Common use of Environmental Due Diligence Clause in Contracts

Environmental Due Diligence. During the Interim Period, Purchaser shall have the right (a) to perform an Environmental Site Assessment (“ESA”) and (b) to audit the operation of the Business for compliance with Environmental Laws including completing such testing of all underground storage tank components, including, but not limited to, underground storage tanks, associated lines, pipes, spill containment devices and pumping equipment as it deems necessary in its sole discretion (“Environmental Compliance Testing”), at the Locations before the Closing; provided that (i) the ESA and Environmental Compliance Testing conform to Schedule 7.3 and applicable ASTM standards, (ii) performance of the ESA and Environmental Compliance Testing do not damage or interfere with the operation of the Locations, (iii) completion of an ESA and Environmental Compliance Testing on Leased Real Properties conform with all of the requirements set forth in the applicable Leases, and (iv) Purchaser provides Sellers with a copy of any ESA and Environmental Compliance Testing report promptly after the report is issued. Purchaser shall indemnify, defend and hold Sellers harmless for the acts of Purchaser and/or Purchaser’s agents, employees or contractors in performing the ESA and Environmental Compliance Testing and Purchaser shall return each Location to its previous condition upon completion of its activities in connection with the ESA and Environmental Compliance Testing. Purchaser shall deliver a copy of any final reports or assessments resulting from such investigations and testing to Seller promptly after their completion. Any investigation conducted pursuant to this Section 7.3 shall be conducted in accordance with the terms of Article VII. Purchaser’s conduct of an ESA and Environmental Compliance Testing shall not be a condition to the Closing, and failure to perform or complete the ESA shall not extend the date for the Closing.

Environmental Due Diligence. During Seller hereby grants to Purchaser, and its counsel, accountants, consultants and other representatives, such access to its respective business facilities (whether owned, operated, or leased), 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 Interim Period, Purchaser shall have purpose of conducting an investigation of the right (a) to perform an compliance of Seller and any of its Business Properties with applicable Environmental Site Assessment (“ESA”) Laws, and (b) to audit the operation exposure to, presence, release, or any aspect of management, handling, or use of Materials of Environmental Concern at any such facility ("ENVIRONMENTAL DUE DILIGENCE"). If the Closing under this Agreement does not occur, Seller shall cause, at its expense, (x) any investigation-derived waste generated or created in connection with performance of the Business for Environmental Due Diligence (including without limitation, drill cuttings, purged or developed water, or sample remnants) to be disposed in compliance with applicable Environmental Laws including completing Laws, and (y) any wells or borings installed during the Environmental Due Diligence to xx xlugged and abandoned. Seller shall be responsible for executing on its own behalf any and all manifests, shipping documents, plugging and abandoning reports and similar documents in connection with its obligations hereunder, and Seller agrees to indemnify and hold Purchaser harmless from and against any and all claims, liabilities, damages and causes of action arising out of its failure to fulfill such testing obligations hereunder. Seller shall provide to Purchaser copies of all underground storage tank components(a) Permits, including(b) reports or results of all inspections, but not limited toaudits, underground storage tanksassessments, associated lines, pipes, spill containment devices and pumping equipment analytical data and (c) such other information as it deems necessary Purchaser may reasonably request in its sole discretion (“Environmental Compliance Testing”), at the Locations before the Closing; provided that possession or control of Seller regarding any of Seller's current or prior business facilities or operations and relating to (i) the ESA and compliance with applicable requirements of Environmental Compliance Testing conform to Schedule 7.3 and applicable ASTM standards, Laws or (ii) performance the exposure to, presence, release, or any aspect of the ESA and management, handling, or use of Materials of Environmental Compliance Testing do not damage or interfere with the operation of the Locations, (iii) completion of an ESA and Environmental Compliance Testing on Leased Real Properties conform with all of the requirements set forth in the applicable Leases, and (iv) Purchaser provides Sellers with a copy of any ESA and Environmental Compliance Testing report promptly after the report is issued. Purchaser shall indemnify, defend and hold Sellers harmless for the acts of Purchaser and/or Purchaser’s agents, employees or contractors in performing the ESA and Environmental Compliance Testing and Purchaser shall return each Location to its previous condition upon completion of its activities in connection with the ESA and Environmental Compliance Testing. Purchaser shall deliver a copy of any final reports or assessments resulting from such investigations and testing to Seller promptly after their completion. Any investigation conducted pursuant to this Section 7.3 shall be conducted in accordance with the terms of Article VII. Purchaser’s conduct of an ESA and Environmental Compliance Testing shall not be a condition to the Closing, and failure to perform or complete the ESA shall not extend the date for the ClosingConcern.

