Remedies for Environmental Defects (a) If any Environmental Defect described in a notice delivered in accordance with Section 4.03 is not cured on or before the Closing, and Seller has not elected to exclude the affected Assets from this sale or Buyer and Seller have not agreed for Seller to indemnify Buyer for the Environmental Defect, then the Purchase Price shall be reduced by the Environmental Defect Value of such Environmental Defect as agreed by the Parties.
(b) If Buyer and Seller have not agreed as to the validity of any asserted Environmental Defect, or if the Parties have not agreed on the Environmental Defect Value therefor, and if Seller shall not have elected to exclude the affected Assets from this sale pursuant to Section 4.03(b)(ii), then either Party shall have the right to elect to have the validity of the asserted Environmental Defect, and/or the Environmental Defect Value for such Environmental Defect, determined by an Independent Expert pursuant to Section 16.03. If the validity of any such asserted Environmental Defect or the amount of any such Environmental Defect Value is not determined by the Closing, the Asset affected by such disputed Environmental Defect shall be excluded from the Closing and the Purchase Price paid at the Closing shall be reduced by the Allocated Value of that Asset. Upon resolution of such dispute, the Allocated Value of that Asset less the Environmental Defect Value, if any, found to be attributable to such Environmental Defect shall, subject to this Section 4.04, be paid by Buyer to Seller and the Asset conveyed to Buyer, if that is part of the mutually agreed settlement. Notwithstanding the foregoing, either Buyer or Seller shall have the right to exclude an Asset from the sale if the Environmental Defect Value exceeds the Allocated Value of the Asset(s) affected thereby.
(c) Notwithstanding anything to the contrary in this Agreement, (i) if the Environmental Defect Value for a given individual Environmental Defect does not exceed $50,000, then no adjustment to the Purchase Price shall be made for such Environmental Defect; (ii) if the aggregate adjustment to the Purchase Price determined in accordance with this Agreement for Title Defects and Environmental Defects does not exceed three percent (3%) of the Purchase Price prior to any adjustments thereto, then no adjustment of the Purchase Price shall be made therefore and (iii) if the aggregate adjustment to the Purchase Price determined in accordance with this Agreement for Title Defects and Environmental Defects does exceed three percent (3%) of the Purchase Price prior to any adjustments thereto, then the Purchase Price shall only be adjusted by the amount of such excess.
Environmental Defects If Buyer determines that with respect to the Asset there exists an Environmental Condition (other than with respect to asbestos, asbestos containing materials, or NORM, and excluding any matter set forth on Schedule 6.10) (in each case, an “Environmental Defect”), then on or prior to the Defect Claim Date, Buyer may give Seller a written notice of such Environmental Defect that sets forth the information required by this Section 3.17 (an “Environmental Defect Notice”). For all purposes of this Agreement and notwithstanding anything herein to the contrary, Buyer shall be deemed to have waived any Environmental Defect that Buyer fails to timely and properly assert as an Environmental Defect by an Environmental Defect Notice received by Seller on or before the Defect Claim Date. To be effective, an Environmental Defect Notice must set forth (a) a clear description of the matter constituting the alleged Environmental Defect, (b) a description of each Asset (or portion thereof) affected by the alleged Environmental Defect, (c) the estimated proportionate share attributable to the Assets of the estimated Lowest Cost Response to eliminate the alleged Environmental Defect (the “Environmental Defect Amount”), and (d) supporting documents and reasonably necessary for Seller to verify the existence of the alleged Environmental Defect and the Environmental Defect Amount. Buyer shall furnish Seller, on or before the end of each calendar week prior to the Defect Claim Date, Environmental Defect Notices with respect to any Environmental Defects that any of Buyer’s or any of its Affiliate’s employees, representatives, attorneys, or other environmental personnel or contractors discover or become aware of during the preceding calendar week, which notice may be preliminary in nature and supplemented prior to the Defect Claim Date; provided that notwithstanding this sentence, any Environmental Defect Notice shall be deemed timely if received by Seller prior to the Defect Claim Date.
Responsibility for Environmental Contamination 5.20.1 Neither Party shall be liable to the other for any costs whatsoever resulting from the presence or release of any Environmental Hazard that either Party did not introduce to the affected Work Location. Both Parties shall defend and hold harmless the other, its officers, directors and employees from and against any losses, damages, claims, demands, suits, liabilities, fines, penalties and expenses (including reasonable attorneys' fees) that arise out of or result from (i) any Environmental Hazard that the Indemnifying Party, its contractors or agents introduce to the Work Locations or (ii) the presence or release of any Environmental Hazard for which the Indemnifying Party is responsible under Applicable Law.
