Common use of Environmental Diligence Clause in Contracts

Environmental Diligence. (a) During the Environmental Due Diligence Period, Purchaser may conduct at Purchaser’s sole expense, environmental investigations for purpose of identifying Environmental Conditions, including, at Purchaser’s election, so-called “Phase I” assessments and/or “Phase II” subsurface investigations, by an Environmental Consultant. (b) Any such environmental investigations shall be conducted after reasonable advance notice to Seller (which shall not be less than forty-eight (48) hours advance notice), and at a mutually convenient time that does not interfere with Seller’s normal business operations. No sampling, destructive testing, or subsurface investigations shall be undertaken until Purchaser has provided Seller with a proposed scope of work describing generally the location and extent of the sampling, testing, or subsurface investigations to be conducted, and Purchaser and Seller have reached mutually agreeable and reasonable terms for access, including the that Purchaser’s Environmental Consultant: (i) shall conduct any environmental investigations permitted pursuant to this Section 11.1(b) with reasonable care, in compliance with all laws, and subject to customary practices among environmental consultants and engineers, including, without limitation, following completion thereof, the restoration of any site to the extent practicable to its condition prior to such investigation and in the case of any subsurface investigations, the removal of all monitoring ▇▇▇▇▇ (unless Seller requests such monitoring ▇▇▇▇▇ to remain); (ii) must be duly licensed under applicable state laws; and (iii) must provide proof of adequate insurance in Seller’s reasonable discretion (which insurance shall, in each instance, name Seller as an additional insured upon Seller’s request), including workers’ compensation, employers liability insurance, comprehensive general liability insurance, automobile insurance, umbrella/excess liability insurance, and environmental impairment and/or pollution liability insurance. (c) In the event that any such environmental investigations are not completed within the Environmental Due Diligence Period through no fault of Purchaser or its Environmental Consultant, Purchaser may request, prior to the expiration of the initial forty-five (45) day period, an extension of the Environmental Due Diligence Period for a reasonable period of time, not exceeding thirty (30) days, solely to permit completion of such investigations. If an extension is requested, the Environmental Due Diligence Period shall be deemed to extend for such additional period of time as requested, not to exceed thirty (30) days. Additional extensions may be granted at Seller’s reasonable discretion. (d) In the event that as a result of such investigation, Environmental Conditions are identified, the Environmental Remediation of which, in the reasonable judgment of Purchaser’s Environmental Consultant, is or will be the responsibility of Seller, or of Purchaser should it acquire such Branch parcel, and which in the reasonable judgment of Environmental Consultant to a reasonable degree of professional certainty will cost more than fifty thousand dollars (US$50,000) to investigate and/or remediate, Purchaser shall deliver to Seller on or before the close of the Environmental Due Diligence Period the written report of the Purchaser’s Environmental Consultant presenting all necessary information regarding the Environmental Conditions and the Environmental Remediation required. Seller shall have the right to review and to deliver to Purchaser Seller’s response, which shall include whether Seller agrees or disagrees regarding the cost of any such Environmental Remediation. Seller shall deliver such response to Purchaser in writing not more than fifteen (15) days after receipt of such report, and if Seller disagrees with Purchaser’s position, a statement of the reasons for such disagreement. (e) In the event that Seller agrees with the conclusions of Purchaser’s Environmental Consultant in connection with the cost of Environmental Remediation at any parcel of Real Property, Seller may, at its election: (i) Make an adjustment to the Purchase Price for the mutually agreed upon estimated costs of the Environmental Remediation of any such Environmental Condition(s) in excess of fifty thousand dollars (US$50,000), which shall not have been completed on or prior to the Closing Date, with respect to such parcel of Real Property; or (ii) Take such steps as are necessary to perform Environmental Remediation by the Closing Date (or make provisions to take such steps following the Closing Date as shall be reasonably satisfactory to Seller and Purchaser at Seller’s expense); or (iii) Lease to Purchaser such parcel of Real Property for an initial period of ten (10) years pursuant to a lease agreement containing customary terms and conditions mutually agreed to by the parties; provided further that if, during the term of such lease agreement or renewal or extension thereof, Seller shall deliver to Purchaser a report of an Environmental Consultant certifying that the Environmental Remediation of any Environmental Conditions at or on any such leased parcel of Real Property has been completed, Purchaser shall be required to purchase such parcel of Real Property, at the Real Property Purchase Price in the event such report is delivered within nine (9) months of the Closing Date, and, thereafter, at the fair market value of