Common use of Environmental Due Diligence Clause in Contracts

Environmental Due Diligence. Regarding any Current Company Facility, the Company and the Sellers shall provide Buyer with the right, but not the obligation, to take all steps necessary to conduct all appropriate inquiries pursuant to Section 101(35)(B) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601(35)(B), as the United States Environmental Protection Agency has defined such inquiries in a rule promulgated at 70 Fed. Reg. 66070 (November 1, 2005) and effective on November 1, 2006 (hereinafter, “All Appropriate Inquiries”). Buyer’s performance of All Appropriate Inquiries shall include but not be limited to, performance by or for Buyer, at Buyer’s sole cost, of any of the actions described in this Section 6.10. Within five (5) days of execution of this Agreement, Sellers shall make available to Buyer all records held by Sellers concerning each Current Company Facility and environmental conditions thereon, including but not limited to, for each Current Company Facility, any environmental site assessments, analytical results of sampling, remedial reports, investigations, permits, licenses, underground or aboveground storage tank test results, inventory records, administrative or judicial notices, and estimates of the cost of any environmental remediation, investigation, monitoring, or compliance. Sellers shall also provide to Buyer a list of, and make available to Buyer any written information on any environmental conditions at, every Former Company Facility. Buyer shall have the right, but not the obligation, to perform or cause to be performed an environmental site assessment of each Current Company Facility (each, a “Phase I assessment”) and to produce or cause to be produced a written report of each such assessment and any recommendations made as a result of each such assessment (each, a “Phase I”). If any Phase I recommends that samples of any environmental medium, including but not limited to any air, soil, surface water, ground water, sediment, rock, or bedrock at, above, or beneath any portion of a Current Company Facility, should be taken, or if any environmental site assessment or report provided to Buyer shows any contamination or remediation at a Current Company Facility, Buyer shall have the right, but not the obligation, to sample such Current Company Facility or cause it to be sampled, at Buyer’s sole cost (a “Phase II assessment”). A written report of any such Phase II assessment, any other efforts to address any concern raised or condition noted in any Phase I or any information obtained by Buyer, and any recommendations for further action (a “Phase II”) shall be prepared by or for Buyer at Buyer’s sole cost. Buyer shall provide Sellers with copies of the final Phase I and Phase II reports as each such report is generated. Sellers hereby grant Buyer and agents of Buyer all access to each Current Company Facility and to any individual representatives of Sellers which is or may be needed by or for Buyer to undertake All Appropriate Inquiries regarding each Current Company Facility.

Environmental Due Diligence. Regarding any Current Company Facility, the Company Sellers and the Shareholder hereby grant to Purchaser, and its counsel, accountants, consultants and other representatives, such access to the Acquired Properties, Improvements, personnel and records (including without limitation for purposes of conducting site inspections, asbestos surveys, or sampling and analyses of soil, groundwater or other media) as Purchaser may reasonably request, including for the purpose of conducting an investigation of the (a) compliance of Sellers shall provide Buyer and the Shareholder and any of their Business Properties with applicable Environmental Laws, and (b) the exposure to, presence, release, or any aspect of management, handling, or use of Materials of Environmental Concern at any such facility ("ENVIRONMENTAL DUE DILIGENCE"). All costs associated with the rightEnvironmental Due Diligence shall be paid by Purchaser; provided, but however, if Closing does not the obligation, to take all steps necessary to conduct all appropriate inquiries pursuant to Section 101(35)(B) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601(35)(B), as the United States Environmental Protection Agency has defined such inquiries in a rule promulgated at 70 Fed. Reg. 66070 (November 1, 2005) and effective on November 1, 2006 (hereinafter, “All Appropriate Inquiries”). Buyer’s performance of All Appropriate Inquiries shall include but not be limited to, performance by or for Buyer, at Buyer’s sole cost, of any of the actions described in this Section 6.10. Within five (5) days of execution of this Agreementoccur, Sellers shall make available cause, at their expense, (x) any investigation-derived waste generated or created in connection with performance of the Environmental Due Diligence (including without limitation, drill cuttings, purged or developed water, or sample remnants) to Buyer all records held by Sellers concerning each Current Company Facility and environmental conditions thereon, including but not limited to, for each Current Company Facility, any environmental site assessments, analytical results of sampling, remedial reports, investigations, permits, licenses, underground or aboveground storage tank test results, inventory records, administrative or judicial noticesbe disposed in compliance with