Common use of Environmental Investigations Clause in Contracts

Environmental Investigations. (a) In the event that Buyer notifies Seller that any Phase I Environmental Assessment pursuant to the American Society for Testing and Materials Standard E 1527-00 (Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process) (each, a “Phase I Investigation”) delivered to Buyer pursuant to Section 4.5 has discovered or reported any fact, matter or circumstance that reasonably requires further investigation, Seller shall, at Seller’s sole cost and expense, cause to be carried out by an assessor (who shall be reasonably satisfactory to Buyer) a Phase II Environmental Assessment pursuant to the American Society for Testing and Materials Standard E 1903-97 (Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process) (each, a “Phase II Investigation”) on each parcel of real property with respect to which there was any such fact, matter or circumstance discovered or reported, and upon completion of such Phase II Investigations, if any, Seller shall provide copies to Buyer of all reports and documents related thereto. (b) If required by Buyer’s lender, Seller shall, at the sole cost and expense of Buyer, and within sixty (60) days prior to the scheduled Closing Date (unless the Closing is delayed by more than four 4 months, in which case the relevant date for purposes of this section shall be sixty (60) days prior to the Closing, as rescheduled), cause the Phase I Investigation delivered pursuant to Section 4.1 to be updated, and upon completion of such update, Seller shall provide copies of all reports and documents related thereto to Buyer. (c) In the event that Buyer notifies Seller that any of the Phase I Investigations delivered to Buyer pursuant to Section 4.5 or 7.9(b) have discovered or reported any fact, matter or circumstance that reasonably requires further investigation, Seller shall, at Seller’s sole cost and expense, cause to be carried out by an assessor (who shall be reasonably satisfactory to Buyer) a Phase II Investigation on each parcel of real property with respect to which there was any such fact, matter or circumstance discovered or reported, and upon completion of such Phase II Investigations, if any, Seller shall provide copies to Buyer of all reports and documents related thereto. (d) Seller hereby agrees that any Phase I Investigation or Phase II Investigation provided to Buyer by Seller pursuant to this Section 7.9 or otherwise may be provided to Buyer’s advisers, representatives, underwriters and agents for the purposes of consummating the transactions contemplated by this Agreement and the financing therefor.

Environmental Investigations. (a) In AGC shall engage and direct ENSR International and at Acquiror's request such other additional reputable environmental consultant(s) as selected by Acquiror and as may be reasonably agreed to by AGC (the event "ENVIRONMENTAL CONSULTANT(S)") to conduct phase I environmental assessments in accordance with ASTM standard E-1527-00, as supplemented by Archon's protocol and to prepare phase I environmental reports (the "PHASE I REPORTS") on all Owned Real Properties and Leased Real Properties (excepting therefrom all non golf course Leased Real Property that Buyer notifies Seller that is not adjacent to or used directly in the operation of any golf course) where, assuming AGC is in compliance with its covenants in this Section 9.11(a), 9.11(c)(with respect to the Phase I Environmental Assessment pursuant to the American Society for Testing Reports) and Materials Standard E 1527-00 9.2 (Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process) (each, a “Phase I Investigation”) delivered to Buyer pursuant to Section 4.5 has discovered or reported any fact, matter or circumstance that reasonably requires further investigation, Seller shall, at Seller’s sole cost and expense, cause to be carried out by an assessor (who shall be reasonably satisfactory to Buyer) a Phase II Environmental Assessment pursuant to the American Society for Testing and Materials Standard E 1903-97 (Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process) (each, a “Phase II Investigation”) on each parcel of real property with respect to which there was any such factthe access necessary to complete the environmental assessments referred to in this Section 9.11(a)), matter or circumstance discovered or reported, and upon completion of such Phase II InvestigationsI Reports can be completed in eight (8) weeks or less from the date hereof (and AGC shall deliver to Acquiror a copy of each such Phase I Reports); provided, however, in the case of the Leased Real Properties such phase I environmental assessments shall be conducted in accordance with and to the extent permitted under the terms of the Leases and provided, further, that if anyand to the extent such Leases prohibit such phase I environmental assessments, Seller AGC shall provide copies use commercially reasonable efforts to Buyer of all reports seek such permission, waiver