Environmental Due Diligence. During Seller hereby grants to Purchaser, and its counsel, accountants, consultants and other representatives, such access to its respective business facilities (whether owned, operated, or leased), 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 Interim Period, Purchaser shall have purpose of conducting an investigation of the right (a) to perform an compliance of Seller and any of its Business Properties with applicable Environmental Site Assessment (“ESA”) Laws, and (b) to audit the operation exposure to, presence, release, or any aspect of management, handling, or use of Materials of Environmental Concern at any such facility ("ENVIRONMENTAL DUE DILIGENCE"). If the Closing under this Agreement does not occur, Seller shall cause, at its expense, (x) any investigation-derived waste generated or created in connection with performance of the Business for Environmental Due Diligence (including without limitation, drill cuttings, purged or developed water, or sample remnants) to be disposed in compliance with applicable Environmental Laws including completing Laws, and (y) any wells or borings installed during the Environmental Due Diligence to bx xxxgged and abandoned. Seller shall be responsible for executing on its own behalf any and all manifests, shipping documents, plugging and abandoning reports and similar documents in connection with its obligations hereunder, and Seller agrees to indemnify and hold Purchaser harmless from and against any and all claims, liabilities, damages and causes of action arising out of its failure to fulfill such testing obligations hereunder. Seller shall provide to Purchaser copies of all underground storage tank components(a) Permits, including(b) reports or results of all inspections, but not limited toaudits, underground storage tanksassessments, associated lines, pipes, spill containment devices and pumping equipment analytical data and (c) such other information as it deems necessary Purchaser may reasonably request in its sole discretion (“Environmental Compliance Testing”), at the Locations before the Closing; provided that possession or control of Seller regarding any of Seller's current or prior business facilities or operations and relating to (i) the ESA and compliance with applicable requirements of Environmental Compliance Testing conform to Schedule 7.3 and applicable ASTM standards, Laws or (ii) performance the exposure to, presence, release, or any aspect of the ESA and management, handling, or use of Materials of Environmental Compliance Testing do not damage or interfere with the operation of the Locations, (iii) completion of an ESA and Environmental Compliance Testing on Leased Real Properties conform with all of the requirements set forth in the applicable Leases, and (iv) Purchaser provides Sellers with a copy of any ESA and Environmental Compliance Testing report promptly after the report is issued. Purchaser shall indemnify, defend and hold Sellers harmless for the acts of Purchaser and/or Purchaser’s agents, employees or contractors in performing the ESA and Environmental Compliance Testing and Purchaser shall return each Location to its previous condition upon completion of its activities in connection with the ESA and Environmental Compliance Testing. Purchaser shall deliver a copy of any final reports or assessments resulting from such investigations and testing to Seller promptly after their completion. Any investigation conducted pursuant to this Section 7.3 shall be conducted in accordance with the terms of Article VII. Purchaser’s conduct of an ESA and Environmental Compliance Testing shall not be a condition to the Closing, and failure to perform or complete the ESA shall not extend the date for the ClosingConcern.

