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) Purchaser has received an environmental due diligence report of the Assets and Systems (collectively, the Company "Environmental Audit") conducted by Meridian Environmental Management, LLC ("Purchaser’s Consultant") and has supplied the Sellers report to Seller. A summary report of its findings is attached as Schedule 4.01(k). Purchaser shall provide Buyer be responsible for all death, personal injury or property damage caused by Purchaser's Consultant arising in connection with the rightEnvironmental Audit, but and shall indemnify, defend and hold harmless Seller from all Claims related thereto. (b) Purchaser has notified Seller of all Environmental Conditions identified during the course of performing the Environmental Audit (which shall include all matters discovered in the course of conducting the Environmental Audit which would render Seller’s representations under Sections 4.01 (k) or (o) not true and correct as of the obligationClosing Date), together with (i) all documents and analyses relating to take all steps necessary such Environmental Conditions, including the Environmental Audit and (ii) Purchaser’s Consultant’s estimate of the costs required to conduct all appropriate inquiries correct, remove or remediate such Environmental Conditions in the most reasonable cost-effective manner (including risk-based remediation measures) ("Estimated Remediation Costs"). (c) As to those Environmental Conditions identified pursuant to Section 101(35)(B) of subsection 6.01 (b), above, which are to be corrected, removed or remediated by either Party pursuant to the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601(35)(Bprocedures identified in subsection 6.01(d), as identified on Schedule 4.01(k), such Environmental Conditions shall be referred to as "Purchaser Assumed Environmental Conditions." (d) As to the United States Environmental Protection Agency has defined Conditions, the following procedures shall apply: (i) Based on their respective review of the Environmental Audit and such inquiries in a rule promulgated at 70 Fed. Reg. 66070 (November 1other data and information as shall be available to the Parties concerning the condition of the Assets, 2005) Purchaser and effective Seller shall use their Reasonable Good-Faith Efforts to agree on November 1the identification of Environmental Conditions, 2006 (hereinafterwhether remediation of same is required and the manner thereof, “All Appropriate Inquiries”on the Estimated Remediation Costs, and whether Purchaser or Seller shall be responsible therefor, and such information shall be reflected on Schedule 4.01(k). Buyer’s performance of All Appropriate Inquiries As to those Environmental Conditions for which the Parties agree Purchaser shall include but not be limited toresponsible, performance the Purchase Price shall be reduced by the corresponding Estimated Remediation Costs and Purchaser shall be solely responsible for correcting, removing or remediating such Purchaser Assumed Environmental Conditions and no representation, warranty or indemnity shall apply with respect thereto. As to those Environmental Conditions for Buyer, at Buyer’s sole cost, of any of which the actions described in this Section 6.10. Within five (5) days of execution of this Agreement, Sellers Parties agree either no action 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 for which Seller shall be responsible, there shall be no adjustment in Purchase Price, and as to those which Seller undertakes to correct, remove or remediate, Seller shall be solely responsible for the costs thereof, and shall undertake such activity promptly and diligently pursue same, and Purchaser’s environmental consultant shall inspect same upon completion thereof. (ii) If, despite their Reasonable Good-Faith Efforts, Purchaser and Seller are not able to agree on identification of Environmental Conditions, whether remediation of same is required and the manner thereof and/or the Estimated Remediation Costs, then either Party may terminate this Agreement upon written notice to the other; provided that neither Party may terminate this Agreement if the difference between the Estimated Remediation Costs and the costs which Seller believes to be the estimate of costs required to correct, remove or remediate any environmental site assessment Environmental Condition Seller acknowledges as requiring remediation does not exceed $10,000, in which case the Purchase Price shall be adjusted downward by Purchaser's Estimated Remediation Costs and Purchaser shall be solely responsible for correcting, removing or report provided remediating such Purchaser Assumed Environmental Conditions and no representation, warranty or indemnity shall apply with respect to Buyer shows matters identified in the Environmental Audit. (e) Notwithstanding the foregoing, if the Estimated Remediation Costs exceed $25,000, then either Purchaser or Seller may terminate this Agreement upon written notice to the other Party. (f) For purposes of this Section 6.01, "Environmental Condition" shall mean (i) any contamination condition constituting, or remediation at which reasonably could be expected to result in, a Current Company Facilityliability, Buyer shall have obligation or commitment under, or a violation of, any Environmental Legal Requirement or Environmental Permit, (ii) the rightpresence of Hazardous Substances in soil or other subsurface media, but not ambient air, groundwater or surface water or building at, on, in or under the obligationAssets or Systems, or which has migrated from the Assets or Systems, in each case, in a manner or quantity (A) which is, or is reasonably likely to sample such Current Company Facility be, required to be remediated by or under (y) an Environmental Legal Requirement or (z) any Governmental Authority, or (B) that has resulted, or could reasonably be expected to result, in any claim, demand or cause it of action under Environmental Legal Requirements for damage to be samplednatural resources or the environment. As used in this Agreement "Hazardous Substance" means any substance, 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 material 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 waste which is or may will foreseeably be needed regulated by any Governmental Authority, including any material, substance or for Buyer to undertake All Appropriate Inquiries regarding each Current Company Facilitywaste which is defined as "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste," "contaminant," "toxic waste" or "toxic substance" under any provision of Environmental Law, and including petroleum, petroleum products, asbestos, presumed asbestos-containing material or asbestos-containing material, urea formaldehyde and polychlorinated biphenyls.

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.

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 shall be generated by the Inspector for the use of Buyer’s, Seller’s and the Master Landlord’s attorneys and, to the fullest extent permitted by law, shall be the work product of Buyer’s, Seller’s and the Master Landlord’s respective attorneys and shall constitute confidential, attorney-client communications and each Party shall use its best efforts to ensure that such confidence and privilege is maintained. 6.4.2 For purposes of this Agreement, “Hazardous Materials” means any airsubstance or material which is defined as or included in the definition of “hazardous substances”, soil“hazardous wastes”, surface water“hazardous materials”, ground water“extremely hazardous waste”, sediment“acutely hazardous wastes”, rock“restricted hazardous waste”, “toxic substances”, or bedrock at“known to cause cancer or reproductive toxicity” (or words of similar import), abovepetroleum products (including crude oil or any fraction thereof) or any other chemical, substance or material which is prohibited, limited or regulated under any federal, state or local law, ordinance, regulation, order, permit, license, decree, common law, or beneath any portion of a Current Company Facilitytreaty now or hereafter in force regulating, should be taken, relating to or if any environmental site assessment imposing liability or report provided to Buyer shows any contamination standards concerning materials or remediation at a Current Company Facility, Buyer shall have the right, but not the obligation, to sample such Current Company Facility substances known or cause it suspected to be sampledtoxic or hazardous to health or safety, 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 the environment 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 Facilitynatural resources.