(a) Seller's Warranties. Seller represents and warrants to Buyer that:
(1) Seller has not received written notice and has no knowledge that there has been a release to the Property (including the land, surface water, ground water and any improvements) of any Hazardous Materials, any asbestos-containing insulation or any underground storage tanks in violation of law. Hazardous Materials means any: (i) hazardous waste as defined in the federal Resource Conservation and Recovery Act of 1976, as amended, and applicable regulations; (ii) hazardous substance as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, and applicable regulations; (iii) petroleum or liquid petroleum products or wastes, or (iv) other toxic or hazardous substance which may be regulated from time to time by federal, state or local environmental laws; provided, however, that this representation and warranty does not include those Hazardous Materials used either by Seller from time to time in the ordinary course of business as conducted at the Property or used by occupants of the Property other than Seller and which, to Seller's knowledge, have not caused contamination to the Property that requires remediation under applicable law.
(2) Neither Seller nor, to its knowledge, any of its agents, attorneys or representatives, have received written notice from any governmental agency of any investigation or potential liability relating to the release or threatened release of Hazardous Materials at, on or from the Property.
Seller makes no other covenant, representation or warranty as to the physical or environmental condition of the Property. [Buyer acknowledges that portions of the Property were, or may have been, used for __________________ operations and for storage of products and byproducts from those operations, some of which may be Hazardous Materials. As a result of such uses and activities, physical and other changes may have occurred in the Property, including without limitation the deposition of Hazardous Materials, including but not limited to (particular substance).]
(b) Environmental Assessment. Buyer shall have the right to have access to the Property to enable an independent environmental consultant chosen by Buyer and approved in advance by Seller, which approval shall not be unreasonably withheld or delayed, to inspect, audit and test the Property for the existence of environmental conditions and violations of environmental laws ("Environmental Assessment"). The scope, sequence and timing of the Environmental Assessment shall be at the sole discretion of the Buyer but shall be conducted in a manner which will minimize disruption to the occupants of the Property; but no invasive or destructive testing shall be permitted except with Seller's prior written consent determined in Seller's absolute discretion. Such consent shall not be granted: (1) if not recommended in the environmental consultant's Phase I report; or (2) if to be performed in areas occupied by Tenants. Buyer shall repair any damage to the Property.
(c) Inspection Period. The Environmental Assessment may be commenced any time after this date and shall be completed no later than thirty (30) days from the date of this Agreement (the "Inspection Period"). The cost and expense of the Environmental Assessment shall be borne by Buyer.
(d) Right to Terminate. Buyer may terminate this Agreement no later than two (2) business days after the expiration of the Inspection Period by so notifying the Seller if the Environmental Assessment reveals or, if at any time prior to the expiration of the Inspection Period, Buyer otherwise becomes aware of, the existence of any violation of an environmental law which Buyer is unwilling to accept. Upon the request of Seller, the Buyer shall furnish Seller with a copy of the Environmental Assessment.
(e) Buyer Indemnity and Security. The Buyer shall indemnify Seller against any loss, damage, claim or liability arising out of or in connection with any acts or omissions of the Buyer, Buyer's environmental consultant or their representatives occurring to or upon the Property in connection with the Environmental Assessment. Buyer shall keep the Property free from any mechanic lien claims arising out of any Environmental Assessment or remediation performed by or through Buyer. If the value of work performed at or upon the Property which may result in the imposition of a mechanic lien if not paid is expected to exceed $5,000, then prior to the commencement of such work, Buyer shall deposit the estimated cost of the work with Seller.
(f) Personal Knowledge. For purposes of this Section, knowledge is defined as the current, actual knowledge, without independent investigation [or: which knowledge is limited to that certain Phase I environmental assessment report prepared by ___________________, dated ___________,199_,] of _____________, _______________ and ______________ (collectively the "Individuals"). Seller represents that the Individuals are the persons in charge of environmental matters and property maintenance for Seller and who, in the ordinary course of business, are assigned to receive notices and reports of the release, generation, discharge or disposition of toxic or hazardous substances.
