Environmental Investigations. (a) As soon as practicable after the date of this Agreement (but in no event more than 60 days after the date of this Agreement), CCI may obtain at CCI's expense a Phase I environmental audit of the Leased Real Property (which shall include a limited asbestos survey), or on such parcels of the Leased Real Property as CCI may determine. CCI shall engage EnecoTech, Inc. or, at CCI's option, another nationally known environmental auditing company to perform the aforesaid audit. PSD will comply with any reasonable request for information made by CCI or its agents in connection with any such investigation and shall afford CCI and its agents access to all operations of the PSD Entities, including without limitation all areas of the Leased Real Property, at reasonable times and in a reasonable manner in connection with any such investigation. If the results of those investigations would cause a reasonable purchaser to perform further investigation or testing with respect to any of the Leased Real Property, CCI shall cause to be performed Phase II environmental audits with respect to such Leased Real Property, which shall be completed no more than 120 days after the date of this Agreement. CCI agrees to promptly deliver to PSD copies of all audits and other reports obtained by CCI with respect to such investigations and, at PSD's expense, all other information related thereto which is reasonably requested by PSD. Further, CCI agrees to restore any test borings and other physical damage to any of the assets and properties of any PSD Entity caused by such investigations and agrees to indemnify and hold the PSD Indemnitees harmless in accordance with Section 12.3 from any such damage, without regard to the Indemnification Threshold set forth in Section 12.9; which obligations shall in no event be construed to include the cost of any remedial action indicated by such investigations. (b) In the event that as a result of any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law, and CCI and PSD jointly reasonably conclude that PSD has legal responsibility for such remediation (as opposed to the landlord under the System Contract relating to such Leased Real Property), then (i) PSD shall have the right to engage at PSD's expense a nationally known environmental auditing company to provide a second opinion, in which case the parties agree to use an average of the two estimates for purposes of this Section 6.15; and (ii) if (A) the aggregate cost of such remedial action is $5,000,000 or less for all parcels of Leased Real Property, then CCI shall consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid at Closing equal to the aggregate required remediation costs; or (B) the aggregate cost of such remedial action is more than $5,000,000 for all parcels of Leased Real Property and PSD does not elect to cause remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, CCI may elect either to terminate this Agreement, or to consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid at Closing equal to the required remediation costs but in no event more than $5,000,000; provided, that the foregoing notwithstanding, in the event that CCI delivers to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice to CCI within five Business Days of PSD's receipt of such termination notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing or (B) to adjust the Merger Consideration paid at Closing equal to the required remediation costs, in either of which events the Merger Agreement will not be terminated. (c) In the event that as a result of any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law and CCI and PSD jointly reasonably conclude that the landlord under the System Contract relating to such Leased Real Property has legal responsibility for such remediation (as opposed to PSD), then PSD shall use commercially reasonable efforts to (i) cause such landlord to perform remedial action in accordance with all applicable Legal Requirements prior to Closing; or (ii) cause such landlord to make arrangements prior to Closing, reasonably satisfactory to CCI, in its reasonable discretion, for the performance of remedial action in accordance with all applicable Legal Requirements subsequent to Closing. (d) If CCI and PSD cannot jointly agree as to whether PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility for such remediation within 30 days after written notice from CCI to PSD that CCI believes PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility, or if such landlord refuses to perform such remediation or make arrangements reasonably satisfactory to CCI with respect thereto, then (i) if (A) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, and (B) the aggregate cost of (x) performing remedial action for such Leased Real Property in accordance with all applicable Legal Requirements, (y) terminating the System Contract relating to such Leased Real Property and (z) obtaining substitution property as provided below, is $5,000,000 or less, then PSD shall with CCI's consent (which shall not be unreasonably withheld or delayed), acquire or lease a substantially similar parcel of real property to substitute for the Leased Real Property that is subject to the environmental problem, in which case PSD shall bear all costs and expenses (direct, indirect and consequential) in any way related to the identification and acquisition of such real property, and the construction and relocation of the plant and facilities of the Business resulting from such substitution of the Leased Real Property; or (ii) if (A) PSD has not been able to terminate the System Contract relating to such Leased Real Property without liability other than for the payment of money or (B) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, but the aggregate cost of (x) performing remedial action for such Leased Real Property in accordance with all applicable Legal Requirements, (y) terminating the System Contract relating to such Leased Real Property and (z) obtaining substitution property as provided above, is more than $5,000,000, then CCI may, at its option, elect either to: (A) terminate this Agreement effective upon giving written notice thereof to PSD, in which case neither PSD nor CCI shall have any liability or obligation to the other, except for that arising from a breach or default under this Agreement as provided in Section 10(b) and except that Articles Ten, Eleven and Thirteen shall continue in full force and effect; or (B) consummate the transactions contemplated hereby without such remediation being performed or substitution property being obtained, subject to an adjustment to the Merger Consideration paid at Closing equal to $5,000,000; provided, that the foregoing notwithstanding, in the event that CCI delivers to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice to CCI within five Business Days of PSD's receipt of such termination notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, (B) obtain such substitution property and bear all costs and expenses associated therewith or (C) adjust the Merger Consideration paid at Closing equal to the required remediation assets, in which event the Merger Agreement will not be terminated.
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Environmental Investigations. (a) As soon as practicable after the date of this Agreement (but in no event more than 60 days after the date of this Agreement)Borrower agrees that Administrative Agent may, CCI may obtain at CCI's expense a Phase I environmental audit of the Leased Real Property (which shall include a limited asbestos survey), or on such parcels of the Leased Real Property as CCI may determine. CCI shall engage EnecoTech, Inc. or, at CCI's option, another nationally known environmental auditing company from time to perform the aforesaid audit. PSD will comply with any reasonable request for information made by CCI or its agents in connection with any such investigation and shall afford CCI and its agents access to all operations of the PSD Entities, including without limitation all areas of the Leased Real Property, at reasonable times time and in a its reasonable manner in connection with any such investigation. If the results of those investigations would cause a reasonable purchaser to perform further investigation or testing with respect to any of the Leased Real Propertydiscretion, CCI shall cause to be performed Phase II environmental audits with respect to such Leased Real Property, which shall be completed no more than 120 days after the date of this Agreement. CCI agrees to promptly deliver to PSD copies of all audits and other reports obtained by CCI with respect to such investigations and, at PSD's expense, all other information related thereto which is reasonably requested by PSD. Further, CCI agrees to restore any test borings and other physical damage to any of the assets and properties of any PSD Entity caused by such investigations and agrees to indemnify and hold the PSD Indemnitees harmless in accordance with Section 12.3 from any such damage, without regard to the Indemnification Threshold set forth in Section 12.9; which obligations shall in no event be construed to include the cost of any remedial action indicated by such investigations.
