Common use of Environmental Defect Notice Clause in Contracts

Environmental Defect Notice. Buyer will notify Seller on or before five (5) days before Closing, at 5:00 p.m., Central Time (the “Environmental Notice Deadline”) of (i) the existence of any environmental condition on the real property comprising any Property that Buyer reasonably believes constitutes a violation of Environmental Laws as in effect on the date hereof or reduces or interferes with the operation, value or use of such Property (“Environmental Defect”), and (ii) the estimated cost to remediate or cure such condition on each individual Property, determined utilizing the most cost effective and appropriate method of cure or remediation available under the circumstances. With respect to any Environmental Defect: (a) Seller shall have the right, but not the obligation, to undertake such remedial action as may be required by Environmental Law as currently applied to cure by such Environmental Defect by sending written notice of its binding commitment to effectuate such cure and the details and timing of such curative action, and if such commitment is reasonably satisfactory to Buyer, the Purchase Price would not be reduced on account of such Environmental Defect; provided that Seller remains responsible for such remedial action until such time as Seller has cured such Environmental Defect in accordance with Environmental Laws as currently applied or until such time as Buyer is reasonably satisfied with Seller’s actions; (b) Buyer and Seller may also, upon mutual agreement of the Parties set the cost to cure the Environmental Defect and the Purchase Price shall be reduced by such agreed costs. In such case, the Buyer shall continue to own such Property and be responsible for any cure; (c) Buyer and Seller may, upon mutual agreement of the Parties as to the terms and conditions of any indemnity, elect that Seller indemnify Buyer against all liability, loss, cost and expense (including, without limitation, for remediation costs when and if such cure is actually undertaken) resulting from such Environmental Defect, and in such event the Purchase Price will not be reduced on account of such Environmental Defect; and (d) If Buyer and Seller cannot reach mutual agreement as contemplated in Article 10.3.(a), (b) or (c) above on whether a Environmental Defect exists within ten (10) days following the notice of an Environmental Defect as to any Property, Seller may, at its sole option and upon written notice to Buyer: (1) remove the affected Property from this Agreement and adjust the Purchase Price by the Allocated Value for that Property; or (2) elect to resolve the dispute under the arbitration provisions in this Agreement.

Environmental Defect Notice. Buyer will notify shall give Seller on or before five notice (5) days before Closing, at 5:00 p.m., Central Time (the an “Environmental Notice DeadlineDefect Notice”) of (i) the existence of any environmental condition on the real property comprising any Property that Buyer reasonably believes constitutes a violation of Environmental Laws as in effect on the date hereof or reduces or interferes with the operation, value or use of such Property (“Environmental Defect”), and (ii) the estimated cost to remediate or cure such condition on each individual Property, determined utilizing the most cost effective and appropriate method of cure or remediation available under the circumstances. With respect to any Environmental DefectDefect that was not disclosed to Buyer on Schedule 8.1. For the purpose of this Agreement, an Environmental Defect shall mean a deficiency which individually exceeds Ten Thousand and No/100 Dollars ($10,000.00) and complies with all of the following conditions precedent: (a) The Environmental Defect Notice must be received by Seller shall have as soon as reasonably practical after discovery of the right, but not the obligation, to undertake such remedial action as may be required by Environmental Law as currently applied to cure by such Environmental Defect by sending written notice of its binding commitment to effectuate such cure and the details and timing of such curative action, and if such commitment is reasonably satisfactory to Buyer, the Purchase Price would not be reduced but in any event on account of such Environmental Defect; provided that Seller remains responsible for such remedial action until such time as Seller has cured such Environmental Defect in accordance with Environmental Laws as currently applied or until such time as Buyer is reasonably satisfied with Seller’s actionsbefore December 10, 2012; (b) Buyer and Seller may alsoThe Environmental Defect Notice must (i) name the affected Asset, upon mutual agreement of (ii) reasonably describe the Parties set condition in, on or under the cost to cure Asset that causes the Environmental Defect and (iii) provide reasonable factual substantiation for the Purchase Price shall be reduced by such agreed costs. In such case, the Buyer shall continue to own such Property and be responsible for any cure; (c) Buyer and Seller may, upon mutual agreement of the Parties as to the terms and conditions of any indemnity, elect that Seller indemnify Buyer against all liability, loss, cost and expense (including, without limitation, for remediation costs when and if such cure is actually undertaken) resulting from such Environmental Defect, and in such event the Purchase Price will not be reduced on account of such Environmental Defect; and (dc) To the extent practicable, the Environmental Defect Notice must state Buyer’s good faith estimate of the amount of potential Loss to be incurred by Buyer as a result of the Environmental Defect. For purposes of this Agreement, the term “Loss” shall include any estimated remediation and/or restoration costs; potential damages claimed or likely to be claimed by a third party; and all other costs, losses, expenses (including court costs, reasonable fees and expenses of attorneys, technical experts and expert witnesses and the cost of investigation), liabilities (including civil fines), damages, payments, amounts paid in settlement, obligations, fines, penalties, demands, suits, claims, and sanctions of every kind and character. If Buyer and does not provide Seller cannot reach mutual agreement as contemplated in Article 10.3.