Phase II Assessments. In the event any Phase I ESA or ACM report (including a Phase I ESA that First Choice or any First Choice Subsidiary caused to be performed within one (1) year prior to the date of this Agreement) discloses that property subject to such Phase I ESA or ACM report may be impacted or have its use restricted by any Recognized Environmental Condition or Historical Recognized Environmental Condition (as each term is defined by ASTM E1527-13), any PFAS, or any ACM for which First Choice or any First Choice Subsidiary would be liable before the Effective Time and which, in the good faith reasonable belief of Enterprise, would result in a material liability to the Surviving Entity or EB&T (as the surviving bank in the Bank Merger) following the Effective Time and as such warrants further review or investigation, Enterprise shall give notice of the same (a “Phase I Notice”) to First Choice no later than five (5) Business Days following Enterprise’s receipt of the relevant Phase I ESA and ACM report. First Choice may then, in its sole and absolute discretion and without any obligation whatsoever to do so, within an additional twenty (20) day period, retain the Environmental Consultant to conduct a Phase II environmental site assessment in accordance with ASTM Standard E1903-11 (“Phase II ESA”) of, and to sample for ACM at, the relevant property or facility; provided, however, that such Phase II ESA and sampling for ACM shall be completed, and a written report of the Phase II ESA and of the analytical results of any sampling for ACM prepared, no later than sixty (60) days after First Choice receives from Enterprise the Phase I Notice for the relevant property; and provided further, that with respect to any First Choice Leased Property, First Choice will use Commercially Reasonable Efforts to obtain the relevant property owner’s consent for such Phase II ESA. Enterprise acknowledges and understands that such consent may not be able to be obtained. The scope of the Phase II ESA and of any sampling for ACM shall be mutually determined by Enterprise and First Choice in their reasonable discretion after consultation with the other party, and all reasonable costs and expenses associated with such Phase II ESA and ACM sampling and associated reports shall be borne by Enterprise. First Choice shall provide copies of the draft and final Phase II ESA and ACM reports, if any, to Enterprise promptly following the receipt of any such report(s) by First Choice.
Phase II Assessments. In the event any Phase I ESA (including a Phase I ESA that Company or any of its Subsidiaries caused to be performed within one (1) year prior to the date of this Agreement) discloses such property may be impacted or have its use restricted by any Recognized Environmental Condition or Historical Recognized Environmental Condition (as each term is defined by ASTM E1527-13) for which Buyer or its Subsidiaries would be liable and that in the good faith reasonable belief of Buyer would result in a material liability to the Company or any of its Subsidiaries following the Effective Time and as such warrants further review or investigation, Buyer shall reasonably promptly give notice of the same (a “Phase I Notice”) to Company no later than two (2) Business Days following Buyer’s receipt of the relevant Phase I ESA. Company may then, in its sole and absolute discretion and without any obligation whatsoever to do so, within an additional twenty (20) day period, retain the Environmental Consultant to conduct a Phase II environmental site assessment in accordance with ASTM Standard E1903-11 (“Phase II ESA”) of the relevant property or facility; provided, however, that such Phase II ESA shall be completed, and a written report of the Phase II ESA prepared, no later than sixty (60) days after Company receives from Buyer the Phase I Notice for the relevant property; and provided further, that with respect to any Company Leased Property, Company will use commercially reasonable efforts to obtain the relevant property owner’s consent for such Phase II ESA. Buyer acknowledges and understands that such consent may not be able to be obtained. The scope of the Phase II ESA shall be mutually determined by Buyer and Company in their reasonable discretion after consultation with the other party, and all reasonable costs and expenses associated with such Phase II ESA testing and report shall be borne by Buyer. Buyer shall provide copies of the draft and final Phase II ESA reports, if any, to Buyer promptly following the receipt of any such report by Company.
Phase II Assessments. 31 Plan......................................................................................................................31 Pre-Closing Environmental Liabilities..............................................................5
