A DELAY OF THE
CLOSING ON THE APPLICABLE PROJECT SO AS TO ENABLE SELLER TO PERFORM, OR CAUSE TO
BE PERFORMED, ANY NECESSARY REMEDIATION.
IF, DESPITE THEIR RESPECTIVE
REASONABLE EFFORTS, SELLER AND BUYER FAIL TO AGREE UPON A RESOLUTION TO ADDRESS
ALL ENVIRONMENTAL CONDITIONS ON OR BEFORE THE INSPECTION DATE, THEN BUYER SHALL
HAVE THE RIGHT, ON OR BEFORE THE INSPECTION DATE, TO EITHER (A) PROCEED TO CLOSE
ITS ACQUISITION OF THE PROPERTY PURSUANT TO THE TERMS OF THIS AGREEMENT; OR (B)
ELECT TO EXCLUDE FROM THIS AGREEMENT THOSE PROJECTS WITH RESPECT TO WHICH THERE
ARE UNRESOLVED ENVIRONMENTAL CONDITIONS (THE "ENVIRONMENTAL DELETED PROPERTY"),
IN WHICH EVENT THE PURCHASE PRICE SHALL BE REDUCED BY THE ALLOCABLE PORTION
THEREOF, ATTRIBUTABLE TO THE ENVIRONMENTAL DELETED PROPERTY ON EXHIBIT "V", AND
BUYER SHALL OTHERWISE PROCEED TO CLOSE HEREUNDER WITH RESPECT TO ALL OF THE
PROPERTY EXCEPT THE ENVIRONMENTAL DELETED PROPERTY.
NOTWITHSTANDING THE
FOREGOING DELETION RIGHT, HOWEVER, IN NO EVENT MAY THERE BE MORE THAN ***
PROJECTS THAT CONSTITUTE ENVIRONMENTAL DELETED PROPERTY.
EACH OF SELLER AND
BUYER SHALL PAY 50% OF THE ACTUAL, THIRD PARTY COSTS THAT BUYER INCURS TO
PERFORM THE PHASE II ASSESSMENTS AT ALL *** PROPERTIES IDENTIFIED ON EXHIBIT
"V."
SELLER SHALL REIMBURSE BUYER FOR SELLER'S 50% OF SUCH COSTS WITHIN TEN
(10) DAYS AFTER BUYER DELIVERS TO SELLER REASONABLE WRITTEN EVIDENCE OF THE
COSTS FOR WHICH BUYER IS SEEKING REIMBURSEMENT.
THE FOREGOING REIMBURSEMENT
OBLIGATION SHALL SURVIVE THE CLOSING.
For purposes of this Section 14, the following terms shall have the following
definitions:
(I)
"HAZARDOUS CONDITIONS" REFERS TO THE EXISTENCE OR PRESENCE OF ANY
HAZARDOUS MATERIALS ON, IN, UNDER, AT, NEAR OR ABOUT THE PROPERTY OR ANY PORTION
THEREOF (INCLUDING GROUNDWATER) IN VIOLATION OF STATE OR FEDERAL ENVIRONMENTAL
LAWS, REGULATIONS, OR STATUTES (COLLECTIVELY, "ENVIRONMENTAL LAWS") AND THAT IS
REQUIRED BY SUCH ENVIRONMENTAL LAWS TO BE CLEANED UP OR REMEDIATED.
(II)
"HAZARDOUS MATERIAL" OR "HAZARDOUS MATERIALS" SHALL MEAN:
ANY
CHEMICAL, POLLUTANT, CONTAMINANT, PESTICIDE, PETROLEUM OR PETROLEUM PRODUCT OR
BY PRODUCT, RADIOACTIVE SUBSTANCE, SOLID WASTE (HAZARDOUS OR EXTREMELY
HAZARDOUS), SPECIAL,
29
DANGEROUS OR TOXIC WASTE, SUBSTANCE, CHEMICAL OR MATERIAL REGULATED, LISTED,
LIMITED OR PROHIBITED UNDER ANY ENVIRONMENTAL LAW, INCLUDING WITHOUT
LIMITATION:
(A) ASBESTOS, ASBESTOS-CONTAINING MATERIAL, PRESUMED
ASBESTOS-CONTAINING MATERIAL, POLYCHLORINATED BIPHENYLS ("PCBS"), SOLVENTS AND
WASTE OIL; (B) ANY "HAZARDOUS SUBSTANCE" AS DEFINED UNDER CERCLA; AND (C) ANY
"HAZARDOUS WASTE" AS DEFINED UNDER RCRA.
(III)
"RELEASE" MEANS ANY DISCHARGE, EMISSION, ESCAPE, INJECTION, LEAK,
MIGRATION, SPILL, DUMPING OR OTHER RELEASE OF ANY HAZARDOUS MATERIAL INTO THE
ENVIRONMENT, WHETHER OR NOT NOTIFICATION OR REPORTING TO ANY GOVERNMENTAL AGENCY
WAS OR IS REQUIRED IN VIOLATION OF ANY ENVIRONMENTAL LAWS AND WHICH REQUIRES
CLEAN-UP OR REMEDIATION.
SECTION 15.
BROKERS AND BROKERS'
COMMISSIONS.
Buyer and Seller each warrant and represent to the other that, other than CB
Richard Ellis, Inc. ("Seller's Broker"), neither party has employed any other
real estate broker or agent in connection with the transaction contemplated
hereby. In the event the Closing is consummated, Seller shall pay a
commission
to Seller's Broker
pursuant to a separate agreement.