Common use of Environmental Investigation Clause in Contracts

Environmental Investigation. If Buyer exercises its right pursuant to Subsection 5.01(b) to make an Environmental Investigation of the Assets, Buyer and its agents shall have the right, subject to compliance with the provisions of this Section, to enter upon the Assets and all structures and improvements thereon, inspect the same, conduct soil and water tests and borings, and conduct such other tests, examinations, investigations and studies as may be necessary or appropriate in Buyer's reasonable judgment for the preparation of appropriate engineering and other reports relating to the Assets, their condition, and the presence thereon of any Hazardous Substances. Buyer shall give Sellers at least two Business Days' notice prior to conducting any such test, which notice shall set forth with specificity the procedures to be used; and Sellers shall be entitled to be present during any such tests and shall be entitled to conduct their own tests, including tests using split samples. Buyer shall exercise all due diligence in safeguarding and maintaining as confidential all data or information acquired during its Environmental Investigation, and all such data and information shall be subject to the terms of the Confidentiality Agreement. If Buyer or its agents prepares any report documenting any Environmental Investigation, Buyer shall furnish copies thereof to Sellers, and Sellers shall exercise all due diligence in safeguarding and maintaining any such report as confidential. Buyer waives and releases all claims and demands against Sellers, their respective directors, officers, shareholders, employees and agents for injury to or death of persons or damage to property arising in any way from any Environmental Investigation, except to the extent such claims are caused by the negligence or willful misconduct of Sellers, or their directors, officers, shareholders, employees and agents in connection with such Environmental Investigation. Buyer and Sellers have executed a letter relating to any Environmental Investigation in the form of Exhibit A (the "COMMON UNDERTAKING LETTER"), the provisions of which shall survive the execution of this Agreement.

Environmental Investigation. If Buyer exercises its right pursuant to Subsection 5.01(b) to make an Environmental Investigation At any time after Tenant's execution of the Assetsthis Lease, Buyer Landlord shall provide Tenant and its agents and contractors with access to the Property for the purpose of conducting environmental investigations of the Property (collectively, the "Environmental Investigations") and in accordance with the terms and conditions attached hereto as Exhibit F. Additionally, Tenant acknowledges receipt of the environmental documents attached hereto as Exhibit G (the "Environmental Documents"). Based on the foregoing, Tenant shall have the rightfollowing contingencies: (a) On or before 5:00 p.m. (California time) May 9, subject 1994 (the "First Environmental Review Date"), if the Environmental Documents reveal conditions on or within the Property not previously known or disclosed to compliance with the provisions of Tenant that would have a material adverse effect on Tenant, Tenant may elect to terminate this Section, to enter upon the Assets Lease and all structures of Tenant's obligations hereunder (including any arising under Section 14.4, below) by delivering a written notice of that election to Landlord. If Tenant fails to deliver such notice to Landlord on or before the First Environmental Review Date, Tenant shall have no further right to terminate this Lease under this subparagraph (a); and (b) On or before 5:00 p.m. (California time) July 29, 1994 (the "Environmental Review Outside Date"), if the Environmental Investigations reveals conditions on or within the Property not previously known or disclosed to Tenant that would have a material adverse effect on Tenant, Tenant may elect to terminate this Lease and improvements thereonTenant's obligations hereunder, inspect the sameexcept for Tenant's Termination Obligations (as defined below) which shall survive such termination, conduct soil and water tests and borings, and conduct such other tests, examinations, investigations and studies as may be necessary or appropriate in Buyer's reasonable judgment for the preparation by delivering to Landlord a written notice of appropriate engineering and other reports relating to the Assets, their condition, and the presence thereon of any Hazardous Substances. Buyer shall give Sellers at least two Business Days' notice prior to conducting any such test, that election which notice shall set forth with specificity in detail the procedures reason(s) for such termination. If Tenant fails to be used; and Sellers deliver to Landlord written notice of such election by the Environmental Review Outside Date, Tenant shall be entitled have no further right to be present during any such tests terminate this Lease based on Environmental Investigations. All Environmental Documents are and shall be entitled to conduct their own tests, including tests using split samples. Buyer shall exercise all due diligence in safeguarding and maintaining as confidential all data or information acquired during its Environmental Investigationremain the property of Landlord, and all such data and information their delivery shall be subject to the terms and conditions of the Confidentiality Agreement, between Landlord and Tenant. If Buyer or its agents prepares Tenant agrees to prominently mark any report documenting any copies made of the Environmental InvestigationDocuments as "Confidential," xxd to return the originals and all copies of the Environmental Documents to Landlord no later than May 12, Buyer shall furnish copies thereof to Sellers, and Sellers shall exercise all due diligence in safeguarding and maintaining any such report as confidential. Buyer waives and releases all claims and demands against Sellers, their respective directors, officers, shareholders, employees and agents for injury to or death of persons or damage to property arising in any way from any Environmental Investigation, except to the extent such claims are caused by the negligence or willful misconduct of Sellers, or their directors, officers, shareholders, employees and agents in connection with such Environmental Investigation. Buyer and Sellers have executed a letter relating to any Environmental Investigation in the form of Exhibit A (the "COMMON UNDERTAKING LETTER"), the provisions of which shall survive the execution of this Agreement1994.

