Common use of Environmental Due Diligence Clause in Contracts

Environmental Due Diligence. Buyer may, at its election, engage a nationally recognized third party environmental consultant (which may be Environmental Resource Management) to conduct a "phase I" environmental investigation of the Plant Sites (the "Phase I Investigation"). Any Phase I Investigation will be conducted at Buyer’s expense in accordance with the specifications set forth in Part 1 of Exhibit 5.9 attached hereto, and will be completed within fourteen (14) days after the date of this Agreement (subject to extension for delays caused by Seller, including failure to provide reasonably requested information and access to Plant Sites in a timely manner). If the results of any Phase I Investigation indicate a "recognized environmental condition" (as that term is defined in ASTM E 1527-00 – Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessments Process) or other condition or violation of Environmental Law reasonably of concern to Buyer’s environmental consultant, Buyer may request that Seller provide to Buyer and its agents access to conduct a "phase II" environmental investigation ("Phase II Investigation"). Seller may grant or deny such access with respect to any one or more Plant Sites in its sole discretion. If permitted by Seller, Buyer may engage a nationally recognized third party environmental consultant to conduct the Phase II Investigation, which Phase II Investigation shall be conducted at Buyer’s expense and shall be completed by June 1, 2001. If a Phase II Investigation is not permitted by Seller with respect to any Plant Site, then Buyer shall have the right to terminate this Agreement in accordance with Section 9.1(e) hereof (and, in the event this Agreement is so terminated by Buyer, then Seller shall promptly reimburse Buyer for its actual out-of-pocket costs incurred in connection with this transaction). Buyer shall, no later than 10 days prior to the Closing Date, advise Seller of any environmental condition or alleged environmental condition identified by the Phase I Investigation or Phase II Investigation that is of the type listed in Part 2 of Exhibit 5.9 and that affects any Plant Site (an "Environmental Condition"), and shall provide Seller with copies of the relevant portion of the Phase I Investigation report or the Phase II Investigation report and any related supporting documentation in Buyer’s possession or control relating to any Environmental Conditions or alleged Environmental Condition. As to any Plant Site affected by an Environmental Condition or alleged Environmental Condition, Buyer and Seller shall engage in good faith negotiations, prior to Closing, with respect to the existence of such Environmental Condition and the scope of remediation or other corrective action required with respect thereto (a "Remediation Plan"). The parties expect that any agreed upon Remediation Plan will address Seller’s pre- and post-Closing remediation obligations and special indemnification obligations in accordance with Part 3 of Exhibit 5.9 attached hereto. In the event that the parties are unable to agree upon the existence of any alleged Environmental Condition and a Remediation Plan with respect thereto, then Buyer shall have the option of waiving such Environmental Condition or alleged Environmental Condition with no adjustment to the Purchase Price therefor (it being understood that Seller shall have no obligation to Buyer, its successors or assigns with respect to any Environmental Condition or alleged Environmental Condition that is so waived by Buyer or with respect to any Environmental Condition or alleged Environmental Condition identified in the Phase I Investigation or Phase II Investigation that is first asserted by Buyer after Closing). In the event that, at Closing, there remain any Environmental Conditions or alleged Environmental Conditions as to which Buyer and Seller have not agreed upon a Remediation Plan or that have not been waived by Buyer, then Seller (at its option) shall either: (i) accept Buyer’s final proposed Remediation Plan with respect to all unresolved Environmental Conditions, and the parties shall proceed to Closing; or (ii) terminate this Agreement in accordance with Section 9.1(e) hereof. Seller and Buyer shall each use their commercially reasonable efforts to transfer to (or, if not transferable, make otherwise available to) Buyer all material Environmental Permits; provided, however, that Buyer shall pay all costs associated with such transfers. If any such transfer cannot be obtained prior to Closing, Buyer may in the exercise of its sole discretion waive such requirement as a condition to Closing, and Seller and Buyer shall continue to use their commercially reasonable efforts to obtain any such transfer as soon as possible after the Closing Date or otherwise obtain for Buyer the practical benefit of such Environmental Permits. Seller shall obtain such approvals, on terms reasonably satisfactory to Buyer, as are required by applicable state or local Environmental Laws (including without limitation the New Jersey Industrial Site Recovery Act) of a transferor of an interest in real property or shall have demonstrated to the reasonable satisfaction of Buyer that no such approval is required. Seller shall give Buyer reasonable notice in advance of all meetings scheduled between Seller and state or local environmental authorities with respect to the foregoing and Buyer and Buyer's representatives shall have the right, without the obligation, to attend and participate in all such meetings. Seller shall promptly provide to Buyer copies of all documents and correspondence to and from such environmental authorities relating to such matters.