(b) In the event that as a result of any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law, and CCI and PSD jointly reasonably conclude that PSD has legal responsibility for such remediation (as opposed to the landlord under the System Contract relating to such Leased Real Property), then (i) PSD shall have the right retain, at Borrower’s expense, an independent professional consultant to engage at PSD's expense a nationally known review any environmental auditing company audits, investigations, analyses and reports relating to provide a second opinion, in which case the parties agree to use an average of the two estimates Hazardous Materials prepared by or for purposes of this Section 6.15; Borrower and (ii) if (Aa) the aggregate cost Administrative Agent reasonably believes that Borrower has breached any representation, warranty or covenant contained in subsection 5.6, 5.13, 6.6, 6.7B or 6.7C in any material respect or that there has been a material violation of such remedial action is $5,000,000 Environmental Laws at any Facility or less for all parcels by Borrower or any of Leased Real Property, then CCI shall consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid its Subsidiaries at Closing equal to the aggregate required remediation costs; any other location or (Bb) the aggregate cost an Event of such remedial action Default has occurred and is more than $5,000,000 for all parcels continuing, conduct its own investigation of Leased Real Property and PSD does not elect to cause remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, CCI may elect either to terminate this Agreement, or to consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid at Closing equal to the required remediation costs but in no event more than $5,000,000any Facility; provided, that the foregoing notwithstandingprovided that, in the event that CCI delivers to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice to CCI within five Business Days of PSD's receipt of such termination notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing or (B) to adjust the Merger Consideration paid at Closing equal to the required remediation costs, in either of which events the Merger Agreement will not be terminated.
(c) In the event that as a result case of any Facility no longer owned, leased, operated or used by Borrower or any of the environmental investigationsits Subsidiaries, CCI's environmental consultant reasonably determines that remedial action is required by law and CCI and PSD jointly reasonably conclude that the landlord under the System Contract relating Borrower shall only be obligated to such Leased Real Property has legal responsibility for such remediation (as opposed to PSD), then PSD shall use all commercially reasonable efforts to (i) cause obtain permission for Administrative Agent’s professional consultant to conduct an investigation of such landlord Facility. For purposes of conducting such a review and/or investigation, Borrower hereby grants to perform remedial action in accordance with all applicable Legal Requirements prior Administrative Agent and its agents, employees, consultants and contractors the right to Closing; enter into or (ii) cause such landlord to make arrangements prior to Closingonto any Facilities currently owned, reasonably satisfactory to CCIleased, in operated or used by Borrower or any of its reasonable discretion, for the performance of remedial action in accordance with all applicable Legal Requirements subsequent to Closing.
(d) If CCI Subsidiaries and PSD cannot jointly agree as to whether PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility for such remediation within 30 days after written notice from CCI to PSD that CCI believes PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility, or if such landlord refuses to perform such remediation tests on such property (including taking samples of soil, groundwater and suspected asbestos-containing materials) as are reasonably necessary in connection therewith. Any such review and/or investigation of any Facility shall be conducted, unless otherwise agreed to by Borrower and Administrative Agent, upon reasonable notice during normal business hours and, to the extent reasonably practicable, shall be conducted so as not to interfere with the ongoing operations at such Facility or make arrangements reasonably satisfactory to CCI cause any damage or loss to any property at such Facility. Borrower and Administrative Agent hereby acknowledge and agree that any report of any investigation conducted at the request of Administrative Agent pursuant to this subsection 6.7A will be obtained and shall be used by Administrative Agent and Lenders for the purposes of Lenders’ internal credit decisions, to monitor the Loans and to protect Lenders’ security interests, if any, created by the Loan Documents. Administrative Agent agrees to deliver a copy of any such report to Borrower with respect thereto, then (i) if (A) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, understanding that Borrower acknowledges and (B) the aggregate cost of agrees that (x) performing remedial action for it will indemnify and hold harmless Administrative Agent, Lead Arranger and each Lender from any costs, losses or liabilities relating to Borrower’s use of or reliance on such Leased Real Property in accordance with all applicable Legal Requirementsreport, (y) terminating the System Contract relating neither Administrative Agent nor any Lender makes any representation or warranty with respect to such Leased Real Property report, and (z) obtaining substitution property as provided belowby delivering such report to Borrower, neither Administrative Agent, Lead Arranger nor any Lender is $5,000,000 requiring or less, then PSD shall with CCI's consent (which shall not be unreasonably withheld recommending the implementation of any suggestions or delayed), acquire or lease a substantially similar parcel of real property to substitute for the Leased Real Property that is subject to the environmental problem, recommendations contained in which case PSD shall bear all costs and expenses (direct, indirect and consequential) in any way related to the identification and acquisition of such real property, and the construction and relocation of the plant and facilities of the Business resulting from such substitution of the Leased Real Property; or (ii) if (A) PSD has not been able to terminate the System Contract relating to such Leased Real Property without liability other than for the payment of money or (B) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, but the aggregate cost of (x) performing remedial action for such Leased Real Property in accordance with all applicable Legal Requirements, (y) terminating the System Contract relating to such Leased Real Property and (z) obtaining substitution property as provided above, is more than $5,000,000, then CCI may, at its option, elect either to: (A) terminate this Agreement effective upon giving written notice thereof to PSD, in which case neither PSD nor CCI shall have any liability or obligation to the other, except for that arising from a breach or default under this Agreement as provided in Section 10(b) and except that Articles Ten, Eleven and Thirteen shall continue in full force and effect; or (B) consummate the transactions contemplated hereby without such remediation being performed or substitution property being obtained, subject to an adjustment to the Merger Consideration paid at Closing equal to $5,000,000; provided, that the foregoing notwithstanding, in the event that CCI delivers to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice to CCI within five Business Days of PSD's receipt of such termination notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, (B) obtain such substitution property and bear all costs and expenses associated therewith or (C) adjust the Merger Consideration paid at Closing equal to the required remediation assets, in which event the Merger Agreement will not be terminatedreport.
