Common use of - ENVIRONMENTAL MATTERS AND ADJUSTMENTS Clause in Contracts

- ENVIRONMENTAL MATTERS AND ADJUSTMENTS. 7.1. Upon execution of and pursuant to the terms of this Agreement, Buyer shall have the right, at reasonable times during normal business hours, to conduct its investigation into the status of the physical and environmental condition of the Assets. If, in the course of conducting such investigation, Buyer discovers that any Asset is subject to a material Environmental Defect, Buyer may raise such Environmental Defect in the manner set forth hereafter. For purposes hereof, the term “material” shall mean that the Buyer’s good faith estimate, supported by documentation, of the cost of remediating any single Environmental Defect, or the net reduction in value of the Asset affected by such Defect, whichever is lesser, exceeds twenty five thousand dollars ($25,000.00), the Parties agreeing that such amount will be a per Asset deductible rather than a threshold. No later than 5:00 p.m. Central Time on May 22, 2006 (the “Environmental Defect Notice Date”), Buyer shall notify Seller in writing specifying such Environmental Defects, if any, the Assets affected thereby, and Buyer's good faith estimate of the costs of remediating such defects, or the net reduction in value of the Assets affected by such defects, whichever is lesser, together with supporting documentation. Seller may, but shall be under no obligation to, correct at its own cost and expense such defects on or before the Closing Date, in which case there shall be no reduction to the Purchase Price. Prior to Closing, Buyer and Seller shall treat all information regarding any environmental conditions as confidential, whether material or not, and shall not make any contact with any governmental authority or third party regarding same without the written consent of the other party unless required by law. 7.2. If Buyer fails to notify Seller prior to or on the Environmental Defect Notice Date, of any Environmental Defects, all defects, whether known or unknown, will be deemed waived for purposes of adjustments pursuant to this Article 7, the Parties shall proceed with Closing, Seller shall be under no obligation to correct the defects, and Buyer shall assume the risks, liability and obligations associated with such defects, unless such defects constitute Retained Environmental Obligations or Liabilities of Seller. 7.3. In the event any Environmental Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Seller, at its sole option, shall, (i) agree to cure or remediate any Defect within a reasonable time after Closing and without any reduction to the Purchase Price in a manner acceptable to both Parties, or (ii) reduce the Purchase Price by the amount of the Environmental Defect Value as determined pursuant to Section 8.4, and subject to application of the twenty five thousand dollars ($25,000.00) deductible and the Aggregate Defect Basket described in Section 7.4.

- ENVIRONMENTAL MATTERS AND ADJUSTMENTS. 7.1. Upon execution of and pursuant to the terms of this Agreement, Buyer shall have the right, at reasonable times during normal business hours, to conduct its Phase I investigation into the status of the physical and environmental condition of the Assets. If, in the course of conducting such investigation, Buyer discovers that any Asset is subject to a material Environmental Defect, Buyer may raise such Environmental Defect in the manner set forth hereafter. For purposes hereof, the term “material” shall mean that the Buyer’s good faith estimatecost, supported by documentationin the aggregate, of the cost remediating Environmental Defects of remediating any single Environmental Defect, or the net reduction in value of the Asset affected by such Defect, whichever is lesser, a similar nature that exceeds twenty five thousand dollars ($25,000.00)50,000.00, the Parties agreeing that such amount will is a deductible, and that Buyer shall only be entitled to claim a per Asset deductible rather than a thresholddefect for the amount in excess of $50,000.00 (and subject to Section 9.1). No later than 5:00 p.m. Central Time p.m., C.D.T., on May July 22, 2006 2011 (the “Environmental Defect Notice Date”), Buyer shall notify Seller in writing specifying such Environmental Defects, if any, the Assets affected thereby, and Buyer's good faith estimate detailed calculation of the costs of remediating such defects, or the net reduction in value of the Assets affected by such defectsdefects which shall take into account, whichever is lesseramong other factors, together with supporting documentationthe Lowest Cost Response, as determined by the environmental expert that performed the Phase I investigation of the relevant Asset on behalf of Buyer. Seller may, but The “Environmental Defect Value” shall be under no obligation to, correct at its own cost Buyer’s good faith calculation of the net reduction in value unless Seller objects to same and expense such defects on a different value is agreed upon or before the Closing Datedetermined pursuant to Section 7.2, in which case there case, such amount shall be no reduction to the Purchase PriceEnvironmental Defect Value. Prior to Closing, Buyer and Seller shall treat all information regarding any environmental conditions as confidential, whether material or not, and shall not make any contact with any governmental authority or third party regarding same without the written consent of the other party Party unless required by law. 7.2. If Buyer fails to notify Seller prior to or on the Environmental Defect Notice Date, of any Environmental Defects, all defects, whether known or unknown, will be deemed waived for purposes of adjustments pursuant to this Article 7, the Parties shall proceed with Closing, Seller shall be under no obligation to correct the defects, and Buyer shall assume the risks, liability and obligations associated with such defects, unless such defects constitute Retained Environmental Obligations or Liabilities of Seller. 7.3. In the event any Environmental Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Seller, at its sole option, shall, (i) agree to cure or remediate any Defect within a reasonable time after Closing and without any reduction to the Purchase Price in a manner acceptable to both Parties, or (ii) reduce the Purchase Price by the amount of the Environmental Defect Value as determined pursuant to Section 8.4, and subject to application of the twenty five thousand dollars ($25,000.00) deductible and the Aggregate Defect Basket described in Section 7.4.