5.20.2 In the event any suspect materials within Qwest-owned, operated or leased facilities are identified to be asbestos containing, CLEC will ensure that to the extent any activities which it undertakes in the facility disturb such suspect materials, such CLEC activities will be in accordance with applicable local, state and federal environmental and health and safety statutes and regulations. Except for abatement activities undertaken by CLEC or equipment placement activities that result in the generation of asbestos-containing material, CLEC does not have any responsibility for managing, nor is it the owner of, nor does it have any liability for, or in connection with, any asbestos-containing material. Qwest agrees to immediately notify CLEC if Qwest undertakes any asbestos control or asbestos abatement activities that potentially could affect CLEC personnel, equipment or operations, including, but not limited to, contamination of equipment.
Environmental Condition Except as set forth on Schedule 5.12 to the Information Certificate, (a) to each Loan Party’s knowledge, no properties or assets of any Loan Party or any of its Subsidiaries have ever been used by a Loan Party, its Subsidiaries, or by previous owners or operators in the disposal of, or to produce, store, handle, treat, release, or transport, any Hazardous Materials, where such disposal, production, storage, handling, treatment, release or transport was in violation, in any material respect, of any applicable Environmental Law, (b) to each Loan Party’s knowledge, after due inquiry, no Loan Party’s nor any of its Subsidiaries’ properties or assets have ever been designated or identified in any manner pursuant to any environmental protection statute as a Hazardous Materials disposal site, (c) no Loan Party nor any of its Subsidiaries has received notice that a Lien arising under any Environmental Law has attached to any revenues or to any Real Property owned or operated by a Loan Party or its Subsidiaries, and (d) no Loan Party nor any of its Subsidiaries nor any of their respective facilities or operations is subject to any outstanding written order, consent decree, or settlement agreement with any Person relating to any Environmental Law or Environmental Liability that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.
Environmental Conditions A Phase I environmental site assessment (or update of a previous Phase I and or Phase II environmental site assessment) and, with respect to certain Mortgage Loans, a Phase II environmental site assessment (collectively, an “ESA”) meeting ASTM requirements conducted by a reputable environmental consultant in connection with such Mortgage Loan within 12 months prior to its origination date (or an update of a previous ESA was prepared), and such ESA (i) did not identify the existence of recognized environmental conditions (as such term is defined in ASTM E1527-13 or its successor, hereinafter “Environmental Condition”) at the related Mortgaged Property or the need for further investigation, or (ii) if the existence of an Environmental Condition or need for further investigation was indicated in any such ESA, then at least one of the following statements is true: (A) an amount reasonably estimated by a reputable environmental consultant to be sufficient to cover the estimated cost to cure any material noncompliance with applicable Environmental Laws or the Environmental Condition has been escrowed by the related Mortgagor and is held or controlled by the related Mortgagee; (B) if the only Environmental Condition relates to the presence of asbestos-containing materials, radon in indoor air, lead based paint or lead in drinking water, the only recommended action in the ESA is the institution of such a plan, an operations or maintenance plan has been required to be instituted by the related Mortgagor that can reasonably be expected to mitigate the identified risk; (C) the Environmental Condition identified in the related environmental report was remediated or abated in all material respects prior to the date hereof, and, if and as appropriate, a no further action or closure letter was obtained from the applicable governmental regulatory authority (or the environmental issue affecting the related Mortgaged Property was otherwise listed by such governmental authority as “closed” or a reputable environmental consultant has concluded that no further action is required); (D) an environmental policy or a lender’s pollution legal liability insurance policy that covers liability for the identified circumstance or condition was obtained from an insurer rated no less than “A-” (or the equivalent) by Xxxxx’x Investors Service, Inc., S&P Global Ratings, acting through Standard & Poor’s Financial Services LLC, Fitch Ratings, Inc. and/or A.M. Best Company; (E) a party not related to the Mortgagor was identified as the responsible party for such condition or circumstance and such responsible party has financial resources reasonably estimated to be adequate to address the situation; or (F) a party related to the Mortgagor having financial resources reasonably estimated to be adequate to address the situation is required to take action. To the Mortgage Loan Seller’s knowledge, except as set forth in the ESA, there is no Environmental Condition (as such term is defined in ASTM E1527-13 or its successor) at the related Mortgaged Property.
Title Defects 9.1 Purchaser shall have until April 21, 1999 in which to examine the Commitment and the Surveys. If Purchaser finds title to be defective, Purchaser shall, no later than 5:00 p.m. Eastern time on April 21, 1999, notify Seller in writing, specifying the title defect(s). If Purchaser fails to give Seller written notice of any title defect(s) before 5:00 p.m. Eastern time on April 21, 1999, the defects shown in the Commitment or the Surveys shall be deemed to be waived as title objections to closing this transaction.