Environmental Due Diligence. During the Interim Period, Purchaser shall have the right (a) to perform an Environmental Site Assessment Commencing on the date hereof and through and including August 31, 2003 (“ESA”) and (b) to audit the operation of the Business for compliance with Environmental Laws including completing such testing of all underground storage tank components, including, but not limited to, underground storage tanks, associated lines, pipes, spill containment devices and pumping equipment as it deems necessary in its sole discretion (“Environmental Compliance Testing”"Inspection Period"), Buyer, its employees and agents and the Consultant (defined below) shall have reasonable access to the Property at all reasonable times during normal business hours, for the Locations before the Closing; purpose of environmental inspections and tests, provided that (i) the ESA Buyer must give Seller at least two (2) business days' prior telephone or written notice of any such inspection or test, and Environmental Compliance Testing conform with respect to Schedule 7.3 and applicable ASTM standardsany intrusive inspection or test (i.e., core sampling) must obtain Seller's prior written consent (which consent shall not be unreasonably withheld or delayed), (ii) performance at the time of such notice set forth in (i), Buyer must describe the purpose of such entry, the identity of the ESA persons who will be entering the Property and Environmental Compliance Testing do not damage or interfere with the operation expected duration of the Locationssuch entry, (iii) completion prior to performing any inspection or test, Buyer must deliver a certificate of insurance to 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 Property covering any claims arising in connection with the presence of Buyer, its contractors, agents and representatives on the Property, which insurance shall name Seller as an ESA and Environmental Compliance Testing on Leased Real Properties conform with all of the requirements set forth in the applicable Leasesadditional insured thereunder, and (iv) Purchaser provides Sellers all such tests shall be conducted by Buyer in compliance with Buyer'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 coordinated with Seller and conducted in a copy manner that will not interfere with Seller's use and occupancy of the Property. Buyer shall bear the cost of all such inspections or tests; provided, however, that if Buyer terminates this Agreement as provided in subsection (b)(i) below, Seller shall reimburse Buyer for all of Buyer's out-of-pocket costs paid or incurred in connection with any Phase II environmental inspections of the Property and the Report (defined below), unless Buyer terminates this Agreement because it cannot obtain the environmental insurance hereinafter described, in which case Buyer shall not be entitled to any reimbursement of such costs, and shall only be entitled to a return of the Deposit and any interest accrued thereon. In the event Buyer does not terminate this Agreement at the end of the Inspection Period as provided in subsection (b)(i) below, Buyer shall continue to be afforded access to the Property on reasonable advance telephone notice to Seller. Seller shall execute all reasonably acceptable manifests required for the disposal of any ESA wastes derived from Buyer's inspections as set forth herein. (i) In the event that (1) the final reports by the Consultant (individually and collectively, the "Report") indicate any Environmental Compliance Testing report Condition (hereinafter defined) exclusive of asbestos containing materials, which Environmental Condition is reasonably estimated to require a period in excess of two (2) years from the Closing to obtain Material Closure (hereinafter defined), or (2) Buyer cannot obtain environmental insurance satisfactory to Buyer, Buyer shall have the option, in Buyer's sole discretion, to either (A) to require Seller to remediate the Environmental Condition at Seller's sole cost and expense, provided, however, that Seller shall have no obligation with respect to any groundwater contamination that originated off-site, or (B) terminate this Agreement by written notice to Seller (the "Environmental Termination Notice"), which Environmental Termination Notice must be sent no later than the earlier to occur of (1) twenty five (25) business days after Buyer's receipt of the Report, and (2) the last day of the Inspection Period. If this Agreement is terminated by Buyer pursuant to this subparagraph 1.8(b)(i), Buyer shall be entitled to a return of the Deposit and any interest accrued thereon. Notwithstanding anything to the contrary contained herein, if Buyer terminates this Agreement because it cannot obtain the environmental insurance described above, Buyer shall not be entitled to any reimbursement of its costs in connection with this Agreement or the Property, and shall only be entitled to a return of the Deposit and any interest accrued thereon. (ii) In the event that every Environmental Condition indicated in the Report is reasonably estimated to require a period of less than two (2) years from the Closing to obtain Material Closure, and Buyer is able to obtain environmental insurance to its satisfaction (or if Buyer waives the requirement that it obtain