- ENVIRONMENTAL MATTERS AND ADJUSTMENTS. 7.1. Upon execution of and pursuant to the terms of this Agreement, Buyer shall have the right, at reasonable times during normal business hours, to conduct its investigation into the status of the physical and environmental condition of the Assets. If, in the course of conducting such investigation, but subject to Section 7.5, Buyer discovers that any Asset is subject to a material Environmental Defect, Buyer may raise such Environmental Defect in the manner set forth hereafter. For purposes hereof, the term “material” shall mean that the Buyer’s good faith estimate, supported by documentation, of the cost of remediating any single Environmental Defect, or the net reduction in value of the Asset affected by such Defect, whichever is lesser, defect exceeds twenty five thousand dollars ($25,000.00)50,000, the Parties parties agreeing that such amount will be a per Asset deductible threshold rather than a thresholddeductible. No later than 5:00 p.m. Central Time p.m., C.S.T., on May 22January 13, 2006 (the “Environmental Defect Notice Date”), Buyer shall notify Seller in writing specifying such Environmental Defects, if any, the Assets affected thereby, and Buyer's good faith estimate detailed calculation of the costs of remediating such defects, or the net reduction in value of the Assets affected by such defects, whichever is lesser, together with supporting documentation. Seller may, but shall be under no obligation to, correct at its own cost and expense such defects on or before (the Closing Date, in which case there shall be no reduction to the Purchase Price“Environmental Defect Value”). Prior to Closing, Buyer and Seller shall treat all information regarding any environmental conditions as confidential, whether material or not, and shall not make any contact with any governmental authority or third party regarding same (except to the extent necessary to obtain the records of such parties) without the written consent of the other party unless required by law. 7.2. If Buyer fails to notify Seller prior to or on the Environmental Defect Notice Date, of any Environmental Defects, all defects, whether known or unknown, defects will be deemed waived for purposes of adjustments pursuant to this Article 7waived, Seller shall be released from any liability therefor, the Parties shall proceed with Closing, Seller shall be under no obligation to correct the defects, and Buyer shall assume the risks, liability and obligations associated with such defects. Seller may, unless but shall be under no obligation to, correct at its own cost and expense such defects constitute Retained Environmental Obligations on or Liabilities of Sellerbefore the Closing Date. 7.3. In Subject to Section 7.4, in the event any that Buyer provides Seller with an Environmental Defect, for which notice has been timely given as provided hereinabove, remains uncured as of ClosingDefect Notice, Seller, at its sole option, shall, (i) agree to cure or remediate any Defect within a reasonable time after Closing and without any reduction to the Purchase Price in a manner acceptable to both PartiesClosing, or (ii) reduce the Purchase Price by the amount of the Environmental Defect Value Value, or (iii) provide Buyer with indemnification for any damages, claims or expenses arising from such Environmental Defect in the form attached as determined Exhibit G. 7.4. Notwithstanding anything contained in this Agreement to the contrary, Buyer shall not be entitled to any remedy relating to an alleged Environmental Defect unless and except to the extent that the aggregate cost associated with remedying all alleged Environmental Defects not cured or indemnified against by Seller exceeds Seven Million Five Hundred Thousand Dollars ($7,500,000) (the “Aggregate Environmental Deductible”) and Buyer shall be solely responsible for and bear all costs and expenses associated with any and all alleged Environmental Defects up to the Aggregate Environmental Deductible. No refund shall be owing with respect to any alleged Environmental Defect for which Seller, at its option, delivers to Buyer an indemnity for such alleged Environmental Defect pursuant to Section 8.47.3(iii). 7.5. Buyer acknowledges that prior to the execution of this Agreement it has had a satisfactory and sufficient opportunity to inspect, test and examine the Assets located in Mobile County, Alabama to the full extent of Buyer’s requirements and by execution of this Agreement Buyer accepts the Mobile County, Alabama Assets “as is, where is.” Buyer agrees that no condition of any Asset in Mobile County, Alabama shall be considered grounds for an Environmental Defect, and subject to application of the twenty five thousand dollars ($25,000.00) deductible and no such condition shall be applied against the Aggregate Defect Basket described Environmental Deductible in Section 7.47.4 or the option to terminate in Article IX.