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Environmental Investigations. Borrower agrees that Administrative Agent may, from time to time and in its reasonable discretion, (ai) As soon as practicable after if Administrative Agent believes there has been or is likely to be a material diminution in the date of this Agreement (but in no event more than 60 days after the date of this Agreement), CCI may obtain at CCI's expense a Phase I environmental audit value of the Leased Real Property (which shall include a limited asbestos survey)property or material liability to the Borrower or its Subsidiaries, or on such parcels of the Leased Real Property as CCI may determine. CCI shall engage EnecoTech, Inc. orretain, at CCI's option, another nationally known environmental auditing company to perform the aforesaid audit. PSD will comply with any reasonable request for information made by CCI or its agents in connection with any such investigation and shall afford CCI and its agents access to all operations of the PSD Entities, including without limitation all areas of the Leased Real Property, at reasonable times and in a reasonable manner in connection with any such investigation. If the results of those investigations would cause a reasonable purchaser to perform further investigation or testing with respect to any of the Leased Real Property, CCI shall cause to be performed Phase II environmental audits with respect to such Leased Real Property, which shall be completed no more than 120 days after the date of this Agreement. CCI agrees to promptly deliver to PSD copies of all audits and other reports obtained by CCI with respect to such investigations and, at PSDBorrower's expense, all other information related thereto which is reasonably requested by PSD. Furtheran independent professional consultant (a "Consultant") to review any environmental audits, CCI agrees to restore any test borings and other physical damage to any of the assets and properties of any PSD Entity caused by such investigations and agrees to indemnify and hold the PSD Indemnitees harmless in accordance with Section 12.3 from any such damage, without regard to the Indemnification Threshold set forth in Section 12.9; which obligations shall in no event be construed to include the cost of any remedial action indicated by such investigations.
(b) In the event that as a result of any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law, analyses and CCI and PSD jointly reasonably conclude that PSD has legal responsibility for such remediation (as opposed to the landlord under the System Contract reports relating to such Leased Real Property), then (i) PSD shall have the right to engage at PSD's expense a nationally known environmental auditing company to provide a second opinion, in which case the parties agree to use an average of the two estimates Hazardous Materials prepared by or for purposes of this Section 6.15; Borrower and (ii) if (Aa) the aggregate cost Administrative Agent reasonably believes that Borrower has breached in any material respect any representation, warranty or covenant contained in Subsection V.F, 5.13, 6.6 or VI.G or that there has been a material violation of such remedial action is $5,000,000 Environmental Laws at any Facility or less for all parcels by Borrower or any of Leased Real Property, then CCI shall consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid 108 its Subsidiaries at Closing equal to the aggregate required remediation costs; any other location or (Bb) the aggregate cost an Event of such remedial action Default has occurred and is more than $5,000,000 for all parcels continuing, conduct its own investigation of Leased Real Property and PSD does not elect to cause remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, CCI may elect either to terminate this Agreement, or to consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid at Closing equal to the required remediation costs but in no event more than $5,000,000any Facility; provided, that the foregoing notwithstandingprovided that, in the event that CCI delivers case of any Facility no longer owned, leased, operated or used by Borrower or any of its Subsidiaries, Borrower shall only be obligated to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice use its best efforts to CCI within five Business Days of PSDobtain permission for Administrative Agent's receipt Consultant to conduct an investigation of such termination noticeFacility. For purposes of conducting such a review and/or investigation, Borrower hereby grants to agree Administrative Agent and its agents, employees, consultants and contractors the right to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing enter into or (B) to adjust the Merger Consideration paid at Closing equal to the required remediation costsonto any Facilities currently owned, in either of which events the Merger Agreement will not be terminated.
(c) In the event that as a result of leased, operated or used by Borrower or any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law its Subsidiaries and CCI and PSD jointly reasonably conclude that the landlord under the System Contract relating to such Leased Real Property has legal responsibility for such remediation (as opposed to PSD), then PSD shall use commercially reasonable efforts to (i) cause such landlord to perform remedial action in accordance with all applicable Legal Requirements prior to Closing; or (ii) cause such landlord to make arrangements prior to Closing, reasonably satisfactory to CCI, in its reasonable discretion, for the performance of remedial action in accordance with all applicable Legal Requirements subsequent to Closing.
(d) If CCI and PSD cannot jointly agree as to whether PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility for such remediation within 30 days after written notice from CCI to PSD that CCI believes PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility, or if such landlord refuses to perform such remediation tests on such property (including taking samples of soil, groundwater and suspected asbestos-containing materials) as are reasonably necessary in connection therewith. Any such investigation of any Facility shall be conducted, unless otherwise agreed to by Borrower and Administrative Agent, during normal business hours and, to the extent reasonably practicable, shall be conducted so as not to interfere with the ongoing operations at such Facility or make arrangements reasonably satisfactory to CCI cause any damage or loss to any property at such Facility. Borrower and Administrative Agent hereby acknowledge and agree that any report of any investigation conducted at the request of Administrative Agent pursuant to this Subsection VI.G.3 will be obtained and shall be used by Administrative Agent and Lenders for the purposes of Lenders' internal credit decisions, to monitor and police the Loans and to protect Lenders' security interests, if any, created by the Loan Documents. Administrative Agent agrees to deliver a copy of any such report to Borrower with respect thereto, then (i) if (A) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, understanding that Borrower acknowledges and (B) the aggregate cost of agrees that (x) performing remedial action for it will indemnify and hold harmless Administrative Agent and each Lender from any costs, losses or liabilities relating to Borrower's use of or reliance on such Leased Real Property in accordance with all applicable Legal Requirementsreport, (y) terminating the System Contract relating neither Administrative Agent nor any Lender makes any representation or warranty with respect to such Leased Real Property report, and (z) obtaining substitution property as provided belowby delivering such report to Borrower, neither Administrative Agent nor any Lender is $5,000,000 requiring or less, then PSD shall with CCI's consent (which shall not be unreasonably withheld recommending the implementation of any suggestions or delayed), acquire or lease a substantially similar parcel of real property to substitute for the Leased Real Property that is subject to the environmental problem, recommendations contained in which case PSD shall bear all costs and expenses (direct, indirect and consequential) in any way related to the identification and acquisition of such real property, and the construction and relocation of the plant and facilities of the Business resulting from such substitution of the Leased Real Property; or (ii) if (A) PSD has not been able to terminate the System Contract relating to such Leased Real Property without liability other than for the payment of money or (B) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, but the aggregate cost of (x) performing remedial action for such Leased Real Property in accordance with all applicable Legal Requirements, (y) terminating the System Contract relating to such Leased Real Property and (z) obtaining substitution property as provided above, is more than $5,000,000, then CCI may, at its option, elect either to: (A) terminate this Agreement effective upon giving written notice thereof to PSD, in which case neither PSD nor CCI shall have any liability or obligation to the other, except for that arising from a breach or default under this Agreement as provided in Section 10(b) and except that Articles Ten, Eleven and Thirteen shall continue in full force and effect; or (B) consummate the transactions contemplated hereby without such remediation being performed or substitution property being obtained, subject to an adjustment to the Merger Consideration paid at Closing equal to $5,000,000; provided, that the foregoing notwithstanding, in the event that CCI delivers to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice to CCI within five Business Days of PSD's receipt of such termination notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, (B) obtain such substitution property and bear all costs and expenses associated therewith or (C) adjust the Merger Consideration paid at Closing equal to the required remediation assets, in which event the Merger Agreement will not be terminatedreport.