(a), (b) or (c) above on whether a Environmental Defect exists within ten (10) days following the notice of with an Environmental Defect as Notice within the period set forth above, then at Closing, Buyer shall be deemed to have accepted such Asset and to have waived Buyer’s right to assert an Environmental Defect pursuant to this Article 8 with respect to the Assets; provided, however, that such acceptance and waiver shall not apply with regard to any Propertymatters or claims that Buyer may have the right to assert under Sections 10.2(a), Seller may, at its sole option 10.2(d) and upon written notice to Buyer: (1) remove the affected Property from this Agreement 16.4 and adjust the Purchase Price by the Allocated Value for that Property; or (2) elect to resolve the dispute under the arbitration provisions in this AgreementArticle 19.

Environmental Defect Notice. Buyer will notify shall give Seller notice (an “Environmental Notice”) of any Environmental Defect on or before five the expiration of the Due Diligence Period. For the purpose of this Agreement, an Environmental Defect shall mean a deficiency which individually exceeds Fifty Thousand Dollars (5$50,000) days before Closing, at 5:00 p.m., Central Time (and complies with all of the “Environmental Notice Deadline”) of (i) the existence of any environmental condition on the real property comprising any Property that Buyer reasonably believes constitutes a violation of Environmental Laws as in effect on the date hereof or reduces or interferes with the operation, value or use of such Property (“Environmental Defect”), and (ii) the estimated cost to remediate or cure such condition on each individual Property, determined utilizing the most cost effective and appropriate method of cure or remediation available under the circumstances. With respect to any Environmental Defectfollowing conditions precedent: (a) Seller shall have the right, but not the obligation, to undertake such remedial action as may be required by Environmental Law as currently applied to cure by such The Environmental Defect described in the Environmental Notice must be based on evidence substantiated in good faith by sending written notice of its binding commitment to effectuate such cure and the details and timing of such curative action, and if such commitment is reasonably satisfactory to Buyer, the Purchase Price would not be reduced on account of such Environmental Defect; provided that Seller remains responsible for such remedial action until such time as Seller has cured such Environmental Defect in accordance with Environmental Laws as currently applied or until such time as Buyer is reasonably satisfied with SellerXxxxx’s actionsthird party environmental experts; (b) The evidence referred to in Section 8.1(a) must be reasonably described, substantiated in good faith by such environmental experts, and in the case of documentary evidence, enclosed with the Environmental Notice or, alternatively, furnished by Buyer and to Seller may also, upon mutual agreement not later than one (1) Business Day following the delivery of the Parties set the cost to cure the Environmental Defect and the Purchase Price shall be reduced by such agreed costs. In such case, the Buyer shall continue to own such Property and be responsible for any cureNotice; (c) Buyer and Seller may, upon mutual agreement of The Environmental Notice must reasonably describe the Parties as remediation and/or restoration required to remedy the terms and conditions of any indemnity, elect that Seller indemnify Buyer against all liability, loss, cost and expense (including, without limitation, for remediation costs when and if such cure is actually undertaken) resulting from such Environmental Defect, and or the potential damages claimed or likely to be claimed by a third party (the “Cleanup”), each as recommended or estimated in good faith by such event the Purchase Price will not be reduced on account of such Environmental Defectenvironmental experts; and (d) To the extent practicable, the Environmental Notice must state Buyer’s good faith estimate of the amount of potential Loss to be incurred by Xxxxx as a result of the Environmental Defect. For purposes of this Agreement, the term “Loss” shall include any estimated Cleanup, costs, losses, expenses, liabilities (including civil fines), damages, demands, suits, sanctions, reasonable fees and expenses of attorneys, technical experts and expert witnesses. If Buyer and does not provide Seller cannot reach mutual agreement as contemplated in Article 10.3.(awith an Environmental Notice within the period set forth above, then, subject to Buyer’s right to indemnification for breaches of Section 5.20 or otherwise pursuant to Section 16.4(ix), (b) or (c) above on whether a Environmental Defect exists within ten (10) days following the notice of at Closing, Buyer shall be deemed to have accepted such Asset and to have waived Buyer’s right to assert an Environmental Defect as with respect to any Property, Seller may, at its sole option and upon written notice to Buyer: (1) remove the affected Property from this Agreement and adjust the Purchase Price by the Allocated Value for that Property; or (2) elect to resolve the dispute under the arbitration provisions in this AgreementAssets.

