HOLD HARMLESS OBLIGATIONS
AND THE PROVISIONS OF SECTION 5.2.2(B) ABOVE SHALL NOT APPLY TO (I) ANY LOSS,
LIABILITY COST, CLAIM, DAMAGE, INJURY OR EXPENSE TO THE EXTENT ARISING FROM OR
RELATED TO THE NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER, SELLER'S EMPLOYEES,
MANAGERS, OFFICERS, PARTNERS, SHAREHOLDERS AND MEMBERS, AS APPLICABLE, (II) ANY
DIMINUTION IN VALUE IN THE PROPERTY ARISING FROM OR RELATING TO MATTERS
DISCOVERED BY BUYER DURING ITS INVESTIGATION OF THE PROPERTY IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT, (III) ANY DEFECTS IN THE PROPERTY DISCOVERED BY
BUYER DURING ITS INVESTIGATION OF THE PROPERTY IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT, AND (IV) THE EXISTENCE OF ANY HAZARDOUS SUBSTANCES WHICH ARE
DISCOVERED (BUT NOT DEPOSITED) ON OR UNDER THE PROPERTY BY BUYER;
(F)
BUYER SHALL PROVIDE LIABILITY INSURANCE,
WITH A COMBINED SINGLE LIMIT OF LIABILITY NOT LESS THAN ONE MILLION DOLLARS
($1,000,000), EITHER UNDER BUYER'S POLICY OR SUCH INSURANCE PROVIDED BY BUYER'S
AGENTS. SELLER SHALL BE NAMED AS AN ADDITIONAL INSURED UPON SUCH INSURANCE.
BUYER SHALL PROVIDE PROOF OF SUCH INSURANCE REASONABLY ACCEPTABLE TO SELLER
PRIOR TO, AND AS A CONDITION OF, ANY SUCH ENTRY; AND
(G)
PRIOR TO PERFORMING ANY INVASIVE TESTING,
BUYER SHALL OBTAIN SELLER'S WRITTEN APPROVAL, WHICH APPROVAL SHALL NOT BE
UNREASONABLY WITHHELD, CONDITIONED OR DELAYED, WITH RESPECT TO THE SCOPE OF WORK
INTENDED TO BE PERFORMED AND SHALL PROVIDE SELLER AN OPPORTUNITY TO CONFER,
EITHER DIRECTLY OR THROUGH SELLER'S CONSULTANTS, WITH BUYER'S ENVIRONMENTAL
CONSULTANTS IN ORDER TO DETERMINE WHETHER TO PERMIT ANY SAMPLING OR TESTING OF
SURFACE OR SUBSURFACE SOILS, SURFACE WATER OR GROUND WATER OR TO REFINE THE
SCOPE OF THE WORK TO BE PERFORMED. SELLER AND ITS CONSULTANTS SHALL BE ENTITLED
TO TAKE "SPLIT SAMPLES" OF ANY SAMPLES OBTAINED BY BUYER AND ITS CONSULTANTS.
SELLER SHALL BEAR ALL EXPENSES OF ITS OWN ENVIRONMENTAL CONSULTANTS IN REVIEWING
BUYER'S WORK PLAN AND ANALYZING ANY SPLIT SAMPLES.
8
(H)
BUYER SHALL HAVE NO LIABILITY TO SELLER WITH
RESPECT TO ANY PRE-EXISTING STRUCTURAL CONDITION, SOIL OR GEOLOGICAL CONDITION,
DANGEROUS OR DEFECTIVE CONDITION, HAZARDOUS MATERIALS, OR OTHER MATTER REVEALED
AS A RESULT OF SUCH TESTS OR INSPECTIONS ON OR UNDER THE PROPERTY NOT CAUSED BY
BUYER OR ITS AGENTS BUT DISCOVERED DURING ITS INVESTIGATIONS AND INSPECTIONS,
PROVIDED THAT, IF AS A RESULT OF BUYER'S OR ITS AGENTS' ACTIVITIES ON THE
PROPERTY ANY SUCH CONDITIONS OR DEFECTS ARE EXACERBATED OR AGGRAVATED, BUYER
SHALL BE LIABLE TO SELLER THEREFOR TO THE EXTENT OF ANY SUCH EXACERBATION OR
AGGRAVATION.
5.2.3
PRIOR TO THE CLOSING, ALL INFORMATION DERIVED FROM
BUYER'S TESTS AND TEST RESULTS SHALL, TO THE EXTENT PERMISSIBLE UNDER EXISTING
LAW AND SUBJECT TO THE TERMS OF SECTION 4.3, REMAIN CONFIDENTIAL AND NOT BE
DISCLOSED TO ANY PARTY OTHER THAN AS IS NECESSARY TO CONSUMMATE THE TRANSACTION
CONTEMPLATED HEREBY, TO OBTAIN ACQUISITION FINANCING OR TO EXERCISE BUYER'S
RIGHTS HEREUNDER INCLUDING, WITHOUT LIMITATION, BUYER'S COUNSEL, PROSPECTIVE
LENDERS, JOINT VENTURERS AND/OR INVESTORS AND ITS CONSULTANTS. SELLER SHALL BE
ENTITLED TO RECEIVE, WITHOUT REPRESENTATION OR WARRANTY BY BUYER, COPIES OF ALL
TESTS