(g) Confidentiality. If the Buyer does not purchase the Property, the Buyer agrees that all information pertaining to the income, operation and physical condition of the Property, including environmental matters disclosed by Seller or otherwise learned by Buyer, is and shall remain confidential and that neither Buyer nor Buyer's agents, employees or professionals shall disclose such information to any one except as may be required by law or by court order. In the event Buyer is required to disclose such information, Buyer shall, prior to such disclosure, give Seller written notice and consult with Seller to determine the applicability of such law to Buyer and the information. During the pendency of this Agreement, Buyer shall not disclose any such information other than to Buyer's advisors, professionals and prospective lenders on a "need to know" basis. Seller reserves the right to seek redress from Buyer at law or in equity for any breach of the preceding. Buyer shall indemnify Seller from any loss or damage, including attorneys fees and costs incurred by Seller, arising out of the wrongful disclosure of such confidential information pertaining to the Property in violation of this paragraph.
(h) Release of Seller. Except for the material breach of any representation or warranty of Seller contained in subsection (a) above or elsewhere in the Contract, Buyer waives, releases, covenants not to sue and forever discharges Seller, its officers, directors, contractors, employees and agents and other persons acting on behalf of Seller, of and from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Buyer now has or which may arise in the future on account of or growing out of or in connection with any physical characteristics or existing condition including, without limitation, subsurface conditions, solid and hazardous wastes, and Hazardous Materials on, under, or related to the Property, or any applicable law or regulation. Buyer acknowledges that (i) Seller has afforded Purchaser the opportunity for a full and complete investigation, examination and inspection of the Property and (ii) the purchase price reflects the agreement of Purchaser not to pursue or assert any claims against Seller arising out of environmental matters. Purchaser acknowledges that this clause is a negotiated part of this Agreement and serves as an essential component of consideration for the Property. The release contained under this clause includes, but is not limited to, the release of Seller from all claims pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.
(i) Indemnity of Seller. As additional consideration in determining the Purchase Price of the Property, Buyer assumes and covenants to undertake and discharge all liabilities of Seller or Buyer arising from (1) any condition which now exists or may be found to exist in, on, under or about the Property, (2) a determination that the Property or any portion violates any applicable environmental or health or safety law, ordinance, regulation or ruling, and (3) the presence, use, generation, storage, release, threatened release, or containment, treatment, or disposal of any Hazardous Materials. Buyer shall defend, indemnify and hold Seller harmless from and against any and all damage, cost, loss, liability and expense which may be incurred by Seller by reason of, resulting from, in connection with or arising in any manner whatsoever from any breach of the covenant of Buyer contained in this paragraph. The covenants and agreements of Buyer in this paragraph shall survive the Closing and consummation of the transactions contemplated in this Agreement.
(a) Environmental Compliance. Seller represents and warrants that the Property is now and at all times through the Date of Closing shall remain in compliance with the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, the Superfund Amendments and Reauthorization Act of 1986, the Federal Water Pollution Control Act and all other federal, state and local laws relating to pollution or protection of the environment, including, without limitation, laws relating to emissions, discharges, releases or threatened releases of industrial, toxic or hazardous substances or wastes or other pollutants, contaminants, petroleum products or chemicals (collectively, "Hazardous Materials") into the environment (including without limitation, ambient air, surface water, ground water, land surface or subsurface strata) or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (the "Environmental Laws").
Without limiting the above, Seller represents and warrants that:
(1) There are no polychlorinated biphenyls (PCBs) or asbestos generated, treated, stored, disposed of, or otherwise deposited in or located on the Property and there are no underground storage tanks located on the Property;
(2) There has been no "release" as defined in 42 U.S.C. 9601(22) or, to the knowledge of Seller, threat of a "release" of any Hazardous Materials on, from or under the Property;
(3) Seller has not received any notice that Seller has any potential liability with respect to response action or the cleanup of the Property or any parcel contiguous to the Property at which Hazardous Materials have been generated, treated, stored, discharged, released, emitted or disposed of and there are no past or present (or, to the knowledge of Seller, future) events, conditions or circumstances which may interfere with or prevent compliance or continued compliance by Seller, or by Buyer conducting after the Closing a business similar to the business presently conducted on the Property [or Buyer's intended use of the Property for _____________________], in accordance with the Environmental Laws or with any order, decree, judgment, injunction, notice or demand issued, entered, promulgated or approved under the Environmental Laws, or which may give rise to any common law or other legal liability, including, without limitation, liability under any Environmental Laws or otherwise form the basis of any claim, action, demand, suit, proceeding, hearing, notice of violation, study or investigation, based on or related to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling, or the emission, discharge, release or threatened release into the environment, of Hazardous Materials by Seller or as a result of any act or omission of Seller.