or exception from the applicable landlords (Acquiror hereby agreeing that it is commercially reasonable for AGC to take into account the need to cause any Covered Lease to be a Consented Lease in determining whether and documents related theretoto what extent to seek such permission, waiver or exception). (b) If required by Buyer’s lenderAGC shall also engage and direct the Environmental Consultant(s) to conduct such further investigations (which may include sampling of soil, Seller shallsediment, at the sole cost ground water, surface water and/or building material) and expense to prepare such further or supplementary environmental reports as are reasonably necessary to investigate violations of Buyer, Environmental Law and within sixty Recognized Environmental Conditions (60as defined in ASTM standard E-1527-00) days prior to the scheduled Closing Date (unless the Closing is delayed by more than four 4 months, identified in which case the relevant date for purposes of this section shall be sixty (60) days prior to the Closing, as rescheduled), cause the Phase I Investigation delivered Reports or, in the reasonable judgment of Acquiror or the lenders providing the Financing, to investigate potentially adverse environmental conditions identified in the Phase I Reports (as evidenced by a certificate addressed to Acquiror from such lenders which states that such investigative requirements are, in such lenders' sole judgment, consistent with such lenders' customary practices for similar transactions), such further or supplementary reports to be prepared in accordance with such standards and in a manner customary for such reports and within a reasonable period of time following delivery of the Phase I Reports (together with the Phase I Reports, the "ENVIRONMENTAL REPORTS"). AGC shall deliver to Buyer a copy of each such Environmental Report. In addition to that which is required under ASTM standard E-1527-00, as supplemented by Archon's protocol, the Environmental Consultant(s) shall provide an estimated cost of all investigation (other than any phase II investigations performed pursuant to this Section 4.1 9.11 or Section 6.14 of the Merger Agreement), cleanup, remediation, disposal and corrective action necessary to address the Recognized Environmental Conditions (as defined in ASTM standard E-1527-00) identified in such Environmental Reports. Notwithstanding the foregoing, with respect to the Leased Real Properties such further investigations shall be limited by and performed in accordance with the terms of the Leases; provided, however, that if and to the extent such Leases prohibit or limit such further investigations, AGC shall use commercially reasonable efforts to seek such permission, waiver or exception from the applicable landlords (Acquiror hereby agreeing that it is commercially reasonable for AGC to take into account the need to cause any Covered Lease to be updateda Consented Lease in determining whether and to what extent to seek such permission, and upon completion of such update, Seller shall provide copies of all reports and documents related thereto to Buyerwaiver or exception). (c) In AGC shall use reasonable best efforts to cause the event that Buyer notifies Seller that any Environmental Consultant(s) to: (i) deliver to Acquiror copies of all drafts of the Phase I Investigations delivered Environmental Reports supplied to Buyer pursuant AGC and reflect in such reports such comments as Acquiror shall reasonably propose, (ii) make available to Section 4.5 Acquiror and its Representatives all pertinent documents in the Environmental Consultant's possession relating to the Environmental Reports, and (iii) at no cost to Acquiror, provide to Acquiror, its underwriters or 7.9(bthose persons providing financing to Acquiror the right to rely on the Environmental Reports, as evidenced by a reliance letter from the Environmental Consultant(s) have discovered or reported any fact, matter or circumstance that reasonably requires further investigation, Seller shall, at Seller’s sole cost and expense, cause to be carried out by an assessor (who shall be reasonably satisfactory to BuyerAcquiror and those persons providing financing to Acquiror. AGC shall consider all reasonable requests from Acquiror and its Representatives to consult with the Environmental Consultant(s) a Phase II Investigation on each parcel in relation to the content of real property with respect to which there was any such fact, matter or circumstance discovered or reported, and upon completion of such Phase II Investigations, if any, Seller shall provide copies to Buyer of all reports and documents related theretothe Environmental Reports. (d) Seller hereby agrees that any Phase I Investigation or Phase II Investigation provided to Buyer by Seller pursuant to this Section 7.9 or otherwise may be provided to Buyer’s advisers, representatives, underwriters and agents for the purposes of consummating the transactions contemplated by this Agreement and the financing therefor.