such real property as agreed to by the parties or, if no such agreement is reached within thirty (30) days of delivery of such report, as determined pursuant to an real estate appraisal performed by an experienced real estate appraiser selected by two other real estate appraisers designated by Seller and Purchaser, respectively. (f) In the event that Seller does not agree with the conclusions of Purchaser’s Environmental Consultant regarding a parcel of Real Property, the parties agree to refer the matter to a third Environmental Consultant reasonably acceptable to all parties for dispute resolution as follows: (i) The parties may make presentations to the third Environmental Consultant of their respective positions regarding the cost of Environmental Remediation required to address the identified Environmental Conditions at such parcel of Real Property, and following such presentations, the third Environmental Consultant shall render his or her opinion regarding the extent and cost of the required Environmental Remediation. The parties agree that the determination of the third Environmental Consultant regarding the cost of any required Environmental Remediation shall be final and binding on the parties, for purposes of the applicability of this Section. In the event that the third Environmental Consultant determines that the cost of such Environmental Remediation will exceed fifty thousand dollars (US$50,000), the provisions of Section 11.1(e) shall apply, and Purchaser shall be considered the “prevailing party” for purposes of Section 11.1(f)(ii), immediately below. In the event such cost shall be fifty hundred thousand dollars (US$50,000) or less, Seller shall be such “prevailing party.” (ii) Each party shall bear its own fees and expenses in connection with the resolution of disputes under this Section 11.1, and the fees and expenses of the third Environmental Consultant shall be borne by the party who did not prevail in its position before the third Environmental Consultant. (iii) With respect to any dispute to be resolved hereunder involving a parcel of Real Property located in any state in which environmental professionals are licensed by such state, each of the three Environmental Consultants participating in the dispute resolution process hereunder shall be so licensed.

Environmental Diligence. (a) During the Environmental Due Diligence Period, Purchaser may conduct at Purchaser’s sole expenseexpense an ASTM E1527-05: Standard Practice For Environmental Site Assessments: Phase I Environmental Site Assessment Process (“Phase I”) of the Real Property by an Environmental Consultant of Purchaser’s own choosing. In the event that the Phase I discloses any Environmental Condition, environmental investigations for purpose Purchaser shall promptly notify Seller of identifying such fact, and upon the written approval of the Seller, Purchaser shall have thirty (30) days from the date of such approval to complete a subsurface investigation (“Phase II”) of the Real Property conducted by an Environmental Conditions, including, Consultant of Purchaser’s own choosing and at Purchaser’s election, so-called “Phase I” assessments and/or “Phase II” subsurface investigations, sole expense. Seller shall not withhold its written approval unless Seller has a reasonable basis to believe that Environmental Remediation of the Environmental Condition is not required by an Environmental ConsultantLaw. (b) Any such environmental investigations contemplated in Section 11.1(a) above shall be conducted after reasonable advance notice to Seller (which shall not be less than forty-eight (48) hours advance notice), and at a mutually convenient time that does not interfere with Seller’s normal business operations. No sampling, destructive testing, or subsurface investigations shall be undertaken until Purchaser has provided Seller with a proposed scope of work describing generally the location and extent of the sampling, testing, or subsurface investigations to be conducted, and Purchaser and Seller have reached mutually agreeable and reasonable terms for accessaccess in writing, including the that Purchaser’s Environmental Consultant: (i) shall conduct any environmental investigations permitted pursuant to this Section 11.1(b) with reasonable care, in compliance with all laws, and subject to customary practices among environmental consultants and engineers, including, without limitation, following completion thereof, the restoration of any site to the extent practicable to its condition prior to such investigation and in the case of any subsurface investigations, the removal of all monitoring ▇▇▇▇▇ (unless Seller requests such monitoring ▇▇▇▇▇ to remain); (ii) must be duly licensed under applicable state laws; and (iii) must provide proof of adequate insurance in Seller’s reasonable discretion (which insurance shall, in each instance, name Seller as an additional insured upon Seller’s request), including workers’ compensation, employers liability insurance, comprehensive general liability insurance, automobile insurance, umbrella/excess liability insurance, and environmental impairment and/or pollution liability insurance. (c) In the event that any such environmental investigations are Phase I on the Real Property is not completed within the Environmental Due Diligence Period through no fault of Purchaser or its Environmental Consultant, Purchaser may request, prior to the expiration of the initial forty-five (45) day period, an extension of the Environmental Due Diligence