Environmental Due Diligence. The Company shall have conducted --------------------------- an environmental due diligence investigation of the 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 "Potentially Rejected Sites"). In the event there are five (5) or fewer --------------------------- Potentially Rejected Sites, the Closing shall take place in accordance with the terms hereof with no reduction in the Purchase Price, and (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 applicable to any Potentially Rejected Site as to which such right shall be exercised, and (iii) 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 hereof to terminate this Agreement in accordance with Article IX; provided, however, that such 30 day period may be -------- ------- extended by the Company, by written notice given to AT&T PCS, for such period not to exceed 30 days, as shall be necessary to investigate any potential environmental liability relating to any Potentially Rejected Site. In the event that the Company elects to 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 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 representation or warranty contained in this Agreement, or have any indemnification obligation relating thereto, 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 System into commercial operation while the Management Agreement shall be in effect, the Company shall have no right to terminate this Agreement pursuant to this Section 4.13.
Appears in 1 contract
Samples: Asset Purchase Agreement (Triton Management Co Inc)
Environmental Due Diligence. The Company shall have conducted an --------------------------- an environmental due diligence investigation of the 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 "Potentially Rejected Sites"). In the event there are five (5) or fewer --------------------------- -------------------------- Potentially Rejected Sites, the Closing shall take place in accordance with the terms hereof with no reduction in the Purchase Price, and (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 applicable to any Potentially Rejected Site as to which such right shall be exercised, and (iii) 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 hereof to terminate this Agreement in accordance with Article IX; provided, however, that such 30 day period may be -------- ------- extended by the Company, by -------- ------- written notice given to AT&T PCS, for such period not to exceed 30 days, as shall be necessary to investigate any potential environmental liability relating to any Potentially Rejected Site. In the event that the Company elects to 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 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 representation or warranty contained in this Agreement, or have any indemnification obligation relating thereto, 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 System into commercial operation while the Management Agreement shall be in effect, the Company shall have no right to terminate this Agreement pursuant to this Section 4.13.
Appears in 1 contract
Environmental Due Diligence. The Company shall have conducted --------------------------- an environmental due diligence investigation of the 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 "Potentially Rejected Sites"). In the event there are five (5) or fewer --------------------------- Potentially Rejected Sites, the Closing shall take place in accordance with the terms and conditions of the Access Agreement, Welltower is authorizing Investor to conduct the following Due Diligence at the Facilities from the date hereof until the date that is three (3) Business Days prior to the Escrow Date:
(A) The Due Diligence proposed in that certain Limited Site Investigation proposal from Targus Associates, LLC to Invesco Advisers, Inc., regarding Dignity Glendale, dated July 28, 2020 (revised);
(B) The Due Diligence proposed in that certain Limited Site Investigation proposal from Targus Associates, LLC to Invesco Advisers, Inc., regarding HCA 310 Nashville, dated July 28, 2020 (revised); and
(C) The Due Diligence proposed in that certain Limited Site Investigation proposal from Targus Associates, LLC to Invesco Advisers, Inc., regarding Xxxxx Lakewood, dated July 31, 2020 (revised).
(ii) Subject to Section 4.01(h)(iii), no later than three (3) Business Days prior to the Escrow Date, Investor must provide Welltower, with no reduction in the Purchase Pricerespect to each of Dignity Glendale, HCA 310 Nashville, and (iXxxxx Lakewood, written notice regarding whether the Due Diligence permitted by this Section 4.01(h) with respect to each Potentially Registered Site of the Company three aforementioned Facilities, respectively, was either “to the satisfaction” (a “Satisfactory Environmental Diligence Notice”) or “not to the satisfaction” (an “Unsatisfactory Environmental Diligence Notice”) of Investor, in Investor’s sole and absolute discretion, except that Investor must deliver a Satisfactory Environmental Diligence Notice (A) with respect to Dignity Glendale, if the Due Diligence permitted by this Section 4.01(h) does not identify Hazardous Materials in indoor air or soil vapor at concentrations above two-thirds the applicable remedial action standard or human health exposure standard prescribed by Environmental Law; (B) with respect to Xxxxx Lakewood, if the Due Diligence permitted by this Section 4.01(h) does not identify Hazardous Materials in indoor air or soil vapor at concentrations above two-thirds the applicable remedial action standard or human health exposure standard prescribed by Environmental Law; and (C) with respect to HCA 310 Nashville, if the Due Diligence permitted by this Section 4.01(h) does not identify Hazardous Materials in soil, soil gas, or groundwater at concentrations above two-thirds the applicable remedial action standard prescribed by Environmental Law. For the avoidance of doubt, upon delivery of a Satisfactory Environmental Diligence Notice with respect to any of the aforementioned Facilities Investor shall have not be permitted to request, orally or in writing, with respect to the right applicable Facility, (A) any additional Due Diligence, (B) any corrective, mitigating or remedial action, (C) any modifications to this Agreement or any written agreements related thereto or (D) or any new agreements related to any indoor or outdoor environmental issues at the Company's applicable Facility. In the event that Investor fails to timely deliver a Satisfactory Environmental Diligence Notice or an Unsatisfactory Environmental Diligence Notice with respect to any of the aforementioned Facilities, Investor shall automatically be deemed to have issued an Unsatisfactory Environmental Diligence Notice.
