Environmental Monitoring (a) Borrower shall give prompt written notice to Lender of (i) any proceeding or inquiry by any party (including any Governmental Authority) with respect to the presence of any Hazardous Substance on, under, from or about the Property, (ii) all claims made or threatened by any third party (including any Governmental Authority) against Borrower or the Property or any party occupying the Property relating to any loss or injury resulting from any Hazardous Substance, and (iii) Borrower’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property to be subject to any investigation or cleanup pursuant to any Environmental Law. Upon becoming aware of the presence of mold or fungus at the Property, Borrower shall (i) undertake an investigation to identify the source(s) of such mold or fungus and, to the extent required by applicable law, shall develop and implement an appropriate remediation plan to eliminate the presence of any Toxic Mold, (ii) perform or cause to be performed all acts reasonably necessary for the remediation of any Toxic Mold (including taking any action necessary to clean and disinfect any portions of the Property affected by Toxic Mold, including providing any necessary moisture control systems at the Property), and (iii) provide evidence reasonably satisfactory to Lender of the foregoing. Borrower shall permit Lender to join and participate in, as a party if it so elects, any legal or administrative proceedings or other actions initiated with respect to the Property in connection with any Environmental Law or Hazardous Substance, and Borrower shall pay all reasonable attorneys’ fees and disbursements incurred by Lender in connection therewith.
(b) If Lender, on its good faith judgment, determines that reasonable cause exists for the performance of an environmental inspection or audit of the Property, at any time and from time to time upon Lender’s request, Borrower shall provide such inspection or audit of the Property prepared by a licensed hydrogeologist, licensed environmental engineer or qualified environmental consulting firm approved by Lender assessing the presence or absence of Hazardous Substances on, in or near the Property, and if Lender in its good faith judgment determines that reasonable cause exists for the performance of such environmental inspection or audit, then the cost and expense of such audit or inspection shall be paid by Borrower. Such inspections and audit may include soil borings and ground water monitoring. If Borrower fails to provide any such inspection or audit within thirty (30) days after such request, Lender may order same, and Borrower hereby grants to Lender and its employees and agents access to the Property and a license to undertake such inspection or audit.
(c) If any environmental site assessment report prepared in connection with such inspection or audit recommends that an operations and maintenance plan be implemented for any Hazardous Substance, whether such Hazardous Substance existed prior to the ownership of the Property by Borrower, or presently exists or is reasonably suspected of existing, Borrower shall cause such operations and maintenance plan to be prepared and implemented at its expense upon request of Lender, to the extent required by applicable law, and with respect to any Toxic Mold, Borrower shall, to the extent required by applicable law, take all action necessary to clean and disinfect any portions of the Improvements affected by Toxic Mold in or about the Improvements, including providing any necessary moisture control systems at the Property. If any investigation, site monitoring, containment, cleanup, removal, restoration or other work of any kind is reasonably necessary under an applicable Environmental Law (“Remedial Work”), Borrower shall commence all such Remedial Work within thirty (30) days after written demand by Lender and thereafter diligently prosecute to completion all such Remedial Work within such period of time as may be required under applicable law. All Remedial Work shall be performed by licensed contractors approved in advance by Lender and under the supervision of a consulting engineer approved by Lender which approval shall not be unreasonably withheld or delayed. All costs of such Remedial Work shall be paid by Borrower, including Lender’s reasonable attorneys’ fees and disbursements incurred in connection with the monitoring or review of such Remedial Work. If Borrower does not timely commence and diligently prosecute to completion the Remedial Work, Lender may (but shall not be obligated to) cause such Remedial Work to be performed at Borrower’s expense. Notwithstanding the foregoing, Borrower shall not be required to commence such Remedial Work within the above specified time period: (x) if prevented from doing so by any Governmental Authority, (y) if commencing such Remedial Work within such time period would result in Borrower or such Remedial Work violating any Environmental Law, or (z) if Borrower, at its expense and after prior written notice to Lender, is contesting by appropriate legal, administrative or other proceedings, conducted in good faith and with due diligence, the need to perform Remedial Work. Borrower shall have the right to contest the need to perform such Remedial Work, provided that, (1) Borrower is permitted by the applicable Environmental Laws to delay performance of the Remedial Work pending such proceedings, (2) neither the Property nor any part thereof or interest therein will be sold, forfeited or lost if Borrower fails to promptly perform the Remedial Work being contested, and if Borrower fails to prevail in contest, Borrower would thereafter have the opportunity to perform such Remedial Work, (3) Lender would not, by virtue of such permitted contest, be exposed to any risk of any civil liability for which Borrower has not furnished additional security as provided in clause (4) below, or to any risk of criminal liability, and neither the Property nor any interest therein would be subject to the imposition of any Lien for which Borrower has not furnished additional security as provided in clause (4) below, as a result of the failure to perform such Remedial Work and (4) Borrower shall have furnished to Lender additional security in respect of the Remedial Work being contested and the loss or damage that may result from Borrower’s failure to prevail in such contest in such amount as may be reasonably requested by Lender but in no event less than the cost of such Remedial Work as estimated by Lender and Borrower or Lender’s Consultant and any loss or damage that may result from Borrower’s failure to prevail in such contest.
