Environmental Inspection. (a) Purchaser acknowledges that neither Seller nor the Companies are able to provide physical access to the Company Assets. Nonetheless, if reasonably requested by Purchaser, Seller shall request the permission of the applicable third party operator to allow Purchaser and Purchaser’s Representatives, subject to Section 6.2(b), at Purchaser’s sole cost, risk and expense, reasonable access to the Company Assets to conduct Phase I Activities, field inspections and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller or the Companies, as applicable, may do so without violating any confidentiality or other obligations to any third Person. Purchaser shall, and shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work in a safe and workmanlike manner and so as to not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules of the applicable operator and any contractual obligations burdening Seller or the Companies, and (iv) promptly restore the Company Assets and repair to the approximate same condition any damage thereto resulting from Purchaser’s Phase I Environmental Review. Seller shall have the right to have one or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior to any visits by it (or any Purchaser’s Representatives) to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of the Confidentiality Agreement. (b) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11, PURCHASER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIES, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OF, RESULTING FROM, BASED ON, ASSOCIATED WITH, OR RELATING TO, IN ANY WAY, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIES. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT. (c) All information obtained by Purchaser and its representatives under this Section 6.2 shall be subject to Section 5.1 and the terms of the Confidentiality Agreement and any applicable privacy Laws regarding personal information. In the event that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies or assessments conducted by or on behalf of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make such reports available to Seller at Seller’s request and (i) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the Closing, Seller shall not disclose any such reports without the prior written consent of Purchaser.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Talos Energy Inc.), Purchase and Sale Agreement (Talos Energy Inc.), Purchase and Sale Agreement (Talos Energy Inc.)
Environmental Inspection. Buyer may conduct, at its sole cost and expense by consultants selected by it, an environmental site analysis (a“Site Investigation”) Purchaser to determine the existence of hazardous wastes and materials at the Property (the “Hazardous Materials”). In the event that the results of the Site Investigation indicates that there has been a release of Hazardous Materials that would impose any further investigation, monitoring, or remediation costs on Buyer if Buyer were to own the Premises, Buyer shall be entitled to terminate this Agreement by delivering written notice thereof, together with a copy of all reports, if any, of the results of the Site Investigation, to Seller and Escrow Agent no later than 5:00 p.m. on the date which is fourteen (14) days following the date of this Agreement. In such event, the Deposit shall be returned to Buyer and this Agreement shall terminate and be null and void and without recourse to either party. If Buyer fails to timely give such notice, Buyer’s right to terminate this Agreement shall be deemed to be waived. Buyer acknowledges that neither Seller nor has no obligation whatsoever to undertake any corrective or remedial work as a result of matters disclosed by the Companies are able Site Investigation. In order to provide physical access permit Buyer to conduct the Company Assets. Nonetheless, if reasonably requested by PurchaserSite Investigation, Seller shall request permit Buyer, its agents, servants or employees, a license to enter upon the permission of the applicable third party operator to allow Purchaser and Purchaser’s Representatives, subject to Section 6.2(b), at Purchaser’s sole cost, risk and expense, reasonable access to the Company Assets Premises to conduct Phase I Activitiesthe Site Investigation, field inspections in accordance with the terms and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller or the Companies, as applicable, may do so without violating any confidentiality or other obligations to any third Person. Purchaser shall, and shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall conditions set forth herein below:
(i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work in a safe and workmanlike manner and so as to Buyer will not unreasonably interfere with Seller’s ’s, tenants’ or the Companiesother occupants’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules use of the applicable operator and any contractual obligations burdening Seller or Premises.
(ii) Buyer shall at the Companiesconclusion of the Site Investigation restore the Premises to the condition existing prior to the Site Investigation, and (iv) promptly restore the Company Assets and repair to the approximate same condition this obligation shall survive any damage thereto resulting from Purchaser’s Phase I Environmental Review. Seller shall have the right to have one or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior to any visits by it (or any Purchaser’s Representatives) to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms termination of the Confidentiality this Agreement.
(biii) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11Before commencing any aspect of the Site Investigation that involves physical inspection or invasive testing of the Premises, PURCHASER SHALL DEFENDBuyer shall give Seller prior written notice of the scope of testing, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIESmethodologies to be used and identities of the consultants/contractors retained by Buyer, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OF, RESULTING FROM, BASED ON, ASSOCIATED WITH, OR RELATING TO, IN ANY WAY, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIES. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT.
(c) All information obtained by Purchaser and its representatives under this Section 6.2 all of which shall be subject to Section 5.1 Seller’s prior written approval, which shall not be unreasonably withheld or delayed. In addition, prior to such testing, Buyer shall submit to Seller evidence of Buyer’s and its environmental site analyst’s public liability and workers’ compensation insurance, which shall be reasonably acceptable to Seller and shall name Seller as an additional insured on such policies.
(iv) Buyer agrees to indemnify and hold Seller harmless from and against any and all claims for personal injury or property damage resulting from the terms conduct by Buyer or its agents of the Confidentiality Agreement and any applicable privacy Laws regarding personal informationSite Investigation. In The provisions of this paragraph (v) shall survive the event that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies delivery of the Deed or assessments conducted by or on behalf earlier termination of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make such reports available to Seller at Seller’s request and (i) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the Closing, Seller shall not disclose any such reports without the prior written consent of Purchaser.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (New England Realty Associates Limited Partnership), Purchase and Sale Agreement (New England Realty Associates Limited Partnership), Purchase and Sale Agreement (New England Realty Associates Limited Partnership)
Environmental Inspection. (a) Purchaser acknowledges that neither Seller nor the Companies Company are able to provide physical access to the Company AssetsAssets that are offshore. Nonetheless, if reasonably requested by PurchaserFrom and after the Execution Date until the Closing, Seller shall request the permission of the applicable third party operator use its commercially reasonable efforts to allow permit Purchaser and Purchaser’s Representatives, subject to Section 6.2(b), at Purchaser’s sole cost, risk and expense, reasonable access to the Company Assets to conduct Phase I Activities, field inspections and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller Seller, the Company or the CompaniesCastex, as applicable, may do so without violating any confidentiality or other obligations to any third Person and only to the extent that Seller, the Company or Castex has the authority to grant such access without breaching any obligation or restriction binding on such Person. Purchaser shall, and shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the CompaniesCompany, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work in a safe and workmanlike manner and so as to not unreasonably interfere with Seller’s, Castex’s or the Companies’ Company’s (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules of the applicable operator and any contractual obligations burdening Seller or the CompaniesCompany, and (iv) promptly restore the Company Assets and repair to the approximate same condition any damage thereto resulting from Purchaser’s Phase I Environmental Review. Seller shall have the right to have one or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies Company at least forty-eight (48) hours’ notice prior to any visits by it (or any Purchaser’s Representatives) to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of the Confidentiality Agreement.