such insurance) Buyer shall have no right to terminate this Agreement. Closure of any Environmental Condition shall be performed in accordance with the terms and condition of this Agreement. (iii) Notwithstanding anything to the contrary contained herein, it is specifically acknowledged and agreed that upon taking title to the Property Buyer shall be responsible for and assume all costs for the removal or abatement of any and all asbestos containing materials which may be located thereon, and (1) Seller shall have no obligations with respect thereto (except as may be specifically set forth herein), and (2) Buyer shall have no right to exercise its termination right as set forth in subsection (i) above as a result of any asbestos containing materials at the Property. (iv) In the event that the parties cannot agree whether Material Closure for an Environmental Condition will be obtained within two (2) years from Closing, the parties shall submit the matter to an independent environmental consultant reasonably acceptable to both Seller and Buyer. Seller and Buyer each agree to accept the reasonably expected time for Material Closure of an Environmental Condition as determined by such independent environmental consultant. (v) Buyer represents that, to its knowledge, based upon the reports and tests received by it through July 23, 2003, there is no Environmental Condition at the Property which would give rise to Buyer's right to terminate this Agreement pursuant to this Section 1.8(b). (vi) Buyer shall, no later than the last day of the Inspection Period, deliver to Seller a list of any Due Diligence Environmental Conditions (hereinafter defined). (c) Buyer acknowledges that any Property information made available to it is proprietary and confidential and will be delivered to Buyer solely to assist Buyer in determining the feasibility of purchasing the Property. Buyer shall not use the information for any purpose other than as set forth in the preceding sentence. Buyer shall not disclose the contents to any person other than to those persons who are responsible for determining the feasibility of Buyer's acquisition of the Property, including without limitation Buyer's insurance broker, attorneys, consultants, prospective lenders and prospective insurance companies, and who have agreed to preserve the confidentiality of such information as required hereby (collectively, "Permitted Outside Parties"). At any time and from time to time, within two (2) business days after Seller's request, Buyer shall deliver to Seller a list of all parties to whom Buyer has provided any Property information. Buyer shall not divulge the contents of any Property information except in strict compliance with the confidentiality standards set forth in this subsection and as may be required by law. In permitting Buyer to review the Property information, Seller has not waived any privilege or claim of confidentiality with respect thereto, and no third party benefits or relationships of any kind, either express or implied, have been offered, intended or created. (d) In conducting any inspections, investigations or tests of the Property, Buyer and its agents and representatives shall: (i) not disturb the Seller, or interfere with its use of the Property; (ii) not interfere with the operation and maintenance of the Property; (iii) not unreasonably disturb or damage any part of the Property or any personal property owned or held by Seller or any third party; (iv) not injure or otherwise cause bodily harm to Seller or its agents, guests, invitees, contractors and employees or its guests or invitees; (v) comply with all applicable laws; (vi) promptly after pay when due the report is issued. Purchaser costs of all tests, investigations, and examinations done with regard to the Property; (vii) not permit any liens to attach to the Property by reason of the exercise of its rights hereunder; (viii) repair any damage to the Property resulting directly or indirectly from any such inspection or tests; and (ix) not reveal or disclose prior to Closing any information obtained during the Inspection Period concerning the Property to anyone other than the Permitted Outside Parties, in accordance with the confidentiality standards set forth in subsection (c) above, or except as may be otherwise required by law. (e) Buyer shall be responsible for any damage to the Property or other property or any injury to any third party caused by the presence of, or any inspections or investigations undertaken prior to, on or after, the date hereof, by Buyer or its agents, employees or contractors, and Buyer agrees to indemnify, defend and hold Sellers Seller harmless from and against any and all liens, claims, causes of action, costs, damages, liabilities and expenses (including reasonable attorneys' fees and disbursements, court costs and claims of personal injury and damage to property) arising out of Buyer's inspections or tests under this Agreement or any violation of the provisions of Section 1.8, provided, however, that Buyer shall not be responsible for or be obligated to indemnify Seller against damages or injuries arising out of any Environmental Condition disclosed in the Report. Buyer's obligations under this subsection 1.8(e) shall survive the termination of this Agreement and shall