(d) Borrower shall not install or permit to be installed on the Property any underground storage tank.
Periodic Review of Costs of Environmental Compliance In the ordinary course of its business, the Company conducts a periodic review of the effect of Environmental Laws on the business, operations and properties of the Company and its subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties). On the basis of such review and the amount of its established reserves, the Company has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, result in a Material Adverse Change.
Environmental Review From the date of this Agreement through the Notification Date Buyer may conduct an environmental assessment of the Assets, subject to the following:
(a) Buyer shall have the right to conduct on-site inspections, including, but not limited to, Phase I testing (but not Phase II testing) (as those terms are defined by the American Society for Testing and Materials) environmental assessments of the Assets, including, but not limited to, sampling and analysis of soil, air, surface water, groundwater and waste materials, prior to the end of the Notification Date (“Buyer’s Environmental Review”) and Seller shall provide to Buyer a copy of any environmental review Seller has in its possession subject to the same terms of confidentiality subsequently set forth herein;
(i) The cost and expense of Buyer’s Environmental Review shall be borne solely by Buyer;
(ii) All inspections must be coordinated through a designated representative of Seller who may accompany Buyer during the course of Buyer’s inspection of the Assets;
(iii) Buyer shall give Seller notice not less than 48 hours before any visits by Buyer and/or its consultant to the Assets, and Buyer shall seek and obtain Seller’s prior consent (which shall not be unreasonably withheld) before either Buyer or Buyer’s consultant enters the Assets;
(iv) Buyer shall provide Seller a copy of any Phase I reports affecting the Assets promptly after Buyer’s receipt of the same;
(v) Buyer and/or its consultant shall perform all such work in a safe and workmanlike manner, shall not unreasonably interfere with Seller’s operations, and shall comply with all Laws of applicable Governmental Authorities;
(vi) Seller shall use commercially reasonable efforts to obtain any third party consents that are required in order to perform any work comprising Buyer’s Environmental Review; and
(vii) Buyer hereby agrees to release and defend, indemnify, and hold harmless Seller and Seller’s Representatives from and against all Claims made by (or attributable to the acts or omissions of) Buyer or Buyer’s Representatives (INCLUDING THOSE RESULTING FROM THE SOLE, JOINT, OR CONCURRENT NEGLIGENCE (BUT NOT WILLFUL MISCONDUCT), STRICT LIABILITY OR OTHER LEGAL FAULT OF SELLER OR ANY OF SELLER’S REPRESENTATIVES) arising out of or relating to Buyer’s Environmental Review. The release and indemnity provisions of this Section 4.09 shall survive termination or Closing of this Agreement notwithstanding anything to the contrary provided for in this Agreement.
(b) Unless otherwise required by applicable Laws, Buyer shall treat any matters revealed by Buyer’s Environmental Review and any environmental review provided by Seller to Buyer, including any analyses, compilations, studies, documents, reports, or data prepared or generated from such review, but excluding any public information (the “Environmental Information”), as confidential, and, except as provided below, Buyer shall not disclose any Environmental Information to any Governmental Authority, or, prior to Closing to any other third party without the prior written consent of Seller. Buyer may use the Environmental Information prior to Closing only in connection with the transactions contemplated by this Agreement. The Environmental Information shall be disclosed by Buyer to only those persons who need to know the Environmental Information for purposes of evaluating the transaction contemplated by this Agreement, and who agree to be bound by the terms of this Section 4.09. If Buyer or any third party to whom Buyer has provided any Environmental Information is requested, compelled, or required to disclose any of the Environmental Information prior to Closing, Buyer shall provide Seller with prompt notice sufficiently prior to any such disclosure so as to allow Seller to file for any protective order, or seek any other remedy, as it deems appropriate under the circumstances. If this Agreement is terminated prior to the Closing, upon Seller’s request Buyer shall deliver the Environmental Information, and all copies thereof and works based thereon, to Seller, which Environmental Information shall become the sole property of Seller. Upon request Buyer shall provide copies of the Environmental Information to Seller without charge. The terms and provisions of this Section 4.09(b) shall survive any termination of this Agreement, notwithstanding anything to the contrary.