Environmental Due Diligence. Buyer may, at its election, engage a nationally recognized third party The Company shall have conducted an --------------------------- environmental consultant (which may be Environmental Resource Management) to conduct a "phase I" environmental due diligence investigation of the Plant Sites Purchased Assets and the System, the results of which investigation shall be reasonably satisfactory to the Company, it being understood that such investigation shall include: (i) reviewing all Phase I environmental assessments prepared prior to the date hereof on behalf of AT&T PCS for the parcels of real property subject to leases included in the Assigned Agreements; and (ii) conducting and reviewing Phase I environmental assessments for parcels of real property subject to leases included in the Assigned Agreements for which such assessments have not been performed prior to the date hereof. In the event the Company is not reasonably satisfied with the results of its environmental due diligence investigation with respect to any such parcel, the Company shall provide AT&T PCS with written notice of such dissatisfaction no later than 30 days after the date hereof, which written notice shall set forth in reasonable detail the parcels as to which the Company is not reasonably satisfied and the reasons therefor (the "Phase I InvestigationPotentially Rejected Sites"). Any Phase I Investigation will be conducted at Buyer’s expense In the event there are five (5) or fewer -------------------------- Potentially Rejected Sites, the Closing shall take place in accordance with the specifications set forth terms hereof with no reduction in Part 1 of Exhibit 5.9 attached heretothe Purchase Price, and will (i) with respect to each Potentially Registered Site the Company shall have the right at the Company's sole cost and expense to deinstall and remove all Purchased Assets located at any Potentially Rejected Site, (ii) Section 4.11 shall not be completed within fourteen applicable to any Potentially Rejected Site as to which such right shall be exercised, and (14iii) any Assigned Agreements relating to a Potentially Rejected Site as to which such right shall be exercised shall be excluded from the Purchased Assets and shall not be assigned to the Company pursuant to Section 2.1(d) and the liabilities arising thereunder shall not be Assumed Liabilities pursuant to Section 2.4(a). The Company shall exercise such right by written notice thereof given at least ten (10) Business Days prior to the Closing Date. In the event there are more than five (5) Potentially Rejected Sites, the Company may elect by written notice provided to AT&T PCS no later than 30 days after the date of this Agreement (subject to extension for delays caused by Seller, including failure to provide reasonably requested information and access to Plant Sites in a timely manner). If the results of any Phase I Investigation indicate a "recognized environmental condition" (as that term is defined in ASTM E 1527-00 – Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessments Process) or other condition or violation of Environmental Law reasonably of concern to Buyer’s environmental consultant, Buyer may request that Seller provide to Buyer and its agents access to conduct a "phase II" environmental investigation ("Phase II Investigation"). Seller may grant or deny such access with respect to any one or more Plant Sites in its sole discretion. If permitted by Seller, Buyer may engage a nationally recognized third party environmental consultant to conduct the Phase II Investigation, which Phase II Investigation shall be conducted at Buyer’s expense and shall be completed by June 1, 2001. If a Phase II Investigation is not permitted by Seller with respect to any Plant Site, then Buyer shall have the right hereof to terminate this Agreement in accordance with Section 9.1(e) hereof (andArticle IX; provided, in the event this Agreement is so terminated by Buyerhowever, then Seller shall promptly reimburse Buyer for its actual out-of-pocket costs incurred in connection with this transaction). Buyer shall, no later than 10 days prior to the Closing Date, advise Seller of any environmental condition or alleged environmental condition identified that such 30 day period may be extended by the Phase I Investigation or Phase II Investigation that is of the type listed in Part 2 of Exhibit 5.9 and that affects Company, by -------- ------- written notice given to AT&T PCS, for such period not to exceed 30 days, as shall be necessary to investigate any Plant Site (an "Environmental Condition"), and shall provide Seller with copies of the relevant portion of the Phase I Investigation report or the Phase II Investigation report and any related supporting documentation in Buyer’s possession or control potential environmental liability relating to any Environmental Conditions or alleged Environmental Condition. As to any Plant Site affected by an Environmental Condition or alleged Environmental Condition, Buyer and Seller shall engage in good faith negotiations, prior to Closing, with respect to the existence of such Environmental Condition and the scope of remediation or other corrective action required with respect thereto (a "Remediation Plan"). The parties expect that any agreed upon Remediation Plan will address Seller’s pre- and post-Closing remediation obligations and special indemnification obligations in accordance with Part 3 of Exhibit 5.9 attached heretoPotentially Rejected Site. In the event that the parties are unable Company elects to agree upon deinstall and remove any Purchased Assets located at any Potentially