survive the Closing. (f) As additional consideration for the acts transaction contemplated in this Agreement, Buyer must provide to Seller, immediately following the receipt of Purchaser and/or Purchaser’s agentssame by Buyer, employees copies of the Report and copies of any and all reports, tests or contractors studies resulting from the Report (but not any interim drafts of any such related reports, tests or studies) and any amendments of or addenda to any of the foregoing; provided, however, Buyer shall have no obligation to cause any such tests or studies to be performed on the Property nor shall Buyer be deemed to have represented or warranted the accuracy of any of the information contained in performing the ESA Report or any related reports, tests or studies and Environmental Compliance Testing and Purchaser Buyer shall return each Location have no responsibility or liability with respect to its previous condition upon completion of its activities the Report or any related reports, tests or studies. In the event this Agreement is terminated, then notwithstanding anything contained herein to the contrary, Seller, but not Buyer (unless required by law or in connection with any litigation involving this Agreement), shall have the ESA right to provide copies of the Report and any related materials to third parties, provided that Seller shall indemnify and hold Buyer harmless from any liability arising from Seller's so providing the Report or any related materials to third parties (unless such materials were provided if required by law or in connection with any litigation involving this Agreement). It is expressly understood and agreed by Seller that the provision of the Report and any related materials to Seller as provided hereby shall not constitute, nor be construed to constitute, a waiver by Buyer of the attorney-client privilege or the work product privilege that may attach to any of the underlying documents, drafts, reports, communications, tests, correspondence and otherwise respecting the Report. (g) Notwithstanding anything to the contrary contained in Section 1.8(c)(i), Seller agrees that Buyer may contact the New York State Department of Environmental Compliance TestingConservation and other appropriate Governmental Authorities to obtain documentation about the current status of the Property. Purchaser Seller shall deliver a copy be given reasonable advance notice of any final reports or assessments resulting from such investigations contacts and testing to Seller promptly after their completion. Any investigation conducted pursuant to this Section 7.3 shall be conducted entitled to participate in accordance with the terms of Article VIIany meetings and discussions between Buyer and agency personnel. Purchaser’s conduct of an ESA and Environmental Compliance Testing The foregoing shall not be a condition construed to permit Buyer to discuss any findings of the ClosingReport with any Governmental Authority and Buyer shall have no right to discuss the findings of the Report with any Governmental Authority, it being agreed and failure to perform understood that any Environmental Condition or complete other findings of the ESA Report shall not extend be governed by the date for the Closingprovisions of Article IV hereof.

Environmental Due Diligence. During the Interim Period, Purchaser shall have the right (a) All environmental due diligence (including employee interviews and sampling of any media or wastewater) conducted by Atmos shall be conducted in accordance with this Section 7.10. All activities of Atmos regarding environmental due diligence shall be conducted to perform an Environmental Site Assessment (“ESA”) minimize any inconvenience or interruption of the business of the Company and the Subsidiaries. (b) Atmos shall provide to audit the operation Shareholders or to the Shareholders' counsel, copies of all reports, assessments and other information composed or compiled by Atmos or Atmos's environmental consultant(s) promptly following Atmos's receipt thereof. Atmos shall treat all such information delivered to, or composed or compiled by, Atmos or Atmos's environmental consultant(s) as Environmental Data in accordance with the procedures of this Section 7.10. (c) Prior to the Closing, neither Atmos nor its environmental consultant(s) shall disclose or release any audits, reports and studies delivered to or prepared by Atmos and any other information collected and generated as a result of Atmos's environmental due diligence ("Environmental Data") without the prior written consent of the Business for compliance with Shareholders and all such information shall be kept strictly confidential. Atmos expressly agrees that until the Closing, it will not distribute the Environmental Laws including completing such testing of all underground storage tank components, including, but not limited to, underground storage tanks, associated lines, pipes, spill containment devices and pumping equipment as it deems necessary Data to any third party without the Shareholders' prior written consent. (d) Atmos may retain one or more outside environmental consultants to assist in its sole discretion environmental due diligence concerning the Assets and Properties of the Company and the Subsidiaries and shall notify the Shareholders