(iii) Investor agrees not to provide either a Satisfactory Environmental Diligence Notice or an Unsatisfactory Environmental Diligence Notice to Welltower with respect to HCA 310 Nashville until such time as Welltower has informed Investor in writing that the party possessing the CCR Purchase Right in respect of this Facility has provided to the applicable Welltower Entity such party’s written waiver of such CCR Purchase Right (or such party’s waiver has been deemed given) or such CCR Purchase Right has otherwise terminated or expired.
(iv) Prior to Closing, Investor shall not, orally or in writing, communicate with, or otherwise provide any information to, Welltower regarding the results of the Due Diligence outlined in this Section 4.01(h) (e.g., regarding any indoor or outdoor environmental sampling or investigation findings or results) without Welltower’s prior written consent; provided, for the avoidance of doubt, that, subject to Section 4.01(h)(iii), Investor’s submission of a Satisfactory Environmental Diligence Notice or an Unsatisfactory Environmental Diligence Notice, as applicable, which simply states that Due Diligence was conducted “to the satisfaction” or “not to the satisfaction” of Investor shall not constitute a breach of this Section 4.01(h)(iv).
(v) In the event Investor has delivered an Unsatisfactory Environmental Diligence Notice in respect of any such Facility, Investor and Welltower shall negotiate in good faith the terms under which such Facility can be included in a Subsequent Closing, which terms must be satisfactory to Investor in its sole and absolute discretion and the agreement to such terms shall constitute a “Subsequent Consent” for such Facility, provided, that, notwithstanding the foregoing, if Welltower agrees in writing, at its sole cost and expense expense, to deinstall investigate and remove all Purchased Assets located remediate the Hazardous Materials at the Facility identified by the Due Diligence permitted by this Section 4.01 (h) which formed the basis for the delivery of the Unsatisfactory Environmental Diligence Notice and obtain a no further action determination (if Hazardous Materials are present in indoor air, soil vapor, soil or groundwater at concentrations above the applicable remedial action standard or human health exposure standard prescribed by Environmental Law) from the applicable regulatory agency (collectively “Environmental “Work”), then the Facility shall be treated as if a Satisfactory Environmental Diligence Notice had been delivered for such Facility and if such remediation was required by applicable Environment Law, then following such investigation and/or remediation Welltower agrees to seek a “no further action” letter from the applicable regulatory agency concurring that the relevant issues have been investigated or remediated as required by Environmental Law. Welltower shall diligently conduct any Potentially Rejected Siteinvestigation or remediation undertaken pursuant to the proceeding sentence in a commercially reasonable manner and (i) if such remediation was required by Environmental Law, shall remediate until the applicable legal standard is satisfied, (ii) if such remediation was not so required, shall remediate until the standards in Section 4.11 shall not be applicable to any Potentially Rejected Site 4.01(h)(ii) are met or as to which such right shall be exercisedotherwise agreed by Welltower and Investor, and (iii) any Assigned Agreements relating Welltower shall provide for Investor’s reasonable approval a remediation plan and detailed timeline to a Potentially Rejected Site as to which such right perform and complete the Environmental Work, Investor 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 have ten (10) Business Days to approve such plan and timeline and if Investor does not respond prior to the Closing Dateend of such period, the plan and timeline shall be deemed approved, if Investor wishes to withhold its approval of such plan and timeline it must provide, in writing, a detailed statement of the aspects of the plan and timeline with which it disagrees prior to the end of such ten (10) Business Day period, together with its proposed alternatives, in which case Welltower and Investor shall meet and confer in good faith for a period of ten (10) Business Days to attempt to create a mutually acceptable plan and timeline and, if they are unable to reach such an agreement, the provisions of Article VIII relating to dispute resolution shall apply, and (iv) upon approval, which shall not be unreasonably withheld, conditioned or delayed, Welltower shall (A) commence and diligently use commercially reasonable efforts to perform the Environmental Work in accordance with the approved timeline, (B) use commercially reasonable efforts to keep Investor fully informed throughout the performance of the Environmental Work including providing copies of all reports and submittals, and (C) use commercially reasonable efforts to not interfere with the operations at the Facility. Welltower shall