(b) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11, PURCHASER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIES, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OF, RESULTING FROM, BASED ON, ASSOCIATED WITH, OR RELATING TO, IN ANY WAY, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIES. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT.
(c) All information obtained by Purchaser and its representatives under this Section 6.2 shall be subject to Section 5.1 and the terms of the Confidentiality Agreement and any applicable privacy Laws regarding personal information. In the event that Purchaser receives any reports generated by third parties in connection with any tests, inspections, examinations, investigations, studies or assessments conducted by or on behalf of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make such reports available to Seller at Seller’s request and (i) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the Closing, Seller shall not disclose any such reports without the prior written consent of Purchaser.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Talos Energy Inc.), Purchase and Sale Agreement (Talos Energy Inc.)
Environmental Inspection. (a) Purchaser acknowledges that neither Seller nor the Companies are able to provide physical access Prior to the Company Assets. Nonethelessexpiration of the Due Diligence Period, if Purchaser's environmental consultant, based on records and other documentation obtained during its Phase I environmental investigation ("Phase I Study"), determines that a Phase II environmental study ("Phase II Study") is necessary with respect to a Property, Purchaser shall give to Seller written notice thereof, together with a complete copy of the Phase I Study and a reasonably requested detailed explanation of the reasons therefor from Purchaser's environmental consultant. Within ten days after receipt of such notice, Seller, at its sole election, shall either (i) obtain the Phase II Study at Seller's sole cost and expense, (ii) permit Purchaser to obtain a Phase II Study at Seller's sole cost and expense, which shall be conducted by Purchaseran environmental consultant satisfactory to Seller in its reasonable judgment pursuant to a scope of study satisfactory to Seller in its reasonable judgment; or (iii) withdraw the Closed Property from this Agreement, and in the latter event, this Agreement shall terminate and be null and void as to such withdrawn Property, but shall continue in full force and effect as to the remaining Properties. Unless Seller notifies Purchaser during such ten-day period of Seller's election to obtain (or to permit Purchaser to obtain) a Phase II Study, Seller shall request be deemed to have elected to withdraw the permission of Property from this Agreement as expressed in clause (iii) above. If Seller or Purchaser obtains a Phase II Study for such Property, as provided above, and if the applicable third party operator to allow Purchaser and Purchaser’s Representatives, subject to Section 6.2(bPhase II Study identifies one or more environmental conditions requiring remediation ("Remediation Conditions"), at then, within ten days after Seller delivers the Phase II Study to Purchaser’s sole cost, risk and expense, reasonable access or Purchaser delivers the Phase II Study to the Company Assets to conduct Phase I Activities, field inspections and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller or the CompaniesSeller, as applicable, may do so without violating any confidentiality or other obligations to any third Person. Purchaser shallSeller, and at its sole election, shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work in a safe and workmanlike manner and so as to not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules of the applicable operator and any contractual obligations burdening Seller or the Companies, and (iv) promptly restore the Company Assets and repair to the approximate same condition any damage thereto resulting from Purchaser’s Phase I Environmental Review. Seller shall have the right to have one or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior to any visits by it (or any Purchaser’s Representatives) to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of the Confidentiality Agreement.
(b) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11, PURCHASER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIES, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OF, RESULTING FROM, BASED ON, ASSOCIATED WITH, OR RELATING TO, IN ANY WAY, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES either (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR agree to remediate and xxxxx the Remediation Condition(s) at Seller's sole cost and expense in conformity with all applicable Environmental Requirements or (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIESwithdraw the Property from this Agreement, and in the latter event, this Agreement shall terminate and be null and void as to such withdrawn Property, but shall continue in full force and effect as to the remaining Properties. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT.
(c) All information obtained by Unless Seller notifies Purchaser during such ten-day period of Seller's election to remediate and its representatives under this Section 6.2 xxxxx the disclosed environmental condition(s), Seller shall be subject deemed to Section 5.1 have elected to withdraw the Property from this Agreement as expressed in clause (B) above. Unless the Property is withdrawn from this Agreement by Seller as aforesaid, the Due Diligence Period and Settlement automatically shall be extended for such time as is necessary for Seller or Purchaser, as applicable, to complete the terms of the Confidentiality Agreement environmental investigations and any applicable privacy Laws regarding personal informationremediations described above. In the event that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies of a withdrawal of a Property pursuant to this subparagraph or assessments conducted by or on behalf a termination of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make Agreement as provided herein as to such reports available to Seller at Seller’s request and (i) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the ClosingProperty, Seller shall not disclose any such reports without the prior written consent be solely responsible for all of Purchaser's out-of-pocket due diligence and investigation costs and expenses, which costs shall be included as an Approved Closing Cost.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (American Financial Realty Trust)
Environmental Inspection. (a) Purchaser acknowledges that neither Seller nor the Companies are able to provide physical access Prior to the Company Assets. Nonethelessexpiration of the Due Diligence Period, if Purchaser’s environmental consultant, based on records and other documentation obtained during its Phase I environmental investigation (“Phase I Study”), determines that a Phase II environmental study (“Phase II Study”) is necessary with respect to a Property, Purchaser shall give to Seller written notice thereof, together with a complete copy of the Phase I Study and a reasonably requested detailed explanation of the reasons therefor from Purchaser’s environmental consultant. Within ten (10) days after receipt of such notice, Seller, at its sole election, shall either (i) obtain the Phase II Study at Seller’s sole cost and expense, (ii) permit Purchaser to obtain a Phase II Study at Seller’s sole cost and expense, which shall be conducted by Purchaseran environmental consultant satisfactory to Seller in its reasonable judgment pursuant to a scope of study satisfactory to Seller in its reasonable judgment; or (iii) withdraw the Closed Property from this Agreement, and in the latter event, this Agreement shall terminate and be null and void as to such withdrawn Property, but shall continue in full force and effect as to the remaining Properties. Unless Seller notifies Purchaser during such ten-day period of Seller’s election to obtain (or to permit Purchaser to obtain) a Phase II Study, Seller shall request be deemed to have elected to withdraw the permission of Property from this Agreement as expressed in clause (iii) above. If Seller or Purchaser obtains a Phase II Study for such Property, as provided above, and if the applicable third party operator to allow Purchaser and Purchaser’s Representatives, subject to Section 6.2(bPhase II Study identifies one or more environmental conditions requiring remediation (“Remediation Conditions”), at then, within ten (10) days after Seller delivers the Phase II Study to Purchaser’s sole cost, risk and expense, reasonable access or Purchaser delivers the Phase II Study to the Company Assets to conduct Phase I Activities, field inspections and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller or the CompaniesSeller, as applicable, may do so without violating any confidentiality or other obligations to any third Person. Purchaser shallSeller, and at its sole election, shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work in a safe and workmanlike manner and so as to not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules of the applicable operator and any contractual obligations burdening Seller or the Companies, and (iv) promptly restore the Company Assets and repair to the approximate same condition any damage thereto resulting from Purchaser’s Phase I Environmental Review. Seller shall have the right to have one or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior to any visits by it (or any Purchaser’s Representatives) to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of the Confidentiality Agreement.