Rejected Site in accordance with this Section 4.13, and this Agreement shall thereafter be terminated without the existence Closing having occurred, the Company shall at its sole cost and expense reinstall and restore all Purchased Assets to their prior locations. Notwithstanding anything to the contrary contained herein, AT&T PCS shall not be deemed to be in breach of any alleged Environmental Condition and a Remediation Plan with respect representation or warranty contained in this Agreement, or have any indemnification obligation relating thereto, then Buyer in respect of any matter of which the Company acquires knowledge during the course of its environmental due diligence investigation of the Purchased Assets. As used in this Section 4.13, the term "knowledge" refers to actual and not constructive knowledge of the Company. Notwithstanding the foregoing, in the event that the Company shall have placed the option of waiving such Environmental Condition or alleged Environmental Condition with no adjustment to System into commercial operation while the Purchase Price therefor (it being understood that Seller Management Agreement shall be in effect, the Company shall have no obligation right to Buyer, its successors or assigns with respect to any Environmental Condition or alleged Environmental Condition that is so waived by Buyer or with respect to any Environmental Condition or alleged Environmental Condition identified in the Phase I Investigation or Phase II Investigation that is first asserted by Buyer after Closing). In the event that, at Closing, there remain any Environmental Conditions or alleged Environmental Conditions as to which Buyer and Seller have not agreed upon a Remediation Plan or that have not been waived by Buyer, then Seller (at its option) shall either: (i) accept Buyer’s final proposed Remediation Plan with respect to all unresolved Environmental Conditions, and the parties shall proceed to Closing; or (ii) terminate this Agreement in accordance with pursuant to this Section 9.1(e) hereof. Seller and Buyer shall each use their commercially reasonable efforts to transfer to (or, if not transferable, make otherwise available to) Buyer all material Environmental Permits; provided, however, that Buyer shall pay all costs associated with such transfers. If any such transfer cannot be obtained prior to Closing, Buyer may in the exercise of its sole discretion waive such requirement as a condition to Closing, and Seller and Buyer shall continue to use their commercially reasonable efforts to obtain any such transfer as soon as possible after the Closing Date or otherwise obtain for Buyer the practical benefit of such Environmental Permits. Seller shall obtain such approvals, on terms reasonably satisfactory to Buyer, as are required by applicable state or local Environmental Laws (including without limitation the New Jersey Industrial Site Recovery Act) of a transferor of an interest in real property or shall have demonstrated to the reasonable satisfaction of Buyer that no such approval is required. Seller shall give Buyer reasonable notice in advance of all meetings scheduled between Seller and state or local environmental authorities with respect to the foregoing and Buyer and Buyer's representatives shall have the right, without the obligation, to attend and participate in all such meetings. Seller shall promptly provide to Buyer copies of all documents and correspondence to and from such environmental authorities relating to such matters4.13.

Environmental Due Diligence. Buyer mayThe BSP II Owners shall cause the BSP II Legal Counsel to retain a consultant to conduct, at its electionon behalf of the BSP II Owners, engage a nationally recognized third party Phase I environmental consultant (which may be Environmental Resource Management) to conduct a "phase I" site assessment and any Phase II environmental site assessment or other environmental investigation the steering committee of the Plant Sites BSP II Owners deems necessary or desirable, prior to transfer of any real property or granting easements to the BSP II Owners from BSP I Owners hereunder. The costs of such environmental due diligence shall be paid for by the BSP II Owners. If Hazardous Substances or other environmental conditions are discovered during such environmental due diligence that the BSP II Owners choose not to assume, the BSP II Owner’s sole options shall be to (a) not purchase the "Phase objectionable real property from the BSP I Investigation")Owners under Section 10.01, (b) accept replacement property or easement areas selected pursuant to Section 2.05, or (c) accept remediated property or easement areas as provided in this Section 10.09. Should the environmental due diligence result in environmental remediation requirements by a Governmental Authority, the BSP I Owners, in their sole discretion, may decide to remove the affected real property from the Option to Purchase Contract or Blanket Easement Agreement and propose other property pursuant to Section 2.05 or add the costs of environmental remediation to the purchase price per acre of the affected property to be purchased under the Option to Purchase Contract or to be obtained under the Blanket Easement Agreement. The BSP II Owners may then, in their sole discretion, accept or reject the purchase of, or easements for use upon, such affected property at their option. Any Phase real property sold by the BSP I Investigation will Owners or easement granted by them shall be conducted at Buyer’s expense in accordance “as is, where is” with all faults, including the presence of Hazardous Substances and other environmental