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Environmental Investigations. (a) As soon as practicable after the date of this Agreement (but in no event more than 60 days after the date of this Agreement)Borrower agrees that Administrative Agent may, CCI may obtain at CCI's expense a Phase I environmental audit of the Leased Real Property (which shall include a limited asbestos survey), or on such parcels of the Leased Real Property as CCI may determine. CCI shall engage EnecoTech, Inc. or, at CCI's option, another nationally known environmental auditing company from time to perform the aforesaid audit. PSD will comply with any reasonable request for information made by CCI or its agents in connection with any such investigation time and shall afford CCI and its agents access to all operations of the PSD Entities, including without limitation all areas of the Leased Real Property, at reasonable times and in a reasonable manner in connection with any such investigation. If the results of those investigations would cause a reasonable purchaser to perform further investigation or testing with respect to any of the Leased Real Property, CCI shall cause to be performed Phase II environmental audits with respect to such Leased Real Property, which shall be completed no more than 120 days after the date of this Agreement. CCI agrees to promptly deliver to PSD copies of all audits and other reports obtained by CCI with respect to such investigations and, at PSD's expense, all other information related thereto which is reasonably requested by PSD. Further, CCI agrees to restore any test borings and other physical damage to any of the assets and properties of any PSD Entity caused by such investigations and agrees to indemnify and hold the PSD Indemnitees harmless in accordance with Section 12.3 from any such damage, without regard to the Indemnification Threshold set forth in Section 12.9; which obligations shall in no event be construed to include the cost of any remedial action indicated by such investigations.
(b) In the event that as a result of any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law, and CCI and PSD jointly reasonably conclude that PSD has legal responsibility for such remediation (as opposed to the landlord under the System Contract relating to such Leased Real Property), then (i) PSD shall have the right to engage at PSD's expense a nationally known environmental auditing company to provide a second opinion, in which case the parties agree to use an average of the two estimates for purposes of this Section 6.15; and (ii) if (A) the aggregate cost of such remedial action is $5,000,000 or less for all parcels of Leased Real Property, then CCI shall consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid at Closing equal to the aggregate required remediation costs; or (B) the aggregate cost of such remedial action is more than $5,000,000 for all parcels of Leased Real Property and PSD does not elect to cause remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, CCI may elect either to terminate this Agreement, or to consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid at Closing equal to the required remediation costs but in no event more than $5,000,000; provided, that the foregoing notwithstanding, in the event that CCI delivers to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice to CCI within five Business Days of PSD's receipt of such termination notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing or (B) to adjust the Merger Consideration paid at Closing equal to the required remediation costs, in either of which events the Merger Agreement will not be terminated.
(c) In the event that as a result of any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law and CCI and PSD jointly reasonably conclude that the landlord under the System Contract relating to such Leased Real Property has legal responsibility for such remediation (as opposed to PSD), then PSD shall use commercially reasonable efforts to (i) cause such landlord to perform remedial action in accordance with all applicable Legal Requirements prior to Closing; or (ii) cause such landlord to make arrangements prior to Closing, reasonably satisfactory to CCI, in its reasonable discretion, for the performance of remedial action in accordance with all applicable Legal Requirements subsequent (i) retain, at Borrower’s expense, an independent professional consultant to Closing.
(d) If CCI review any environmental audits, investigations, analyses and PSD cannot jointly agree as to whether PSD or the landlord under the System Contract reports relating to Hazardous Materials prepared by or for Borrower and (ii) in the event (a) Administrative Agent reasonably believes that Borrower has breached any representation, warranty or covenant contained in subsection 5.6, 5.13, 6.6, 6.7 or that there has been a material violation of Environmental Laws at any Facility or by Borrower or any of its Subsidiaries at any other location or (b) an Event of Default has occurred and is continuing, conduct its own investigation of any Facility; provided that, in the case of any Facility no longer owned, leased, operated or used by Borrower or any of its Subsidiaries, Borrower shall only be obligated to use its best efforts to obtain permission for Administrative Agent’s professional consultant to conduct an investigation of such Leased Real Property has Facility. For purposes of conducting such legal responsibility for such remediation within 30 days after written notice from CCI a review and/or investigation, Borrower hereby grants to PSD that CCI believes PSD Administrative Agent and its agents, employees, consultants and contractors the right to enter into or the landlord under the System Contract relating to such Leased Real Property has such legal responsibilityonto any Facilities currently owned, leased, operated or if such landlord refuses used by Borrower or any of its Subsidiaries and to perform such remediation tests on such property (including taking samples of soil, groundwater and suspected asbestos-containing materials) as are reasonably necessary in connection therewith. Any such investigation of any Facility shall be conducted, unless otherwise agreed to by Borrower and Administrative Agent, during normal business hours and, to the extent reasonably practicable, shall be conducted so as not to interfere with the ongoing operations at such Facility or make arrangements reasonably satisfactory to CCI cause any damage or loss to any property at such Facility. Borrower and Administrative Agent hereby acknowledge and agree that any report of any investigation conducted at the request of Administrative Agent pursuant to this subsection 6.7C will be obtained and shall be used by Administrative Agent and Lenders for the purposes of Lenders’ internal credit decisions, to monitor and police the Loans and to protect Lenders’ security interests, if any, created by the Loan Documents. Administrative Agent agrees to deliver a copy of any such report to Borrower with respect thereto, then (i) if (A) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, understanding that Borrower acknowledges and (B) the aggregate cost of agrees that (x) performing remedial action for it will indemnify and hold harmless Administrative Agent and each Lender from any costs, losses or liabilities relating to Borrower’s use of or reliance on such Leased Real Property in accordance with all applicable Legal Requirementsreport, (y) terminating the System Contract relating neither Administrative Agent nor any Lender makes any representation or warranty with respect to such Leased Real Property report, and (z) obtaining substitution property as provided belowby delivering such report to Borrower, neither Administrative Agent nor any Lender is $5,000,000 