(b) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11, PURCHASER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIES, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OF, RESULTING FROM, BASED ON, ASSOCIATED WITH, OR RELATING TO, IN ANY WAY, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES either (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR agree to remediate and xxxxx the Remediation Condition(s) at Seller’s sole cost and expense in conformity with all applicable Environmental Requirements or (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIESwithdraw the Property from this Agreement, and in the latter event, this Agreement shall terminate and be null and void as to such withdrawn Property, but shall continue in full force and effect as to the remaining Properties. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT.
(c) All information obtained by Unless Seller notifies Purchaser during such ten-day period of Seller’s election to remediate and its representatives under this Section 6.2 xxxxx the disclosed environmental condition(s), Seller shall be subject deemed to Section 5.1 have elected to withdraw the Property from this Agreement as expressed in clause (B) above. Unless the Property is withdrawn from this Agreement by Seller as aforesaid, the Due Diligence Period and Closing automatically shall be extended for such time as is necessary for Seller or Purchaser, as applicable, to complete the terms of the Confidentiality Agreement environmental investigations and any applicable privacy Laws regarding personal informationremediations described above. In the event that of a withdrawal of a Property pursuant to this subparagraph or a termination of this Agreement as provided herein as to such Property, Seller shall reimburse Purchaser receives any reports generated for all out-of-pocket expenses incurred by third parties in connection with any inspections, examinations, investigations, studies or assessments conducted by or on behalf of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make Due Diligence Inspections for such reports available to Seller at Seller’s request and (i) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the Closing, Seller shall not disclose any such reports without the prior written consent of PurchaserProperty.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (American Financial Realty Trust)
Environmental Inspection. Lessor shall have the right, from time to time, and upon not less than five (a5) Purchaser acknowledges that neither Seller nor days' written notice to Lessee, except in the Companies are able case of an emergency in which event no notice shall be required, to provide physical access conduct an inspection of the Leased Property and all Capital Additions or any part(s) or portion(s) thereof at any reasonable time to determine the Company Assets. Nonethelessexistence or presence of Hazardous Substances on or about such Leased Property or any such Capital Additions, if reasonably requested by Purchaser, Seller shall request Lessor has reasonable belief to suspect that Lessee has not fully complied with the permission terms of the applicable third party operator to allow Purchaser and Purchaser’s Representatives, subject to Section 6.2(b), at Purchaser’s sole cost, risk and expense, reasonable access to the Company Assets to conduct Phase I Activities, field inspections and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller or the Companies, as applicable, may do so without violating any confidentiality or other obligations to any third Personthis Article XXXVII. Purchaser shall, and shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work in a safe and workmanlike manner and so as to not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules of the applicable operator and any contractual obligations burdening Seller or the Companies, and (iv) promptly restore the Company Assets and repair to the approximate same condition any damage thereto resulting from Purchaser’s Phase I Environmental Review. Seller Lessor shall have the right to enter and inspect the Leased Property and all Capital Additions, conduct any testing, sampling and analyses it deems necessary and shall have one or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior right to any visits by it (inspect materials brought into the Leased Property or any Purchaser’s Representativessuch Capital Additions; provided, however, that Lessor shall (i) conduct its activities on the Leased Property or any such Capital Additions pursuant to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of this Section 37.5 in a commercially reasonable manner designed to minimize the Confidentiality Agreement.
impact of such activities on Lessee's operation of applicable Facility, (bii) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11restore the Leased Property and any such Capital Additions to substantially the same condition as existed immediately prior to Lessor's inspection thereof and (iii) indemnify, PURCHASER SHALL DEFENDdefend, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIESprotect, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OFsave, RESULTING FROMhold harmless, BASED ONand reimburse Lessee for, ASSOCIATED WITHfrom and against any and all loss, OR RELATING TOcost or expense, IN ANY WAYincluding costs and reasonable legal fees, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6arising out of any damage to persons or property occurring in or about the Leased Property and any such Capital Additions, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROMor any liens filed against the Leased Property or any such Capital Additions, SOLELY OR IN PARTin either case resulting directly from Lessor's inspection of the Leased Property and any such Capital Additions pursuant to the terms of this Section 37.5. Lessor may, THE ACTIVEin its discretion, PASSIVEretain such experts to conduct the inspection, CONCURRENT OR COMPARATIVE NEGLIGENCEperform the tests referred to herein, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIESand to prepare a written report in connection therewith. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT.
(c) All information obtained costs and expenses incurred by Purchaser and its representatives Lessor under this Section 6.2 shall be subject paid on demand as Additional Charges by Lessee to Section 5.1 Lessor. Failure to conduct an environmental inspection or to detect unfavorable conditions if such inspection is conducted shall in no fashion be intended as a release of any liability for environmental conditions subsequently determined to be associated with or to have occurred during Lessee's tenancy. Lessee shall remain liable for any environmental condition related to or having occurred during its tenancy regardless of when such conditions are discovered and regardless of whether or not Lessor conducts an environmental inspection at the terms termination of the Confidentiality Agreement and any applicable privacy Laws regarding personal informationLease. In The obligations set forth in this Article shall survive the event that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies expiration or assessments conducted by or on behalf earlier termination of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make such reports available to Seller at Seller’s request and (i) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the Closing, Seller shall not disclose any such reports without the prior written consent of PurchaserLease.
