ecology in form reasonably acceptable to the City of the transfer to Polygon of OM INC's rights and obligations under the Consent Decree, including approval as may be required under Section XIII.D of the Consent Decree; F. delivery to the City of all items required to be delivered to the City by the OM Entities under the Sixth Amendment; G. execution of this Assignment Agreement by all Parties, together with Principal Life Insurance Company; H. payment-in-full to the City of the Transfer Fee in accordance with Section 7 above; I. delivery to the City of the Acceptable Written Certification in accordance with Section 8 above;and J. delivery by Polygon to the City of evidence reasonably satisfactory to the City that the Main Road Assurance Device (as defined in the Seventh Amendment) is in full force and effect. If all of the foregoing events have not occurred on or before , 2013, this Assignment Agreement will automatically terminate and any consent in this Assignment Agreement will be deemed to have never had any force or effect. 10. Warranties. A. OM Entities' Warranties. The OM Entities represent,. warrant and covenant that: (1) this Assignment Agreement creates legal, valid, and binding obligations of each of the OM Entities enforceable in accordance with its terms; (2) there is no action, proceeding, or investigation pending or, to the knowledge of the OM Entities, threatened or affecting any of the OM Entities, which may adversely affect the OM Entities' ability to fulfill its obligations under this Assignment Agreement; (3) no attachments, execution proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization, or other proceedings are pending or threatened against any OM Entity, nor are any such proceedings contemplated by any OM Entity; and (4) neither the execution and delivery of this Assignment Agreement nor the consummation of the transactions contemplated hereby will: (a) conflict with or result in a breach of any law, regulation, writ, injunction or decree of any court or governmental instrumentality applicable to any of the OM Entities; or (b) constitute a breach of any agreement to which any OM Entity is a party or by which an OM Entity is bound; (5) as of the Effective Date, all of the OM Entities have assigned to Polygon all of their right, title and interest in connection with the Properties and the Riverfront Agreements and no further consents or approvals from any OM Entity are required for the further development of the Properties; and -7- 22