applicable Environmental Laws, and estimates of (y) any wells or borings installed dxxxxx the cost of any environmental remediation, investigation, monitoring, or complianceEnvironmental Due Diligence to be plugged and abandoned. Sellers shall also be responsible for executing on their own behalf any and all manifests, shipping documents, plugging and abandoning reports and similar documents in connection with their obligations hereunder, and Sellers agree to indemnify and hold Purchaser harmless from and against any and all claims, liabilities, damages and causes of action arising out of Sellers' failure to fulfill the obligations under this Section. Sellers and Shareholder shall provide to Buyer a list ofPurchaser copies of all (a) Permits, (b) reports or results of all inspections, audits, assessments, and make available analytical data and (c) such other information as Purchaser may reasonably request in the possession or control of Sellers or the Shareholder regarding any of Sellers' or the Shareholder's current or prior facilities or operations associated with the Business and relating to Buyer any written information on any environmental conditions at(i) compliance with applicable requirements of Environmental Laws or (ii) the exposure to, every Former Company Facility. Buyer shall have the rightpresence, but not the obligation, to perform or cause to be performed an environmental site assessment of each Current Company Facility (each, a “Phase I assessment”) and to produce or cause to be produced a written report of each such assessment and any recommendations made as a result of each such assessment (each, a “Phase I”). If any Phase I recommends that samples of any environmental medium, including but not limited to any air, soil, surface water, ground water, sediment, rockrelease, or bedrock atany aspect of management, abovehandling, or beneath any portion use of a Current Company Facility, should be taken, or if any environmental site assessment or report provided to Buyer shows any contamination or remediation at a Current Company Facility, Buyer shall have the right, but not the obligation, to sample such Current Company Facility or cause it to be sampled, at Buyer’s sole cost (a “Phase II assessment”). A written report Materials of any such Phase II assessment, any other efforts to address any concern raised or condition noted in any Phase I or any information obtained by Buyer, and any recommendations for further action (a “Phase II”) shall be prepared by or for Buyer at Buyer’s sole cost. Buyer shall provide Sellers with copies of the final Phase I and Phase II reports as each such report is generated. Sellers hereby grant Buyer and agents of Buyer all access to each Current Company Facility and to any individual representatives of Sellers which is or may be needed by or for Buyer to undertake All Appropriate Inquiries regarding each Current Company FacilityEnvironmental Concern.

Environmental Due Diligence. Regarding any Current Company Facility(a) Upon prior reasonable notice to Seller, the Company and the Sellers shall provide Buyer with the right, but not the obligation, to take all steps necessary to conduct all appropriate inquiries pursuant to Section 101(35)(B) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601(35)(B), as the United States Environmental Protection Agency has defined such inquiries in a rule promulgated at 70 Fed. Reg. 66070 (November 1, 2005) and effective on November 1, 2006 (hereinafter, “All Appropriate Inquiries”). Buyer’s performance of All Appropriate Inquiries shall include but not be limited to, performance by or for Buyer, at Buyer’s sole cost, of any of the actions described in this Section 6.10. Within five (5) days of execution of this Agreement, Sellers shall make available to Buyer all records held by Sellers concerning each Current Company Facility and environmental conditions thereon, including but not limited to, for each Current Company Facility, any environmental site assessments, analytical results of sampling, remedial reports, investigations, permits, licenses, underground or aboveground storage tank test results, inventory records, administrative or judicial notices, and estimates of the cost of any environmental remediation, investigation, monitoring, or compliance. Sellers shall also provide to Buyer a list of, and make available to Buyer any written information on any environmental conditions at, every Former Company Facility. Buyer Purchaser shall have the right, but not the obligationat any time and from time to time prior to Closing, to perform or cause to be performed an make such environmental site assessment assessments (including obtaining a reasonable number of each Current Company Facility soil samples) in regard to the Seller Land (eachand Leasehold Property to the extent the fee owner consents to the same) as Purchaser shall desire and to employ engineers and other personnel to perform such environmental site assessments at its sole expense. Purchaser may at any time prior to the date which is ten (10) days prior to the Closing Date, give to Seller written notice of any matter which may be a violation of Environmental Laws, impose a notification obligation on Purchaser or Timberlands II, LLC following Closing, or require Remediation or further investigation under applicable Environmental Laws, and in connection therewith Purchaser shall furnish to Seller a copy of any report or preliminary report