Environmental Audits and Reports as soon as practicable following receipt thereof, copies of all environmental audits and reports, whether prepared by personnel of Lessee or any of its Subsidiaries or by independent consultants, with respect to significant environmental matters at any facility or which relate to an Environmental Claim which could result in a Material Adverse Effect; and
Environmental Audits There are no environmental audits, evaluations, assessments, studies or tests relating to the Corporation except for ongoing assessments conducted by or on behalf of the Corporation in the ordinary course.
Environmental Management (a) The Operator must, prior to the commencement of any Train Services (including any new or varied Train Services):
(i) cause a suitably qualified person reasonably acceptable to both Parties to prepare a report (“Environmental Investigation and Risk Management Report”) containing an environmental investigation component and an environmental risk management component which respectively identify:
(A) possible risks of Environmental Harm arising out of the proposed use of the Nominated Network by the Operator, including risks associated with those matters identified in Part 3 of Schedule 6; and
(B) the manner in which the Operator proposes to address the possible risks of Environmental Harm identified in the Environmental Investigation and Risk Management Report as well as the roles and responsibilities, including financial responsibility, for the control measures proposed and an audit regime, provided that if the Operator has an existing Environmental Management System it proposes to use in connection with the proposed Train Services on the Nominated Network, the Environmental Investigation and Risk Management Report should also detail the extent to which the Operator believes its existing Environmental Management System addresses the risks identified in the Environmental Investigation and Risk Management Report; and
(ii) provide a copy of the Environmental Investigation and Risk Management Report to Aurizon Network for its consideration and, if requested by Aurizon Network, a copy of the relevant parts of the Operator’s existing Environmental Management System referred to in the Environmental Investigation and Risk Management Report.
(b) If the Environmental Investigation and Risk Management Report discloses areas of risk which, in the reasonable opinion of Aurizon Network, cannot be adequately managed by the proposals set out in the Environmental Investigation and Risk Management Report or, in the reasonable opinion of Aurizon Network, fails to identify and adequately deal with additional relevant environmental risks, then Aurizon Network may give notice to that effect to the Operator within thirty (30) days after the date on which the Environmental Investigation and Risk Management Report was received by Aurizon Network (or such other period as the Parties, acting reasonably, may agree), detailing the risks not so adequately managed or not so identified or adequately dealt with. If Aurizon Network does not give such notice, the Environmental Investigation and Risk Management Report, subject to Clause 9.1(k), shall be included in Part 1 of Schedule 9 and amendments made to this Agreement [(including variations to the Base Access Charges)] if applicable. [Bracketed text is only included where Operator pays non-TOP Access Charges]
(c) If Aurizon Network gives notice pursuant to Clause 9.1 (b) the Operator may respond, by a date agreed by the Parties, with a written proposal which demonstrates how the Operator proposes to manage those risks (“Operator’s Proposal”). The Operator’s Proposal must:
(i) contain an investigation of the areas of risk and/or additional relevant environmental risks referred to in Clause 9.1(b);
(A) specify risk abatement or attenuation measures which the Operator proposes to undertake in relation to them; and/or
(B) specify how the Access Charges might contain a component reflecting the cost to Aurizon Network of assuming all or some portion of the risk;
(ii) in relation to paragraph (ii)(A) specify a timeframe for implementation of those measures; and
(iii) specify details of any public consultation the Operator proposes to undertake in connection with the implementation of any such measures.
(d) Aurizon Network may, acting reasonably, accept or reject all or part of the Operator’s Proposal.