requiring or less, then PSD shall with CCI's consent (which shall not be unreasonably withheld recommending the implementation of any suggestions or delayed), acquire or lease a substantially similar parcel of real property to substitute for the Leased Real Property that is subject to the environmental problem, recommendations contained in which case PSD shall bear all costs and expenses (direct, indirect and consequential) in any way related to the identification and acquisition of such real property, and the construction and relocation of the plant and facilities of the Business resulting from such substitution of the Leased Real Property; or (ii) if (A) PSD has not been able to terminate the System Contract relating to such Leased Real Property without liability other than for the payment of money or (B) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, but the aggregate cost of (x) performing remedial action for such Leased Real Property in accordance with all applicable Legal Requirements, (y) terminating the System Contract relating to such Leased Real Property and (z) obtaining substitution property as provided above, is more than $5,000,000, then CCI may, at its option, elect either to: (A) terminate this Agreement effective upon giving written notice thereof to PSD, in which case neither PSD nor CCI shall have any liability or obligation to the other, except for that arising from a breach or default under this Agreement as provided in Section 10(b) and except that Articles Ten, Eleven and Thirteen shall continue in full force and effect; or (B) consummate the transactions contemplated hereby without such remediation being performed or substitution property being obtained, subject to an adjustment to the Merger Consideration paid at Closing equal to $5,000,000; provided, that the foregoing notwithstanding, in the event that CCI delivers to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice to CCI within five Business Days of PSD's receipt of such termination notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, (B) obtain such substitution property and bear all costs and expenses associated therewith or (C) adjust the Merger Consideration paid at Closing equal to the required remediation assets, in which event the Merger Agreement will not be terminatedreport.
Appears in 1 contract
Environmental Investigations. Borrower agrees that Administrative Agent may, from time to time and in its reasonable discretion, (ai) As soon as practicable after the date of this Agreement (but in no event more than 60 days after the date of this Agreement), CCI may obtain at CCI's expense a Phase I environmental audit of the Leased Real Property (which shall include a limited asbestos survey), or on such parcels of the Leased Real Property as CCI may determine. CCI shall engage EnecoTech, Inc. orretain, at CCI's option, another nationally known environmental auditing company to perform the aforesaid audit. PSD will comply with any reasonable request for information made by CCI or its agents in connection with any such investigation and shall afford CCI and its agents access to all operations of the PSD Entities, including without limitation all areas of the Leased Real Property, at reasonable times and in a reasonable manner in connection with any such investigation. If the results of those investigations would cause a reasonable purchaser to perform further investigation or testing with respect to any of the Leased Real Property, CCI shall cause to be performed Phase II environmental audits with respect to such Leased Real Property, which shall be completed no more than 120 days after the date of this Agreement. CCI agrees to promptly deliver to PSD copies of all audits and other reports obtained by CCI with respect to such investigations and, at PSDBorrower's expense, all other information related thereto which is reasonably requested by PSD. Furtheran independent professional consultant (a "Consultant") to review any environmental audits, CCI agrees to restore any test borings and other physical damage to any of the assets and properties of any PSD Entity caused by such investigations and agrees to indemnify and hold the PSD Indemnitees harmless in accordance with Section 12.3 from any such damage, without regard to the Indemnification Threshold set forth in Section 12.9; which obligations shall in no event be construed to include the cost of any remedial action indicated by such investigations.
(b) In the event that as a result of any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law, analyses and CCI and PSD jointly reasonably conclude that PSD has legal responsibility for such remediation (as opposed to the landlord under the System Contract reports relating to such Leased Real Property), then (i) PSD shall have the right to engage at PSD's expense a nationally known environmental auditing company to provide a second opinion, in which case the parties agree to use an average of the two estimates Hazardous Materials prepared by or for purposes of this Section 6.15; Borrower and (ii) if (Aa) the aggregate cost Administrative Agent reasonably believes that Borrower has breached any representation, warranty or covenant contained in subsection 5.6, 5.13, 6.6 or 6.7 or that there has been a material violation of such remedial action is $5,000,000 Environmental Laws at any Facility or less for all parcels by Borrower or any of Leased Real Property, then CCI shall consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid its Subsidiaries at Closing equal to the aggregate required remediation costs; any other location or (Bb) the aggregate cost an Event of such remedial action Default has occurred and is more than $5,000,000 for all parcels continuing, conduct its own investigation of Leased Real Property and PSD does not elect to cause remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, CCI may elect either to terminate this Agreement, or to consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid at Closing equal to the required remediation costs but in no event more than $5,000,000any Facility; provided, that the foregoing notwithstandingprovided that, in the event that CCI delivers case of any Facility no longer owned, leased, operated or used by Borrower or any of its Subsidiaries, Borrower shall only be obligated to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice use its best efforts to CCI within five Business Days of PSDobtain permission for Administrative Agent's receipt Consultant to conduct an investigation of such termination Facility. For purposes of conducting such a review and/or investigation, Borrower hereby grants to Administrative Agent and its agents, employees, consultants and contractors the right, upon not less than two Business Days' prior written notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing enter into or (B) to adjust the Merger Consideration paid at Closing equal to the required remediation costsonto any Facilities currently owned, in either of which events the Merger Agreement will not be terminated.
(c) In the event that as a result of leased, operated or used by Borrower or any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law its Subsidiaries and CCI and PSD jointly reasonably conclude that the landlord under the System Contract relating to such Leased Real Property has legal responsibility for such remediation (as opposed to PSD), then PSD shall use commercially reasonable efforts to (i) cause such landlord to perform remedial action in accordance with all applicable Legal Requirements prior to Closing; or (ii) cause such landlord to make arrangements prior to Closing, reasonably satisfactory to CCI, in its reasonable discretion, for the performance of remedial action in accordance with all applicable Legal Requirements subsequent to Closing.
