EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES, INCLUDING THE COST OF IN-HOUSE COUNSEL AND APPEALS)
(COLLECTIVELY, " LOSSES") ARISING FROM PURCHASER'S OR ITS CONSULTANTS' ENTRY
ONTO THE PROPERTY AND ANY INSPECTIONS; PROVIDED IN NO EVENT SHALL PURCHASER BE
LIABLE HEREUNDER FOR ANY CLAIMS OR LIABILITIES (INCLUDING, WITHOUT LIMITATION,
ANY CLAIMS RELATED TO DIMINUTION IN VALUE OF THE PROPERTY) TO THE EXTENT ARISING
OR RESULTING FROM (I) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER, OR ANY
OF SELLER'S AFFILIATES, MANAGERS, AGENTS, CONTRACTORS, EMPLOYEES OR OTHER
REPRESENTATIVES OR (II) THE DISCOVERY (AS OPPOSED TO THE EXACERBATION) OF ANY
PRE-EXISTING CONDITION AFFECTING THE PROPERTY OR ANY DEFECT OR LIABILITY
DISCOVERED AT THE PROPERTY IN CONNECTION WITH ANY INVESTIGATION.
3.3.2
NOTWITHSTANDING ANYTHING IN THIS CONTRACT TO THE CONTRARY, PURCHASER
SHALL NOT BE PERMITTED TO PERFORM ANY INVASIVE TESTS ON THE PROPERTY WITHOUT
SELLER'S PRIOR WRITTEN CONSENT, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED.
IF PURCHASER DESIRES TO PERFORM ANY INVASIVE
TESTS, PURCHASER SHALL GIVE PRIOR WRITTEN NOTICE THEREOF TO SELLER, WHICH NOTICE
SHALL BE ACCOMPANIED BY A REASONABLY DETAILED DESCRIPTION AND PLAN OF THE
INVASIVE TESTS PURCHASER DESIRES TO PERFORM (INCLUDING THE LOCATION OF ANY SOIL
PENETRATIONS, BORINGS AND THE LIKE).
SELLER SHALL, WITHIN THREE (3) BUSINESS
DAYS AFTER RECEIVING SUCH NOTICE FROM PURCHASER, APPROVE OR DISAPPROVE SUCH
INVASIVE TESTING.
FURTHER, SELLER SHALL HAVE THE RIGHT, WITHOUT LIMITATION, TO
DISAPPROVE ANY AND ALL ENTRIES, SURVEYS, TESTS (INCLUDING, WITHOUT LIMITATION, A
PHASE II ENVIRONMENTAL STUDY OF THE PROPERTY), INVESTIGATIONS AND OTHER MATTERS
THAT IN SELLER'S REASONABLE JUDGMENT COULD RESULT IN ANY INJURY TO THE PROPERTY
OR BREACH OF ANY CONTRACT, OR EXPOSE SELLER TO ANY LOSSES OR VIOLATION OF
APPLICABLE LAW, OR OTHERWISE ADVERSELY AFFECT THE PROPERTY OR SELLER'S INTEREST
THEREIN.
PURCHASER SHALL USE REASONABLE EFFORTS TO MINIMIZE DISRUPTION TO
TENANTS IN CONNECTION WITH PURCHASER'S OR ITS CONSULTANTS' ACTIVITIES PURSUANT
TO THIS SECTION.
NO CONSENT BY SELLER TO ANY SUCH ACTIVITY SHALL BE DEEMED TO
CONSTITUTE A WAIVER BY SELLER OR ASSUMPTION OF LIABILITY OR RISK BY SELLER.
PURCHASER HEREBY AGREES TO RESTORE, AT PURCHASER'S SOLE COST AND EXPENSE, THE
PROPERTY TO THE SUBSTANTIALLY SAME CONDITION EXISTING IMMEDIATELY PRIOR TO
PURCHASER'S EXERCISE OF ITS RIGHTS PURSUANT TO THIS ARTICLE III.
PURCHASER
SHALL MAINTAIN AND CAUSE ITS THIRD PARTY CONSULTANTS TO MAINTAIN (A) CASUALTY
INSURANCE AND COMMERCIAL GENERAL LIABILITY INSURANCE WITH COVERAGES OF NOT LESS
THAN $1,000,000.00 FOR INJURY OR DEATH TO ANY ONE PERSON AND $3,000,000.00 FOR
INJURY OR DEATH TO MORE THAN ONE PERSON AND $1,000,000.00 WITH RESPECT TO
PROPERTY DAMAGE, AND (B) WORKER'S COMPENSATION INSURANCE FOR ALL OF THEIR
RESPECTIVE EMPLOYEES IN ACCORDANCE WITH THE LAW OF THE STATE IN WHICH THE
PROPERTY IS LOCATED.
PURCHASER SHALL DELIVER PROOF OF THE INSURANCE COVERAGE
REQUIRED PURSUANT TO THIS SECTION 3.3.2 TO SELLER (IN THE FORM OF A CERTIFICATE
OF INSURANCE) PRIOR TO PURCHASER'S OR PURCHASER'S CONSULTANTS' ENTRY ONTO THE
PROPERTY.
3.4
PROPERTY MATERIALS.
3.4.1
TO THE EXTENT THE SAME EXIST AND ARE IN SELLER'S POSSESSION OR
REASONABLE CONTROL (SUBJECT TO SECTION 3.4.2) SELLER