Environmental Investigation. If Buyer exercises its right pursuant to Subsection 5.01(b) to make an Environmental Investigation of Within 10 Business Days after the Assets, Buyer and its agents shall have the right, subject to compliance with the provisions date of this SectionAgreement, Seller shall deliver to enter upon the Assets and Purchaser copies of all structures and improvements thereonenvironmental inspections, inspect the samereports, conduct soil and water tests and boringsassessments, and conduct such other tests, examinations, investigations and studies as may be necessary or appropriate in Buyer's reasonable judgment for the preparation of appropriate engineering related correspondence and other reports materials relating to the Assetsenvironmental condition of any Branch or the compliance of any Branch with Environmental Laws that are in the possession of Seller, their conditionany of its Affiliates or any of Seller's corporate counsel or other agents, representatives or advisors that it uses on a current and regular basis ("Seller's Representatives"), and shall certify to Purchaser that it has so delivered all such material. Seller makes no representations or warranties regarding the presence thereon accuracy, completeness, or any information set forth in any such materials delivered to Purchaser. Purchaser may engage a professional environmental consultant to conduct a Phase I environmental assessment of any Hazardous Substances. Buyer shall give Sellers at least two Business Days' notice prior to conducting any such test, which notice shall set forth with specificity the procedures to be used; and Sellers shall be entitled to be present during any such tests and shall be entitled to conduct their own tests, including tests using split samples. Buyer shall exercise all due diligence in safeguarding and maintaining as confidential all data one or information acquired during its Environmental Investigation, and all such data and information shall be subject to the terms more parcels of the Confidentiality Agreement. If Buyer or its agents prepares any report documenting any Environmental Investigation, Buyer shall furnish copies thereof to Sellers, and Sellers shall exercise all due diligence Real Property in safeguarding and maintaining any such report as confidential. Buyer waives and releases all claims and demands against Sellers, their respective directors, officers, shareholders, employees and agents for injury to or death of persons or damage to property arising in any way from any Environmental Investigation, except to the extent such claims are caused by the negligence or willful misconduct of Sellers, or their directors, officers, shareholders, employees and agents in connection accordance with such Environmental Investigation. Buyer and Sellers have executed a letter relating to any Environmental Investigation in the form of Exhibit A ASTM International Standard E 1527-05 (the "COMMON UNDERTAKING LETTERStandard"). All expenses associated with a Phase I environmental assessment shall be paid by Purchaser. Seller shall (a) provide Purchaser's consultant and other authorized representatives reasonable access to the Real Property and the Branches, during regular business hours, for the purposes of conducting the Phase I assessment and any necessary follow-up activities as described below; (b) make available to Purchaser's consultant those employees of Seller who are familiar with the management, operation and history of the Real Property; and (c) otherwise reasonably cooperate in the conduct of the environmental assessment and any associated activities. Purchaser's investigation shall not damage or unreasonably interfere with the operation or condition of any Branch, and any damage to any Real Property, any Branch, or any other asset owned or leased by Seller or otherwise located at a Branch shall be Purchaser's responsibility and Purchaser shall promptly reimburse Seller for any such damage. Purchaser shall promptly deliver a copy of each Phase I assessment to Seller. If the Phase I assessment discloses any "recognized environmental condition" as defined in the Standard, then: (a) With the prior written consent of Seller, which shall not be unreasonably withheld or delayed, Purchaser may conduct a Phase II investigation (and, if applicable, conduct and disclose to the MDEQ a "baseline environmental assessment" ("BEA")) of the Real Property, including the procurement and analysis of soil and groundwater samples from the Real Property. All expenses associated with any Phase II investigation and/or BEA shall be paid by Purchaser. Any request by Purchaser to conduct a Phase II investigation or BEA pursuant to this subsection shall be delivered in writing to Seller no later than 45 days after the date of Seller’s certificate that it has delivered to Purchaser all of the materials required by this Section 11.2. (b) Purchaser may also obtain from one or more contractors an estimate of the cost of remedial or corrective action necessary to address any condition disclosed by the Phase I assessment, Phase II assessment, and/or BEA in accordance with applicable Environmental Laws. Upon receipt of such estimate, the provisions parties shall discuss and may agree upon a course of action to address the environmental issues, as outlined in this Section. Nothing contained in this Agreement shall obligate Purchaser or Seller to take any investigative, removal, remedial, or response activities that may be recommended by a consultant. (c) The value of the Branch as set forth in this Agreement may be reduced by an amount mutually agreed to by Purchaser and Seller in good faith. (d) If Seller and Purchaser are unable to agree upon a value adjustment with respect to the Branches, then Seller and Purchaser shall attempt in good faith to enter into a leasing arrangement by which the affected Real Property shall survive be leased to Purchaser on terms mutually acceptable to the execution of parties. If Seller and Purchaser are unable to agree on a leasing arrangement, then either Seller or Purchaser may exercise their rights under Section 16.3 to terminate this Agreement.

