THIS
AGREEMENT, EXCEPT FOR SELLER'S REPRESENTATIONS, SELLER MAKES NO WARRANTY WITH
RESPECT TO THE PRESENCE IN, ON OR BENEATH THE REAL PROPERTY (OR ANY PARCEL IN
PROXIMITY THERETO) OF HAZARDOUS MATERIALS OR SUBSTANCES WHICH ARE CATEGORIZED AS
HAZARDOUS OR TOXIC UNDER ANY LOCAL, STATE OR FEDERAL LAW, STATUTE, ORDINANCE,
RULE OR REGULATION PERTAINING TO ENVIRONMENTAL OR SUBSTANCE REGULATION,
CONTAMINATION, CLEANUP OR DISCLOSURE. BY ACCEPTANCE OF THIS AGREEMENT AND THE
DEED, PURCHASER ACKNOWLEDGES THAT PURCHASER'S OPPORTUNITY FOR INSPECTION AND
INVESTIGATION OF THE REAL PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO),
ALONG WITH SELLER'S REPRESENTATIONS, HAVE BEEN ADEQUATE TO ENABLE PURCHASER TO
MAKE PURCHASER'S OWN DETERMINATION WITH RESPECT TO THE PRESENCE IN, ON OR
BENEATH THE REAL PROEPRTY (AND OTHER PARCELS IN PROXIMITY THERETO) OF ANY
HAZARDOUS MATERIALS OR SUBSTANCES. FURTHERMORE, PURCHASER'S CLOSING HEREUNDER
WILL BE DEEMED TO CONSTITUTE AN EXPRESS WAIYER OF PURCHASER'S AND ITS
SUCCESSORS' AND ASSIGNS' RIGHTS TO SUE SELLER OR ANY MEMBER OF THE SELLER GROUP
AND OF PURCHSASER'S RIGHT TO JOIN SELLER OR ANY MEMBER OF THE SELLER GROUP IN AN
ACTION BROUGHT UNDER ANY FEDERAL, STATE OR LOCAL LAW, RULE, ACT, OR REGULATION
NOW EXISTING OR HEREAFTER ENACTED OR AMENDED WHICH PROHIBITS OR REGULATES THE
USE, HANDLING, STORAGE, TRANSPORTATION OR DISPOSAL OF HAZARDOUS MATERIALS OR
TOXIC SUBSTANCES OR WHICH REQUIRES REMOVAL OR REMEDIAL ACTION WITH RESPECT TO
SUCH HAZARDOUS MATERIALS OR SUBSTANCES, SPECIFICALLY INCLUDING BUT NOT LIMITED
TO FEDERAL "CERCLA," "RCRA," AND "SARA" ACTS, UNLESS AND TO THE EXTENT SUCH
MATTER IS THE SUBJECT OF SELLER'S REPRESENTATIOS.
NOTWITHSTANDING THE FOREGOING OR ANY PROVISION HEREOF TO THE CONTRARY, THE
ACKNOWLEDGEMENTS SET FORTH IN THIS SECTION 3.3 BY PURCHASER SHALL NOT APPLY TO
ANY CLAIM WITH RESPECT TO ANY FRAUDULENT OR PROVEN INTENTIONAL MISREPRESENTATION
BY SELLER.
10
FURTHER, NOTWITHSTANDING ANYTHING IN THE FOREGOING TO THE CONTRARY: (A)
PURCHASER SHALL HAVE THE RIGHT TO DEFEND GOVERNMENT AND THIRD-PARTY CLAIMS BY
ALLEGING THAT SELLER (OR SOMEONE ACTING ON SELLER'S BEHALF), NOT PURCHASER, IS
LIABLE FOR SUCH CLAIMS AND PURCHASER HAS NO OBLIGATION TO INDEMNIFY SELLER FOR
GOVERNMENTAL OR THIRD PARTY CLAIMS ASSERTED BEFORE OR AFTER THE CLOSING AS A
RESULT OF ANY ACT OR OMISSION TAKEN OR FAILED TO BE TAKEN BY OR ON SELLER'S
BEHALF PRIOR TO THE CLOSING; AND (B) THE PROVISIONS SET FORTH IN SECTION 3.3
SHALL NOT APPLY TO THIRD-PARTY TORT CLAIMS RELATING TO THE PROPERTY AND
OCCURRING DURING SELLER'S OWNERSHIP OF THE PROPERTY. ADDITIONALLY, SELLER AND
PURCHASER HEREBY ACKNOWLEDGE AND AGREE THAT THE PROVISIONS SET FORTH IN THIS
SECTION 3.3 ARE NOT INTENDED TO BE AND SHALL NOT BE CONSTRUED AS A WAIYER OF
SIMILAR CLAIMS AGAINST ANY OF SELLER'S PREDECESSORS-IN-TITLE WITH RESPECT TO THE
PROPERTY OR THE PROJECT ("PREDECESSORS'' ), OR ANY SUCH PREDECESSOR'S OFFICERS,
MEMBERS, MANAGERS, DIRECTORS, PARTNERS, EMPLOYEES, AGENTS OR CONTRACTORS, OR ANY
OTHER PERSON ACTING ON BEHALF OF ANY SUCH PREDECESSORS.
ARTICLE 4
CLOSING
4.1
Time and Place.
The consummation of the transaction
contemplated hereby ("Closing") shall be held at the office of Escrow Agent on
the date which is twenty