Appears in 1 contract
Samples: Master Lease (Emeritus Corp\wa\)
Environmental Inspection. (a) Purchaser acknowledges that neither Seller nor Between the Companies are able to provide physical access to date of this Agreement and the Company Assets. NonethelessClosing, if reasonably requested by Purchaser, Seller shall request the permission Buyer may have an independent environmental consultant ("Buyer's Consultant") perform an environmental inspection and audit of one or more of the applicable third party operator to allow Purchaser and Purchaser’s RepresentativesProperties (together with any already undertaken environmental inspections, subject to Section 6.2(bthe "Environmental Inspection"), at Purchaser’s sole cost, risk and expense, reasonable access to the Company Assets to conduct Phase I Activities, field inspections and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller or the Companies, as applicable, may do so without violating any confidentiality or other obligations to any third Person. Purchaser shall, and shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review Inspection shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work conducted in a safe and workmanlike manner and so as to that does not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules operation of the applicable operator and any contractual obligations burdening Seller or business of the Companies, and (iv) promptly restore the Company Assets and repair JPE Companies nor does material damage to the approximate same condition any damage thereto resulting from Purchaser’s Properties. Prior to conducting an inspection other than a traditional "Phase I I" environmental audit, Buyer's Consultant shall first prepare a work plan describing the proposed Environmental ReviewInspection. Seller JPE shall have the right to review and comment on Buyer's Consultant's work plan five business days before it is implemented. JPE shall have one the right to split samples with Buyer or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior to any visits by it (or any Purchaser’s Representatives) to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of the Confidentiality AgreementBuyer's Consultant.
(b) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11Prior to the Closing Date, PURCHASER SHALL DEFENDthe results of the Environmental Inspection shall be (1) shared between Buyer and JPE and (2) treated as privileged and confidential as shall the documents constituting and the documents used in or for the Environmental Inspection (the "Environmental Report"); provided that the Environmental Report may be disclosed as required by Law or as requested by Buyer's attorneys, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIESconsultants and advisors, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OFlenders (and its lenders' advisors). Buyer shall promptly restore any disturbance to the Property which results from the Environmental Inspection to the same or reasonably similar predisturbed condition and shall, RESULTING FROMin compliance with Environmental Laws, BASED ON, ASSOCIATED WITH, OR RELATING TO, IN ANY WAY, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIES. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENTpromptly dispose at an appropriate off-site location all waste materials generated on such Property due to the performance of the Environmental Inspection.
(c) All information obtained by Purchaser In addition to and its representatives under notwithstanding the foregoing, prior to the Closing Date, JPE and Buyer, at JPE's sole cost and expense, shall engage Superior Property Services Group to conduct a Phase I or Phase II Environmental Inspection (as set forth on Schedule 9.6(b) to this Section 6.2 Agreement) of the Properties set forth on Schedule 9.6(b). The results of such Phase I and Phase II Environmental Inspections shall be subject to Section 5.1 and the terms of the Confidentiality Agreement and any applicable privacy Laws regarding personal information. In the event that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies or assessments conducted by or on behalf of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make such reports available to Seller at Seller’s request and (i9.6(b) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the Closing, Seller shall not disclose any such reports without the prior written consent of Purchaserabove.
Appears in 1 contract
Samples: Investment Agreement (Jpe Inc)
Environmental Inspection. (a) Purchaser acknowledges that neither Seller nor Between the Companies are able to provide physical access to date of this Agreement and the Company Assets. NonethelessClosing, if reasonably requested by Purchaser, Seller shall request the permission Buyer may have an independent environmental consultant ("Buyer's Consultant") perform an environmental inspection and audit of one or more of the applicable third party operator to allow Purchaser and Purchaser’s RepresentativesProperties (together with any already undertaken environmental inspections, subject to Section 6.2(bthe "Environmental Inspection"), at Purchaser’s sole cost, risk and expense, reasonable access to the Company Assets to conduct Phase I Activities, field inspections and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller or the Companies, as applicable, may do so without violating any confidentiality or other obligations to any third Person. Purchaser shall, and shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review Inspection shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work conducted in a safe and workmanlike manner and so as to that does not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules operation of the applicable operator and any contractual obligations burdening Seller or business of the Companies, and (iv) promptly restore the Company Assets and repair JPE Companies nor does material damage to the approximate same condition any damage thereto resulting from Purchaser’s Properties. Prior to conducting an inspection other than a traditional "Phase I I" environmental audit, Buyer's Consultant shall first prepare a work plan describing the proposed Environmental ReviewInspection. Seller JPE shall have the right to review and comment on Buyer's Consultant's work plan five business days before it is implemented. JPE shall have one the right to review and comment on Buyer's Consultant's work plan five business days it is implemented. JPE shall have the right to split samples with Buyer or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior to any visits by it (or any Purchaser’s Representatives) to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of the Confidentiality AgreementBuyer's Consultant.
(b) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11Prior to the Closing Date, PURCHASER SHALL DEFENDthe results of the Environmental Inspection shall be (1) shared between Buyer and JPE and (2) treated as privileged and confidential as shall the documents constituting and the documents used in or for the Environmental Inspection (the "Environmental Report"); provided that the Environmental Report may be disclosed as required by Law or as requested by Buyer's attorneys, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIESconsultants and advisors, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OFlenders (and its lenders' advisors). Buyer shall promptly restore any disturbance to the Property which results from the Environmental Inspection to the same or reasonably similar predisturbed condition and shall, RESULTING FROMin compliance with Environmental Laws, BASED ON, ASSOCIATED WITH, OR RELATING TO, IN ANY WAY, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIES. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENTpromptly dispose at an appropriate off-site location all waste materials generated on such Property due to the performance of the Environmental Inspection.
(c) All information obtained by Purchaser In addition to and its representatives under notwithstanding the foregoing, prior to the Closing Date, JPE and Buyer, at JPE's sole cost and expense, shall engage Superior Property Services Group to conduct a Phase I or Phase II Environmental Inspection (as set forth on Schedule 9.6(b) to this Section 6.2 Agreement) of the Properties set forth on Schedule 9.6(b). The results of such Phase I and Phase II Environmental Inspections shall be subject to Section 5.1 and the terms of the Confidentiality Agreement and any applicable privacy Laws regarding personal information. In the event that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies or assessments conducted by or on behalf of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make such reports available to Seller at Seller’s request and (i9.6(b) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the Closing, Seller shall not disclose any such reports without the prior written consent of Purchaserabove.