The representations and warranties contained in this Section shall survive the Date of Closing.
(b) Licenses and Permits. Seller has obtained and is in full compliance with all permits, licenses and other authorizations which are required with respect to the operation of the Property and any business conducted from or at the Property under the Environmental Laws, including without limitation those which are required (i) to operate or install any equipment or facilities and (ii) to generate, store, handle, transport, discharge, emit or dispose of Hazardous Materials generated by its business (the "Environmental Permits"). [A true and complete list of Environmental Permits is set forth in Schedule ___.]
(c) Environmental Assessment. In addition to the representations and warranties of Seller, Buyer shall have the right to have access to the Property to enable an independent environmental consultant chosen by Buyer to inspect, audit and test the Property for the existence of environmental conditions and violations of environmental laws ("Environmental Assessment"). Buyer may perform soil, air and groundwater sampling and testing. The scope, sequence and timing of the Environmental Assessment shall be at the sole discretion of the Buyer but shall be conducted in a manner which will minimize disruption to the occupants of the Property.
(d) Inspection Period. The Environmental Assessment may be commenced any time after this date and shall be completed no later than thirty (30) days from the date of this Agreement (the "Inspection Period"). The cost and expense of the Environmental Assessment shall be borne by Buyer.
(e) Right to Terminate. Buyer may terminate this Agreement no later than two (2) business days after the expiration of the Inspection Period by so notifying Seller if the Environmental Assessment reveals or, if at any time prior to the expiration of the Inspection Period, Buyer otherwise becomes aware of the existence of any environmental condition or violation of an environmental law which Buyer is unwilling to accept, in Buyer's sole and subjective discretion.
(f) Generator. If Buyer elects to remove or remediate any environmental concerns, Seller shall be the generator of contaminated materials and shall arrange for and sign appropriate manifests for the storage, transport and disposal of contaminated materials. Contaminated materials shall include, without limitation, Hazardous Materials, stained soils, soil cuttings, soil samples, water samples, purged water, asbestos containing materials, above ground and underground tanks and associated piping and equipment, demolished improvements, drums, barrels, containers, car parts, batteries, rubble and debris.
(g) Buyer's Indemnity. Buyer shall indemnify Seller against any loss, damage, claim or liability arising out of or in connection with any acts or omissions of either or both Buyer and Buyer's environmental consultant or their representatives occurring to or upon the Property in connection with the Environmental Assessment. Buyer shall keep the Property free from any mechanic lien claims arising out of any Environmental Assessment or remediation performed by or through Buyer.
(e) Asbestos. If the Environmental Assessment reveals the presence of friable asbestos and Buyer notifies Seller within the Inspection Period, Seller shall remove all such asbestos prior to Closing or Seller shall credit Buyer at Closing the mutually approved estimated cost of removal, or, if the parties agree, Seller shall encapsulate such asbestos on the Property as a form of appropriate remediation; provided, however, Seller shall be under no obligation to do either of the foregoing if and to the extent the cost exceeds $__________ based upon bids obtained by Seller, provided Seller delivers copies of such bids to Buyer no later than 14 days prior to the scheduled Closing. If Seller fails to so deliver such bids to Buyer, then Seller shall pay the entire cost of remediation, regardless of the amount of the cost. If the cost of remediation exceeds such amount according to bids so delivered by Seller, then this Agreement shall terminate 10 days after Buyer's receipt of such bids, unless Buyer elects to pay the excess amount and so notifies Seller within such 10 day period. If Buyer fails to elect to pay such excess in accordance with this paragraph, then this Agreement will be terminated, the earnest money (plus interest) shall be returned to Buyer and the parties shall have no further obligation under this Agreement.