DEEMED TO HAVE
BEEN WAIVED BY PURCHASER FOR PURPOSES OF THIS SECTION 3.2.
UPON THE RECEIPT OF
EFFECTIVE NOTICE FROM PURCHASER, NOBLE SHALL HAVE THE OPTION, IN ADDITION TO THE
REMEDY SET FORTH IN SECTION 3.2(D), BUT NOT THE OBLIGATION, TO (X) ATTEMPT TO
CURE SUCH ENVIRONMENTAL DEFECT AT ANY TIME PRIOR TO THE CLOSING, AT THE SOLE
COST AND EXPENSE OF NOBLE OR (Y) EXCLUDE THE ASSETS AFFECTED BY SUCH
ENVIRONMENTAL DEFECT FROM THIS AGREEMENT AND THE PURCHASE PRICE TO BE PAID AT
CLOSING SHALL BE REDUCED BY THE ALLOCATED VALUE FOR SUCH ASSETS IF SUCH
ALLOCATED VALUE IS POSITIVE AND INCREASED BY SUCH ALLOCATED VALUE FOR SUCH
ASSETS IF SUCH ALLOCATED VALUE IS NEGATIVE.
IF PRIOR TO CLOSING NOBLE AND
PURCHASER ARE UNABLE TO REACH AN AGREEMENT AS TO WHETHER AN ENVIRONMENTAL DEFECT
EXISTS OR, IF IT DOES EXIST, THE AMOUNT OF THE ENVIRONMENTAL DEFECT VALUE
ATTRIBUTABLE THERETO, THEN THE PROVISIONS OF SECTION 3.5 SHALL BE APPLICABLE.
(D)
IF ANY ENVIRONMENTAL DEFECT DESCRIBED IN A
NOTICE DELIVERED IN ACCORDANCE WITH SECTION 3.2 IS NOT CURED ON OR BEFORE THE
CLOSING, THEN THE PURCHASE PRICE SHALL BE REDUCED, SUBJECT TO SECTION 3.4, BY
THE ENVIRONMENTAL DEFECT VALUE OF SUCH ENVIRONMENTAL DEFECT.
(E)
AS USED IN THIS SECTION 3.2:
(I)
"ENVIRONMENTAL DEFECT" SHALL MEAN, WITH
RESPECT TO ANY GIVEN ASSET, A VIOLATION OF ENVIRONMENTAL LAWS IN EFFECT AS OF
THE DATE HEREOF IN THE JURISDICTION IN WHICH SUCH ASSET IS LOCATED, AN
OBLIGATION UNDER ENVIRONMENTAL LAWS TO UNDERTAKE WITHIN A REASONABLE PERIOD OF
TIME ANY CORRECTIVE ACTION ON AN ASSET, OR ANY ENVIRONMENTAL LIABILITY ARISING
FROM OR ATTRIBUTABLE TO ANY CONDITION, EVENT, CIRCUMSTANCE, ACTIVITY, PRACTICE,
INCIDENT, ACTION, OR OMISSION EXISTING OR OCCURRING PRIOR TO THE CLOSING DATE,
OR THE USE, RELEASE, STORAGE, TREATMENT, TRANSPORTATION, OR DISPOSAL OF
HAZARDOUS SUBSTANCES PRIOR TO THE CLOSING DATE (A) REGARDING WHICH AN
ENVIRONMENTAL DEFECT HAS BEEN TIMELY AND OTHERWISE VALIDLY DELIVERED, AND (B)
THAT HAS AN ENVIRONMENTAL DEFECT VALUE ATTRIBUTABLE THERETO IN EXCESS OF
$100,000.
(II)
"ENVIRONMENTAL DEFECT VALUE" SHALL MEAN,
(A) THE REASONABLY ESTIMATED COSTS AND EXPENSES TO CORRECT SUCH ENVIRONMENTAL
DEFECT IN THE MOST COST EFFECTIVE
11
MANNER REASONABLY AVAILABLE, CONSISTENT WITH ENVIRONMENTAL LAWS, AND (B) THE
AMOUNT OF THE ENVIRONMENTAL LIABILITIES REASONABLY BELIEVED WILL BE INCURRED OR
REQUIRED TO BE PAID BY NOBLE AND/OR THE PURCHASER WITH RESPECT THERETO.
THE
PARTIES RECOGNIZE THAT THE CALCULATION OF AN ENVIRONMENTAL DEFECT VALUE MAY
REQUIRE THE USE OF ASSUMPTIONS AND EXTRAPOLATIONS; HOWEVER, IT IS ACKNOWLEDGED
AND AGREED THAT ANY SUCH ASSUMPTIONS AND EXTRAPOLATIONS WILL BE CONSISTENT WITH
THE KNOWN FACTUAL INFORMATION AND REASONABLE IN NATURE.
3.3
NOTICE OF BREACHES OF REPRESENTATIONS AND
WARRANTIES PRE-CLOSING.
IF, IN THE COURSE OF CONDUCTING ITS DUE DILIGENCE
EXAMINATION OF NOBLE PRIOR TO CLOSING (OTHER THAN IN CONNECTION WITH PURCHASER'S
TITLE REVIEW AND PURCHASER'S ENVIRONMENTAL REVIEW), PURCHASER BECOMES AWARE OF A
BREACH OF A REPRESENTATION AND WARRANTY MADE BY NOBLE IN THIS AGREEMENT,
PURCHASER SHALL GIVE NOBLE PROMPT NOTICE OF SUCH BREACH, WHICH NOTICE SHALL (A)
DESCRIBE IN