Limitations on Buyers. Following the Closing Date and until the Environmental Liability Presumption Change Date, Buyers expressly acknowledge and agree (A) that Buyers shall not voluntarily undertake any invasive sampling or testing activities at the Station Properties other than as permitted in the proviso below and (B) that in no event shall any Environmental Liability identified by such voluntary invasive sampling or testing activities specified in clause (A) during this period be presumed to be a Pre-Closing Environmental Liability; provided, however, that Buyers shall be permitted to conduct Phase II ESAs or other invasive sampling or testing activities (1) at the request of any potential purchaser of any Real Property or any financing source or landlord of Buyers; provided such request is normal or customary, (2) in connection with the repair, replacement or upgrade of any Fuel Equipment, (3) reasonably necessary in connection with any construction activities undertaken for a legitimate business purpose (it being understood that the purpose of such construction must be separate and distinct from any business purpose related to managing or minimizing Environmental Liabilities), (4) undertaken solely for any other legitimate business purpose acting in the manner consistent with Buyers’ past practices (it being understood that such business purpose must be separate and distinct from any business purpose related to managing or minimizing Environmental Liabilities), (5) as a result of any Order by a Governmental Entity that is not discovered as a result of the voluntary invasive sampling or testing activities set forth in clause (A) or as required by Law, or (6) as a result of any third party claim relating to any potential Environmental Liability that is not discovered as a result of the voluntary invasive sampling or testing activities set forth in clause (A) (Environmental Liability discovered from the activities identified in the foregoing proviso, “Ordinary Course Environmental Liability”).