Environmental Investigations. (i) Purchaser may obtain at its own expense within 20 days after the date of this Agreement a Phase I environmental survey of each Owned Real Property (“Phase I Assessments”) and furnish to Seller a copy of all Phase I Assessments received by Purchaser. If any such Phase I Assessment indicates that any Owned Real Property is not or may not be materially free of environmental contamination, Purchaser, at its option, shall within 20 days after receipt of the Phase I Assessment provide notice to Seller of either (a) its acceptance of such Owned Real Property “as is” to the environmental condition or (b) its option to cause to be prepared, at Purchaser’s expense, a Phase II environmental survey (“Phase II Assessment”) of such Owned Real Property, or such other appropriate investigation as Purchaser deems necessary, which shall include a plan to remedy the contamination and perform further investigation (if necessary) and an estimate of the cost of any remediation or other follow-up work that may be necessary to address, identify or monitor contamination (“Plan”). If necessary, the parties shall postpone the Closing Date to enable the parties to undertake the preceding activities. Upon receipt of any Plan and the estimate of the costs of all remediation and follow-up work (including investigation, monitoring and obtaining institutional controls), Purchaser and Seller shall attempt to agree upon a course of action to implement the Plan. The estimated total cost for completing a Plan is referred to as the “Remediation Cost” and, subject to the following sentence, Seller agrees to pay the Remediation Cost related to any Plan so long as the Remediation Cost does not exceed $25,000. In the event that Buyer notifies Seller that (y) within 20 days following the receipt of any Phase I Environmental II Assessment pursuant (or such other appropriate investigation as Purchaser deems necessary) and any Plan, Purchaser and Seller are unable to agree to a course of action for implementing the Plan or (z) the Remediation Cost with regard to a Plan exceeds $25,000, Purchaser shall have a 10 day period to either (1) accept such Owned Real Property “as is” to the American Society environmental condition or (2) enter into a lease with Seller for Testing the Owned Real Property, on terms and Materials Standard E 1527-00 conditions agreed to by Purchaser and Seller. (Standard Practice for Environmental Site Assessments: ii) All Phase I Environmental Site Assessment Process) (eachAssessments, a “Phase I Investigation”) delivered to Buyer pursuant to Section 4.5 has discovered or reported II Assessments and any fact, matter or circumstance that reasonably requires further investigation, Seller shall, additional assessments shall be conducted at SellerPurchaser’s sole cost and expense, cause to be carried out by an assessor (who and Seller shall be reasonably satisfactory to Buyer) a Phase II Environmental Assessment pursuant to cooperate in the American Society for Testing and Materials Standard E 1903-97 (Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process) (each, a “Phase II Investigation”) on each parcel performance of real property with respect to which there was any such factassessments, matter or circumstance discovered or reportedprovided that (a) such assessments are conducted at a mutually agreeable date and time after at least 20 Business Days’ prior notice to Seller by Purchaser, and upon completion of such Phase II Investigations, if any, Seller shall provide copies to Buyer of all reports and documents related thereto. (b) If required by Buyer’s lender, Seller shall, at the sole cost and expense of Buyer, and within sixty (60) days prior such assessments are accomplished in a manner intended to minimize disruption to the scheduled Closing Date (unless operations of the Closing is delayed by more than four 4 months, in which case the relevant date for purposes of this section shall be sixty (60) days prior to the Closing, as rescheduled), cause the Phase I Investigation delivered pursuant to Section 4.1 to be updated, Branches and upon completion of such update, Seller shall provide copies of all reports and documents related thereto to Buyer. (c) In the event that Buyer notifies Purchaser obtains Seller’s prior approval, which Seller that any shall not unreasonably withhold or delay, of the Phase I Investigations delivered to Buyer pursuant to Section 4.5 or 7.9(b) have discovered or reported scope of work for any fact, matter or circumstance that reasonably requires further investigation, Seller shall, at Seller’s sole cost and expense, cause to be carried out by an assessor (who shall be reasonably satisfactory to Buyer) a Phase II Investigation on each parcel of real property Assessment; provided, that if Purchaser is unable to obtain such prior approval from Seller then Purchaser may enter into a lease or sublease with respect to which there was any such fact, matter or circumstance discovered or reported, and upon completion of such Phase II Investigations, if any, Seller shall provide copies to Buyer of all reports and documents related thereto. (d) Seller hereby agrees that any Phase I Investigation or Phase II Investigation provided to Buyer by Seller pursuant to this Section 7.9 or otherwise may be provided to Buyer’s advisers, representatives, underwriters and agents for the purposes of consummating the transactions contemplated Owned Real Property, on terms and conditions agreed to by this Agreement Purchaser and the financing thereforSeller.

