APPROXIMATELY FOUR (4) INTERIOR
BORINGS AND APPROXIMATELY TWO (2) EXTERIOR BORINGS TO TEST SOIL AND GROUNDWATER;
PROVIDED, HOWEVER, THAT SUCH TESTING (I) MAY NOT BE PERFORMED BY BUYER UNTIL
SELLER HAS RECEIVED ALL CLOSURE DOCUMENTS FOR THE PROPERTY, AND (II) SHALL BE
PERFORMED BY BUYER'S CONSULTANTS WITHIN FIFTEEN (15) DAYS AFTER SELLER HAS
OBTAINED THE CLOSURE DOCUMENTS.
SUCH TESTING BY BUYER SHALL BE SUBJECT TO ALL
OF THE TERMS AND CONDITIONS OF THIS SECTION 5.2 OTHER THAN THE REQUIREMENT OF
BUYER'S OBTAINING LANDLORD'S CONSENT, AND, NOTWITHSTANDING THE "SOLE DISCRETION"
STANDARD IN SECTION 5.2.2(G) ABOVE, SUBJECT TO THE REQUIREMENT THAT LANDLORD'S
APPROVAL OF BUYER'S WORK PLAN FOR SUCH TESTING SHALL NOT BE UNREASONABLY
WITHHELD.
5.3
PERFORMANCE.
SELLER SHALL HAVE PERFORMED, OBSERVED AND COMPLIED
WITH ALL COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY THIS AGREEMENT TO BE
PERFORMED, OBSERVED AND COMPLIED WITH ON ITS PART PRIOR TO OR AS OF THE CLOSING
HEREUNDER.
5.4
DOCUMENTS AND DELIVERIES.
ALL INSTRUMENTS AND DOCUMENTS REQUIRED
ON SELLER'S PART TO EFFECTUATE THE CLOSING, AS SET FORTH HEREIN AND THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE DELIVERED TO BUYER OR THE ESCROW
AGENT, AS REQUIRED HEREBY, AND SHALL BE IN FORM AND SUBSTANCE CONSISTENT WITH
THE REQUIREMENTS HEREIN.
5.5
TITLE POLICY.
AT THE CLOSING, TITLE COMPANY SHALL HAVE DELIVERED
TO BUYER EITHER (A) A CLTA OWNER'S STANDARD POLICY OF TITLE INSURANCE (THE
"TITLE POLICY"), INSURING BUYER'S FEE SIMPLE TITLE TO THE PROPERTY IN THE AMOUNT
OF THE PURCHASE PRICE SUBJECT ONLY TO THE PERMITTED EXCEPTIONS, OR (B) TITLE
COMPANY'S IRREVOCABLE COMMITMENT TO ISSUE SUCH POLICY.
5.6
CONDITION OF PROPERTY.
SUBJECT TO THE TERMS AND CONDITIONS OF
ARTICLE 9 BELOW, THE PHYSICAL CONDITION OF THE PROPERTY SHALL BE SUBSTANTIALLY
THE SAME ON THE DAY OF CLOSING AS ON THE DATE OF BUYER'S EXECUTION OF THIS
AGREEMENT, REASONABLE WEAR AND TEAR EXCEPTED.
8
5.7
ACCURACY OF REPRESENTATIONS.
ALL OF THE REPRESENTATIONS AND
WARRANTIES OF SELLER CONTAINED IN THIS AGREEMENT SHALL HAVE BEEN TRUE AND
CORRECT IN ALL MATERIAL RESPECTS WHEN MADE, AND SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON THE DATE OF CLOSING (AS DEFINED IN SECTION 7.1 BELOW) WITH
THE SAME EFFECT AS IF MADE ON AND AS OF SUCH DATE
5.8
FAILURE OF CONDITIONS.
IF ANY CONDITIONS SET FORTH IN THIS ARTICLE
5 ARE NOT SATISFIED OR WAIVED IN WRITING BY BUYER AT OR PRIOR TO THE TIMES
PRESCRIBED THEREIN, THEN ALL RIGHTS, OBLIGATIONS AND LIABILITIES OF SELLER AND
BUYER UNDER AND PURSUANT TO THIS AGREEMENT SHALL TERMINATE (EXCEPT FOR ANY
OBLIGATIONS OR LIABILITIES UNDER THIS AGREEMENT WHICH SPECIFICALLY SET FORTH
THAT SUCH OBLIGATIONS OR LIABILITIES SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT), AND THE ESCROW AGENT SHALL, WITHOUT FURTHER NOTICE TO OR FROM ANY
PARTY, AND WITHOUT LIABILITY THEREFOR, CANCEL AND TERMINATE THE ESCROW.
UPON
SUCH TERMINATION, THE DEPOSIT SHALL BE PAID TO SELLER TO THE EXTENT IT HAS
BECOME NONREFUNDABLE IN ACCORDANCE WITH THIS AGREEMENT, UNLESS THE FAILURE OF A
CONDITION IS CAUSED SOLELY BY SELLER'S BREACH OF A REPRESENTATION, WARRANTY
COVENANT OR