Appears in 1 contract
Environmental Inspection. Lessor shall have the right, from time to time, and upon not less than five (a5) Purchaser acknowledges that neither Seller nor days’ written notice to Lessee, except in the Companies are able case of an emergency in which event no notice shall be required, to provide physical access conduct an inspection of the Leased Property and all Capital Additions or any part(s) or portion(s) thereof at any reasonable time to determine the Company Assets. Nonethelessexistence or presence of Hazardous Substances on or about such Leased Property or any such Capital Additions, if reasonably requested by Purchaser, Seller shall request Lessor has reasonable belief to suspect that Lessee has not fully complied with the permission terms of the applicable third party operator to allow Purchaser and Purchaser’s Representatives, subject to Section 6.2(b), at Purchaser’s sole cost, risk and expense, reasonable access to the Company Assets to conduct Phase I Activities, field inspections and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller or the Companies, as applicable, may do so without violating any confidentiality or other obligations to any third Personthis Article XXXVII. Purchaser shall, and shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work in a safe and workmanlike manner and so as to not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules of the applicable operator and any contractual obligations burdening Seller or the Companies, and (iv) promptly restore the Company Assets and repair to the approximate same condition any damage thereto resulting from Purchaser’s Phase I Environmental Review. Seller Lessor shall have the right to enter and inspect the Leased Property and all Capital Additions, conduct any testing, sampling and analyses it deems necessary and shall have one or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior right to any visits by it (inspect materials brought into the Leased Property or any Purchaser’s Representativessuch Capital Additions; provided, however, that Lessor shall (i) conduct its activities on the Leased Property or any such Capital Additions pursuant to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of this Section 37.5 in a commercially reasonable manner designed to minimize the Confidentiality Agreement.
impact of such activities on Lessee’s operation of the applicable Facility, (bii) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11restore the Leased Property and any such Capital Additions to substantially the same condition as existed immediately prior to Lessor’s inspection thereof and (iii) indemnify, PURCHASER SHALL DEFENDdefend, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIESprotect, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OFsave, RESULTING FROMhold harmless, BASED ONand reimburse Lessee for, ASSOCIATED WITHfrom and against any and all loss, OR RELATING TOcost or expense, IN ANY WAYincluding costs and reasonable legal fees, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6arising out of any damage to persons or property occurring in or about the Leased Property and any such Capital Additions, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROMor any liens filed against the Leased Property or any such Capital Additions, SOLELY OR IN PARTin either case resulting directly from Lessor’s inspection of the Leased Property and any such Capital Additions pursuant to the terms of this Section 37.5. Lessor may, THE ACTIVEin its discretion, PASSIVEretain such experts to conduct the inspection, CONCURRENT OR COMPARATIVE NEGLIGENCEperform the tests referred to herein, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIESand to prepare a written report in connection therewith. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT.
(c) All information obtained costs and expenses incurred by Purchaser and its representatives Lessor under this Section 6.2 shall be subject paid on demand as Additional Charges by Lessee to Section 5.1 Lessor. Failure to conduct an environmental inspection or to detect unfavorable conditions if such inspection is conducted shall in no fashion be intended as a release of any liability for environmental conditions subsequently determined to be associated with or to have occurred during Xxxxxx’s tenancy. Lessee shall remain liable for any environmental condition related to or having occurred during its tenancy regardless of when such conditions are discovered and regardless of whether or not Lessor conducts an environmental inspection at the terms termination of the Confidentiality Agreement and any applicable privacy Laws regarding personal informationLease. In The obligations set forth in this Article shall survive the event that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies expiration or assessments conducted by or on behalf earlier termination of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make such reports available to Seller at Seller’s request and (i) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the Closing, Seller shall not disclose any such reports without the prior written consent of PurchaserLease.
Appears in 1 contract
Samples: Master Lease and Security Agreement (Emeritus Corp\wa\)
Environmental Inspection. (a) Following the date of this Agreement, the Company shall provide to Purchaser acknowledges that neither Seller nor the Companies are able to provide physical access to all records and information in the Company's and the Retained Subsidiaries' possession concerning all Hazardous Substances, used, stored, generated, treated or disposed of by the Company Assets. Nonetheless, if reasonably requested by Purchaser, Seller shall request the permission of the applicable third party operator to allow Purchaser and Purchaser’s Representatives, subject to Section 6.2(b), at Purchaser’s sole cost, risk and expense, reasonable access to the Company Assets to conduct Phase I Activities, field inspections and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller or the CompaniesRetained Subsidiaries, as applicable, may do so without violating any confidentiality all environmental or other obligations to any third Person. Purchaser shall, and shall cause Purchaser’s Representatives to, abide by safety studies in the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work in a safe and workmanlike manner and so as to not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules of the applicable operator and any contractual obligations burdening Seller or the Companies, and (iv) promptly restore the Company Assets and repair to the approximate same condition any damage thereto resulting from Purchaser’s Phase I Environmental Review. Seller shall have the right to have one or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior to any visits by it (or any Purchaser’s Representatives) to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of the Confidentiality Agreement.
(b) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11, PURCHASER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIES, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OF, RESULTING FROM, BASED ON, ASSOCIATED WITH, OR RELATING TO, IN ANY WAY, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIES. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT.
