Common use of Environmental Defect Adjustments Clause in Contracts

Environmental Defect Adjustments. Upon delivery of a timely Environmental Defect Notice, the Parties shall proceed as follows: (a) With respect to each Environmental Defect asserted by Buyer on or before the Defect Notice Date, Seller may elect, in its sole discretion, on or before the date that is two (2) days prior to Closing, to: (1) reach agreement with Buyer on the existence and scope of the Environmental Defect and subject to Section 5.6(b), adjust the Purchase Price by the Environmental Defect Value of the Environmental Defect Property (the “Environmental Defect Adjustment”), whereupon Seller shall convey the Environmental Defect Property to Buyer at Closing and Buyer shall thereafter assume all liability for Remediation of the Environmental Defect Property; (2) if the Environmental Defect Value exceeds the Allocated Value of the Environmental Defect Property, then Seller may elect to remove the Environmental Defect Property from the Transaction and reduce the Purchase Price by the Allocated Value of the Environmental Defect Property, in which event such Environmental Defect Property shall constitute an Excluded Asset; or (3) challenge the existence and/or scope of the Environmental Defect and/or Environmental Defect Value asserted by Buyer pursuant to Section 5.7. If Seller elects to challenge the existence of an Environmental Defect and/or Environmental Defect Value and such dispute has not been resolved as of Closing, at Closing Buyer shall pay an amount equal to the claimed Environmental Defect Value into the Escrow Account, such amount to be released to Buyer or Seller based on the joint instructions of the Parties. If the Environmental Defect Value of any Asset, as finally determined, exceeds the Allocated Value of such Asset, either Seller or Buyer may elect to remove the Asset from the Transaction and reduce the Purchase Price by the Allocated Value of such Asset, in which event such Environmental Defect Property shall constitute an Excluded Asset. (b) There shall be no reduction to the Purchase Price or other remedies provided by Seller for any Environmental Defect unless the Environmental Defect Values of all Environmental Defects in the aggregate (excluding any Environmental Defects Remediated by Seller), plus the Title Defect Amounts of all Title Defects in the aggregate, exceed the Aggregate Deductible, after which point Buyer shall be entitled to adjustments to the Purchase Price and remedies only with respect to such Environmental Defects in excess of the Aggregate Deductible. (c) Notwithstanding anything contained in this Agreement, if the Environmental Defect Value exceeds the Allocated Value of any Environmental Defect Property, then Buyer may at any time prior to Closing elect to remove such Environmental Defect Property from the Transaction and, subject to application of the Aggregate Deductible, reduce the Purchase Price by the Allocated Value of such Environmental Defect Property, in which event such Environmental Defect Property shall constitute an Excluded Asset.

Environmental Defect Adjustments. Upon delivery of a timely Environmental Defect Notice, the Parties shall proceed as follows: (a) With respect to each Non-De Minimus Environmental Defect asserted by Buyer on or before the Defect Notice Date, Seller may elect, in its sole discretion, on or before the date that is two (2) days prior to Closing, to: (1) reach agreement with Buyer on the existence and scope of the Environmental Defect and subject to Section 5.6(b), adjust the Purchase Price by the Environmental Defect Value of the Environmental Defect Property (the “Environmental Defect Adjustment”), whereupon Seller shall convey the Environmental Defect Property to Buyer at Closing and Buyer shall thereafter assume all liability for Remediation of the Environmental Defect Property; (2) if the Environmental Defect Value exceeds the Allocated Value of the Environmental Defect Property, then Seller may elect to remove the Environmental Defect Property from the Transaction and reduce the Purchase Price by the Allocated Value of the Environmental Defect Property, in which event such Environmental Defect Property shall constitute an Excluded Asset; or (3) challenge the existence and/or scope of the Environmental Defect and/or Environmental Defect Value timely asserted by Buyer pursuant to Section 5.7. If Seller elects 5.3, the Parties shall, no later than 10 Business Days after the Environmental Defect Notice Deadline, attempt in good faith to challenge reach agreement on the existence of an such Non-De Minimus Environmental Defect and the Environmental Defect Value relating thereto. In the event the Parties do not reach such agreement by the end of such 10 Business Day period, then: (a) Seller and Buyer shall each have the option to submit the existence of the Non-De Minimus Environmental Defect and/or the Environmental Defect Value to binding determination by the Environmental Expert pursuant to Section 5.5; or (b) Seller and Buyer may mutually agree to exclude the affected Asset from the Assets being sold to Buyer under this Agreement, in which event the Base Purchase Price shall be reduced by the Allocated Value of such Asset and such dispute has not been resolved Asset shall thereafter be treated as of an Excluded Asset. At Closing, at Closing Buyer shall pay an amount equal to the claimed Environmental Defect Value into the Escrow Account, such amount to be released to Buyer or Seller based on the joint instructions of the Parties. If the Environmental Defect Value of any Asset, as finally determined, exceeds the Allocated Value of such Asset, either Seller or Buyer may elect to remove the Asset from the Transaction and reduce the Purchase Price by the Allocated Value of such Asset, in which event such Non-De Minimus Environmental Defect Property shall constitute an Excluded Asset. (bthat is submitted for dispute pursuant to Section 5.4(a) There shall be no reduction deposited into the Defect Escrow Account pursuant to the Purchase Price or other remedies provided by Seller for any Defect Escrow Agreement and shall be deducted in the calculation of the Closing Amount. On the date that the dispute relating to such Non-De Minimus Environmental Defect unless is resolved pursuant to Section 5.5, Seller and Buyer shall execute and deliver joint written instructions to the Escrow Agent, pursuant to the Defect Escrow Agreement, to disburse the associated Environmental Defect Value (and any interest and earnings thereon) in accordance with the decision of the Environmental Defect Values Expert (for the avoidance of all Environmental Defects in the aggregate (excluding any Environmental Defects Remediated by Seller), plus the Title Defect Amounts of all Title Defects in the aggregate, exceed the Aggregate Deductible, after which point Buyer shall be entitled to adjustments to the Purchase Price and remedies only with respect to such Environmental Defects in excess of the Aggregate Deductible. (c) Notwithstanding anything contained in this Agreementdoubt, if the Environmental Defect Value exceeds Deductible has not been satisfied at the Allocated Value time of any such disbursement, the Environmental Defect Property, then Buyer may at any time prior Value shall be disbursed to Closing elect to remove such Seller until satisfaction of the Environmental Defect Property from the Transaction and, subject to application of the Aggregate Deductible, reduce the Purchase Price by the Allocated Value of such Environmental Defect Property, in which event such Environmental Defect Property shall constitute an Excluded Asset).

Environmental Defect Adjustments. Upon delivery of a timely Environmental Defect Notice, the Parties shall proceed as follows: (a) With respect to each Environmental Defect asserted by Buyer on or before the Defect Notice DateDate that is not waived by Buyer or Remediated by Seller on or before Closing, Seller may elect, in its sole discretion, on or before the date that is two (2) days prior to Closing, elect to: (1) reach agreement with Buyer on the existence and scope of the Environmental Defect and and, subject to Section 5.6(b)the Individual Environmental Threshold, adjust reduce the Purchase Price by the Environmental Defect Value of the Environmental Defect Property (the “"Environmental Defect Adjustment”"), whereupon Seller shall convey the Environmental Defect Property to Buyer at Closing and Buyer shall thereafter assume all liability for Remediation of the Environmental Defect Property; (2) if the Environmental Defect Value exceeds the Allocated Value of the Environmental Defect Property, then Seller may elect to remove exclude the Environmental Defect Property from the Transaction and and, subject to the Individual Environmental Threshold, reduce the Purchase Price by the Allocated Value of the Environmental Defect Property, in which event such Environmental Defect Property shall constitute an Excluded Asset; or (3) challenge the existence and/or scope of the Environmental Defect and/or the Environmental Defect Value asserted by Buyer pursuant to Section 5.7. If ; provided, however, notwithstanding the foregoing, in the event that Seller elects does not elect to challenge the existence of an Environmental Defect and/or Environmental Defect Value and such dispute has not been resolved as of Closingproceed under Section 5.6(a)(2), at Closing Buyer shall pay an amount equal to the claimed Environmental Defect Value into the Escrow Account, such amount to be released to Buyer or Seller based on the joint instructions of the Parties. If the Environmental Defect Value of any Asset, as finally determined, exceeds the Allocated Value of such Asset, either Seller or Buyer may elect to remove exclude the Asset from the Transaction and reduce the Purchase Price by the Allocated Value of such Asset, in which event such Environmental Defect Property shall constitute an Excluded Asset. (b) There shall be no reduction to the Purchase Price or other remedies provided by Seller for any Environmental Defect unless the Environmental Defect Values of all Environmental Defects in the aggregate (excluding any Environmental Defects Remediated by Seller), plus the Title Defect Amounts of all Title Defects in the aggregate, exceed the Aggregate Deductible, after which point Buyer shall be entitled to adjustments to the Purchase Price and remedies only with respect to such Environmental Defects in excess of the Aggregate Deductible. (c) Notwithstanding anything contained in this Agreement, if the Environmental Defect Value exceeds the Allocated Value of any Environmental Defect Property, then Buyer may at any time prior to Closing elect to remove such Environmental Defect Property from the Transaction and, subject to application of the Aggregate DeductibleIndividual Environmental Threshold, reduce the Purchase Price by the Allocated Value of the Environmental Defect Property. In the event Seller elects to proceed under Section 5.6(a)(1), Seller shall have one hundred eighty (180) days after the Closing Date to attempt to Remediate any Environmental Defects affecting any Environmental Defect Property conveyed to Buyer, subject to the continuing application of the Individual Environmental Threshold. If Seller timely Remediates any such Environmental Defect Propertyto Buyer's reasonable satisfaction, Buyer shall promptly pay the amount of the Environmental Defect Adjustment with respect to the Environmental Defect so Remediated, together with accrued interest, to Seller. Notwithstanding anything to the contrary in which event such this Article 5, the aggregate Environmental Defect Value attributable to all Environmental Defects upon any Environmental Defect Property shall constitute an Excluded Assetnot exceed the Allocated Value of the Environmental Defect Property.