Environmental Defect Notice. Buyer will notify shall give Seller notice (an “Environmental Notice”) of any Environmental Defect on or before five the expiration of the Due Diligence Period. For the purpose of this Agreement, an Environmental Defect shall mean a deficiency which individually exceeds Fifty Thousand Dollars (5$50,000) days before Closing, at 5:00 p.m., Central Time (and complies with all of the “Environmental Notice Deadline”) of (i) the existence of any environmental condition on the real property comprising any Property that Buyer reasonably believes constitutes a violation of Environmental Laws as in effect on the date hereof or reduces or interferes with the operation, value or use of such Property (“Environmental Defect”), and (ii) the estimated cost to remediate or cure such condition on each individual Property, determined utilizing the most cost effective and appropriate method of cure or remediation available under the circumstances. With respect to any Environmental Defectfollowing conditions precedent: (a) Seller shall have the right, but not the obligation, to undertake such remedial action as may be required by Environmental Law as currently applied to cure by such The Environmental Defect described in the Environmental Notice must be based on evidence substantiated in good faith by sending written notice of its binding commitment to effectuate such cure and the details and timing of such curative action, and if such commitment is reasonably satisfactory to Buyer, the Purchase Price would not be reduced on account of such Environmental Defect; provided that Seller remains responsible for such remedial action until such time as Seller has cured such Environmental Defect in accordance with Environmental Laws as currently applied or until such time as Buyer is reasonably satisfied with Seller’s actionsthird party environmental experts; (b) The evidence referred to in Section 8.1(a) must be reasonably described, substantiated in good faith by such environmental experts, and in the case of documentary evidence, enclosed with the Environmental Notice or, alternatively, furnished by Buyer and to Seller may also, upon mutual agreement not later than one (1) Business Day following the delivery of the Parties set the cost to cure the Environmental Defect and the Purchase Price shall be reduced by such agreed costs. In such case, the Buyer shall continue to own such Property and be responsible for any cureNotice; (c) Buyer and Seller may, upon mutual agreement of The Environmental Notice must reasonably describe the Parties as remediation and/or restoration required to remedy the terms and conditions of any indemnity, elect that Seller indemnify Buyer against all liability, loss, cost and expense (including, without limitation, for remediation costs when and if such cure is actually undertaken) resulting from such Environmental Defect, and or the potential damages claimed or likely to be claimed by a third party (the “Cleanup”), each as recommended or estimated in good faith by such event the Purchase Price will not be reduced on account of such Environmental Defectenvironmental experts; and (d) To the extent practicable, the Environmental Notice must state Buyer’s good faith estimate of the amount of potential Loss to be incurred by Buyer as a result of the Environmental Defect. For purposes of this Agreement, the term “Loss” shall include any estimated Cleanup, costs, losses, expenses, liabilities (including civil fines), damages, demands, suits, sanctions, reasonable fees and expenses of attorneys, technical experts and expert witnesses. If Buyer and does not provide Seller cannot reach mutual agreement as contemplated in Article 10.3.(awith an Environmental Notice within the period set forth above, then, subject to Buyer’s right to indemnification for breaches of Section 5.20 or otherwise pursuant to Section 16.4(ix), (b) or (c) above on whether a Environmental Defect exists within ten (10) days following the notice of at Closing, Buyer shall be deemed to have accepted such Asset and to have waived Buyer’s right to assert an Environmental Defect as with respect to any Property, Seller may, at its sole option and upon written notice to Buyer: (1) remove the affected Property from this Agreement and adjust the Purchase Price by the Allocated Value for that Property; or (2) elect to resolve the dispute under the arbitration provisions in this AgreementAssets.