(e) If Aurizon Network accepts the Operator’s Proposal, then it will be incorporated into and form part of the Environmental Investigation and Risk Management Report which, subject to Clause 9.1(k), shall be included in Part 1 of Schedule 9 and amendments made to the Agreement [(including variations to the Base Access Charges)] if applicable. [Bracketed text is only included where Operator pays non-TOP Access Charges]
(f) If the Operator fails to submit to Aurizon Network an Operator’s Proposal by the date agreed by the Parties or if Aurizon Network rejects all or part of the Operator’s Proposal, Aurizon Network may advise the Operator of the risks not adequately managed or not identified or adequately dealt with and then either Party may refer the issue of whether the Environmental Investigation and Risk Management Report and/or the Operator’s Proposal does or does not adequately manage or does or does not identify or adequately deal with the relevant environmental risks to an expert for determination in accordance with Clause 18.3.
(g) If the expert determines that the Environmental Investigation and Risk Management Report and/or Operator’s Proposal does adequately manage the risks or identifies and adequately deals with the risks, then the Environmental Investigation and Risk Management Report as modified by the Operator’s Proposal (if applicable) will, subject to Clause 9.1(k), be accepted and included in Part 1 of Schedule 9 and amendments made to this Agreement [(including variations to the Base Access Charges)] if applicable. [Bracketed text is only included where Operator pays non-TOP Access Charges]
(h) If the expert determines that the Environmental Investigation and Risk Management Report and/or Operator’s Proposal does not adequately manage the risks or does not identify and adequately deal with the risks, then provided the Operator amends the Environmental Investigation and Risk Management Report in accordance with the expert’s determination and/or recommendations within the time frame specified by the expert, the Environmental Investigation and Risk Management Report as amended will, subject to Clause 9.1(k), be accepted and included in Part 1 of Schedule 9 and amendments made to the Agreement [(including variations to the Base Access Charges)] if applicable. [Bracketed text is only included where Operator pays non-TOP Access Charges]
(i) If the expert determines that the Environmental Investigation and Risk Management Report and/or Operator’s Proposal does not adequately manage the risks or does not identify and adequately deal with the risks and the Operator fails to amend the Environmental Investigation and Risk Management Report in accordance with the expert’s determination and/or recommendations within the time frame specified by the expert, Aurizon Network may terminate this Agreement by written notice to the Operator and the End User.
(j) The Parties agree to implement the determination of the expert.
(k) If:
(i) an Environmental Investigation and Risk Management Report is included in Part 1 of Schedule 9; and
(ii) amendments (if any) are made to this Agreement as a result of or in connection with that inclusion of the Environmental Investigation and Risk Management Report, then the commencement of the amendment of this Agreement to include the Environmental Investigation and Risk Management Report and those amendments is subject to and conditional upon the Operator being notified by Aurizon Network that all necessary amendments (if any) to the End User Access Agreement (including variations to the amounts payable by the End User) have been made in respect of such matters and any relevant nomination of the Operator by the End User in accordance with the End User Access Agreement has, if necessary, been varied.
Environmental Services 1. Preparation of Environmental Documentation (CEQA/NEPA) including but not limited to the following:
a. Initial Study
b. Categorical Exemption (CE)
c. Notice of Exemption (XXX)
d. Negative Declaration (ND)
e. Mitigated Negative Declaration (MND)
f. Notice of Preparation (NOP)
g. Environmental Impact Report (EIR)
i. Initial Document (Screen Check/Administrative Draft) ii. Addendum iii. Supplemental
Environmental and Safety Matters (a) Except as set forth in Section (i) of the ENVIRONMENTAL SCHEDULE, the Company has complied with and is currently in compliance in all material respects with all Environmental and Safety Requirements the non-compliance with which will or threatens to impose a material liability on the Company, and the Company has not received any oral or written notice, report or information regarding any liabilities (whether accrued, absolute, contingent, unliquidated or otherwise) or any corrective, investigatory or remedial obligations arising under Environmental and Safety Requirements which relate to the Company or any of its properties or facilities.
(b) Except as set forth in Section (ii) of the ENVIRONMENTAL SCHEDULE, without limiting the generality of the foregoing, the Company has obtained and complied with, and is currently in compliance in all material respects with, all material permits, licenses and other authorizations that are required pursuant to any Environmental and Safety Requirements for the occupancy of its properties or facilities or the operation of its businesses.
(c) Except as set forth in Section (iii) of the ENVIRONMENTAL SCHEDULE, neither this Agreement nor the consummation of the transactions contemplated by this Agreement shall impose any obligations on the Company for site investigation or cleanup, or notification to or consent of any government agencies or third parties under any Environmental and Safety Requirements (including, without limitation, any so called "transaction-triggered" or "responsible property transfer" laws and regulations).