9.2 If Purchaser has given Seller timely written notice of defect(s) and the defect(s) render the title other than as represented in this Agreement or if any new defects appear from the date of the Commitment through the Closing Date, Seller shall use commercially reasonable efforts to cause only those defects recorded after October 7, 1997 to be cured by the Closing Date. Seller agrees to remove, by payment, bonding or otherwise, any such lien (other than environmental liens) against the Property capable of removal by the payment of money or bonding. Seller shall not be obligated to (but may, in its sole and absolute discretion) cure any other defect or to buyout or settle any other claim or lien against the Property. At Seller's option, the Closing Date may be extended for a period not to exceed sixty (60) days for purposes of eliminating such title defects. If such additional time is reasonably required by Seller to cure such title defects, Seller's failure to extend the Closing Date shall be commercially unreasonable.
9.3 If Seller does not eliminate such defects as of the Closing Date, as the same may be extended under the preceding sentence, or if any new "title defects" appear between the date of the Commitment through the Closing Date which Seller does not eliminate as of the Closing Date, Purchaser shall have the option to:
9.3.1 Close and accept the title "as is," without reduction in the Purchase Price and without claim against Seller for such title defects (except for any lien that Seller is required to cure pursuant to Section 9.2 that can be removed by the payment of money or bonding, for which credit shall be given Purchaser at the Closing unless Seller pays the same at the Closing) (and in such event, the Closing shall take place on the Closing Date); or
9.3.2 Cancel this Agreement, whereupon Escrow Agent, subject to the provisions of Section 11.3, shall return the Deposit, together with all interest earned thereon, to Purchaser, and both parties shall be released from all further obligations under this Agreement, except for those which expressly survive such termination, unless such title defects were caused by Seller's willful act or willful omission, in which event Seller shall remain liable to Purchaser for damages caused by such title defects.
Environmental Warranties Except as previously disclosed in the SEC Disclosure Documents, as of the Closing Date:
(a) all facilities and Property (including underlying groundwater) owned, operated or leased by the Borrower are in material compliance with all Environmental Laws, except for such instances of noncompliance as are unlikely, singly or in the aggregate, to have a Material Adverse Effect;
(b) there have been no past, and there are no pending or threatened:
(i) claims, complaints, notices or requests for information received by the Borrower with respect to any alleged violation of any Environmental Law or,
(ii) complaints, notices or inquiries to the Borrower regarding potential liability under any Environmental Law; except as are unlikely, singly or in the aggregate, to have a Material Adverse Effect;
(c) there have been no Releases of Hazardous Materials at, on or under any Property now or previously owned, operated or leased by the Borrower that, singly or in the aggregate, are reasonably likely to have a Material Adverse Effect;
(d) the Borrower has been issued and is in material compliance with all permits, certificates, approvals, licenses and other authorizations relating to environmental matters and necessary for its businesses, except where the failure to maintain or comply with any of the foregoing is not reasonably likely to have a Material Adverse Effect during the term of this Agreement;
(e) there are no underground storage tanks, active or abandoned, including petroleum storage tanks, on or under any Property now or previously owned, operated or leased by the Borrower, singly or in aggregate, that are reasonably likely to have a Material Adverse Effect;
(f) the Borrower has not directly transported or directly arranged for the transportation of any Hazardous Material to any location which is listed or proposed for listing on the National Priorities List pursuant to CERCLA, on the CERCLIS or on any similar state list or which is the subject of Federal, state or local enforcement actions or other investigations which may lead to material claims against the Borrower for any remedial work, damage to natural resources or personal injury, including claims under CERCLA that, singly or in the aggregate, are reasonably likely to have a Material Adverse Effect during the term of this Agreement;
(g) there are no polychlorinated biphenyls or friable asbestos present at any Property now or previously owned, operated or leased by the Borrower that, singly or in the aggregate, are reasonably likely to have a Material Adverse Effect during the term of this Agreement; and
(h) no conditions exist at, on or under any Property now or previously owned or leased by the Borrower which, with the passage of time, or the giving of notice or both, would give rise to liability under any Environmental Law, which would have a Material Adverse Effect during the term of this Agreement.
Environmental Remediation Failure to remediate (or pursue the remediation process with due diligence and good faith) within the time period required by law or governmental order, (or within a reasonable time in light of the nature of the problem if no specific time period is so established), environmental problems in violation of Applicable Law related to Properties of the Borrower and/or its Subsidiaries where the estimated cost of remediation is in the aggregate in excess of Seventy-Five Million Dollars ($75,000,000), in each case after all administrative hearings and appeals have been concluded.
Liability for defects 5.1 The Customer is required to inspect the delivered Products without undue delay after delivery and to report any defects.