conditions. The BSP I Owners shall cooperate fully with such activities, consistent with the specifications set forth in Part 1 cooperation required of Exhibit 5.9 attached heretothe Groups and Parties under Section 18.11 below, and will be completed within fourteen (14) days after the date of this Agreement (subject BSP I Owners hereby grant to extension for delays caused by Sellerthe BSP II Owners, including failure to provide reasonably requested information the BSP II Legal Counsel, and access to Plant Sites in a timely manner). If the results of any Phase I Investigation indicate a "recognized environmental condition" (as that term is defined in ASTM E 1527-00 – Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessments Process) or other condition or violation of Environmental Law reasonably of concern to Buyer’s environmental consultanttheir consultants, Buyer may request that Seller provide to Buyer and its agents access to conduct a "phase II" environmental investigation ("Phase II Investigation"). Seller may grant or deny such access with respect to any one or more Plant Sites in its sole discretion. If permitted by Seller, Buyer may engage a nationally recognized third party environmental consultant to conduct the Phase II Investigation, which Phase II Investigation shall be conducted at Buyer’s expense and shall be completed by June 1, 2001. If a Phase II Investigation is not permitted by Seller with respect to any Plant Site, then Buyer shall have the right to terminate this Agreement in accordance with Section 9.1(e) hereof (and, in enter the event this Agreement is so terminated by Buyer, then Seller shall promptly reimburse Buyer for its actual out-of-pocket costs incurred in connection with this transaction). Buyer shall, no later than 10 days prior to the Closing Date, advise Seller of any environmental condition or alleged environmental condition identified by the Phase BSP I Investigation or Phase II Investigation that is of the type listed in Part 2 of Exhibit 5.9 and that affects any Plant Site (an "Environmental Condition"), and shall provide Seller with copies of the relevant portion of the Phase I Investigation report or the Phase BSP II Investigation report and any related supporting documentation in Buyer’s possession or control relating to any Environmental Conditions or alleged Environmental Condition. As to any Plant Site affected by an Environmental Condition or alleged Environmental Conditionand all improvements located thereon, Buyer and Seller shall engage in good faith negotiations, prior to Closing, with respect to the existence for purposes of conducting such Environmental Condition and the scope of remediation or other corrective action required with respect thereto (a "Remediation Plan"). The parties expect that any agreed upon Remediation Plan will address Seller’s pre- and post-Closing remediation obligations and special indemnification obligations in accordance with Part 3 of Exhibit 5.9 attached hereto. In the event that the parties are unable to agree upon the existence of any alleged Environmental Condition and a Remediation Plan with respect thereto, then Buyer shall have the option of waiving such Environmental Condition or alleged Environmental Condition with no adjustment to the Purchase Price therefor (it being understood that Seller shall have no obligation to Buyer, its successors or assigns with respect to any Environmental Condition or alleged Environmental Condition that is so waived by Buyer or with respect to any Environmental Condition or alleged Environmental Condition identified in the Phase I Investigation or Phase II Investigation that is first asserted by Buyer after Closing). In the event that, at Closing, there remain any Environmental Conditions or alleged Environmental Conditions as to which Buyer and Seller have not agreed upon a Remediation Plan or that have not been waived by Buyer, then Seller (at its option) shall either: (i) accept Buyer’s final proposed Remediation Plan with respect to all unresolved Environmental Conditions, and the parties shall proceed to Closing; or (ii) terminate this Agreement in accordance with Section 9.1(e) hereof. Seller and Buyer shall each use their commercially reasonable efforts to transfer to (or, if not transferable, make otherwise available to) Buyer all material Environmental Permits; provided, however, that Buyer shall pay all costs associated with such transfers. If any such transfer cannot be obtained prior to Closing, Buyer may in the exercise of its sole discretion waive such requirement as a condition to Closing, and Seller and Buyer shall continue to use their commercially reasonable efforts to obtain any such transfer as soon as possible after the Closing Date or otherwise obtain for Buyer the practical benefit of such Environmental Permits. Seller shall obtain such approvals, on terms reasonably satisfactory to Buyer, as are required by applicable state or local Environmental Laws (including without limitation the New Jersey Industrial Site Recovery Act) of a transferor of an interest in real property or shall have demonstrated to the reasonable satisfaction of Buyer that no such approval is required. Seller shall give Buyer reasonable notice in advance of all meetings scheduled between Seller and state or local environmental authorities with respect to the foregoing and Buyer and Buyer's representatives shall have the right, without the obligation, to attend and participate in all such meetings. Seller shall promptly provide to Buyer copies of all documents and correspondence to and from such environmental authorities relating to such mattersactivities.

Environmental Due Diligence. Buyer may, at its election, engage a nationally recognized third party The Company shall have conducted --------------------------- an environmental consultant (which may be Environmental Resource Management) to conduct a "phase I" environmental due diligence investigation of the Plant Sites Purchased Assets and the System, the results of which investigation shall be reasonably satisfactory to the Company, it being understood that such investigation shall include: (i) reviewing all Phase I environmental assessments prepared prior to the date hereof on behalf of AT&T PCS for the parcels of real property subject to leases included in the Assigned Agreements; and (ii) conducting and reviewing Phase I environmental assessments for parcels of real property subject to leases included in the Assigned Agreements for which such assessments have not been performed prior to the date hereof. In the event the Company is not reasonably satisfied with the results of its environmental due diligence investigation with respect to any such parcel, the Company shall provide AT&T PCS with written notice of such dissatisfaction no later than 30 days after the date hereof, which written notice shall set forth in reasonable detail the parcels as to which the Company is not reasonably satisfied and the reasons therefor (the "Phase I InvestigationPotentially Rejected Sites"). Any Phase I Investigation will be conducted at Buyer’s expense In the event there are five (5) or fewer --------------------------- Potentially Rejected Sites, the Closing shall take place in accordance with the specifications set forth terms hereof with no reduction in Part 1 of Exhibit 5.9 attached heretothe Purchase Price, and will (i) with respect to each Potentially Registered Site the Company shall have the right at the Company's sole cost and expense to deinstall and remove all Purchased Assets located at any Potentially Rejected Site, (ii) Section 4.11 shall not be completed within fourteen applicable to any Potentially Rejected Site as to which such right shall be exercised, and (14iii) any Assigned Agreements relating to a Potentially Rejected Site as to which such right shall be exercised shall be excluded from the Purchased Assets and shall not be assigned to the Company pursuant to Section 2.1(d) and the liabilities arising thereunder shall not be Assumed Liabilities pursuant to Section 2.4(a). The Company shall exercise such right by written notice thereof given at least ten (10) Business Days prior to the Closing Date. In the event there are more than five (5) Potentially Rejected Sites, the Company may elect by written notice provided to AT&T PCS no later than 30 days after the date of this Agreement (subject to extension for delays caused by Seller, including failure to provide reasonably requested information and access to Plant Sites in a timely manner). If the results of any Phase I Investigation indicate a "recognized environmental condition" (as that term is defined in ASTM E 1527-00 – Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessments Process) or other condition or violation of Environmental Law reasonably of concern to Buyer’s environmental consultant, Buyer may request that Seller provide to Buyer and its agents access to conduct a "phase II" environmental investigation ("Phase II Investigation"). Seller may grant or deny such access with respect to any one or more Plant Sites in its sole discretion. If permitted by Seller, Buyer may engage a nationally recognized third party environmental consultant to conduct the Phase II Investigation, which Phase II Investigation shall be conducted at Buyer’s expense and shall be completed by June 1, 2001. If a Phase II Investigation is not permitted by Seller with respect to any Plant Site, then Buyer shall have the right hereof to terminate this Agreement in accordance with Section 9.1(e) hereof (andArticle IX; provided, in the event this Agreement is so terminated by Buyerhowever, then Seller shall promptly reimburse Buyer for its actual out-of-pocket costs incurred in connection with this transaction). Buyer shall, no later than 10 days prior to the Closing Date, advise Seller of any environmental condition or alleged environmental condition identified that such 30 day period may be -------- ------- extended by the Phase I Investigation or Phase II Investigation that is of the type listed in Part 2 of Exhibit 5.9 and that affects Company, by written notice given to AT&T PCS, for such period not to exceed 30 days, as shall be necessary to investigate any Plant Site (an "Environmental Condition"), and shall provide Seller with copies of the relevant portion of the Phase I Investigation report or the Phase II Investigation report and any related supporting documentation in Buyer’s possession or control potential environmental liability relating to any Environmental Conditions or alleged Environmental Condition. As to any Plant Site affected by an Environmental Condition or alleged Environmental Condition, Buyer and Seller shall engage in good faith negotiations, prior to Closing, with respect to the existence of such Environmental Condition and the scope of remediation or other corrective action required with respect thereto (a "Remediation Plan"). The parties expect that any agreed upon Remediation Plan will address Seller’s pre- and post-Closing remediation obligations and special indemnification obligations in accordance with Part 3 of Exhibit 5.9 attached heretoPotentially Rejected Site. In the event that the parties are unable Company elects to agree upon deinstall and remove any Purchased Assets located at any Potentially Rejected Site in accordance with this Section 4.13, and this Agreement shall thereafter be terminated without the existence Closing having occurred, the Company shall at its sole cost and expense reinstall and restore all Purchased Assets to their prior locations. Notwithstanding anything to the contrary contained herein, AT&T PCS shall not be deemed to be in breach of any alleged Environmental Condition and a Remediation Plan with respect representation or warranty contained in this Agreement, or have any indemnification obligation relating thereto, then Buyer in respect of any matter of which the Company acquires knowledge during the course of its environmental due diligence investigation of the Purchased Assets. As used in this Section 4.13, the term "knowledge" refers to actual and not constructive knowledge of the Company. Notwithstanding the foregoing, in the event that the Company shall have placed the option of waiving such Environmental Condition or alleged Environmental Condition with no adjustment to System into commercial operation while the Purchase Price therefor (it being understood that Seller Management Agreement shall be in effect, the Company shall have no obligation right to Buyer, its successors or assigns with respect to any Environmental Condition or alleged Environmental Condition that is so waived by Buyer or with respect to any Environmental Condition or alleged Environmental Condition identified in the Phase I Investigation or Phase II Investigation that is first asserted by Buyer after Closing). In the event that, at Closing, there remain any Environmental Conditions or alleged Environmental Conditions as to which Buyer and Seller have not agreed upon a Remediation Plan or that have not been waived by Buyer, then Seller (at its option) shall either: (i) accept Buyer’s final proposed Remediation Plan with respect to all unresolved Environmental Conditions, and the parties shall proceed to Closing; or (ii) terminate this Agreement in accordance with pursuant to this Section 9.1(e) hereof. Seller and Buyer shall each use their commercially reasonable efforts to transfer to (or, if not transferable, make otherwise available to) Buyer all material Environmental Permits; provided, however, that Buyer shall pay all costs associated with such transfers. If any such transfer cannot be obtained prior to Closing, Buyer may in the exercise of its sole discretion waive such requirement as a condition to Closing, and Seller and Buyer shall continue to use their commercially reasonable efforts to obtain any such transfer as soon as possible after the Closing Date or otherwise obtain for Buyer the practical benefit of such Environmental Permits. Seller shall obtain such approvals, on terms reasonably satisfactory to Buyer, as are required by applicable state or local Environmental Laws (including without limitation the New Jersey Industrial Site Recovery Act) of a transferor of an interest in real property or shall have demonstrated to the reasonable satisfaction of Buyer that no such approval is required. Seller shall give Buyer reasonable notice in advance of all meetings scheduled between Seller and state or local environmental authorities with respect to the foregoing and Buyer and Buyer's representatives shall have the right, without the obligation, to attend and participate in all such meetings. Seller shall promptly provide to Buyer copies of all documents and correspondence to and from such environmental authorities relating to such matters4.13.

Environmental Due Diligence. Buyer may, at its election, engage a nationally recognized third party The Company shall have conducted an --------------------------- environmental consultant (which may be Environmental Resource Management) to conduct a "phase I" environmental due diligence investigation of the Plant Sites Purchased Assets, the results of which investigation shall be reasonably satisfactory to the Company, it being understood that such investigation shall include: (i) reviewing all Phase I environmental assessments prepared prior to the date hereof on behalf of AT&T PCS for the parcels of real property subject to leases included in the Assigned Agreements; and (ii) conducting and reviewing Phase I environmental assessments for parcels of real property subject to leases included in the Assigned Agreements for which such assessments have not been performed prior to the date hereof. In the event the Company is not reasonably satisfied with the results of its environmental due diligence investigation with respect to any such parcel, the Company shall provide AT&T PCS with written notice of such dissatisfaction no later than 30 days after the date hereof, which written notice shall set forth in reasonable detail the parcels as to which the Company is not reasonably satisfied and the reasons therefor (the "Phase I InvestigationPotentially Rejected -------------------- Sites"). Any Phase I Investigation will be conducted at Buyer’s expense In the event there are five (5) or fewer Potentially Rejected Sites, ----- the Closing shall take place in accordance with the specifications set forth terms hereof with no reduction in Part 1 of Exhibit 5.9 attached heretothe Purchase Price, and will (i) with respect to each Potentially Registered Site the Company shall have the right at the Company's sole cost and expense to deinstall and remove all Purchased Assets located at any Potentially Rejected Site and (ii) any Assigned Agreements relating to a Potentially Rejected Site as to which such right shall be completed within fourteen exercised shall be excluded from the Purchased Assets and shall not be assigned to the Company pursuant to Section 2.1(b) and the liabilities arising thereunder shall not be Assumed Liabilities pursuant to Section 2.3(a). The Company shall exercise such right by written notice thereof given at least ten (1410) Business Days prior to the Closing Date. In the event there are more than five (5) Potentially Rejected Sites, the Company may elect by written notice provided to AT&T PCS no later than 30 days after the date of this Agreement (subject to extension for delays caused by Seller, including failure to provide reasonably requested information and access to Plant Sites in a timely manner). If the results of any Phase I Investigation indicate a "recognized environmental condition" (as that term is defined in ASTM E 1527-00 – Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessments Process) or other condition or violation of Environmental Law reasonably of concern to Buyer’s environmental consultant, Buyer may request that Seller provide to Buyer and its agents access to conduct a "phase II" environmental investigation ("Phase II Investigation"). Seller may grant or deny such access with respect to any one or more Plant Sites in its sole discretion. If permitted by Seller, Buyer may engage a nationally recognized third party environmental consultant to conduct the Phase II Investigation, which Phase II Investigation shall be conducted at Buyer’s expense and shall be completed by June 1, 2001. If a Phase II Investigation is not permitted by Seller with respect to any Plant Site, then Buyer shall have the right hereof to terminate this Agreement in accordance with Section 9.1(e) hereof (andArticle IX; provided, in however, that such 30 day period may be extended by -------- ------- the event this Agreement is so terminated Company, by Buyerwritten notice given to AT&T PCS, then Seller for such period not to exceed 30 days, as shall promptly reimburse Buyer for its actual out-of-pocket costs incurred in connection with this transaction). Buyer shall, no later than 10 days prior be necessary to the Closing Date, advise Seller of investigate any potential environmental condition or alleged environmental condition identified by the Phase I Investigation or Phase II Investigation that is of the type listed in Part 2 of Exhibit 5.9 and that affects any Plant Site (an "Environmental Condition"), and shall provide Seller with copies of the relevant portion of the Phase I Investigation report or the Phase II Investigation report and any related supporting documentation in Buyer’s possession or control liability relating to any Environmental Conditions or alleged Environmental Condition. As to any Plant Site affected by an Environmental Condition or alleged Environmental Condition, Buyer and Seller shall engage in good faith negotiations, prior to Closing, with respect to the existence of such Environmental Condition and the scope of remediation or other corrective action required with respect thereto (a "Remediation Plan"). The parties expect that any agreed upon Remediation Plan will address Seller’s pre- and post-Closing remediation obligations and special indemnification obligations in accordance with Part 3 of Exhibit 5.9 attached heretoPotentially Rejected Site. In the event that the parties are unable Company elects to agree upon the existence of deinstall and remove any alleged Environmental Condition and a Remediation Plan with respect thereto, then Buyer shall have the option of waiving such Environmental Condition or alleged Environmental Condition with no adjustment