Environmental Defect Notice. Buyer will notify provide Seller on written notice (“Environmental Defect Notice”) at or before five (5) days before Closing5:00 p.m. Pacific Time on April 1, at 5:00 p.m., Central Time 2005 (the “Environmental Notice Deadline”) of (ia) the existence of any environmental condition on discovered by Buyer affecting any of the real property comprising any Property Properties that Buyer reasonably believes constitutes a violation of Environmental Laws as or any other matter which would constitute a breach of a representation or warranty (without regard to any qualification therein by “Seller’s knowledge”) of Seller set forth in effect on the date hereof or reduces or interferes with the operation, value or use of such Property Article 4.12 (“Environmental Defect”), and (iib) the estimated cost to remediate or cure such condition on each individual Property, determined utilizing the most cost effective and appropriate method of cure or remediation available under the circumstances. With respect to any Environmental Defect: (a) Seller shall have the right, but not the obligation, to undertake such remedial action as may be required by Environmental Law as currently applied to cure by such If an Environmental Defect by sending written notice of its binding commitment Notice has been provided with respect to effectuate such cure and the details and timing of such curative action, and if such commitment is reasonably satisfactory to Buyer, the Purchase Price would not be reduced on account of such any Environmental Defect; provided that Seller remains responsible for such remedial action until such time as Seller has cured such Environmental Defect in accordance with Environmental Laws as currently applied or until such time as Buyer is reasonably satisfied with Seller’s actions; (b) , Buyer and Seller may also, upon mutual agreement shall promptly meet and work in good faith to agree on the validity of the Parties set claim and, if applicable, the value of (i.e., the cost to cure remediate) the Environmental Defect and the Purchase Price shall be reduced by such agreed costs. In such case, the Buyer shall continue to own such Property and be responsible for any cure; (c) Buyer and Seller may, upon mutual agreement of the Parties as to the terms and conditions of any indemnity, elect that Seller indemnify Buyer against all liability, loss, cost and expense (including, without limitation, for remediation costs when and if such cure is actually undertaken) resulting from such Environmental Defect, and in such event the Purchase Price will not be reduced on account of such Environmental Title Defect; and (db) If Buyer and Seller cannot reach mutual agreement as contemplated in Article 10.3.(a)not, (b) or (c) above on whether a Environmental Defect exists within ten (10) days following the notice of an Environmental Defect as to any Property, reach mutual agreement as contemplated above on whether a Environmental Defect exists or the value of such Environmental Defect, Seller may, at its sole option and upon written notice to Buyer: (1) remove the affected Property from this Agreement and adjust reduce the Purchase Price by the Allocated Value for that PropertyProperty (an “Environmental Defect Removal”); or (2) elect to resolve the dispute under the arbitration provisions in this AgreementAgreement (a “Environmental Defect Arbitration”). (c) Seller may elect to withhold initially from Closing any Property affected by a Title Defect or an Environmental Defect if (i) such Title Defect or Environmental Defect is reasonably susceptible to cure or remediation, (ii) Seller, as of the Closing, is attempting in good faith to cure or remediate such Title Defect or Environmental Defect, and (iii) Seller notifies Buyer in writing prior to Closing that Seller intends to continue such efforts post-Closing. Any Property so withheld (a “Cure/Remediation Property”) shall not be considered removed from the transaction as a Property is removed pursuant to an Environmental Defect Removal or a Title Defect Removal, but rather such Property shall be treated under Article 19.4 as a Second Closing Property.