Period for a reasonable period of time, not exceeding thirty (30) days, solely to permit completion of such investigations. If an extension is requested, the Environmental Due Diligence Period shall be deemed to extend for such additional period of time as requested, not to exceed thirty (30) days. Additional extensions may be granted at Seller’s reasonable discretion. (d) In the event that as a result of such investigation, Environmental Conditions are identifiedidentified in the Phase II, the Environmental Remediation of which, in the reasonable judgment of Purchaser’s Environmental Consultant, is or will be the responsibility of Seller, or of Purchaser should it acquire such Branch parcelrequired by Environmental Law, and which in the reasonable judgment of Purchaser’s Environmental Consultant to a reasonable degree of professional certainty will cost more than fifty one hundred thousand dollars (US$50,000100,000) to investigate and/or remediate, Purchaser shall deliver to Seller on or before the close of the Environmental Due Diligence Period the written report of the Purchaser’s Environmental Consultant presenting all necessary information regarding the Environmental Conditions and the Environmental Remediation required. Seller shall have the right to review and to deliver to Purchaser Seller’s response, which shall include whether Seller agrees or disagrees regarding the findings, conclusions and cost of any such Environmental Remediation. Seller shall deliver such response to Purchaser in writing not more than fifteen (15) days after receipt of such report, and if Seller disagrees with Purchaser’s position, a statement of the reasons for such disagreement. (e) In the event that Seller agrees with the conclusions of Purchaser’s Environmental Consultant in connection with the cost of Environmental Remediation at any parcel of Real Property, Seller may, at its election: (i) Make an adjustment to the Purchase Price for the mutually agreed upon estimated costs of the Environmental Remediation of any such Environmental Condition(s) in excess of fifty thousand dollars (US$50,000), which shall not have been completed on or prior to the Closing Date, with respect to such parcel of Real Property; or (ii) Take such steps as are necessary to perform Environmental Remediation by the Closing Date (or make provisions to take such steps following the Closing Date as shall be reasonably satisfactory to Seller and Purchaser at Seller’s expense); or (iii) Lease to Purchaser such parcel of Real Property for an initial period of ten (10) years pursuant to a lease agreement containing customary terms and conditions mutually agreed to by the parties; provided further that if, during the term of such lease agreement or renewal or extension thereof, Seller shall deliver to Purchaser a report of an Environmental Consultant certifying that the Environmental Remediation of any Environmental Conditions at or on any such leased parcel of Real Property has been completed, Purchaser shall be required to purchase such parcel of Real Property, at the Real Property Purchase Price in the event such report is delivered within nine (9) months of the Closing Date, and, thereafter, at the fair market value of such real property as agreed to by the parties or, if no such agreement is reached within thirty (30) days of delivery of such report, as determined pursuant to an real estate appraisal performed by an experienced real estate appraiser selected by two other real estate appraisers designated by Seller and Purchaser, respectively. (f) In the event that Seller does not agree with the conclusions of Purchaser’s Environmental Consultant regarding a parcel of Real Property, the parties agree to refer the matter to a third Environmental Consultant reasonably acceptable to all parties for dispute resolution as follows: (i) The parties may make presentations to the third Environmental Consultant of their respective positions regarding the cost of Environmental Remediation required to address the identified Environmental Conditions at such parcel of Real Property, and following such presentations, the third Environmental Consultant shall render his or her opinion regarding the extent and cost of the required Environmental Remediation. The parties agree that the determination of the third Environmental Consultant regarding the cost of any required Environmental Remediation shall be final and binding on the parties, for purposes of the applicability of this Section. In the event that the third Environmental Consultant determines that the cost of such Environmental Remediation will exceed fifty thousand dollars (US$50,000), the provisions of Section 11.1(e) shall apply, and Purchaser shall be considered the “prevailing party” for purposes of Section 11.1(f)(ii), immediately below. In the event such cost shall be fifty hundred thousand dollars (US$50,000) or less, Seller shall be such “prevailing party.” (ii) Each party shall bear its own fees and expenses in connection with the resolution of disputes under this Section 11.1, and the fees and expenses of the third Environmental Consultant shall be borne by the party who did not prevail in its position before the third Environmental Consultant. (iii) With respect to any dispute to be resolved hereunder involving a parcel of Real Property located in any state in which environmental professionals are licensed by such state, each of the three Environmental Consultants participating in the dispute resolution process hereunder shall be so licensed.