(c) All information obtained by Purchaser and its representatives under this Section 6.2 shall be subject to Section 5.1 Company's and the terms of the Confidentiality Agreement and any applicable privacy Laws regarding personal information. In the event that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies or assessments Retained Subsidiaries' possession conducted by or on behalf of the Company or the Retained Subsidiaries and all reports, correspondence or filings to Governmental Entities with jurisdiction over Environmental Requirements concerning the compliance of the Subject Property or the operation of the Subject Property with Environmental Requirements, all policies and procedures manuals or guidelines utilized by the Company and the Retained Subsidiaries to comply with Environmental Requirements in the Company's or the Retained Subsidiaries' possession, and any other information reasonably requested by Purchaser in connection with the transactions contemplated by this AgreementCompany's or the Retained Subsidiaries' possession pertaining to environmental, health and safety issues (the "Environmental Information"). The Company agrees that Purchaser shall make such reports available have the right to Seller inspect the Environmental Information and the Subject Property, including the performance of a "Phase 1" environmental site assessment and audit, and, at Seller’s request and the discretion of Purchaser, perform subsurface or other invasive investigations, including air monitoring, at or near the Subject Property all at Purchaser's expense, subject to (i) prior compliance by Purchaser with all applicable Legal Requirements (including without limitation any applicable well permitting requirements), and (ii) as to property covered by the Real Property Leases or otherwise owned by third parties, approval of the lessor or other property owner of such work in writing if required under such leases which the Company or the Retained Subsidiaries shall diligently assist in obtaining; and (iii) SECTION 10.10. Except to the Closingextent required by Applicable Law, Purchaser shall not disclose any such reports Environmental Information or the results of any Phase I or other environmental investigation to any third party who is not Purchaser's agent, without first obtaining the prior written consent of Seller the Company, which consent shall not be unreasonably withheld. Purchaser shall indemnify, defend and (ii) hold harmless the Company, the Subsidiaries and the Members from and after against all claims, actions, damages, liens, liabilities, obligations and expenses (including reasonable attorneys' fees and court costs) arising out of or relating in any manner to Purchaser's work and investigations under this SECTION 2.8 and SECTION 2.7 above, which indemnity shall survive Closing or termination of this Agreement. In the event of Termination of this Agreement without a Closing, Seller Purchaser shall not disclose repair any damage resulting from such reports activities (including without the prior written consent limitation, proper closure of all well and borings installed by Purchaser and removal at Purchaser's sole cost of all waste derived from such investigation).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Sonoco Products Co)
Environmental Inspection. (a) Purchaser acknowledges that neither Seller nor the Companies are able to provide physical access Prior to the Company Assets. Nonethelessexpiration of the Due Diligence Period, if Purchaser's environmental consultant, based on records and other documentation obtained during its Phase I environmental investigation ("Phase I Study"), determines that a Phase II environmental study ("Phase II Study") is necessary with respect to a Property, Purchaser shall give to Seller written notice thereof, together with a complete copy of the Phase I Study and a reasonably requested detailed explanation of the reasons therefor from Purchaser's environmental consultant. Within ten (10) days after receipt of such notice, Seller, at its sole election, shall either (i) obtain the Phase II Study at Seller's sole cost and expense, (ii) permit Purchaser to obtain a Phase II Study at Seller's sole cost and expense, which shall be conducted by Purchaseran environmental consultant satisfactory to Seller in its reasonable judgment pursuant to a scope of study satisfactory to Seller in its reasonable judgment; or (iii) withdraw the Closed Property from this Agreement, and in the latter event, this Agreement shall terminate and be null and void as to such withdrawn Property, but shall continue in full force and effect as to the remaining Properties. Unless Seller notifies Purchaser during such ten-day period of Seller's election to obtain (or to permit Purchaser to obtain) a Phase II Study, Seller shall request be deemed to have elected to withdraw the permission of Property from this Agreement as expressed in clause (iii) above. If Seller or Purchaser obtains a Phase II Study for such Property, as provided above, and if the applicable third party operator to allow Purchaser and Purchaser’s Representatives, subject to Section 6.2(bPhase II Study identifies one or more environmental conditions requiring remediation ("Remediation Conditions"), at then, within ten (10) days after Seller delivers the Phase II Study to Purchaser’s sole cost, risk and expense, reasonable access or Purchaser delivers the Phase II Study to the Company Assets to conduct Phase I Activities, field inspections and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller or the CompaniesSeller, as applicable, may do so without violating any confidentiality or other obligations to any third Person. Purchaser shallSeller, and at its sole election, shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work in a safe and workmanlike manner and so as to not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules of the applicable operator and any contractual obligations burdening Seller or the Companies, and (iv) promptly restore the Company Assets and repair to the approximate same condition any damage thereto resulting from Purchaser’s Phase I Environmental Review. Seller shall have the right to have one or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior to any visits by it (or any Purchaser’s Representatives) to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of the Confidentiality Agreement.
(b) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11, PURCHASER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIES, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OF, RESULTING FROM, BASED ON, ASSOCIATED WITH, OR RELATING TO, IN ANY WAY, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES either (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR agree to remediate and xxxxx the Remediation Condition(s) at Seller's sole cost and expense in conformity with all applicable Environmental Requirements or (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIESwithdraw the Property from this Agreement, and in the latter event, this Agreement shall terminate and be null and void as to such withdrawn Property, but shall continue in full force and effect as to the remaining Properties. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT.
(c) All information obtained by Unless Seller notifies Purchaser during such ten-day period of Seller's election to remediate and its representatives under this Section 6.2 xxxxx the disclosed environmental condition(s), Seller shall be subject deemed to Section 5.1 have elected to withdraw the Property from this Agreement as expressed in clause (B) above. Unless the Property is withdrawn from this Agreement by Seller as aforesaid, the Due Diligence Period and Closing automatically shall be extended for such time as is necessary for Seller or Purchaser, as applicable, to complete the terms of the Confidentiality Agreement environmental investigations and any applicable privacy Laws regarding personal informationremediations described above. In the event that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies of a withdrawal of a Property pursuant to this subparagraph or assessments conducted by or on behalf a termination of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make Agreement as provided herein as to such reports available to Seller at Seller’s request and (i) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the ClosingProperty, Seller shall not disclose any such reports without the prior written consent be solely responsible for all of Purchaser's out-of-pocket due diligence and investigation costs and expenses, which costs shall be included as an Approved Closing Cost.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (American Financial Realty Trust)
Environmental Inspection. (a) Purchaser acknowledges that neither Seller nor the Companies are able to shall provide physical Buyer with access to the Company Assets. NonethelessSubject Property for the purposes of performing, if reasonably requested by Purchaserat the sole expense of Buyer, Seller shall request the permission an environmental assessment and environmental audit of the applicable third party operator Subject Property (the "INSPECTION"). One objective of this Inspection shall be to allow Purchaser evaluate the existing contamination at the Subject Property, and Purchaser’s Representativesit is understood and agreed that this may entail the utilization of intrusive sampling. The extent of the Inspection shall not affect Buyer's enforcement of its rights under this Agreement. Seller agrees to collect in a centralized location the following information which shall be provided to Buyer for its review as a part of its Inspection: notices to and from and correspondence with any Governmental Authorities regarding Environmental Requirements; all environmental assessments or audits in the possession of Seller regarding Environmental Requirements of the Company, whether or not performed by Seller and whether or not limited to the Subject Property; all environmental permits and permit applications, and compliance plans, including but not limited to Stormwater Pollution Prevention Plans, Spill Prevention Control and Countermeasure Plans, and Waste Minimization/Pollution Prevention Plans, involving the Subject Property; and a listing of all sites used by Company for the disposal of Hazardous Substances.