- ENVIRONMENTAL MATTERS AND ADJUSTMENTS. 7.1. Upon execution of and pursuant to the terms of this Agreement, Buyer shall have the right, at reasonable times during normal business hours, to conduct its investigation into the status of the physical and environmental condition of the Assets. If, in the course of conducting such investigation, Buyer discovers that any Asset Scheduled Interest is subject to a material Environmental Defect, Buyer may raise such material Environmental Defect in the manner set forth hereafter. For purposes hereof, the term “material” shall mean that the Buyer’s good faith estimate, supported by documentation, of the cost of remediating any single Environmental Defect, or the net reduction in value of the Asset Scheduled Interest affected by such Environmental Defect, whichever is lesser, exceeds twenty five thousand a Ten Thousand And No/100 dollars ($25,000.0010,000.00) threshold amount, and the sum of all material Environmental Defects in excess of each threshold exceeds Fifty Thousand And No/100 dollars ($50,000.00) (the “Environmental Deductible”), the Parties agreeing that such amount will be a per Asset deductible rather than a threshold. No later than 5:00 p.m. Central Standard Time on May Friday, February 22, 2006 2008 (the “Environmental Defect Notice Date”), Buyer shall notify Seller in writing specifying such Environmental Defects, if any, the Assets Scheduled Interests affected thereby, and Buyer's ’s good faith estimate of the costs of remediating such defects, or the net reduction in value of the Assets Scheduled Interests affected by such defects, whichever is lesser, together with supporting documentation. Seller may, but shall be under no obligation to, correct at its own cost and expense such defects on or before the Closing Date, in which case there shall be no reduction to the Purchase Price. Prior to Closing, Buyer and Seller shall treat all information regarding any environmental conditions as confidential, whether material or not, and shall not make any contact with any governmental authority or third party regarding same without the written consent of the other party unless required by law. 7.2. If Buyer fails to notify Seller prior to or on the Environmental Defect Notice Date, Date of any Environmental Defects, all defects, whether known or unknown, will be deemed waived for purposes of adjustments pursuant to this Article 7, the Parties shall proceed with Closing, Seller shall be under no obligation to correct the defects, and Buyer shall assume the risks, liability and obligations associated with such defects, unless such defects constitute Retained Environmental Obligations or Liabilities of Seller. 7.3. In the event any Environmental Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Seller, at its sole option, shall, (i) agree to cure or remediate any Environmental Defect within a reasonable time after Closing not to exceed one hundred eighty (180) and without any reduction to the Purchase Price in a manner acceptable to both Parties, or (ii) reduce the Purchase Price by the amount of the Environmental Defect Value as determined pursuant to Section 8.4, and subject to application of the twenty five thousand dollars ($25,000.00) deductible Environmental Deductible described in Section 7.1 and the Aggregate Defect Basket described in Section 7.4. 7.4. The Parties agree that adjustments to the Purchase Price under this Article 7 and Article 8 shall only occur to the extent that the aggregate Defect Value for the Environmental Defects and Title Defects, collectively, exceed One Hundred Thirty Five Thousand and No/100 dollars ($135,000.00) (the “Aggregate Defect Basket”) after taking the applicable Environmental or Title Deductible into account. For the avoidance of doubt and by way of example only, if the sum of the material Environmental Defects less the aggregate threshold for each Environmental Defect is One Hundred Fifty Thousand dollars ($150,000.00) and the sum of all Title Defects less the aggregate threshold for each Title Defect is One Hundred Thousand dollars ($100,000.00), the total adjustment to the Purchase Price would be One Hundred Fifteen Thousand dollars ($115,000.00) [being One Hundred Fifty Thousand dollars ($150,000.00) for the Environmental Defects, plus One Hundred Thousand dollars ($100,000.00) for the Title Defects, minus One Hundred Thirty Five Thousand And No/100 dollars ($135,000.00) for the Aggregate Defect Basket]. 7.5. In the event any adjustment to the Purchase Price is made due to an Environmental Defect raised by Buyer, the Parties shall proceed with Closing, Seller shall be under no obligation to correct the Environmental Defect, and the Environmental Defect shall become an Assumed Obligation of Seller.

