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representation shall not be deemed a breach by Developer hereunder, but shall constitute an <br />exception which Agency shall have a right to approve or disapprove if such exception would <br />have an effect on the value and/or operation of the Sites. If Agency elects to close Escrow <br />following disclosure of such information, Developer's representations and warranties contained <br />herein shall be deemed to have been made as of the Closing, subject to such exception(s). If, <br />following the disclosure of such information, Agency elects to not close Escrow, then this <br />Agreement and the Escrow shall automatically terminate, and neither party shall have any further <br />rights, obligations or liabilities hereunder. The representations and warranties set forth in this <br />Section 206.2 shall survive the Closing. <br />207. Studies and Reports. Prior to the Closing, representatives of Developer shall <br />have the right of access to all portions of the Sites for the purpose of obtaining data and making <br />surveys and tests necessary to carry out this Agreement, including the investigation of the <br />environmental condition of the Sites pursuant to Section 208 hereof. Any preliminary work <br />undertaken on the Sites by Developer prior to the Closing shall be done at the sole expense of the <br />Developer, and the Developer's execution of a right of entry agreement to be provided by the <br />Agency. Any preliminary work shall be undertaken only after securing any necessary permits <br />from the appropriate governmental agencies. <br />208. Condition of the Sites <br />208.1 Disclosure. Prior to the execution of this Agreement, Agency has caused <br />a "Phase 1" investigation of the environmental condition of each Site to be undertaken by <br />Converse Consultants Inc., dated December 4, 2008 ("Agency Environmental Site Assessment"), <br />with the cost of such investigation at the expense of Agency. Agency represents and warrants <br />that Developer has been provided a copy of all reports and test results produced in connection <br />with the environmental investigation of each of the Sites by Agency. If Developer desires, prior <br />to the execution of this Agreement, Developer shall cause a "Phase 1" investigation of the <br />environmental condition of each Site to be undertaken ("Developer Environmental Site <br />Assessment"), with the cost of such investigation at the expense of Developer. Developer <br />represents and warrants that Agency has been provided with all reports and test results produced <br />in connection with the environmental investigation of each of the Sites by Developer. Agency <br />and the Developer hereby represent and warrant to the other, except as set forth in the Agency <br />Environmental Site Assessment and the Developer Site Assessment, that they have no Actual <br />Knowledge, and have not received any notice or communication from any governmental agency <br />having jurisdiction over the Sites, notifying such party of, the presence of surface or subsurface <br />zone Hazardous Materials in, on, or under the Sites, or any portion thereof. "Actual Knowledge," <br />as used herein, shall not impose a duty of investigation, and shall be limited to the current actual <br />knowledge of the Executive Director of the Agency and the President of the Developer. <br />208.2 Investigation of Sites. Prior to Closing, the Developer shall have the <br />right, at its sole cost and expense, to engage its own environmental consultant (the <br />"Environmental Consultant") to make such investigations as Developer deems necessary, <br />including any "Phase 1" and/or "Phase 2" investigations of the Sites, and the Agency shall <br />promptly be provided a copy of all reports and test results provided by the Environmental <br />Consultant. <br />600457905v2 1 ~2 6 <br />