INDUSTRIAL, INFECTIOUS, TOXIC OR
HAZARDOUS SUBSTANCES OR WASTES INTO THE ENVIRONMENT (INCLUDING, WITHOUT
LIMITATION, AMBIENT AIR, SURFACE WATER, GROUNDWATER, LAND SURFACE OR SUBSURFACE
STRATA) OR OTHERWISE RELATING TO THE TREATMENT, STORAGE, DISPOSAL, TRANSPORT OR
HANDLING OF POLLUTANTS, CONTAMINANTS, OR INFECTIOUS, TOXIC, OR HAZARDOUS
SUBSTANCES OR WASTES.
33
(III)
"ENVIRONMENTAL LICENSES OR PERMITS" MEANS
ANY APPLICABLE LICENSES OR PERMITS ISSUED BY ANY GOVERNMENTAL AUTHORITY PURSUANT
TO ANY ENVIRONMENTAL LAWS OR OTHERWISE RELATING TO THE PROTECTION OF THE
ENVIRONMENT.
(IV)
"ENVIRONMENTAL LIABILITY" MEANS ANY LIABILITY
OR OBLIGATION (INCLUDING ANY FINE OR PENALTY) ARISING UNDER OR RELATED TO ANY
ENVIRONMENTAL LAW OR OTHERWISE TO THE EXTENT PERTAINING TO AN ENVIRONMENTAL
CONDITION TO THE EXTENT RELATING TO ANY ACT OR OMISSION OF THE SOLD COMPANIES OR
THE SUBSIDIARIES (OR ANY OTHER PERSON ASSOCIATED WITH OR ACTING ON BEHALF OF
SUCH PERSON) AT OR PRIOR TO THE CLOSING DATE, AND SHALL INCLUDE ANY LIABILITY
THEREFOR UNDER COMMON LAW OR STATUTORY THEORIES OF TRESPASS, NUISANCE, STRICT
LIABILITY AND NEGLIGENCE.
(V)
"HAZARDOUS SUBSTANCE" MEANS (I) ANY
SUBSTANCE OR MATERIAL REGULATED UNDER APPLICABLE ENVIRONMENTAL LAWS OR ANY OTHER
PRODUCT, SUBSTANCE, POLLUTANT, CHEMICAL, MATERIAL OR WASTE WHOSE PRESENCE,
NATURE, QUANTITY AND/OR INTENSITY OF EXISTENCE, USE, MANUFACTURE, DISPOSAL,
TRANSPORTATION, SPILL, RELEASE OR EFFECT, EITHER BY ITSELF OR IN COMBINATION
WITH OTHER MATERIALS ON THE PREMISES, IS EITHER POTENTIALLY INJURIOUS TO THE
PUBLIC HEALTH, SAFETY OR WELFARE, OR THE ENVIRONMENT, OR (II) WOULD REASONABLY
BE EXPECTED TO PROVIDE A BASIS FOR LIABILITY OF ANY OF THE SOLD COMPANIES OR THE
SUBSIDIARIES TO ANY GOVERNMENTAL AUTHORITY OR OTHER PERSON UNDER ANY APPLICABLE
ENVIRONMENTAL LAW.
HAZARDOUS SUBSTANCE SHALL INCLUDE, WITHOUT LIMITATION,
INFECTIOUS OR TOXIC SUBSTANCES, TOXIC HYDROCARBONS, PETROLEUM PRODUCTS,
GASOLINE, OIL, DIESEL FUEL OR POLYCHLORINATED BIPHENYLS OR ANY PRODUCTS,
BY-PRODUCTS OR FRACTIONS THEREOF, AND ASBESTOS.
(VI)
"RELEASE" SHALL HAVE THE MEANING PROVIDED
UNDER 42 U.S.C. §9601(22).
(VII)
"REMEDIAL ACTION" MEANS ANY RESPONSE ACTION,
REMOVAL ACTION, REMEDIAL ACTION, CORRECTIVE ACTION, MONITORING PROGRAM, SAMPLING
PROGRAM, INVESTIGATION OR OTHER CLEANUP ACTIVITY PERTAINING TO ANY HAZARDOUS
SUBSTANCE.
(D)
NOTWITHSTANDING THE GENERALITY OF ANY OTHER
REPRESENTATIONS AND WARRANTIES IN THIS AGREEMENT, THE REPRESENTATIONS AND
WARRANTIES IN THIS SECTION 3.17 SHALL BE DEEMED THE ONLY REPRESENTATIONS AND
WARRANTIES IN THIS AGREEMENT WITH RESPECT TO MATTERS RELATING TO ENVIRONMENTAL
LAWS OR TO HAZARDOUS SUBSTANCES.
3.18
Transactions with Affiliates.
Except as set
forth herein, including, without limitation, as set forth in Schedule 3.18 or as
expressly set forth in the Financial Statements, none of the Sold Companies or
the Subsidiaries has engaged in any transaction with the Seller or its
affiliates (other than the Sold Companies and the Subsidiaries) since June 30,
2003 other than transactions entered into in the ordinary course of business
consistent with past practice and which are on terms and conditions no less
favorable than those available in a bona fide arms-length transaction with a
non-affiliated person.
Schedule 3.18 sets forth all arrangements, obligations,
commitments, contracts and other understandings and agreements (oral and
written) between the Seller and any of its affiliates (other than the Sold