EXISTED AT, OR, IN OR UNDER THE PROPERTY AS OF THE DATE OF THIS AGREEMENT,
REGARDLESS OF WHETHER KNOWN OR SUSPECTED BY PURCHASER OR SELLER.
IF SELLER
FAILS TO TIMELY NOTIFY PURCHASER OF ITS ELECTION TO PROCEED UNDER CLAUSE "(1)"
OR "(2)" ABOVE, SELLER SHALL BE DEEMED TO HAVE ELECTED TO PROCEED UNDER CLAUSE
"(2)" ABOVE.
IF SELLER SHALL ELECT (OR BE DEEMED TO HAVE ELECTED) TO PROCEED
UNDER CLAUSE "(2) ABOVE, OR IF SELLER SHALL ELECT TO PROCEED UNDER CLAUSE "(1)"
ABOVE BUT FAIL, DESPITE DILIGENT EFFORTS, TO EFFECTUATE THE REMEDIATION PRIOR TO
CLOSING, PURCHASER MAY, AS ITS SOLE AND EXCLUSIVE REMEDY, ELECT TO EITHER
(A) TERMINATE THIS AGREEMENT, IN WHICH CASE THE DEPOSIT SHALL BE RETURNED TO
PURCHASER AND THEREAFTER THIS AGREEMENT SHALL BE NULL AND VOID EXCEPT AS TO
THOSE PROVISIONS EXPRESSLY PROVIDED TO SURVIVE THE TERMINATION OF THIS
AGREEMENT, OR (B) PROCEED TO CLOSING, WITHOUT ANY ABATEMENT, CREDIT OR OTHER
ADJUSTMENT TO THE PURCHASE PRICE.
IF PURCHASER ELECTS TO PROCEED UNDER THE
FOREGOING CLAUSE "(B)", PURCHASER SHALL BE DEEMED TO HAVE RELEASED SELLER FROM
ALL LIABILITIES, CLAIMS AND OTHER CAUSES OF ACTION BY PURCHASER AGAINST SELLER
WITH RESPECT TO THE SUBJECT ENVIRONMENTAL CONDITION, EXCEPT AS MAY OTHERWISE BE
EXPRESSLY PROVIDED IN THE LEASEBACK LEASE.
WITHOUT LIMITING THE FOREGOING, AT
CLOSING PURCHASER SHALL BE DEEMED TO HAVE WAIVED AND RELEASED SELLER FROM ANY
PRESENT OR FUTURE CLAIMS ARISING FROM OR RELATING TO THE PRESENCE OR ALLEGED
PRESENCE OF HAZARDOUS MATERIALS IN, ON, UNDER OR ABOUT THE PROPERTY, INCLUDING,
WITHOUT LIMITATION, ANY CLAIMS UNDER (X) ANY ENVIRONMENTAL LAWS, (Y) THIS
AGREEMENT, OR (Z) THE COMMON LAW, EXCEPT THAT THE FOLLOWING MATTERS SHALL BE
EXCLUDED SPECIFICALLY FROM SUCH WAIVER AND RELEASE BY PURCHASER: (I) CLAIMS
ARISING FROM SELLER'S DISPOSAL TO A LOCATION OTHER THAN THE PROPERTY OF ANY
HAZARDOUS MATERIALS OR HARMFUL OR TOXIC SUBSTANCES GENERATED, USED, LOCATED OR
STORED AT THE PROPERTY, (II) ANY CLAIMS OR DAMAGES FOR EVENTS ARISING PRIOR TO
THE CLOSING MADE BY ANY PERSON FOR PERSONAL INJURY RELATED TO AN ENVIRONMENTAL
CONDITIONS OF THE PROPERTY, (III) ANY FINES OR PENALTIES (BUT NOT REMEDIATION OR
OTHER COSTS) ASSESSED PURSUANT TO ENVIRONMENTAL LAWS AND RESULTING FROM THE ACTS
OR OMISSIONS OF SELLER OCCURRING PRIOR TO THE CLOSING AND (IV) ANY ENVIRONMENTAL
CONDITION
18
WILLFULLY CAUSED BY SELLER FOLLOWING THE DATE OF THIS AGREEMENT.
THE TERMS AND
PROVISIONS OF THIS SECTION 14(A)(XIII) SHALL SURVIVE THE CLOSING.
(XIV)
SELLER HAS NO ACTUAL KNOWLEDGE THAT THE BUILDING AS PRESENTLY
CONSTRUCTED AND OPERATED REQUIRES ANY USE OR ZONING VARIANCE NOT ALREADY
OBTAINED BY OR FOR THE BENEFIT OF SELLER AND IN FULL FORCE AND EFFECT.
(B)
PURCHASER REPRESENTS AND WARRANTS TO SELLER AS OF THE DATE HEREOF
AND AS OF THE CLOSING DATE THAT:
(I)
THIS AGREEMENT CONSTITUTES THE LEGAL, VALID AND BINDING
OBLIGATION OF PURCHASER, ENFORCEABLE AGAINST PURCHASER IN ACCORDANCE WITH ITS
TERMS.
PURCHASER HAS TAKEN ALL NECESSARY ACTION TO AUTHORIZE AND APPROVE THE
EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY