OF THIS AGREEMENT, THE TERM
"GOVERNMENTAL AUTHORITY" SHALL MEAN, AS TO ANY GIVEN ASSET, THE UNITED STATES
AND THE STATE, COUNTY, PARISH, CITY AND POLITICAL SUBDIVISIONS IN WHICH SUCH
ASSET IS LOCATED AND THAT EXERCISES JURISDICTION OVER SUCH ASSET, AND ANY
AGENCY, DEPARTMENT, BOARD OR OTHER INSTRUMENTALITY THEREOF THAT EXERCISES
JURISDICTION OVER SUCH ASSET.
(C)
ENVIRONMENTAL LAWS. FOR PURPOSES OF THIS AGREEMENT, THE TERM
"ENVIRONMENTAL LAWS" SHALL MEAN ALL LAWS, STATUTES, ORDINANCES, COURT DECISIONS,
RULES AND REGULATIONS OF ANY GOVERNMENTAL AUTHORITY PERTAINING TO HEALTH OR THE
ENVIRONMENT AS MAY BE INTERPRETED BY APPLICABLE COURT DECISIONS OR
ADMINISTRATIVE ORDERS, INCLUDING, WITHOUT LIMITATION, THE CLEAN AIR ACT, AS
AMENDED, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY
ACT, AS AMENDED ("CERCLA"), THE FEDERAL WATER POLLUTION CONTROL ACT, AS AMENDED,
THE OCCUPATIONAL SAFETY AND HEALTH ACT, AS AMENDED, THE RESOURCES CONSERVATION
AND RECOVERY ACT, AS AMENDED, THE SAFE DRINKING WATER ACT, AS AMENDED, THE TOXIC
SUBSTANCES CONTROL ACT, AS AMENDED, THE SUPERFUND AMENDMENT AND REAUTHORIZATION
ACT OF 1986, AS AMENDED, THE HAZARDOUS MATERIALS TRANSPORTATION ACT, AS AMENDED,
AND COMPARABLE STATE AND LOCAL LAWS.
(D)
ENVIRONMENTAL DEFECT VALUE. FOR PURPOSES OF THIS AGREEMENT, THE
TERM "ENVIRONMENTAL DEFECT VALUE" SHALL MEAN, WITH RESPECT TO ANY ENVIRONMENTAL
DEFECT, THE VALUE, AS OF THE CLOSING DATE, OF THE ESTIMATED COSTS AND EXPENSES
TO CORRECT SUCH ENVIRONMENTAL DEFECT IN THE MOST
11
COST-EFFECTIVE MANNER REASONABLY AVAILABLE, CONSISTENT WITH ENVIRONMENTAL LAWS.
SECTION 4.03
NOTICE OF ENVIRONMENTAL DEFECTS. IF BUYER DISCOVERS ANY
ENVIRONMENTAL DEFECT AFFECTING THE ASSETS, BUYER SHALL NOTIFY SELLERS PRIOR TO
THE EXPIRATION OF THE EXAMINATION PERIOD OF SUCH ALLEGED ENVIRONMENTAL DEFECT.
TO BE EFFECTIVE, SUCH NOTICE MUST: (I) BE IN WRITING; (II) BE RECEIVED BY
SELLERS PRIOR TO THE EXPIRATION OF THE EXAMINATION PERIOD; (III) DESCRIBE THE
ENVIRONMENTAL DEFECT IN SUFFICIENT, SPECIFIC DETAIL, INCLUDING, WITHOUT
LIMITATION, (A) THE WRITTEN CONCLUSION OF BUYER'S ENVIRONMENTAL CONSULTANTS THAT
AN ENVIRONMENTAL DEFECT EXISTS, WHICH CONCLUSION SHALL BE REASONABLY
SUBSTANTIATED BY THE FACTUAL DATA GATHERED IN BUYER'S ENVIRONMENTAL REVIEW, AND
(B) A SEPARATE SPECIFIC CITATION OF THE PROVISIONS OF ENVIRONMENTAL LAWS ALLEGED
TO BE VIOLATED AND THE RELATED FACTS THAT SUBSTANTIATE SUCH VIOLATION;
(IV) IDENTIFY THE SPECIFIC ASSETS AFFECTED BY SUCH ENVIRONMENTAL DEFECT,
INCLUDING, WITHOUT LIMITATION, A SITE PLAN SHOWING THE LOCATION OF ALL SAMPLING
EVENTS, BORING LOGS AND OTHER FIELD NOTES DESCRIBING THE SAMPLING METHODS
UTILIZED AND THE FIELD CONDITIONS OBSERVED, CHAIN-OF-CUSTODY DOCUMENTATION AND
LABORATORY REPORTS; (V) IDENTIFY THE PROCEDURES RECOMMENDED TO CORRECT THE
ENVIRONMENTAL DEFECT, TOGETHER WITH ANY RELATED RECOMMENDATIONS FROM BUYER'S
ENVIRONMENTAL CONSULTANT; AND (VI) STATE BUYER'S ESTIMATE OF THE ENVIRONMENTAL
DEFECT VALUE, INCLUDING THE BASIS FOR SUCH ESTIMATE, FOR WHICH BUYER WOULD AGREE
TO ADJUST THE PURCHASE PRICE IN ORDER TO ACCEPT SUCH ENVIRONMENTAL DEFECT IF
SELLERS ELECTED SECTION 4.04(B) AS THE REMEDY THEREFOR. ANY MATTERS THAT
MAY OTHERWISE CONSTITUTE ENVIRONMENTAL DEFECTS, BUT OF WHICH SELLERS HAS NOT
BEEN SPECIFICALLY NOTIFIED BY BUYER IN ACCORDANCE WITH THE FOREGOING, TOGETHER
WITH ANY ENVIRONMENTAL MATTER THAT DOES NOT CONSTITUTE AN ENVIRONMENTAL DEFECT,
SHALL BE DEEMED TO HAVE BEEN WAIVED BY