- ENVIRONMENTAL MATTERS AND ADJUSTMENTS. 7.1. Upon execution of and pursuant to the terms of this Agreement, Buyer shall have the right, at reasonable times during normal business hours, to conduct its investigation into the status of the physical and environmental condition of the Assets. If, in the course of conducting such investigation, Buyer discovers that any Asset is subject to a material Environmental Defect, Buyer may raise such Environmental Defect in the manner set forth hereafter. For purposes hereof, the term “material” shall mean that the Buyer’s good faith estimate, supported by documentation, of the cost of remediating any single Environmental Defect, or the net reduction in value of the Asset affected by such Defect, whichever is lesser, exceeds twenty five thousand dollars ($25,000.00), the Parties agreeing that such amount will be a per Asset deductible rather than a threshold. No later than 5:00 p.m. Central Time on May 22p.m., 2006 three (3) business days prior to Closing (the “"Environmental Defect Notice Date”"), Buyer shall notify Seller in writing specifying such Environmental Defects, if any, the Assets affected thereby, and Buyer's good faith estimate of the costs of remediating such defects, or the net reduction in value of the Assets affected by such defects, whichever is lesser, together with supporting documentation. Seller may, but shall be under no obligation to, correct at its own cost and expense such defects on or before (the Closing Date, in which case there shall be no reduction to the Purchase Price"Environmental Defect Value"). Prior to Closing, Buyer and Seller shall treat all information regarding any environmental conditions as confidential, whether material or not, and shall not make any contact with any governmental authority or third party regarding same without the written consent of the other party unless required by law. 7.2. If Buyer fails to notify Seller prior to or on the Environmental Defect Notice Date, of any Environmental Defects, all defects, whether known or unknown, Environmental Defects not timely noticed to Seller pursuant to Section 7.1 will be deemed waived for purposes of adjustments pursuant to this Article 7waived, Seller shall be released from any liability therefor, the Parties shall proceed with Closing, Seller shall be under no obligation to correct the defects, and Buyer shall assume the risks, liability and obligations associated with such defects. Seller may, unless but shall be under no obligation to, correct at its own cost and expense such defects constitute Retained Environmental Obligations on or Liabilities of Sellerbefore the Closing Date. 7.3. In the event any that Buyer provides Seller with an Environmental Defect, for which notice has been timely given as provided hereinabove, remains uncured as of ClosingDefect Notice, Seller, at its sole option, shall, (i) agree to cure or remediate any Environmental Defect within a reasonable time after Closing and without any reduction to the Purchase Price as provided in a manner acceptable to both PartiesSection 7.4; or, or (ii) reduce the Purchase Price by the amount of the Environmental Defect Value; provided, however, if an Environmental Defect poses a material risk of any claims by third parties for damages, injunctive relief or any other remedy other than the remediation contemplated in determining the Environmental Defect Value, or if the estimated Environmental Defect Value as determined pursuant exceeds 20% of the Allocated Value of the affected Asset, then Buyer shall have the right to Section 8.4delete the affected Asset from the Assets to be conveyed under this Agreement, and subject to application receive a reduction of the twenty five thousand dollars ($25,000.00) deductible and Purchase Price in the Aggregate amount of the Allocated Value of such Asset, in which event 100% of the Allocated Value of such Asset shall be included in the calculation of total defects for purposes of Article 9. Regardless of Seller's intention to cure or remediate an Environmental Defect Basket described after Closing, the value of all Environmental Defects not cured or remediated by Closing shall be included in Section 7.4the calculation of total defects for purposes of Article 9.