to the Purchase Price therefor (it being understood that Seller shall have no obligation to Buyer, its successors or assigns with respect to Purchased Assets located at any Environmental Condition or alleged Environmental Condition that is so waived by Buyer or with respect to any Environmental Condition or alleged Environmental Condition identified in the Phase I Investigation or Phase II Investigation that is first asserted by Buyer after Closing). In the event that, at Closing, there remain any Environmental Conditions or alleged Environmental Conditions as to which Buyer and Seller have not agreed upon a Remediation Plan or that have not been waived by Buyer, then Seller (at its option) shall either: (i) accept Buyer’s final proposed Remediation Plan with respect to all unresolved Environmental Conditions, and the parties shall proceed to Closing; or (ii) terminate this Agreement Potentially Rejected Site in accordance with this Section 9.1(e) hereof4.10, and this Agreement shall thereafter be terminated without the Closing having occurred, the Company shall at its sole cost and expense reinstall and restore all Purchased Assets to their prior locations. Seller and Buyer Notwithstanding anything to the contrary contained herein, AT&T PCS shall each use their commercially reasonable efforts to transfer to (or, if not transferable, make otherwise available to) Buyer all material Environmental Permits; provided, however, that Buyer shall pay all costs associated with such transfers. If any such transfer cannot be obtained prior deemed to Closingbe in breach of any representation or warranty contained in this Agreement, Buyer may or have any indemnification obligation relating thereto, in respect of any matter of which the exercise Company acquires knowledge during the course of its sole discretion waive such requirement as a condition environmental due diligence investigation of the Purchased Assets. As used in this Section 4.10, the term "knowledge" refers to Closing, actual and Seller and Buyer shall continue to use their commercially reasonable efforts to obtain any such transfer as soon as possible after not constructive knowledge of the Closing Date or otherwise obtain for Buyer the practical benefit of such Environmental Permits. Seller shall obtain such approvals, on terms reasonably satisfactory to Buyer, as are required by applicable state or local Environmental Laws (including without limitation the New Jersey Industrial Site Recovery Act) of a transferor of an interest in real property or shall have demonstrated to the reasonable satisfaction of Buyer that no such approval is required. Seller shall give Buyer reasonable notice in advance of all meetings scheduled between Seller and state or local environmental authorities with respect to the foregoing and Buyer and Buyer's representatives shall have the right, without the obligation, to attend and participate in all such meetings. Seller shall promptly provide to Buyer copies of all documents and correspondence to and from such environmental authorities relating to such mattersCompany.

Environmental Due Diligence. Buyer may(a) Commencing on the date hereof and through and including August 31, at its election, engage a nationally recognized third party environmental consultant (which may be Environmental Resource Management) to conduct a "phase I" environmental investigation of the Plant Sites 2003 (the "Phase I InvestigationInspection Period"). Any Phase I Investigation will be conducted , Buyer, its employees and agents and the Consultant (defined below) shall have reasonable access to the Property at Buyer’s expense in accordance with all reasonable times during normal business hours, for the specifications set forth in Part 1 purpose of Exhibit 5.9 attached heretoenvironmental inspections and tests, provided that (i) Buyer must give Seller at least two (2) business days' prior telephone or written notice of any such inspection or test, and will be completed within fourteen (14) days after the date of this Agreement (subject to extension for delays caused by Seller, including failure to provide reasonably requested information and access to Plant Sites in a timely manner). If the results of any Phase I Investigation indicate a "recognized environmental condition" (as that term is defined in ASTM E 1527-00 – Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessments Process) or other condition or violation of Environmental Law reasonably of concern to Buyer’s environmental consultant, Buyer may request that Seller provide to Buyer and its agents access to conduct a "phase II" environmental investigation ("Phase II Investigation"). Seller may grant or deny such access with respect to any one intrusive inspection or more Plant Sites test (i.e., core sampling) must obtain Seller's prior written consent (which consent shall not be unreasonably withheld or delayed), (ii) at the time of such notice set forth in its sole discretion. If permitted by Seller(i), Buyer may engage must describe the purpose of such entry, the identity of the persons who will be entering the Property and the expected duration of such entry, (iii) prior to performing any inspection or test, Buyer must deliver a nationally recognized third party environmental consultant certificate of insurance to conduct Seller evidencing that Buyer and its contractors, agents and representatives have in place $2,000,000 of comprehensive general liability insurance and workers' compensation insurance for its activities on the Phase II InvestigationProperty covering any claims arising in connection with the presence of Buyer, its contractors, agents and representatives