(d) If CCI and PSD cannot jointly agree as to whether PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility for such remediation within 30 days after written notice from CCI to PSD that CCI believes PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility, or if such landlord refuses to perform such remediation tests on such property (including taking samples of soil, groundwater and suspected asbestos-containing materials) as are reasonably necessary in connection therewith. Any such investigation of any Facility shall be conducted, unless otherwise agreed to by Borrower and Administrative Agent, during normal business hours and, to the extent reasonably practicable, shall be conducted so as not to interfere with the ongoing operations at such Facility or make arrangements reasonably satisfactory to CCI cause any damage or loss to any property at such Facility. Borrower and Administrative Agent hereby acknowledge and agree that any report of any investigation conducted at the request of Administrative Agent pursuant to this subsection 6.7C will be obtained and shall be used by Administrative Agent and Lenders for the purposes of Lenders' internal credit decisions, to monitor and police the Loans and to protect Lenders' security interests, if any, created by the Loan Documents. Administrative Agent agrees to deliver a copy of any such report to Borrower with respect thereto, then (i) if (A) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, understanding that Borrower acknowledges and (B) the aggregate cost of agrees that (x) performing remedial action for it will indemnify and hold harmless Administrative Agent and each Lender from any costs, losses or liabilities relating to Borrower's use of or reliance on such Leased Real Property in accordance with all applicable Legal Requirementsreport, (y) terminating the System Contract relating neither Administrative Agent nor any Lender makes any representation or warranty with respect to such Leased Real Property report, and (z) obtaining substitution property as provided belowby delivering such report to Borrower, neither Administrative Agent nor any Lender is $5,000,000 requiring or less, then PSD shall with CCI's consent (which shall not be unreasonably withheld recommending the implementation of any suggestions or delayed), acquire or lease a substantially similar parcel of real property to substitute for the Leased Real Property that is subject to the environmental problem, recommendations contained in which case PSD shall bear all costs and expenses (direct, indirect and consequential) in any way related to the identification and acquisition of such real property, and the construction and relocation of the plant and facilities of the Business resulting from such substitution of the Leased Real Property; or (ii) if (A) PSD has not been able to terminate the System Contract relating to such Leased Real Property without liability other than for the payment of money or (B) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, but the aggregate cost of (x) performing remedial action for such Leased Real Property in accordance with all applicable Legal Requirements, (y) terminating the System Contract relating to such Leased Real Property and (z) obtaining substitution property as provided above, is more than $5,000,000, then CCI may, at its option, elect either to: (A) terminate this Agreement effective upon giving written notice thereof to PSD, in which case neither PSD nor CCI shall have any liability or obligation to the other, except for that arising from a breach or default under this Agreement as provided in Section 10(b) and except that Articles Ten, Eleven and Thirteen shall continue in full force and effect; or (B) consummate the transactions contemplated hereby without such remediation being performed or substitution property being obtained, subject to an adjustment to the Merger Consideration paid at Closing equal to $5,000,000; provided, that the foregoing notwithstanding, in the event that CCI delivers to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice to CCI within five Business Days of PSD's receipt of such termination notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, (B) obtain such substitution property and bear all costs and expenses associated therewith or (C) adjust the Merger Consideration paid at Closing equal to the required remediation assets, in which event the Merger Agreement will not be terminatedreport.
Appears in 1 contract
Samples: Credit Agreement (Integrated Defense Technologies Inc)
Environmental Investigations. (a) As soon as practicable after the date of this Agreement (but in no event more than 60 days after the date of this Agreement)Borrower agrees that Administrative Agent may, CCI may obtain at CCI's expense a Phase I environmental audit of the Leased Real Property (which shall include a limited asbestos survey), or on such parcels of the Leased Real Property as CCI may determine. CCI shall engage EnecoTech, Inc. or, at CCI's option, another nationally known environmental auditing company from time to perform the aforesaid audit. PSD will comply with any reasonable request for information made by CCI or its agents in connection with any such investigation and shall afford CCI and its agents access to all operations of the PSD Entities, including without limitation all areas of the Leased Real Property, at reasonable times time and in a its reasonable manner in connection with any such investigation. If the results of those investigations would cause a reasonable purchaser to perform further investigation or testing with respect to any of the Leased Real Propertydiscretion, CCI shall cause to be performed Phase II environmental audits with respect to such Leased Real Property, which shall be completed no more than 120 days after the date of this Agreement. CCI agrees to promptly deliver to PSD copies of all audits and other reports obtained by CCI with respect to such investigations and, at PSD's expense, all other information related thereto which is reasonably requested by PSD. Further, CCI agrees to restore any test borings and other physical damage to any of the assets and properties of any PSD Entity caused by such investigations and agrees to indemnify and hold the PSD Indemnitees harmless in accordance with Section 12.3 from any such damage, without regard to the Indemnification Threshold set forth in Section 12.9; which obligations shall in no event be construed to include the cost of any remedial action indicated by such investigations.
(b) In the event that as a result of any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law, and CCI and PSD jointly reasonably conclude that PSD has legal responsibility for such remediation (as opposed to the landlord under the System Contract relating to such Leased Real Property), then (i) PSD shall have the right retain, at Borrower’s expense, an independent professional consultant to engage at PSD's expense a nationally known review any environmental auditing company audits, investigations, analyses and reports relating to provide a second opinion, in which case the parties agree to use an average of the two estimates Hazardous Materials prepared by or for purposes of this Section 6.15; Borrower and (ii) if (Aa) the aggregate cost Administrative Agent reasonably believes that Borrower has breached any representation, warranty or covenant contained in subsection 5.6, 5.13, 6.6, 6.7B or 6.7C or that there has been a material violation of such remedial action is $5,000,000 Environmental Laws at any Facility or less for all parcels by Borrower or any of Leased Real Property, then CCI shall consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid its Subsidiaries at Closing equal to the aggregate required remediation costs; any other location or (Bb) the aggregate cost an Event of such remedial action Default has occurred and is more than $5,000,000 for all parcels continuing, conduct its own investigation of Leased Real Property and PSD does not elect to cause remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, CCI may elect either to terminate this Agreement, or to consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid at Closing equal to the required remediation costs but in no event more than $5,000,000any Facility; provided, that the foregoing notwithstandingprovided that, in the event that CCI delivers to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice to CCI within five Business Days of PSD's receipt of such termination notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing or (B) to adjust the Merger Consideration paid at Closing equal to the required remediation costs, in either of which events the Merger Agreement will not be terminated.