- ENVIRONMENTAL MATTERS AND ADJUSTMENTS. 7.1. Upon execution of and pursuant to the terms of this Agreement, Buyer shall have the right, at reasonable times during normal business hours, to conduct its investigation into the status of the physical and environmental condition of the Assets. If, in the course of conducting such investigation, Buyer discovers that any Asset is subject to a material Environmental Defect, Buyer may raise such Environmental Defect in the manner set forth hereafter. For purposes hereof, the term “"material” " shall mean that the Buyer’s 's good faith estimate, supported by documentation, of the cost of remediating any single Environmental Defect, or the net reduction in value of the Asset affected by such Defect, whichever is lesser, exceeds twenty five thousand dollars ($25,000.00), the Parties agreeing that such amount will be a per Asset deductible rather than a threshold. No later than 5:00 p.m. Central Time on May 22, 2006 (the “"Environmental Defect Notice Date”"), Buyer shall notify Seller in writing specifying such Environmental Defects, if any, the Assets affected thereby, and Buyer's good faith estimate of the costs of remediating such defects, or the net reduction in value of the Assets affected by such defects, whichever is lesser, together with supporting documentation. Seller may, but shall be under no obligation to, correct at its own cost and expense such defects on or before the Closing Date, in which case there shall be no reduction to the Purchase Price. Prior to Closing, Buyer and Seller shall treat all information regarding any environmental conditions as confidential, whether material or not, and shall not make any contact with any governmental authority or third party regarding same without the written consent of the other party unless required by law. 7.2. If Buyer fails to notify Seller prior to or on the Environmental Defect Notice Date, of any Environmental Defects, all defects, whether known or unknown, will be deemed waived for purposes of adjustments pursuant to this Article 7, the Parties shall proceed with Closing, Seller shall be under no obligation to correct the defects, and Buyer shall assume the risks, liability and obligations associated with such defects, unless such defects constitute Retained Environmental Obligations or Liabilities of Seller. 7.3. In the event any Environmental Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Seller, at its sole option, shall, (i) agree to cure or remediate any Defect within a reasonable time after Closing and without any reduction to the Purchase Price in a manner acceptable to both Parties, or (ii) reduce the Purchase Price by the amount of the Environmental Defect Value as determined pursuant to Section 8.4, and subject to application of the twenty five thousand dollars ($25,000.00) deductible and the Aggregate Defect Basket described in Section 7.4.

- ENVIRONMENTAL MATTERS AND ADJUSTMENTS. 7.1. Upon execution of and pursuant to the terms of this Agreement, Buyer shall have the right, at reasonable times during normal business hours, to conduct its Phase I investigation into the status of the physical and environmental condition of the Assets. If, in the course of conducting such investigation, Buyer Xxxxx discovers that any Asset is subject to a material Environmental Defect, Buyer may raise such Environmental Defect in the manner set forth hereafter. For purposes hereof, the term “material” shall mean that the Buyer’s good faith estimatecost, supported by documentationin the aggregate, of the cost remediating Environmental Defects of remediating any single Environmental Defect, or the net reduction in value of the Asset affected by such Defect, whichever is lesser, a similar nature that exceeds twenty five thousand dollars ($25,000.00)50,000.00, the Parties agreeing that such amount will is a deductible, and that Buyer shall only be entitled to claim a per Asset deductible rather than a thresholddefect for the amount in excess of $50,000.00 (and subject to Section 9.1). No later than 5:00 p.m. Central Time p.m., C.D.T., on May July 22, 2006 2011 (the “Environmental Defect Notice Date”), Buyer shall notify Seller in writing specifying such Environmental Defects, if any, the Assets affected thereby, and Buyer's good faith estimate detailed calculation of the costs of remediating such defects, or the net reduction in value of the Assets affected by such defectsdefects which shall take into account, whichever is lesseramong other factors, together with supporting documentationthe Lowest Cost Response, as determined by the environmental expert that performed the Phase I investigation of the relevant Asset on behalf of Buyer. Seller may, but The “Environmental Defect Value” shall be under no obligation to, correct at its own cost Buyer’s good faith calculation of the net reduction in value unless Seller objects to same and expense such defects on a different value is agreed upon or before the Closing Datedetermined pursuant to Section 7.2, in which case there case, such amount shall be no reduction to the Purchase PriceEnvironmental Defect Value. Prior to Closing, Buyer and Seller shall treat all information regarding any environmental conditions as confidential, whether material or not, and shall not make any contact with any governmental authority or third party regarding same without the written consent of the other party Party unless required by law. 7.2. If Buyer fails to notify Seller prior to or on the Environmental Defect Notice Date, of any Environmental Defects, all defects, whether known or unknown, will be deemed waived for purposes of adjustments pursuant to this Article 7, the Parties shall proceed with Closing, Seller shall be under no obligation to correct the defects, and Buyer shall assume the risks, liability and obligations associated with such defects, unless such defects constitute Retained Environmental Obligations or Liabilities of Seller. 7.3. In the event any Environmental Defect, for which notice has been timely given as provided hereinabove, remains uncured as of Closing, Seller, at its sole option, shall, (i) agree to cure or remediate any Defect within a reasonable time after Closing and without any reduction to the Purchase Price in a manner acceptable to both Parties, or (ii) reduce the Purchase Price by the amount of the Environmental Defect Value as determined pursuant to Section 8.4, and subject to application of the twenty five thousand dollars ($25,000.00) deductible and the Aggregate Defect Basket described in Section 7.4.