received by Purchaser with respect to any such environmental site assessment. If Seller fails prior to the Closing Date to cure or satisfy any such matter of which Purchaser gives Seller timely written notice to Purchaser’s reasonable satisfaction (but in no event beyond the Remediation standards established by applicable Environmental Law), then Purchaser may either (i) proceed to Closing subject to such uncured or unsatisfied matter, with no reduction in the Purchase Price, or (ii) if Purchaser’s environmental consultant determines that the condition affects only a portion of the Seller Land or Leasehold Property, proceed to Closing in which case the Purchased Assets shall be conveyed, assigned and transferred to Timberlands II, LLC pursuant to the Contribution Agreement exclusive of such objectionable portion (an “Phase I assessmentEnvironmental Carve Out”) and to produce or cause to be produced a written report with such reduction in the Installment Note Purchase Price determined in accordance with paragraph (c) of each such assessment and any recommendations made as a result of each such assessment (each, a “Phase I”). If any Phase I recommends that samples of any environmental medium, including but not limited to any air, soil, surface water, ground water, sediment, rock, or bedrock at, above, or beneath any portion of a Current Company Facility, should be taken, or if any environmental site assessment or report provided to Buyer shows any contamination or remediation at a Current Company Facility, Buyer shall have the right, but not the obligation, to sample such Current Company Facility or cause it to be sampled, at Buyer’s sole cost (a “Phase II assessment”). A written report of any such Phase II assessment, any other efforts to address any concern raised or condition noted in any Phase I or any information obtained by Buyer, and any recommendations for further action (a “Phase II”) shall be prepared by or for Buyer at Buyer’s sole cost. Buyer shall provide Sellers with copies of the final Phase I and Phase II reports as each such report is generated. Sellers hereby grant Buyer and agents of Buyer all access to each Current Company Facility and to any individual representatives of Sellers which is or may be needed by or for Buyer to undertake All Appropriate Inquiries regarding each Current Company Facilitythis Section 11.6.

Environmental Due Diligence. Regarding any Current Company Facility, the Company and the Sellers shall provide Buyer with the right, but not the obligation, to take all steps necessary to conduct all appropriate inquiries pursuant to Section 101(35)(B) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601(35)(B), as the United States Environmental Protection Agency has defined such inquiries in a rule promulgated at 70 Fed. Reg. 66070 (November 1, 2005) and effective on November 1, 2006 (hereinafter, “All Appropriate Inquiries”). Buyer’s performance of All Appropriate Inquiries shall include but not be limited to, performance by or for Buyer, at Buyer’s sole cost, of any of the actions described in this Section 6.10. Within five (5) days of execution of this Agreement, Sellers shall make available to Buyer all records held by Sellers concerning each Current Company Facility and environmental conditions thereon, including but not limited to, for each Current Company Facility, any environmental site assessments, analytical results of sampling, remedial reports, investigations, permits, licenses, underground or aboveground storage tank test results, inventory records, administrative or judicial notices, and estimates of the cost of any environmental remediation, investigation, monitoring, or compliance. Sellers shall also provide to Buyer a list of, and make available to Buyer any written information on any environmental conditions at, every Former Company Facility. 6.4.1 Buyer shall have the right, but not the obligation, to perform such environmental due diligence with respect to the Property as the Master Landlord permits during the Inspection Contingency Period. If Buyer desires to perform environmental due diligence with respect to the Property or Improvements, or either of them, or conduct any tests or cause the surface of the ground to be penetrated in any manner for any purpose (such as soils tests, etc.), it shall first inform Seller and the Master Landlord of such desire in writing. Thereafter, Buyer, Seller and the Master Landlord, shall meet to discuss how and when such inspection shall be undertaken or if such inspection is acceptable to Seller and the Master Landlord. Such environmental inspections shall be performed by an environmental site assessment individual or firm professionally licensed to perform such inspections in the State of each Current Company Facility Utah (each“Inspector”). The Inspector shall be informed that it is employed or otherwise engaged by Seller, a “Phase I assessment”) the Master Landlord and Buyer, notwithstanding the fact that Buyer shall be solely obligated to produce or cause pay the Inspector’s fees and costs; provided, however, that Seller and/or Master Landlord may not request any information increasing the cost of Buyer’s requested report. The results of Buyer’s inspections, if any, relating to Hazardous Materials, shall be produced a written report of each such assessment initially orally reported to Buyer, Seller and any recommendations made the Master Landlord by the Inspector. Either Party