PROJECT; (Y) A HAZARDOUS CONDITION (AS DEFINED BELOW) EXISTING AT ANY PROJECT;
OR (Z) ANY VIOLATION OF ENVIRONMENTAL LAW EXISTING AT ANY PROJECT (IN EACH
INSTANCE, AN "ENVIRONMENTAL CONDITION"), THEN THE SELLER AND BUYER SHALL
THEREAFTER NEGOTIATE, PROMPTLY AND IN GOOD FAITH, DURING ANY PERIOD REMAINING UP
TO AND INCLUDING THE CLOSING DATE FOR A MUTUALLY SATISFACTORY RESOLUTION THAT
SHALL ADDRESS ALL ENVIRONMENTAL CONDITIONS.
BUYER ACKNOWLEDGES THAT, IF SELLER
AND BUYER REACH AGREEMENT UPON A RESOLUTION TO ADDRESS AN ENVIRONMENTAL
CONDITION AT ONE OR MORE PROJECTS, SUCH AGREEMENT MAY INVOLVE A DELAY OF THE
CLOSING ON THE APPLICABLE PROJECT SO AS TO ENABLE SELLER TO PERFORM, OR CAUSE TO
BE PERFORMED, ANY NECESSARY REMEDIATION.
IF, DESPITE THEIR RESPECTIVE
REASONABLE EFFORTS, SELLER AND BUYER FAIL TO AGREE UPON A RESOLUTION TO ADDRESS
ALL ENVIRONMENTAL CONDITIONS ON OR BEFORE THE INSPECTION DATE, THEN BUYER SHALL
HAVE THE RIGHT, ON OR BEFORE THE INSPECTION DATE, TO EITHER (A) PROCEED TO CLOSE
ITS ACQUISITION OF THE PROPERTY PURSUANT TO THE TERMS OF THIS AGREEMENT; OR
(B) ELECT TO EXCLUDE FROM THIS AGREEMENT THOSE PROJECTS WITH RESPECT TO WHICH
THERE ARE UNRESOLVED ENVIRONMENTAL CONDITIONS (THE "ENVIRONMENTAL DELETED
PROPERTY"), IN WHICH EVENT THE PURCHASE PRICE SHALL BE REDUCED BY THE ALLOCABLE
PORTION THEREOF, ATTRIBUTABLE TO THE ENVIRONMENTAL DELETED PROPERTY ON
EXHIBIT "V", AND BUYER SHALL OTHERWISE PROCEED TO CLOSE HEREUNDER WITH RESPECT
TO ALL OF THE PROPERTY EXCEPT THE ENVIRONMENTAL DELETED PROPERTY.
NOTWITHSTANDING THE FOREGOING DELETION RIGHT, HOWEVER, IN NO EVENT MAY THERE BE
MORE THAN *** PROJECTS THAT CONSTITUTE ENVIRONMENTAL DELETED PROPERTY.
EACH OF
SELLER AND BUYER SHALL PAY 50% OF THE ACTUAL, THIRD PARTY COSTS THAT BUYER
INCURS TO PERFORM THE PHASE II ASSESSMENTS AT ALL *** PROPERTIES IDENTIFIED ON
EXHIBIT "V."
SELLER SHALL REIMBURSE BUYER FOR SELLER'S 50% OF SUCH COSTS WITHIN
TEN (10) DAYS AFTER BUYER DELIVERS TO SELLER REASONABLE WRITTEN EVIDENCE OF THE
COSTS FOR WHICH BUYER IS SEEKING REIMBURSEMENT.
THE FOREGOING REIMBURSEMENT
OBLIGATION SHALL SURVIVE THE CLOSING.
For purposes of this Section 14, the following terms shall have the following
definitions:
(I)
"HAZARDOUS CONDITIONS" REFERS TO THE
EXISTENCE OR PRESENCE OF ANY HAZARDOUS MATERIALS ON, IN, UNDER, AT, NEAR OR
ABOUT THE PROPERTY OR ANY PORTION THEREOF (INCLUDING GROUNDWATER) IN VIOLATION
OF STATE OR FEDERAL ENVIRONMENTAL LAWS, REGULATIONS, OR STATUTES (COLLECTIVELY,
"ENVIRONMENTAL LAWS") AND THAT IS REQUIRED BY SUCH ENVIRONMENTAL LAWS TO BE
CLEANED UP OR REMEDIATED.
(II)
"HAZARDOUS MATERIAL" OR "HAZARDOUS
MATERIALS" SHALL MEAN:
ANY CHEMICAL, POLLUTANT, CONTAMINANT, PESTICIDE,
PETROLEUM OR PETROLEUM PRODUCT OR BY PRODUCT, RADIOACTIVE SUBSTANCE, SOLID WASTE
(HAZARDOUS OR EXTREMELY HAZARDOUS), SPECIAL,
29
DANGEROUS OR TOXIC WASTE, SUBSTANCE, CHEMICAL OR MATERIAL REGULATED, LISTED,
LIMITED OR PROHIBITED UNDER ANY ENVIRONMENTAL LAW, INCLUDING WITHOUT
LIMITATION:
(A) ASBESTOS, ASBESTOS-CONTAINING MATERIAL, PRESUMED
ASBESTOS-CONTAINING MATERIAL, POLYCHLORINATED BIPHENYLS ("PCBS"), SOLVENTS AND
WASTE OIL; (B) ANY "HAZARDOUS SUBSTANCE" AS DEFINED UNDER CERCLA; AND (C) ANY
"HAZARDOUS WASTE" AS DEFINED UNDER RCRA.
(III)
"RELEASE" MEANS ANY DISCHARGE, EMISSION,
ESCAPE, INJECTION, LEAK, MIGRATION, SPILL, DUMPING OR OTHER RELEASE OF ANY
HAZARDOUS MATERIAL INTO THE