Environmental Defect Adjustments. Upon delivery of a timely Environmental Defect Notice, the Parties shall proceed as follows: (a) With respect No adjustment to the Purchase Price for Environmental Defects shall be made unless and until, as to each Ownership Interest, the value of Environmental Defects exceeds $10,000, such adjustment to be further subject to the Transaction Deductible provision set forth in Section 12.16. Each Ownership Interest set forth on Schedule 1.01(a) shall constitute a separate asset for purposes of this Article 6 and an Environmental Defect asserted by that pertains to more than one Ownership Interest shall be considered a separate Environmental Defect as to each Ownership Interest. (b) Buyer shall give Seller written notice of Environmental Defects on or before the Defect Notice DateSeptember 15, Seller may elect, 1998. Such notice shall be in its sole discretion, on or before the date that is two writing and shall include: (2i) days prior to Closing, to: (1) reach agreement with Buyer on the existence and scope a description of the Environmental Defect and subject to Section 5.6(b), adjust the Purchase Price by the Environmental Defect Value of the Environmental Defect Property Defect; (the “Environmental Defect Adjustment”), whereupon Seller shall convey the Environmental Defect Property to Buyer at Closing and Buyer shall thereafter assume all liability for Remediation of the Environmental Defect Property; (2ii) if the Environmental Defect Value exceeds the Allocated Value of the Environmental Defect Property, then Seller may elect to remove Ownership Interest affected by the Environmental Defect Property from Defect; (iii) Buyer's good faith estimate of the Transaction and reduce costs associated with correcting the Purchase Price circumstance or condition to the extent required by the Allocated Value standards set forth in Section 11.02(b)(v); and (iv) supporting documentation, including all data, reports and analysis of which Buyer is aware concerning the Environmental Defect Property, in which event such Environmental Defect Property shall constitute an Excluded Asset; or (3) challenge the existence and/or scope of the Environmental Defect and/or Environmental Defect Value asserted by Buyer pursuant to Section 5.7problem. If Seller elects to challenge the existence of an Environmental Defect and/or Environmental Defect Value and such dispute has not been resolved as of Closing, at Closing Buyer shall pay an amount equal to the claimed Environmental Defect Value into the Escrow Account, such amount to be released to Buyer or Seller based on the joint instructions of the Parties. If the Environmental Defect Value of any Asset, as finally determined, exceeds the Allocated Value of such Asset, either Seller or Buyer may elect to remove the Asset from the Transaction and reduce the Purchase Price by the Allocated Value of such Asset, in which event such Environmental Defect Property shall constitute an Excluded Asset. (b) There shall be no reduction to the Purchase Price or other remedies provided by Seller for any Environmental Defect unless the Environmental Defect Values of all Environmental Defects in the aggregate (excluding any Environmental Defects Remediated by Seller), plus the Title Defect Amounts of all Title Defects in the aggregate, exceed the Aggregate Deductible, after which point Buyer shall be entitled deemed to adjustments to the Purchase Price have waived all breaches of Seller's warranty and remedies only representation with respect to such Environmental Defects in excess any circumstance or condition of the Aggregate Deductiblewhich Seller has Knowledge as of September 15, 1998, and for which Buyer has not provided a valid notice pursuant to this Section 6.02(b). (c) Notwithstanding anything Subject to the limitations contained in this AgreementSection (a) above, if the an Ownership Interest is affected by an Environmental Defect Value exceeds the Allocated Value of any Environmental Defect PropertyDefect, then Buyer may at any time prior to Closing elect to remove such Environmental Defect Property from the Transaction and, subject to application of the Aggregate Deductible, reduce the Purchase Price shall be reduced by the Allocated Value of such Excess Amount; provided, however (A) no reduction shall be made with respect to an Ownership Interest subject to an Environmental Defect Propertyif on or before Closing Seller elects any of the options set forth in Sections 11.02(b)(ii)(2) or (3) or 11.02(b)(iii), and (B) all of the provisions of Section 11.02(b)(ii)(1) shall apply with respect to any property as to which a reduction in which event such Environmental Defect Property shall constitute an Excluded Assetthe Purchase Price is made.