may terminate this Agreement as a result of such oral reports indicating the actual or probable presence of Hazardous Materials on, under or in area of the Property within five (5) days of each such assessment (eachreport, a “Phase I”)in which case the Xxxxxxx Money will be refunded to Buyer, less the amount of all escrow cancellation fees, if any, payable by Buyer pursuant to Section 5.8. If any Phase I recommends that samples this Agreement is not so terminated, such reports shall be reduced to writing and marked “draft.” Buyer shall deliver to Seller and the Master Landlord as soon as they are made available to Buyer, copies of all reports and analyses prepared or used in connection with Buyer’s environmental inspection of the Property. All studies, data, reports, analyses, writings and communications, including any environmental mediumstudies or reports, including but not limited to any airshall be generated by the Inspector for the use of Buyer’s, soil, surface water, ground water, sediment, rock, or bedrock at, above, or beneath any portion of a Current Company Facility, should be taken, or if any environmental site assessment or report provided to Buyer shows any contamination or remediation at a Current Company Facility, Buyer shall have Seller’s and the right, but not the obligationMaster Landlord’s attorneys and, to sample such Current Company Facility or cause it to the fullest extent permitted by law, shall be sampledthe work product of Buyer’s, at BuyerSeller’s sole cost (a “Phase II assessment”). A written report of any such Phase II assessmentand the Master Landlord’s respective attorneys and shall constitute confidential, any other attorney-client communications and each Party shall use its best efforts to address any concern raised or condition noted in any Phase I or any information obtained by Buyer, ensure that such confidence and any recommendations for further action (a “Phase II”) shall be prepared by or for Buyer at Buyer’s sole cost. Buyer shall provide Sellers with copies of the final Phase I and Phase II reports as each such report privilege is generated. Sellers hereby grant Buyer and agents of Buyer all access to each Current Company Facility and to any individual representatives of Sellers which is or may be needed by or for Buyer to undertake All Appropriate Inquiries regarding each Current Company Facilitymaintained.

Environmental Due Diligence. Regarding any Current Company Facility, the Company and the Sellers shall provide Buyer with the right, but not the obligation, to take all steps necessary to conduct all appropriate inquiries pursuant to Section 101(35)(B) of the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601(35)(B), as the United States Environmental Protection Agency has defined such inquiries in a rule promulgated at 70 Fed. Reg. 66070 (November 1, 2005) and effective on November 1, 2006 (hereinafter, “All Appropriate Inquiries”). Buyer’s performance of All Appropriate Inquiries shall include but not be limited to, performance by or for Buyer, at Buyer’s sole cost, of any of the actions described in this Section 6.10. Within five (5) days of execution of this AgreementPrior to the Closing, Sellers shall make available to Buyer all records held by Sellers concerning each Current Company Facility and environmental conditions thereon, including but not limited to, for each Current Company Facility, any environmental site assessments, analytical results of sampling, remedial reports, investigations, permits, licenses, underground or aboveground storage tank test results, inventory records, administrative or judicial notices, and estimates of the cost of any environmental remediation, investigation, monitoring, or compliance. Sellers shall also provide to Buyer a list of, and make available to Buyer any written information on any environmental conditions at, every Former Company Facility. Buyer shall have the right, but not the obligation, to perform or cause to be performed an environmental site assessment of each Current Company Facility (each, a “Phase I assessment”) and to produce or cause to be produced a written report of each such assessment and any recommendations made as a result of each such assessment (each, a “Phase I”). If any Phase I recommends that samples of any environmental medium, including but not limited to any air, soil, surface water, ground water, sediment, rock, or bedrock at, above, or beneath any portion of a Current Company Facility, should be taken, or if any environmental site assessment or report provided to Buyer shows any contamination or remediation at a Current Company Facility, Buyer shall have the right, but not the obligation, to sample such Current Company Facility or cause it to be sampled, at Buyer’s sole cost (a “Phase II assessment”). A written report of any such Phase II assessment, any other efforts to address any concern raised or condition noted in any Phase I or any information obtained by Buyer, and any recommendations for further action (a “Phase II”) shall be prepared by or for Buyer at Buyer’s sole cost. Buyer shall provide Sellers with copies of the final Phase I and Phase II reports as each such report is generated. Sellers hereby grant Buyer and agents of Buyer all access to each Current Company Facility and to any individual representatives of Sellers which is or may be needed by or for Buyer to undertake All Appropriate Inquiries regarding each Current Company Facility.