Common use of Physical Testing Clause in Contracts

Physical Testing. Without limiting the foregoing, before any entry to perform any on-site sampling or other physically invasive procedures (such as a Phase II environmental audit), Buyer shall give Seller written notice thereof together such information relating thereto as Seller may reasonably request. Seller shall approve or disapprove the proposed sampling or testing in writing, in Seller’s sole and absolute discretion, within three (3) business days after receipt of such written notice. If Seller fails to respond to Buyer’s request, such request shall be deemed disapproved. If Buyer or any of Buyer’s Representatives takes any sample from the Property in connection with any such testing, Seller shall be provided an opportunity to take a portion of such sample being tested in a sufficient quantity to allow Seller, if it so chooses, to perform its own testing. Buyer shall, if requested to do so by Seller, backfill any borings, holes or trenches resulting from any entry on the Property by Buyer or any of Buyer’s Representatives (including removal of any cylinder or core installed as part of such borings, holes or trenches, and compaction of backfill material to match the compaction of surrounding soil). Buyer shall obtain at its sole expense any clean materials needed to complete any such backfilling in accordance with all applicable laws and regulations. In the event that any material excavated by Buyer in connection with its testing is contaminated by the presence of Hazardous Materials Buyer shall dispose of such material in accordance with all applicable laws. If the purchase of the Property does not close for any reason, Buyer shall have no obligation to remediate any contamination revealed by Buyer’s investigations with respect to the Property except to the extent Buyer or any of Buyer’s Representatives caused the release of such contamination to occur or exacerbated the condition thereof.

Physical Testing. Notwithstanding the foregoing, without first obtaining Seller's prior written consent (which shall not be unreasonably withheld or delayed), Buyer shall only conduct a visual inspection, with no right to conduct any boring, sampling or removal of any portion of the Property (collectively, "Physical Testing"). (Without limiting the foregoinggenerality of the foregoing sentence, before any entry to perform any on-site sampling or other physically invasive procedures (such as it is specifically agreed that a Phase II environmental audit)inspection shall constitute "Physical Testing" for purposes of this Agreement.) If Buyer wishes to conduct any Physical Testing of the Property, Buyer shall give submit a work plan to Seller for Seller's prior written notice thereof together such information relating thereto as approval (not to be unreasonably withheld or delayed), which work plan Seller may reasonably request. Seller shall approve modify, limit or disapprove the proposed sampling or testing in writing, in Seller’s sole and absolute its reasonable discretion, within three (3) business days after receipt of such written notice. It shall be reasonable for Seller to disapprove a Phase II environmental inspection if there is no Phase I environmental report that sets forth adequate grounds for conducting a Phase II inspection. If Seller fails approves a work plan, all Physical Testing shall comply strictly with the work plan that has been approved by Seller, and if Seller does not approve a work plan, Buyer shall not conduct any Physical Testing of the Property. If Buyer intends to respond conduct any Physical Testing, prior to commencing any such Physical Testing, Buyer shall provide Seller with sufficient evidence to show that Buyer and Buyer’s request's Agents who are to enter upon the Property are adequately covered by policies of insurance insuring Buyer and Seller against any and all liability arising out of Buyer's or Buyer's Agents' entry upon and Inspection of the Property, such request shall be deemed disapprovedincluding without limitation any loss or damage to the Property, with coverage in the amount not less than $1,000,000 per occurrence. If Buyer or Buyer's Agents conduct any of Buyer’s Representatives takes any sample from the Property in connection with any such testing, Seller shall be provided an opportunity to take a portion of such sample being tested in a sufficient quantity to allow Seller, if it so chooses, to perform its own testing. Buyer shall, if requested to do so by Seller, backfill any borings, holes or trenches resulting from any entry activities on the Property that are excluded from the definition of "Inspection" (except pursuant to a work plan approved by Buyer or any of Buyer’s Representatives (including removal of any cylinder or core installed as part of such borings, holes or trenches, and compaction of backfill material to match the compaction of surrounding soil). Buyer shall obtain at its sole expense any clean materials needed to complete any such backfilling Seller in accordance with all applicable laws this paragraph), that shall be a material breach of this Agreement and regulations. In the event that any material excavated by Buyer in connection with its testing is contaminated by the presence of Hazardous Materials Buyer shall dispose of such material Seller may terminate this Agreement in accordance with all applicable laws. If the purchase terms of Section 3.6 and keep the Property does not close for Deposit and any reason, Buyer shall have no obligation interest accrued thereon as liquidated damages pursuant to remediate any contamination revealed by Buyer’s investigations with respect to the Property except to the extent Buyer or any of Buyer’s Representatives caused the release of such contamination to occur or exacerbated the condition thereofSection 5.6.