Environmental Investigation. If Buyer exercises its right pursuant to Subsection 5.01(b(a) to make an Environmental Investigation of the Assets, Buyer The Purchaser and its consultants, agents and representatives, shall have the right, subject to compliance with the provisions of this Sectionsame extent that the Seller has such right, but not the obligation or responsibility, to enter upon the Assets and all structures and improvements thereon, inspect the same, conduct soil and water tests and borings, and conduct such other tests, examinations, investigations and studies as may be necessary or appropriate in Buyer's reasonable judgment for the preparation of appropriate engineering and other reports relating to the Assets, their conditionProperty, and the presence thereon Seller agrees to permit the Purchaser and its consultants, agents and representatives to inspect the Property, including, without limitation, conducting asbestos surveys and sampling, environmental assessments and investigation, and other environmental surveys and analyses including soil and ground sampling ("ENVIRONMENTAL INSPECTIONS") at any time. The Purchaser shall notify the Seller prior to any physical inspections of Property. (b) The Seller and the Stockholders agree, jointly and severally, to indemnify and hold harmless the Purchaser for any claims for damage to property or injury or death to Persons in connection with any Environmental Inspection directly or indirectly attributable to the negligent actions or negligent omissions of the Seller, any Stockholder or their respective agents or representatives. The Purchaser agrees to indemnify and hold harmless the Seller for any claims for damage to the Property directly or indirectly attributable to the negligent actions or negligent omissions of the Purchaser, or its agents or representatives, in performing any Environmental Inspection except to the extent caused by the negligence of the Seller, any Stockholder or their respective agents or representatives. The Purchaser shall not have any liability or responsibility of any Hazardous Substancesnature whatsoever for the results, conclusions or other findings related to any Environmental Inspection, or other environmental survey. Buyer If this Agreement is terminated, then except as otherwise required by law, the Purchaser shall give Sellers at least two Business Days' notice prior have no obligation to conducting make any reports to any Governmental Authority of the results of any Environmental Inspection, secondary investigation or other environmental survey, but such testreporting shall remain the responsibility of and within the discretion of the Seller. The Purchaser shall not have any liability to the Seller, which notice shall set forth any stockholder of the Seller, or any other Person for making any report of such results to any Governmental Authority. (c) The Seller and the Stockholders agree to make available to the Purchaser and its consultants, agents and representatives all documents and other material relating to environmental conditions of the Property including, without limitation, the results of other environmental inspections and surveys. The Seller and the Stockholders also agree that all engineers and consultants who prepared or furnished such reports may discuss such reports and information with specificity the procedures to be used; and Sellers shall be entitled to be present during any such tests Purchaser and shall be entitled to conduct their own testscertify the same in favor of the Purchaser and its consultants, including tests using split samplesagents and representatives and make all other data available to the Purchaser and its consultants, agents and representatives. Buyer shall exercise The Purchaser agrees to provide the Seller with a copy of all due diligence in safeguarding and maintaining environmental reports prepared by its consultants as confidential all data a result of the Environmental Inspections. (d) If, prior to Closing, as a result of the Purchaser's Environmental Inspections or information acquired during its Environmental Investigationotherwise, and all such data and information the parties should discover an environmental condition at, on, in, about, under, within or near the air, soil, surface water, groundwater or soil vapor at any Property for which Remediation shall be subject necessary in order to the terms comply with Requirements of the Confidentiality Agreement. If Buyer or its agents prepares any report documenting any Environmental Investigation, Buyer shall furnish copies thereof to Sellers, and Sellers shall exercise all due diligence in safeguarding and maintaining any such report as confidential. Buyer waives and releases all claims and demands against Sellers, their respective directors, officers, shareholders, employees and agents for injury to or death of persons or damage to property arising in any way from any Environmental Investigation, except to the extent such claims are caused by the negligence or willful misconduct of Sellers, or their directors, officers, shareholders, employees and agents in connection with such Environmental Investigation. Buyer and Sellers have executed a letter relating to any Environmental Investigation in the form of Exhibit A Laws (the an "COMMON UNDERTAKING LETTERENVIRONMENTAL CONDITION"), the provisions Seller shall be responsible for the costs of such Remediation up to a maximum of $200,000, which shall survive include costs incurred pursuant to SECTION 4.1(N) above. Such costs incurred by the execution Seller shall not result in a reduction of this Agreementthe merger consideration paid under ARTICLE I hereof.