Environmental Investigations. (i) Buyer may obtain at its expense within 45 days after the date of this Agreement a Phase I environmental survey of each Real Property (a “Phase I Assessments”) and furnish to Seller a copy of all Phase I Assessments received by Buyer. If any such Phase I Assessment indicates that any Real Property is not or may not be materially free of environmental contamination, Buyer, at its option, shall within 20 days after receipt of the Phase I Assessment provide notice to Seller of either (a) its acceptance of such Real Property “as is” to the environmental condition or (b) its option to cause to be prepared, at Buyer’s expense, a Phase II environmental survey (a “Phase II Assessment”) of such Real Property, or such other appropriate investigation as Buyer deems necessary, which shall include a plan to remedy the contamination and perform further investigation (if necessary) and an estimate of the cost of any remediation or other follow-up work that may be necessary to address, identify or monitor contamination (a “Plan”). If necessary, the parties shall postpone the Closing Date to enable the parties to undertake the preceding activities. Upon receipt of any Plan and the estimate of the costs of all remediation and follow-up work (including investigation, monitoring and obtaining institutional controls), Buyer and Seller shall attempt to agree upon a course of action to implement the Plan. The estimated total cost for completing a Plan is referred to as the “Remediation Cost” and, subject to the following sentence, Seller agrees to pay the Remediation Cost related to any Plan so long as the Remediation Cost does not exceed $25,000. In the event that Buyer notifies Seller that (y) within 20 days following the receipt of any Phase I Environmental II Assessment pursuant (or such other appropriate investigation as Buyer deems necessary) and any Plan, Buyer and Seller are unable to agree to a course of action for implementing the American Society Plan or (z) the Remediation Cost with regard to a Plan exceeds $25,000 and Seller does not agree to pay the Remediation Cost, Buyer shall have a ten day period to either (1) enter into a lease or sublease with Seller or the landlord for Testing the Real Property, on terms and Materials Standard E 1527-00 conditions agreed to by Buyer and Seller or the landlord, if applicable, (Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process2) exclude the applicable Real Property and its related other Assets and Assumed Liabilities from the Acquisition, whereupon the parties shall negotiate in good faith to reduce the Purchase Price accordingly or (each, a “Phase I Investigation”3) delivered to Buyer terminate this Agreement pursuant to Section 4.5 has discovered or reported 9.1(d). (ii) All Phase I Assessments, Phase II Assessments and any fact, matter or circumstance that reasonably requires further investigation, Seller shall, additional assessments shall be conducted at SellerBuyer’s sole cost and expense, cause and Seller shall cooperate in the performance of any such assessments, provided that (a) such assessments are conducted at a mutually agreeable date and time after at least twenty business days’ prior notice to be carried out Seller and landlord, as applicable, by an assessor Buyer, (who shall be reasonably satisfactory b) such assessments are accomplished in a manner intended to Buyer) a Phase II Environmental Assessment pursuant minimize disruption to the American Society for Testing operations of the Branch Offices and Materials Standard E 1903-97 (Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Processc) Buyer obtains (each, a “Phase II Investigation”A) on each parcel of real property with respect to any Owned Real Property or the Quincy Mall Branch Office, which there was is subject to a ground lease, Seller’s prior approval, which Seller shall not unreasonably withhold or delay, of the scope of work for any such factPhase II Assessment, matter or circumstance discovered or reported(B) with respect to any Leased Real Property, obtains the applicable landlord’s prior approval of the scope of work for any Phase II Assessment, and upon completion of Seller shall cooperate with Buyer to obtain such Phase II Investigationslandlord approval; provided, however, that if Buyer is unable to obtain such prior approval from Seller or such applicable landlord with respect to any Real Property, Buyer may (1) enter into a lease or sublease with Seller or the landlord for the Real Property, on terms and conditions agreed to by Buyer and Seller or landlord, if anyapplicable, Seller (2) exclude the applicable Real Property and its related other Assets and Assumed Liabilities from the Acquisition, whereupon the parties shall provide copies negotiate in good faith to Buyer of all reports and documents related thereto. reduce the Purchase Price accordingly or (b3) If required by Buyer’s lender, Seller shall, at the sole cost and expense of Buyer, and within sixty (60) days prior to the scheduled Closing Date (unless the Closing is delayed by more than four 4 months, in which case the relevant date for purposes of terminate this section shall be sixty (60) days prior to the Closing, as rescheduled), cause the Phase I Investigation delivered Agreement pursuant to Section 4.1 to be updated, and upon completion of such update, Seller shall provide copies of all reports and documents related thereto to Buyer9.1(d). (c) In the event that Buyer notifies Seller that any of the Phase I Investigations delivered to Buyer pursuant to Section 4.5 or 7.9(b) have discovered or reported any fact, matter or circumstance that reasonably requires further investigation, Seller shall, at Seller’s sole cost and expense, cause to be carried out by an assessor (who shall be reasonably satisfactory to Buyer) a Phase II Investigation on each parcel of real property with respect to which there was any such fact, matter or circumstance discovered or reported, and upon completion of such Phase II Investigations, if any, Seller shall provide copies to Buyer of all reports and documents related thereto. (d) Seller hereby agrees that any Phase I Investigation or Phase II Investigation provided to Buyer by Seller pursuant to this Section 7.9 or otherwise may be provided to Buyer’s advisers, representatives, underwriters and agents for the purposes of consummating the transactions contemplated by this Agreement and the financing therefor.