(b) The Inspection shall analyze the extent to which: (i) the Identified Property, and the Use of the Identified Property, complies with, and does not deviate from, all Environmental Requirements; (ii) the Identified Property contains any Hazardous Substances; (iii) the Identified Property is, or has been, the subject of any past, existing or threatened investigation, inquiry or proceeding concerning environmental matters by any Governmental Authorities; (iv) any notice or submission concerning Environmental Activity has been given or should be given with regard to the Identified Property to Governmental Authorities; (v) the Identified Property is subject to, or covered by, the requirements of Title III of the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. 11001 ET SEQ. The Environmental Information shall also include a "Disclosure Summary" that specifically addresses any exceptions to the representations and warranties set forth in Section 6.2(b2.7 hereof.
(c) Buyer shall treat confidentially any information generated in connection with such Inspection, including without limitation all reports prepared for Buyer by its consultant or other technical representative (the "CONSULTANT"), at Purchaser’s sole costany other reports prepared by the Consultant regarding the Subject Property and their contents, risk and expenseany analyses, reasonable access compilations, studies or other documents prepared by Buyer, its affiliates or its Consultant containing or otherwise reflecting the results of such Inspection (collectively, the "ENVIRONMENTAL INFORMATION"). The Environmental Information may only be used in connection with the transaction contemplated by this Agreement. Buyer agrees that the Inspection shall be conducted in strict compliance with the following: (i) prior to conducting the Company Assets to conduct Phase I ActivitiesInspection, field inspections and compliance reviews for purposes Buyer will provide Seller with an original counterpart of Purchaser’s due diligence investigation of environmental matters its agreements with the Consultant relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only Subject Property, which agreement shall conform to the extent that Seller or the Companies, as applicable, may do so without violating any confidentiality or other obligations to any third Person. Purchaser shall, and shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies terms of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, this Section 4.6; (ii) perform all such work in a safe and workmanlike manner and so as to not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules of the applicable operator and any contractual obligations burdening Seller or the Companies, and (iv) promptly restore the Company Assets and repair to the approximate same condition any damage thereto resulting from Purchaser’s Phase I Environmental Review. Seller shall have the right to have one a representative or more representatives accompany Purchaser the Consultant at all times during Purchaser’s Phase I Environmental Review, the Inspection; (iii) Buyer acknowledges the competitive value and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior to any visits by it (or any Purchaser’s Representatives) to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms sensitive and confidential nature of the Confidentiality Agreement.
(b) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11, PURCHASER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIES, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OF, RESULTING FROM, BASED ON, ASSOCIATED WITH, OR RELATING TO, IN ANY WAY, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIES. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT.
(c) All information obtained by Purchaser and its representatives under this Section 6.2 shall be subject to Section 5.1 Environmental Information and the terms of the Confidentiality Agreement and any applicable privacy Laws regarding personal information. In the event damage that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies or assessments conducted by or on behalf of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make such reports available to Seller at Seller’s request and (i) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the Closing, Seller shall not disclose any such reports without the prior written consent of Purchaser.could result
Appears in 1 contract
Environmental Inspection. (a) Purchaser acknowledges that neither Seller nor the Companies are able to provide physical access to the Company Assets. Nonetheless, if reasonably requested by Purchaser, Seller shall request the permission of the applicable third party operator to allow Purchaser and Purchaser’s Representatives, subject to Section 6.2(b)may, at Purchaser’s its sole cost, risk cost and expense, reasonable access cause to the Company Assets to conduct be performed an independent Phase I Activitiesenvironmental site assessment prepared in accordance with ASTM Practice E 2247-08 (Standard Practice for Environmental Site Assessments: Phase I Environmental Process for Forestland or Rural Property) on the Property as Purchaser shall desire (the “Phase I”), field inspections and compliance reviews for purposes Purchaser may employ engineers, consultants and other personnel to perform such environmental site assessment. If Purchaser’s actions reveal that, in the opinion of Purchaser’s due diligence investigation engineers, consultants and other personnel, any part or parcel of environmental matters relating the Property is or may be impaired by a Recognized Environmental Condition (hereinafter defined) concerning that part or parcel, then Purchaser may object to such Recognized Environmental Condition by notice to Seller on or before the Company Assets (“Purchaser’s Phase I Environmental Review”) but only expiration of the Due Diligence Period. Failure by Purchaser to the extent that Seller or the Companies, as applicable, may do so without violating any confidentiality or other obligations to any third Person. Purchaser shall, and shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review timely deliver such notice shall be limited to those activities permitted by the applicable operator and deemed a waiver of any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work in a safe and workmanlike manner and so as to not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules of the applicable operator and any contractual obligations burdening Seller or the Companies, and (iv) promptly restore the Company Assets and repair to the approximate same condition any damage thereto resulting from Purchaser’s Phase I Environmental Reviewobjections it may have under this Section 28. Seller shall have the right right, but not the obligation, to have one or more representatives accompany Purchaser at all times during Purchaser’s Phase I attempt to cure and remove such Recognized Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice Conditions prior to Closing. If Seller fails to cure, or elects not to cure, any visits by it such Recognized Environmental Condition within five (or any Purchaser’s Representatives5) to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of the Confidentiality Agreement.
(b) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11, PURCHASER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIES, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OF, RESULTING FROM, BASED ON, ASSOCIATED WITH, OR RELATING TO, IN ANY WAY, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIES. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT.
(c) All information obtained by Purchaser and its representatives under this Section 6.2 shall be subject to Section 5.1 and the terms of the Confidentiality Agreement and any applicable privacy Laws regarding personal information. In the event that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies or assessments conducted by or on behalf of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make such reports available to Seller at Seller’s request and (i) days prior to the Closing, Purchaser shall not disclose any elect by delivering written notice to Seller either (i) to proceed to Closing subject to such reports without uncured or unsatisfied Environmental Conditions, with no reduction in the prior written consent of Seller and Purchase Price; or (ii) from to proceed to Closing and after purchase the ClosingProperty exclusive of such portion or portions of the Property affected by the Environmental Conditions, Seller with such adjustment in the Purchase Price as may be determined in accordance with the provisions of Section 27 hereof. Failure by Purchaser to timely deliver such notice shall not disclose any such reports without be deemed an election of clause (i). As used herein, “Recognized Environmental Condition” shall have the prior written consent of Purchasermeaning set out for the same in ASTM Practice E 2247-08.
Appears in 1 contract
Samples: Purchase and Sale Agreement (CatchMark Timber Trust, Inc.)