Environmental Investigation. If Buyer exercises its right pursuant to Subsection 5.01(b) to make an Environmental Investigation of the AssetsUpon reasonable advance notice, Buyer and Buyer's representatives may enter, inspect and investigate the Properties, such inspection to be completed prior to Closing. In order to complete such investigation, Buyer or its agents representative shall have the rightright but not the obligation: (a) to conduct tests (including a "Phase I" and/or "Phase II" environmental study) of the structures, subject soil, surface or subsurface waters, and air quality at, in, on, beneath or about the Properties, in a manner consistent with good engineering practice; (b) to compliance with inspect all records, reports, permits, applications, monitoring results, studies, correspondence, data and any other information or documents relevant to Hazardous Materials or other environmental conditions; and (c) to inspect all buildings and Tangible Personal Property at the Properties for friable asbestos-containing materials or other Hazardous Materials. The Sellers agree to permit Buyer reasonable access to all portions of the Properties, during regular business hours; provided, however, that any inspection pursuant to this provision shall be commenced by Buyer within thirty (30) days of the execution of this Agreement, and provided further that within fifteen (15) days after the receipt by Buyer of any third-party report relating to such investigation, Buyer shall inform Sellers of any issues it believes are relevant to the provisions of this Section, to enter upon the Assets and all structures and improvements thereon, inspect the same, conduct soil and water tests and borings, and conduct such other tests, examinations, investigations and studies as may be necessary or appropriate in Buyer's reasonable judgment for the preparation of appropriate engineering and other reports relating to the Assets, their condition, and the presence thereon of any Hazardous SubstancesAgreement. Buyer shall give have the right to terminate its obligations under this Agreement without penalty upon written notice to Sellers in the event that Buyer's environmental investigation discloses any violation of or any remedial work required by any applicable laws to the Joint Venture or Harriscope which would cost in excess of $250,000 in the aggregate to cure and remediate; PROVIDED, HOWEVER, that the Sellers shall have the right either to take or cause to be taken remedial action as is necessary to eliminate such violation(s) and complete such remedial work so as to eliminate any liability which could arise therefrom, and, in the event of such curative and remediative action, Buyer shall not be entitled to terminate this Agreement pursuant to this sentence. Buyer agrees to keep and hold confidential any and all reports, summaries, studies or results that are the product of its pre-Closing investigations of the Properties, to provide copies of such reports to Sellers within five business days of receipt of any request therefrom, and not to disclose such reports without the written consent of the Sellers or unless required to do so by applicable law or in connection with any legal action. Buyer agrees to notify Sellers prior to initiating a Phase II environmental study. In addition, Buyer shall obtain insurance of at least two Business Days' notice $1 million as relates to the conduct of the Phase I and/or Phase II environmental study prior to conducting any such teststudy, which notice shall set forth with specificity the procedures to be used; and naming as additional insureds such entities as Sellers shall be entitled to be present during any such tests reasonably request and shall be entitled to conduct their own tests, including tests using split samples. Buyer shall exercise all due diligence in safeguarding and maintaining as confidential all data or information acquired during its Environmental Investigation, and all such data and information shall be subject to the terms providing Sellers with a copy of the Confidentiality Agreement. If Buyer or its agents prepares any report documenting any Environmental Investigation, Buyer shall furnish copies thereof to Sellers, and Sellers shall exercise all due diligence in safeguarding and maintaining any such report as confidential. Buyer waives and releases all claims and demands against Sellers, their respective directors, officers, shareholders, employees and agents for injury to or death certificate of persons or damage to property arising in any way from any Environmental Investigation, except to the extent such claims are caused by the negligence or willful misconduct of Sellers, or their directors, officers, shareholders, employees and agents in connection with such Environmental Investigation. Buyer and Sellers have executed a letter insurance relating to any Environmental Investigation in the form of Exhibit A (the "COMMON UNDERTAKING LETTER"), the provisions of which shall survive the execution of this Agreementthereto.