(c) In the event that as a result case of any Facility no longer owned, leased, operated or used by Borrower or any of the environmental investigationsits Subsidiaries, CCI's environmental consultant reasonably determines that remedial action is required by law and CCI and PSD jointly reasonably conclude that the landlord under the System Contract relating Borrower shall only be obligated to such Leased Real Property has legal responsibility for such remediation (as opposed to PSD), then PSD shall use all commercially reasonable efforts to (i) cause obtain permission for Administrative Agent’s professional consultant to conduct an investigation of such landlord Facility. For purposes of conducting such a review and/or investigation, Borrower hereby grants to perform remedial action in accordance with all applicable Legal Requirements prior Administrative Agent and its agents, employees, consultants and contractors the right to Closing; enter into or (ii) cause such landlord to make arrangements prior to Closingonto any Facilities currently owned, reasonably satisfactory to CCIleased, in operated or used by Borrower or any of its reasonable discretion, for the performance of remedial action in accordance with all applicable Legal Requirements subsequent to Closing.
(d) If CCI Subsidiaries and PSD cannot jointly agree as to whether PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility for such remediation within 30 days after written notice from CCI to PSD that CCI believes PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility, or if such landlord refuses to perform such remediation tests on such property (including taking samples of soil, groundwater and suspected asbestos-containing materials) as are reasonably necessary in connection therewith. Any such review and/or investigation of any Facility shall be conducted, unless otherwise agreed to by Borrower and Administrative Agent, upon reasonable notice during normal business hours and, to the extent reasonably practicable, shall be conducted so as not to interfere with the ongoing operations at such Facility or make arrangements reasonably satisfactory to CCI cause any damage or loss to any property at such Facility. Borrower and Administrative Agent hereby acknowledge and agree that any report of any investigation conducted at the request of Administrative Agent pursuant to this subsection 6.7A will be obtained and shall be used by Administrative Agent and Lenders for the purposes of Lenders’ internal credit decisions, to monitor the Loans and to protect Lenders’ security interests, if any, created by the Loan Documents. Administrative Agent agrees to deliver a copy of any such report to Borrower with respect thereto, then (i) if (A) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, understanding that Borrower acknowledges and (B) the aggregate cost of agrees that (x) performing remedial action for it will indemnify and hold harmless Administrative Agent, Lead Arranger and each Lender from any costs, losses or liabilities relating to Borrower’s use of or reliance on such Leased Real Property in accordance with all applicable Legal Requirementsreport, (y) terminating the System Contract relating neither Administrative Agent nor any Lender makes any representation or warranty with respect to such Leased Real Property report, and (z) obtaining substitution property as provided belowby delivering such report to Borrower, neither Administrative Agent, Lead Arranger nor any Lender is $5,000,000 requiring or less, then PSD shall with CCI's consent (which shall not be unreasonably withheld recommending the implementation of any suggestions or delayed), acquire or lease a substantially similar parcel of real property to substitute for the Leased Real Property that is subject to the environmental problem, recommendations contained in which case PSD shall bear all costs and expenses (direct, indirect and consequential) in any way related to the identification and acquisition of such real property, and the construction and relocation of the plant and facilities of the Business resulting from such substitution of the Leased Real Property; or (ii) if (A) PSD has not been able to terminate the System Contract relating to such Leased Real Property without liability other than for the payment of money or (B) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, but the aggregate cost of (x) performing remedial action for such Leased Real Property in accordance with all applicable Legal Requirements, (y) terminating the System Contract relating to such Leased Real Property and (z) obtaining substitution property as provided above, is more than $5,000,000, then CCI may, at its option, elect either to: (A) terminate this Agreement effective upon giving written notice thereof to PSD, in which case neither PSD nor CCI shall have any liability or obligation to the other, except for that arising from a breach or default under this Agreement as provided in Section 10(b) and except that Articles Ten, Eleven and Thirteen shall continue in full force and effect; or (B) consummate the transactions contemplated hereby without such remediation being performed or substitution property being obtained, subject to an adjustment to the Merger Consideration paid at Closing equal to $5,000,000; provided, that the foregoing notwithstanding, in the event that CCI delivers to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice to CCI within five Business Days of PSD's receipt of such termination notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, (B) obtain such substitution property and bear all costs and expenses associated therewith or (C) adjust the Merger Consideration paid at Closing equal to the required remediation assets, in which event the Merger Agreement will not be terminatedreport.
Appears in 1 contract
Environmental Investigations. Company agrees that Administrative Agent may, from time to time and in its reasonable discretion, (ai) As soon as practicable after the date of this Agreement (but in no event more than 60 days after the date of this Agreement), CCI may obtain at CCI's expense a Phase I environmental audit of the Leased Real Property (which shall include a limited asbestos survey), or on such parcels of the Leased Real Property as CCI may determine. CCI shall engage EnecoTech, Inc. orretain, at CCI's option, another nationally known environmental auditing company to perform the aforesaid audit. PSD will comply with any reasonable request for information made by CCI or its agents in connection with any such investigation and shall afford CCI and its agents access to all operations of the PSD Entities, including without limitation all areas of the Leased Real Property, at reasonable times and in a reasonable manner in connection with any such investigation. If the results of those investigations would cause a reasonable purchaser to perform further investigation or testing with respect to any of the Leased Real Property, CCI shall cause to be performed Phase II environmental audits with respect to such Leased Real Property, which shall be completed no more than 120 days after the date of this Agreement. CCI agrees to promptly deliver to PSD copies of all audits and other reports obtained by CCI with respect to such investigations and, at PSDBorrower's expense, all other information related thereto which is reasonably requested by PSD. Furtheran independent professional consultant to review any environmental audits, CCI agrees to restore any test borings and other physical damage to any of the assets and properties of any PSD Entity caused by such investigations and agrees to indemnify and hold the PSD Indemnitees harmless in accordance with Section 12.3 from any such damage, without regard to the Indemnification Threshold set forth in Section 12.9; which obligations shall in no event be construed to include the cost of any remedial action indicated by such investigations.