promptly provide Investor with each of the contracts which it enters into for the performance of the Environmental Work. In the event there are more performance of the Environmental Work, Welltower shall timely pay for all Environmental Work, subject to any rights and remedies or dispute resolution mechanisms that may be contained in the contracts pertaining to the Environmental Work and shall not permit any liens to be placed on any Facility, other than five Permitted Liens. Welltower shall perform the Environmental Work pursuant to the property management agreement between the Parties and shall charge no fees for such work. If at any time Welltower discontinues using commercially reasonable efforts to undertake such remediation or materially deviates from the approved timeline and does not resume such efforts or take commercially reasonable actions to comply with the timeline within ten (510) Potentially Rejected Sites, the Company may elect by Business Days after written notice provided from Investor to AT&T PCS no later than 30 days after the date hereof resume such efforts or comply with such timeline, then Investor shall be entitled to terminate this Agreement assume control of such efforts and continue such remediation in accordance with Article IX; provided, however, that such 30 day period may be -------- ------- extended by the Company, by written notice given to AT&T PCS, for such period not to exceed 30 days, as shall be necessary to investigate any potential environmental liability relating to any Potentially Rejected Site. In the event that the Company elects to deinstall approved plan and remove any Purchased Assets located timeline at any Potentially Rejected Site in accordance with this Section 4.13, and this Agreement shall thereafter be terminated without the Closing having occurred, the Company shall at its Welltower’s sole cost and expense reinstall expense, provided that the timeline shall be modified to account for any time lost during Welltower’s period of noncompliance and restore all Purchased Assets any time required to their prior locations. Notwithstanding anything to the contrary contained herein, AT&T PCS shall not be deemed to be in breach of any representation or warranty contained in this Agreement, or have any indemnification obligation relating thereto, in respect of any matter of which the Company acquires knowledge during the course of its environmental due diligence investigation transfer control of the Purchased Assets. As used in this Section 4.13, the term "knowledge" refers remediation efforts to actual and not constructive knowledge of the Company. Notwithstanding the foregoing, in the event that the Company shall have placed the System into commercial operation while the Management Agreement shall be in effect, the Company shall have no right to terminate this Agreement pursuant to this Section 4.13Investor.
Appears in 1 contract
Samples: Formation and Membership Interest Purchase Agreement (Invesco Real Estate Income Trust Inc.)
Environmental Due Diligence. The Company shall have conducted an --------------------------- an environmental due diligence investigation of the Purchased Assets and the SystemAssets, 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 "Potentially Rejected -------------------- Sites"). In the event there are five (5) or fewer --------------------------- Potentially Rejected Sites, ----- the Closing shall take place in accordance with the terms hereof with no reduction in the Purchase Price, and (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, Site and (ii) Section 4.11 shall not be applicable to any Potentially Rejected Site as to which such right shall be exercised, and (iii) 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(d2.1(b) and the liabilities arising thereunder shall not be Assumed Liabilities pursuant to Section 2.4(a2.3(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 hereof to terminate this Agreement in accordance with Article IX; provided, however, that such 30 day period may be extended by -------- ------- extended by the Company, by written notice given to AT&T PCS, for such period not to exceed 30 days, as shall be necessary to investigate any potential environmental liability relating to any Potentially Rejected Site. In the event that the Company elects to deinstall and remove any Purchased Assets located at any Potentially Rejected Site in accordance with this Section 4.134.10, 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. Notwithstanding anything to the contrary contained herein, AT&T PCS shall not be deemed to be in breach of any representation or warranty contained in this Agreement, or have any indemnification obligation relating thereto, 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 4.134.10, 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 System into commercial operation while the Management Agreement shall be in effect, the Company shall have no right to terminate this Agreement pursuant to this Section 4.13.
Appears in 1 contract