Environmental Investigations. (a) In the event that Buyer notifies Seller that any Phase I Environmental Assessment pursuant to the American Society for Testing and Materials Standard E 1527-00 (Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process) (each, a “Phase I Investigation”) delivered to Buyer pursuant to Section 4.5 has discovered or reported any fact, matter or circumstance that reasonably requires further investigation, Seller shallMortgagee may, at Seller’s sole cost and expenseits discretion, cause at any time or from time to be carried out by time, commission an assessor investigation at Mortgagor's expense (who shall be reasonably satisfactory to Buyer) a Phase II Environmental Assessment pursuant to after the American Society for Testing and Materials Standard E 1903-97 (Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process) (each, a “Phase II Investigation”) on each parcel occurrence of real property with respect to which there was any such fact, matter or circumstance discovered or reported, and upon completion an Event of such Phase II InvestigationsDefault, if anyMortgagee reasonably believes the existence of a violation of Environmental Statutes, Seller shall provide copies to Buyer or receipt by Mortgagor of all reports and documents related theretoany notice described at Subparagraph 18(a)(iii) of this Mortgage) of (i) compliance at the Mortgaged Property with Environmental Statutes, (ii) the presence of hazardous substances or contamination in the Mortgaged Property, (iii) the presence in the Mortgaged Property of materials which are the subject of Paragraph 18(c), (iv) the presence at the Mortgaged Property of Environmentally Sensitive Areas which are the subject of Paragraph 18(d), (v) the presence at the Mortgaged Property of radon-products, or (vi) the presence on the Mortgaged Property of tanks which are the subject of Paragraph 18(f). (b) If required by Buyer’s lender, Seller shall, at the sole cost and expense of Buyer, and within sixty In connection with any investigation pursuant to Subparagraph (60a) days prior to the scheduled Closing Date (unless the Closing is delayed by more than four 4 months, in which case the relevant date for purposes of this section Paragraph 19, Mortgagor, its lessees, sublessees and assigns, shall comply with any reasonable request for information made by Mortgagee or its agents in connection with any such investigation. Mortgagor represents and warrants that any response to any such request for information will be sixty (60) days prior to the Closing, as rescheduled), cause the Phase I Investigation delivered pursuant to Section 4.1 to be updated, full and upon completion of such update, Seller shall provide copies of all reports and documents related thereto to Buyercomplete. (c) In Mortgagor will assist Mortgagee and its agents in obtaining any records pertaining to the event that Buyer notifies Seller that any Mortgaged Property or to Mortgagor and the lessees, sublessees or assigns of the Phase I Investigations delivered to Buyer Mortgagor in connection with an investigation pursuant to Section 4.5 or 7.9(bSubparagraph (a) have discovered or reported any fact, matter or circumstance that reasonably requires further investigation, Seller shall, at Seller’s sole cost and expense, cause to be carried out by an assessor (who shall be reasonably satisfactory to Buyer) a Phase II Investigation on each parcel of real property with respect to which there was any such fact, matter or circumstance discovered or reported, and upon completion of such Phase II Investigations, if any, Seller shall provide copies to Buyer of all reports and documents related theretothis Paragraph 19. (d) Seller hereby agrees that Mortgagor will accord Mortgagee and its agents access to all areas of the Mortgaged Property at reasonable times and in reasonable manners in connection with any Phase I Investigation or Phase II Investigation provided investigation pursuant to Buyer by Seller Subparagraph (a) of this Paragraph 19. (e) No investigation commissioned pursuant to this Section 7.9 paragraph shall have any effect upon the representations or otherwise may be provided warranties made by Mortgagor to Buyer’s advisers, representatives, underwriters and agents for the purposes of consummating the transactions contemplated by Mortgagee in this Agreement and the financing thereforMortgage.