(b) In the event that as a result of any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law, analyses and CCI and PSD jointly reasonably conclude that PSD has legal responsibility for such remediation (as opposed to the landlord under the System Contract reports relating to such Leased Real Property), then (i) PSD shall have the right to engage at PSD's expense a nationally known environmental auditing company to provide a second opinion, in which case the parties agree to use an average of the two estimates Hazardous Materials prepared by or for purposes of this Section 6.15; Borrower and (ii) if (Aa) the aggregate cost Administrative Agent reasonably believes that Borrower has breached any representation, warranty or covenant contained in subsection 5.6, 5.13, 6.6 or 6.7 or that there has been a material violation of such remedial action is $5,000,000 Environmental Laws at any Facility or less for all parcels by Borrower or any of Leased Real Property, then CCI shall consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid its Subsidiaries at Closing equal to the aggregate required remediation costs; any other location or (Bb) the aggregate cost an Event of such remedial action Default has occurred and is more than $5,000,000 for all parcels continuing, conduct its own investigation of Leased Real Property and PSD does not elect to cause remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, CCI may elect either to terminate this Agreement, or to consummate the transactions contemplated hereby without such remedial action having been taken, subject to an adjustment to the Merger Consideration paid at Closing equal to the required remediation costs but in no event more than $5,000,000any Facility; provided, that the foregoing notwithstandingprovided that, in the event that CCI delivers case of any Facility no longer owned, leased, operated or used by Borrower or any of its Subsidiaries, Borrower shall only be obligated to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice use its best efforts to CCI within five Business Days of PSDobtain permission for Administrative Agent's receipt professional consultant to conduct an investigation of such termination noticeFacility. For purposes of conducting such a review and/or investigation, Borrower hereby grants to agree Administrative Agent and its agents, employees, consultants and contractors the right to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing enter into or (B) to adjust the Merger Consideration paid at Closing equal to the required remediation costsonto any Facilities currently owned, in either of which events the Merger Agreement will not be terminated.
(c) In the event that as a result of leased, operated or used by Borrower or any of the environmental investigations, CCI's environmental consultant reasonably determines that remedial action is required by law its Subsidiaries and CCI and PSD jointly reasonably conclude that the landlord under the System Contract relating to such Leased Real Property has legal responsibility for such remediation (as opposed to PSD), then PSD shall use commercially reasonable efforts to (i) cause such landlord to perform remedial action in accordance with all applicable Legal Requirements prior to Closing; or (ii) cause such landlord to make arrangements prior to Closing, reasonably satisfactory to CCI, in its reasonable discretion, for the performance of remedial action in accordance with all applicable Legal Requirements subsequent to Closing.
(d) If CCI and PSD cannot jointly agree as to whether PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility for such remediation within 30 days after written notice from CCI to PSD that CCI believes PSD or the landlord under the System Contract relating to such Leased Real Property has such legal responsibility, or if such landlord refuses to perform such remediation tests on such property (including taking samples of soil, groundwater and suspected asbestos-containing materials) as are reasonably necessary in connection therewith. Any such investigation of any Facility shall be conducted, unless otherwise agreed to by Borrower and Administrative Agent, during normal business hours and, to the extent reasonably practicable, shall be conducted so as not to interfere with the ongoing operations at such Facility or make arrangements reasonably satisfactory to CCI cause any damage or loss to any property at such Facility. Borrower and Administrative Agent hereby acknowledge and agree that any report of any investigation conducted at the request of Administrative Agent pursuant to this subsection 6.7C will be obtained and shall be used by Administrative Agent and Lenders for the purposes of Lenders' internal credit decisions, to monitor and police the Loans and other extensions of credit hereunder and to protect Lenders' security interests, if any, created by the Loan Documents. Administrative Agent agrees to deliver a copy of any such report to Borrower and Lenders with respect thereto, then (i) if (A) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, understanding that Borrower acknowledges and (B) the aggregate cost of agrees that (x) performing remedial action for it will indemnify and hold harmless Administrative Agent and each Lender from any costs, losses or liabilities relating to Borrower's use of or reliance on such Leased Real Property in accordance with all applicable Legal Requirementsreport, (y) terminating the System Contract relating neither Administrative Agent nor any Lender makes any representation or warranty with respect to such Leased Real Property report, and (z) obtaining substitution property as provided belowby delivering such report to Borrower, neither Administrative Agent nor any Lender is $5,000,000 requiring or less, then PSD shall with CCI's consent (which shall not be unreasonably withheld recommending the implementation of any suggestions or delayed), acquire or lease a substantially similar parcel of real property to substitute for the Leased Real Property that is subject to the environmental problem, recommendations contained in which case PSD shall bear all costs and expenses (direct, indirect and consequential) in any way related to the identification and acquisition of such real property, and the construction and relocation of the plant and facilities of the Business resulting from such substitution of the Leased Real Property; or (ii) if (A) PSD has not been able to terminate the System Contract relating to such Leased Real Property without liability other than for the payment of money or (B) PSD has terminated the System Contract relating to such Leased Real Property without liability other than the payment of money, but the aggregate cost of (x) performing remedial action for such Leased Real Property in accordance with all applicable Legal Requirements, (y) terminating the System Contract relating to such Leased Real Property and (z) obtaining substitution property as provided above, is more than $5,000,000, then CCI may, at its option, elect either to: (A) terminate this Agreement effective upon giving written notice thereof to PSD, in which case neither PSD nor CCI shall have any liability or obligation to the other, except for that arising from a breach or default under this Agreement as provided in Section 10(b) and except that Articles Ten, Eleven and Thirteen shall continue in full force and effect; or (B) consummate the transactions contemplated hereby without such remediation being performed or substitution property being obtained, subject to an adjustment to the Merger Consideration paid at Closing equal to $5,000,000; provided, that the foregoing notwithstanding, in the event that CCI delivers to PSD a termination notice as set forth above, PSD shall be entitled by delivery of written notice to CCI within five Business Days of PSD's receipt of such termination notice, to agree to (A) cause such remedial action to be performed in accordance with all applicable Legal Requirements prior to Closing, (B) obtain such substitution property and bear all costs and expenses associated therewith or (C) adjust the Merger Consideration paid at Closing equal to the required remediation assets, in which event the Merger Agreement will not be terminatedreport.
Appears in 1 contract