(d) Except as set forth in Section (iv) of the ENVIRONMENTAL SCHEDULE, none of the following exists at any property or facility owned, occupied or operated by the Company:
(1) underground storage tanks or surface impoundments;
(2) asbestos-containing materials friable; or
(3) materials or equipment containing friable polychlorinated biphenyls.
(e) Except as set forth in Section (v) of the ENVIRONMENTAL SCHEDULE, the Company has not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled or Released any Hazardous Materials, or owned, occupied or operated any facility or property, so as to give rise to liabilities of the Company for response costs, natural resource damages or attorneys fees pursuant to CERCLA or any -38- other Environmental and Safety Requirements.
(f) Without limiting the generality of the foregoing, to the knowledge of the Company, no facts, events or conditions relating to the past or present properties, facilities or operations of the Company shall prevent, hinder or limit in any material respect continued compliance with Environmental and Safety Requirements, give rise to any corrective, investigatory or remedial obligations pursuant to Environmental and Safety Requirements or give rise to any other liabilities (whether accrued, absolute, contingent, unliquidated or otherwise) pursuant to Environmental and Safety Requirements (including, without limitation, those liabilities relating to onsite or offsite Releases or threatened Releases of Hazardous Materials, substances or wastes, personal injury, property damage or natural resources damage).
(g) Except as set forth in Section (vii) of the ENVIRONMENTAL SCHEDULE, the Company has not, either expressly or by operation of law, assumed or undertaken any liability or corrective, investigatory or remedial obligation of any other Person relating to any Environmental and Safety Requirements.
(h) No Environmental Lien has attached to any property owned, leased or operated by the Company.
Environmental Audit Upon reasonable notice, Director shall have the right but not the obligation to conduct or cause to be conducted by a firm acceptable to Director, an environmental audit or any other appropriate investigation of the Premises for possible environmental contamination. Such investigation may include environmental sampling and equipment and facility testing, including the testing of secondary contamination. No such testing or investigation shall limit Tenant’s obligations hereunder or constitute a release of Tenant’s obligations therefor. Tenant shall pay all costs associated with said investigation in the event such investigation shall disclose any Hazardous Materials contamination as to which Tenant is liable hereunder.
Environmental Protection (i) Except as set forth in Schedule 9 attached hereto, neither the Borrower nor any of its Restricted Subsidiaries nor any of their respective Real Property or operations are subject to any outstanding written order, consent decree or settlement agreement with any Person relating to (A) any Environmental Law, (B) any Environmental Claim or (C) any Hazardous Materials Activity;
(ii) Neither the Borrower nor any of its Restricted Subsidiaries has received any letter or written request for information under Section 104 of the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9604) or any comparable state law;
(iii) There are no and, to the Borrower’s knowledge, have been no conditions, occurrences, or Hazardous Materials Activities which could reasonably be expected to form the basis of an Environmental Claim against the Borrower or any of its Restricted Subsidiaries that, individually or in the aggregate, could reasonably be expected to have a Materially Adverse Effect;
(iv) Neither the Borrower nor any of its Restricted Subsidiaries, nor, to the Borrower’s knowledge, any predecessor of the Borrower or any of its Restricted Subsidiaries has filed any notice under any Environmental Law indicating past or present Release of Hazardous Materials on any Real Property, and neither the Borrower nor any of its Restricted Subsidiaries’ operations involves the generation, transportation, treatment, storage or disposal of hazardous waste (other than hazardous waste generated in the ordinary course of business, and which is not reasonably likely to materially adversely affect the Real Property or have a Materially Adverse Effect), as defined under 40 C.F.R. Parts 260-270 or any state equivalent; and
(v) Compliance with all current requirements pursuant to or under Environmental Laws will not, individually or in the aggregate, have a reasonable possibility of giving rise to a Materially Adverse Effect. Notwithstanding anything in this Section 4.1(z) to the contrary, to the knowledge of Borrower or any of its Restricted Subsidiaries, no event or condition has occurred or is occurring with respect to the Borrower or any of its Restricted Subsidiaries relating to any Environmental Law, any Release of Hazardous Materials, or any Hazardous Materials Activity which individually or in the aggregate has had or could reasonably be expected to have a Materially Adverse Effect.