on the Property, which Phase II Investigation insurance shall name Seller as an additional insured thereunder, and (iv) all such tests shall be conducted at by Buyer in compliance with Buyer’s expense 's responsibilities set forth in this Section 1.8. Buyer's environmental investigations shall consist of Phase I and Phase II environmental reviews and inspections of the Property to be conducted by the FPM Group and Hygenix, Inc. (collectively, the "Consultant"), including (without limitation) taking soil and water samples from the Property and inspection for the presence of asbestos. Buyer's Phase II inspections shall be completed by June 1, 2001coordinated with Seller and conducted in a manner that will not interfere with Seller's use and occupancy of the Property. If a Phase II Investigation is not permitted by Seller with respect to any Plant Site, then Buyer shall have bear the right to terminate cost of all such inspections or tests; provided, however, that if Buyer terminates this Agreement as provided in accordance with Section 9.1(esubsection (b)(i) hereof (andbelow, in the event this Agreement is so terminated by Buyer, then Seller shall promptly reimburse Buyer for its actual all of Buyer's out-of-pocket costs paid or incurred in connection with this transaction). Buyer shall, no later than 10 days prior to the Closing Date, advise Seller of any environmental condition or alleged environmental condition identified by the Phase I Investigation or Phase II Investigation that is environmental inspections of the type listed Property and the Report (defined below), unless Buyer terminates this Agreement because it cannot obtain the environmental insurance hereinafter described, in Part 2 which case Buyer shall not be entitled to any reimbursement of Exhibit 5.9 and that affects any Plant Site (an "Environmental Condition")such costs, and shall provide Seller with copies only be entitled to a return of the relevant portion of the Phase I Investigation report or the Phase II Investigation report Deposit and any related supporting documentation in Buyer’s possession or control relating to any Environmental Conditions or alleged Environmental Condition. As to any Plant Site affected by an Environmental Condition or alleged Environmental Condition, Buyer and Seller shall engage in good faith negotiations, prior to Closing, with respect to the existence of such Environmental Condition and the scope of remediation or other corrective action required with respect thereto (a "Remediation Plan"). The parties expect that any agreed upon Remediation Plan will address Seller’s pre- and post-Closing remediation obligations and special indemnification obligations in accordance with Part 3 of Exhibit 5.9 attached heretointerest accrued thereon. In the event that the parties are unable to agree upon the existence of any alleged Environmental Condition and a Remediation Plan with respect thereto, then Buyer shall have the option of waiving such Environmental Condition or alleged Environmental Condition with no adjustment to the Purchase Price therefor (it being understood that Seller shall have no obligation to Buyer, its successors or assigns with respect to any Environmental Condition or alleged Environmental Condition that is so waived by Buyer or with respect to any Environmental Condition or alleged Environmental Condition identified in the Phase I Investigation or Phase II Investigation that is first asserted by Buyer after Closing). In the event that, at Closing, there remain any Environmental Conditions or alleged Environmental Conditions as to which Buyer and Seller have does not agreed upon a Remediation Plan or that have not been waived by Buyer, then Seller (at its option) shall either: (i) accept Buyer’s final proposed Remediation Plan with respect to all unresolved Environmental Conditions, and the parties shall proceed to Closing; or (ii) terminate this Agreement at the end of the Inspection Period as provided in accordance with Section 9.1(esubsection (b)(i) hereof. Seller and Buyer shall each use their commercially reasonable efforts to transfer to (orbelow, if not transferable, make otherwise available to) Buyer all material Environmental Permits; provided, however, that Buyer shall pay all costs associated with such transfers. If any such transfer cannot be obtained prior to Closing, Buyer may in the exercise of its sole discretion waive such requirement as a condition to Closing, and Seller and Buyer shall continue to use their commercially be afforded access to the Property on reasonable efforts advance telephone notice to obtain any such transfer as soon as possible after the Closing Date or otherwise obtain for Buyer the practical benefit of such Environmental PermitsSeller. Seller shall obtain such approvals, on terms execute all reasonably satisfactory to Buyer, as are acceptable manifests required by applicable state or local Environmental Laws (including without limitation for the New Jersey Industrial Site Recovery Act) disposal of a transferor of an interest in real property or shall have demonstrated to the reasonable satisfaction of Buyer that no such approval is required. Seller shall give Buyer reasonable notice in advance of all meetings scheduled between Seller and state or local environmental authorities with respect to the foregoing and Buyer and any wastes derived from Buyer's representatives shall have the right, without the obligation, to attend and participate in all such meetings. Seller shall promptly provide to Buyer copies of all documents and correspondence to and from such environmental authorities relating to such mattersinspections as set forth herein.