REVIEW OF THE
ASSETS PRIOR TO THE EXPIRATION OF THE EXAMINATION PERIOD ("BUYER'S ENVIRONMENTAL
REVIEW"). THE COST AND EXPENSE OF BUYER'S ENVIRONMENTAL REVIEW, IF ANY, SHALL BE
BORNE SOLELY BY BUYER. BUYER SHALL (AND SHALL CAUSE BUYER'S ENVIRONMENTAL
CONSULTANT TO): (I) CONSULT WITH SELLERS BEFORE CONDUCTING ANY WORK COMPRISING
BUYER'S ENVIRONMENTAL REVIEW, (II) PERFORM ALL SUCH WORK IN A SAFE AND
WORKMANLIKE MANNER AND SO AS TO NOT UNREASONABLY INTERFERE WITH SELLERS'S
OPERATIONS, AND (III) COMPLY WITH ALL APPLICABLE LAWS, RULES, AND REGULATIONS.
BUYER SHALL BE SOLELY RESPONSIBLE FOR OBTAINING ANY THIRD PARTY CONSENTS THAT
ARE REQUIRED IN ORDER TO PERFORM ANY WORK COMPRISING BUYER'S ENVIRONMENTAL
REVIEW, AND BUYER SHALL CONSULT WITH SELLERS PRIOR TO REQUESTING EACH SUCH THIRD
PARTY CONSENT. SELLERS SHALL HAVE THE RIGHT TO HAVE A REPRESENTATIVE OR
REPRESENTATIVES ACCOMPANY BUYER AND BUYER'S ENVIRONMENTAL CONSULTANT AT ALL
TIMES DURING BUYER'S ENVIRONMENTAL REVIEW. WITH RESPECT TO ANY SAMPLES TAKEN IN
CONNECTION WITH BUYER'S ENVIRONMENTAL REVIEW, BUYER SHALL TAKE SPLIT SAMPLES,
PROVIDING ONE OF EACH SUCH SAMPLE, PROPERLY LABELED AND IDENTIFIED, TO SELLERS.
BUYER HEREBY AGREES TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS SELLERS FROM
AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, COSTS, EXPENSES, CAUSES OF ACTION AND
JUDGMENTS OF ANY KIND OR CHARACTER (INCLUDING THOSE RESULTING FROM SELLERS'
SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY) ARISING
OUT OF OR RELATING TO BUYER'S ENVIRONMENTAL REVIEW.
(B)
UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, BUYER SHALL (AND
SHALL CAUSE BUYER'S ENVIRONMENTAL CONSULTANT TO) TREAT CONFIDENTIALLY ANY
MATTERS REVEALED BY BUYER'S ENVIRONMENTAL REVIEW AND ANY REPORTS OR DATA
GENERATED FROM SUCH REVIEW (THE "ENVIRONMENTAL INFORMATION"), AND BUYER SHALL
NOT (AND SHALL CAUSE BUYER'S ENVIRONMENTAL CONSULTANT TO NOT) DISCLOSE ANY
ENVIRONMENTAL INFORMATION TO ANY GOVERNMENTAL AUTHORITY OR OTHER THIRD PARTY
WITHOUT THE PRIOR WRITTEN CONSENT OF SELLERS. UNLESS OTHERWISE REQUIRED BY LAW,
BUYER MAY USE THE ENVIRONMENTAL INFORMATION
10
ONLY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. IF
BUYER, BUYER'S ENVIRONMENTAL CONSULTANT, OR ANY THIRD PARTY TO WHOM BUYER HAS
PROVIDED ANY ENVIRONMENTAL INFORMATION BECOME LEGALLY COMPELLED TO DISCLOSE ANY
OF THE ENVIRONMENTAL INFORMATION, BUYER SHALL PROVIDE SELLERS WITH PROMPT NOTICE
SUFFICIENTLY PRIOR TO ANY SUCH DISCLOSURE SO AS TO ALLOW SELLERS TO FILE ANY
PROTECTIVE ORDER, OR SEEK ANY OTHER REMEDY, AS IT DEEMS APPROPRIATE UNDER THE
CIRCUMSTANCES. IF THIS AGREEMENT IS TERMINATED PRIOR TO THE CLOSING, BUYER SHALL
DELIVER THE ENVIRONMENTAL INFORMATION TO SELLERS, WHICH ENVIRONMENTAL
INFORMATION SHALL BECOME THE SOLE PROPERTY OF SELLERS. BUYER SHALL PROVIDE
COPIES OF THE ENVIRONMENTAL INFORMATION TO SELLERS WITHOUT CHARGE.
SECTION 4.02
ENVIRONMENTAL DEFINITIONS.
(A)
ENVIRONMENTAL DEFECTS. FOR PURPOSES OF THIS AGREEMENT, THE TERM
"ENVIRONMENTAL DEFECT" SHALL MEAN, WITH RESPECT TO ANY GIVEN ASSET, AN
INDIVIDUAL ENVIRONMENTAL CONDITION THAT CONSTITUTES A VIOLATION OF ENVIRONMENTAL
LAWS IN EFFECT AS OF THE DATE OF THIS AGREEMENT IN THE JURISDICTION IN WHICH
SUCH ASSET IS LOCATED. ENVIRONMENTAL DEFECT SHALL NOT BE DEEMED TO INCLUDE AN
ENVIRONMENTAL CONDITION DISCLOSED IN WRITING TO BUYER PRIOR TO THE EXECUTION OF
THIS AGREEMENT.
(B)
GOVERNMENTAL AUTHORITY. FOR PURPOSES