of the environmental consultant or consultants Atmos intends to retain. Thereafter, the Shareholders shall have five Business Days after receipt of such notification to notify Atmos in writing of the Shareholders' objection (“Environmental Compliance Testing”)which must be based upon reasonable grounds) and substantiate the basis for that objection. If Shareholders do not so object within such five Business Day period, the Shareholders shall be deemed to have consented to Atmos's selection. (e) Atmos may conduct, at its sole expense, Phase I "environmental assessment activities" (within the Locations before meaning of the Closing; provided that (i) the ESA and Environmental Compliance Testing conform to Schedule 7.3 and applicable ASTM standards, (ii) performance with respect to the Assets and Properties of the ESA Company and Environmental Compliance Testing do not damage or interfere with the operation Subsidiaries, and upon reasonable advance notice shall be afforded access to existing environmental reports in the possession of the LocationsShareholders, (iii) completion of an ESA the Company or any Subsidiary, relevant correspondence, permits issued under Environmental Laws and Environmental Compliance Testing on Leased Real related materials regarding the Assets and Properties conform with all of the requirements Company and the Subsidiaries and all other Phase I activities as set forth in the applicable Leases, and (iv) Purchaser provides Sellers ASTM protocol regarding Phase I assessments. Any permitted Phase I environmental assessment activities shall not include any sampling or intrusive testing. All Phase I environmental assessment activities shall be conducted in accordance with a copy of any ESA and Environmental Compliance Testing report promptly after the report is issuedASTM standards regarding Phase I assessments. Purchaser shall indemnify, defend and hold Sellers harmless for the acts of Purchaser and/or Purchaser’s agents, employees or contractors in performing the ESA and Environmental Compliance Testing and Purchaser shall return each Location to its previous condition upon Upon completion of its activities in connection such Phase I assessment activities, Atmos's environmental consultant(s) may prepare and deliver to Atmos a written report with respect thereto (consistent with the ESA procedures and Environmental Compliance Testing. Purchaser shall deliver a copy of any final reports or assessments resulting from such investigations and testing to Seller promptly after their completion. Any investigation conducted pursuant to standards set forth in this Section 7.3 7.10. (f) Prior to Closing, Atmos may not conduct any Phase II environmental assessment activities with respect to the Assets and Properties of the Company and the Subsidiaries (including the taking and analysis of soil, surface water and groundwater samples, testing of buildings, drilling xxxxx, taking soil borings and excavating) without the prior written consent of the Shareholders, which consent may be withheld, conditioned or delayed by the Shareholders in their sole discretion. (g) Atmos may conduct, at its sole expense, asbestos survey activities with respect to the Assets and Properties of the Company and the Subsidiaries, including reviewing existing reports, correspondence and other related documents, inspecting individual sites and collecting samples of suspected asbestos-containing materials; provided that such sampling activities do not adversely affect property value, appearance or integrity and such sampling locations are repaired and restored to substantially their original condition. These asbestos survey activities shall be conducted in accordance with the terms provisions of Article VIISection 7.10(e). (h) Notwithstanding the foregoing, if prior to Closing the Shareholders, the Company or any Subsidiary receives notice of any Action or Proceeding, pending or threatened, arising under Environmental Laws or if any of the Shareholders or the Company otherwise acquires knowledge that is reasonably likely to require a change to the Disclosure Schedule, the Shareholders promptly shall notify Atmos of the same and Atmos may request that the Shareholders authorize Atmos to conduct specific additional environmental due diligence measures if and to the extent that such measures are required to determine the extent of any potential environmental liability relating thereto. Purchaser’s conduct of an ESA and Environmental Compliance Testing Such authorization shall not be a condition unreasonably withheld, conditioned or delayed by the Shareholders. Any such additional environmental due diligence shall be conducted at Atmos's sole expense. (i) Atmos hereby agrees to indemnify and hold harmless the ClosingShareholders, the Shareholders' Affiliates and failure their respective officers, directors, employees, agents, successors and assigns from and against any and all Losses with respect to perform personal injury or complete property damage arising out of or in connection with any site visit by Atmos or its environmental consultant(s) and resulting from an act or omission of Atmos or its environmental consultant(s), including any breach of this Agreement, in the ESA shall not extend the date for the Closingcourse of its environmental inspections.