Environmental Inspection. Lessor shall have the right, from time to time, and upon not less than five (a5) Purchaser acknowledges that neither Seller nor days’ written notice to Lessee, except in the Companies are able case of an emergency in which event no notice shall be required, to provide physical access conduct an inspection of the Leased Property and all Capital Additions or any part(s) or portion(s) thereof at any reasonable time to determine the Company Assets. Nonethelessexistence or presence of Hazardous Substances on or about such Leased Property or any such Capital Additions, if reasonably requested by Purchaser, Seller shall request Lessor has reasonable belief to suspect that Lxxxxx has not fully complied with the permission terms of the applicable third party operator to allow Purchaser and Purchaser’s Representatives, subject to Section 6.2(b), at Purchaser’s sole cost, risk and expense, reasonable access to the Company Assets to conduct Phase I Activities, field inspections and compliance reviews for purposes of Purchaser’s due diligence investigation of environmental matters relating to the Company Assets (“Purchaser’s Phase I Environmental Review”) but only to the extent that Seller or the Companies, as applicable, may do so without violating any confidentiality or other obligations to any third Personthis Article XXXVII. Purchaser shall, and shall cause Purchaser’s Representatives to, abide by the applicable operators’ implemented safety rules, regulations and operating policies of which they are informed in conducting Purchaser’s Phase I Environmental Review. The scope of work comprising Purchaser’s Phase I Environmental Review shall be limited to those activities permitted by the applicable operator and any contractual obligations burdening Seller or the Companies, and shall not include any sampling, testing or other invasive activities. Purchaser shall (i) consult with Seller before conducting any work comprising Purchaser’s Phase I Environmental Review, (ii) perform all such work in a safe and workmanlike manner and so as to not unreasonably interfere with Seller’s or the Companies’ (or any of their Affiliates’) normal operations, (iii) comply with all Environmental Laws applicable to Purchaser’s Phase I Environmental Review and customary industry practices and all rules of the applicable operator and any contractual obligations burdening Seller or the Companies, and (iv) promptly restore the Company Assets and repair to the approximate same condition any damage thereto resulting from Purchaser’s Phase I Environmental Review. Seller Lessor shall have the right to enter and inspect the Leased Property and all Capital Additions, conduct any testing, sampling and analyses it deems necessary and shall have one or more representatives accompany Purchaser at all times during Purchaser’s Phase I Environmental Review, and Purchaser shall give Seller or the Companies at least forty-eight (48) hours’ notice prior right to any visits by it (inspect materials brought into the Leased Property or any Purchaser’s Representativessuch Capital Additions; provided, however, that Lessor shall (i) conduct its activities on the Leased Property or any such Capital Additions pursuant to the applicable Company Assets. The Parties agree that all information discovered during Purchaser’s Phase I Environmental Review shall be governed by the terms of this Section 37.5 in a commercially reasonable manner designed to minimize the Confidentiality Agreement.
impact of such activities on Lessee’s operation of the applicable Facility, (bii) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT AND WITHOUT LIMITING PURCHASER’S RIGHTS TO INDEMNIFICATION UNDER ARTICLE 11restore the Leased Property and any such Capital Additions to substantially the same condition as existed immediately prior to Lessor’s inspection thereof and (iii) indemnify, PURCHASER SHALL DEFENDdefend, INDEMNIFY AND HOLD HARMLESS THE SELLER INDEMNIFIED PARTIESprotect, FROM AND AGAINST ANY AND ALL DAMAGES ARISING OUT OFsave, RESULTING FROMhold harmless, BASED ONand reimburse Lessee for, ASSOCIATED WITHfrom and against any and all loss, OR RELATING TOcost or expense, IN ANY WAYincluding costs and reasonable legal fees, PURCHASER’S DUE DILIGENCE ACTIVITIES OR THE ACCESS AFFORDED TO PURCHASER OR PURCHASER’S REPRESENTATIVES PURSUANT TO THIS ARTICLE 6arising out of any damage to persons or property occurring in or about the Leased Property and any such Capital Additions, REGARDLESS OF WHETHER SUCH DAMAGES ARISE OUT OF OR RESULT FROMor any liens filed against the Leased Property or any such Capital Additions, SOLELY OR IN PARTin either case resulting directly from Lessor’s inspection of the Leased Property and any such Capital Additions pursuant to the terms of this Section 37.5. Lessor may, THE ACTIVEin its discretion, PASSIVEretain such experts to conduct the inspection, CONCURRENT OR COMPARATIVE NEGLIGENCEperform the tests referred to herein, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY SELLER INDEMNIFIED PARTY, EXCEPTING ONLY DAMAGES (A) TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY SELLER INDEMNIFIED PARTY OR (B) RELATED TO ANY ENVIRONMENTAL CONDITION UNCOVERED OR DISCOVERED BY PURCHASER OR PURCHASER’S REPRESENTATIVES DURING THE COURSE OF PURCHASER’S DUE DILIGENCE REVIEW TO THE EXTENT THE SAME WERE NOT CAUSED OR EXACERBATED BY PURCHASER’S OR PURCHASER’S REPRESENTATIVES’ DUE DILIGENCE ACTIVITIESand to prepare a written report in connection therewith. THE FOREGOING INDEMNITY SHALL CONTINUE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT.
(c) All information obtained costs and expenses incurred by Purchaser and its representatives Lessor under this Section 6.2 shall be subject paid on demand as Additional Charges by Lessee to Section 5.1 Lessor. Failure to conduct an environmental inspection or to detect unfavorable conditions if such inspection is conducted shall in no fashion be intended as a release of any liability for environmental conditions subsequently determined to be associated with or to have occurred during Lxxxxx’s tenancy. Lessee shall remain liable for any environmental condition related to or having occurred during its tenancy regardless of when such conditions are discovered and regardless of whether or not Lessor conducts an environmental inspection at the terms termination of the Confidentiality Agreement and any applicable privacy Laws regarding personal informationLease. In The obligations set forth in this Article shall survive the event that Purchaser receives any reports generated by third parties in connection with any inspections, examinations, investigations, studies expiration or assessments conducted by or on behalf earlier termination of Purchaser in connection with the transactions contemplated by this Agreement, Purchaser shall make such reports available to Seller at Seller’s request and (i) prior to the Closing, Purchaser shall not disclose any such reports without the prior written consent of Seller and (ii) from and after the Closing, Seller shall not disclose any such reports without the prior written consent of PurchaserLease.
Appears in 1 contract