5.2 The delivered Products are deemed to have been approved if XXXX, with regard to obvious defects, obvious shortages or other defects which were or would have been identifiable in the course of an immediate, careful inspection, has not received notifi- cation of the defect within 7 days of delivery of the product, or otherwise – in the case of unclear or hidden defects – within 7 days of the discovery of the defect or the time at which the defect was identifiable to the Customer in the course of normal use of the Product without closer inspection.
5.3 In the event of a justified complaint, the Customer will be entitled to two attempts to rectify defects or make a replacement delivery at XXXX'x discretion free of charge within a reasonable period of time. Shortages will be delivered subsequently. If two attempts to rectify defects or make a replacement delivery within a reasonable period of time are unsuccessful, the Customer will be entitled to the statutory rights, subject to the provisions of clause 7. Subsequent performance will include neither removal of the defective item nor reassembly if XXXX was not originally required to carry out assembly. The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: removal and assembly costs), insofar as these are not increased because the subject matter of the contract is located at a place other than our Customer's place of performance, will be borne by XXXX if there is actually a defect. Otherwise, XXXX may demand compensation from the Customer for the costs incurred by the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not identifiable for the Customer. XXXX can refuse to rectify defects or make a replacement delivery if the Customer does not fulfil its payment obligations towards XXXX to an extent that corresponds to the defect-free part of the service provided.
5.4 No warranty will be assumed, in particular, in the following cases: Unsuitable or in- correct use by the Customer or by third parties instructed by the Customer, in particular through the use of insufficiently qualified personnel, faulty assembly or commission- ing, natural wear and tear (wearing parts), faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable construction land, chemical, electrochemical or electrical influences, provided XXXX is not responsible for these circumstances.
5.5 XXXX is also not required to provide a warranty insofar as defects of Products are based on defective materials supplied by the Customer or insofar as defects of Products are based on the fact that the Customer has prescribed the execution of the order ac- cording to construction plans of third parties.
5.6 A delivery of used Products agreed with the Customer in the individual case is made to the exclusion of any warranty, unless XXXX has caused the defect intentionally or through gross negligence or has fraudulently concealed the defect.
5.7 The warranty period will be one year from delivery or, where acceptance was stipu- lated, from acceptance. Replaced parts will become our property and must be sent to us at our request. If shipping, assembly or commissioning is delayed through no fault of our own, our liability will expire no later than twelve months after the transfer of risk.
5.8 The right of recovery in accordance with sections 445a, 445b German Civil Code (BGB) is excluded, unless XXXX has caused the defect intentionally or by gross neg- ligence or has fraudulently concealed the defect.
Remedies for Title Defects (a) With respect to each Title Defect that Seller does not cure on or before the Closing, except as otherwise provided in this Section 3.05, the Purchase Price shall be reduced by an amount equal to the Title Defect Value agreed upon in writing by Buyer and Seller or, if Buyer agrees, Seller shall indemnify Buyer pursuant to Section 14.04 against all costs which Buyer may incur in connection with such Title Defect. If any Title Defect is in the nature of an unobtained consent to assignment or other restriction on assignability, the provisions of Section 3.08 shall apply.
(b) Except for those affected Assets which Seller elects to exclude from this transaction pursuant to Section 3.04(b)(ii), if on or before Closing the Parties have not agreed upon the validity of any asserted Title Defect or have not agreed on the Title Defect Value attributable thereto, either Party shall have the right to elect to have the validity of such Title Defect and/or such Title Defect Value determined by an Independent Expert pursuant to Section 16.03; provided that if the validity of any asserted Title Defect, or the Title Defect Value attributable thereto, is not determined before Closing, the affected Asset shall be excluded from the sale and the Purchase Price shall be reduced by the Allocated Value of such affected Asset as set forth on Exhibit C. Upon resolution of such dispute, the Allocated Value of that Asset less the Title Defect Value, if any, found to be attributable to such Title Defect shall, subject to this Section 3.05, be paid by Buyer to Seller and the Asset conveyed to Buyer, if that is part of the mutually agreed settlement.
(c) Notwithstanding anything to the contrary in this Agreement, (i) if the value of a given individual Title Defect (or individual Title Benefit (as defined in Section 3.09(a)) does not exceed $50,000 then no adjustment to the Purchase Price shall be made for such Title Defect (or Title Benefit), (ii) if the aggregate adjustment to the Purchase Price determined in accordance with this Agreement for Title Defects and Environmental Defects (as hereinafter defined) does not exceed three percent (3%) of the Purchase Price prior to any adjustments thereto, then no adjustment of the Purchase Price shall be made therefor and (iii) if the aggregate adjustment to the Purchase Price determined in accordance with this Agreement for Title Defects and Environmental Defects does exceed three percent (3%) of the Purchase Price prior to any adjustments thereto, then the Purchase Price shall only be adjusted by the amount of such excess.
