REASONABLE REQUEST, OF A
BONE FIDE PROSPECTIVE PURCHASER OF THE RELEVANT REAL PROPERTY FROM THE BUYER FOR
THE PURPOSE OF REASONABLY ESTABLISHING A LEGAL DEFENSE TO LIABILITY FOR SUCH A
RELEASE OF HAZARDOUS MATERIALS PURSUANT TO APPLICABLE ENVIRONMENTAL, HEALTH AND
SAFETY REQUIREMENTS (PROVIDED THAT, BUYER SHALL PROVIDE SELLER WITH A REASONABLE
OPPORTUNITY TO REVIEW AND COMMENT ON A DRAFT OF ANY SUCH PHASE I REPORT PRIOR TO
ITS FINALIZATION AND ON THE SCOPE AND WORKPLAN OF ANY SUCH PHASE II SAMPLING
PRIOR TO CONDUCTING SUCH SAMPLING) AND (Z) A RELEASE OF HAZARDOUS MATERIALS
DISCOVERED SOLELY AS A RESULT OF COMMERCIALLY REASONABLE CONSTRUCTION ACTIVITIES
BY BUYER AT ANY REAL PROPERTY IN CONNECTION WITH AN EXPANSION OF CURRENT TARGET
BUSINESS OPERATIONS (PROVIDED THAT, COMMERCIALLY REASONABLE CONSTRUCTION
ACTIVITIES SHALL IN NO CASE INCLUDE ANY ACTIVITIES CONDUCTED FOR THE PURPOSE OF
IDENTIFYING OR ASSESSING KNOWN, UNKNOWN OR SUSPECTED ENVIRONMENTAL CONDITIONS,
INCLUDING ANY RELEASE OF HAZARDOUS MATERIALS, EXCLUDING ACTIVITIES SOLELY
CONDUCTED FOR A COMMERCIALLY REASONABLE GEOTECHNICAL, ARCHITECTURAL AND/OR
ENGINEERING PURPOSE IN CONNECTION WITH CONSTRUCTION ACTIVITIES), (2) INCUR ANY
COSTS IN EXCESS OF THE COSTS TO COMPLY WITH INDUSTRIAL CLEANUP STANDARDS OR
OTHER APPLICABLE MINIMUM STANDARDS, INCLUDING THE USE OF ENVIRONMENTAL LAND USE
RESTRICTIONS, OR OTHERWISE IN EXCESS OF THE MINIMUM COSTS NECESSARY TO BRING A
CONDITION INTO COMPLIANCE WITH ENVIRONMENTAL, HEALTH AND SAFETY REQUIREMENTS OR
TO SATISFY THE REASONABLE REQUIREMENTS OF A GOVERNMENTAL AUTHORITY OR
(3) CONTRIBUTE TO OR
EXACERBATE ANY ENVIRONMENTAL CONDITION OR OTHER
PRE-CLOSING ENVIRONMENTAL LIABILITY AFTER THE CLOSING, (B) SUCH LIABILITY ARISES
OUT OF THE CESSATION OF OR CHANGE IN OPERATIONS AT, OR THE CLOSURE OR DEMOLITION
OF, A FACILITY OF THE TARGET BUSINESS, (C) SUCH LIABILITY RESULTS OR ARISES FROM
THE REMOVAL OF ASBESTOS-CONTAINING MATERIALS OR LEAD PAINT, EXCEPT TO THE EXTENT
SUCH ASBESTOS-CONTAINING MATERIALS OR LEAD PAINT WERE IN A CONDITION AT OR PRIOR
TO THE CLOSING NOT IN COMPLIANCE WITH ENVIRONMENTAL, HEALTH, AND SAFETY
REQUIREMENTS OR (D) SUCH LIABILITY ARISES OUT OF ANY POST-CLOSING EXPOSURE TO
ANY HAZARDOUS MATERIAL,
45
EXCEPT TO THE EXTENT PROVIDED UNDER SECTION 6(B)(III) WITH RESPECT TO ANY
ASBESTOS LIABILITY, SILICA LIABILITY OR WELDING ROD LIABILITY OR TO THE EXTENT
SUCH LIABILITY CONSTITUTES A PRE-CLOSING ENVIRONMENTAL LIABILITY.
(F)
MATTERS INVOLVING THIRD PARTIES.
(I)
IF ANY THIRD PARTY NOTIFIES AN
INDEMNIFIED PARTY WITH RESPECT TO A THIRD-PARTY CLAIM, THEN THE INDEMNIFIED
PARTY SHALL PROMPTLY NOTIFY EACH INDEMNIFYING PARTY THEREOF IN WRITING;
PROVIDED, HOWEVER, THAT NO DELAY ON THE PART OF THE INDEMNIFIED PARTY IN
NOTIFYING ANY INDEMNIFYING PARTY SHALL RELIEVE THE INDEMNIFYING PARTY FROM ANY
OBLIGATION HEREUNDER UNLESS (AND THEN SOLELY TO THE EXTENT) THE INDEMNIFYING
PARTY IS THEREBY PREJUDICED.
(II)
ANY INDEMNIFYING PARTY WILL HAVE THE RIGHT
TO DEFEND THE INDEMNIFIED PARTY AGAINST THE THIRD-PARTY CLAIM WITH COUNSEL OF
ITS CHOICE REASONABLY SATISFACTORY TO THE INDEMNIFIED PARTY SO LONG AS (A) THE
INDEMNIFYING PARTY NOTIFIES THE INDEMNIFIED PARTY IN WRITING WITHIN 15 DAYS
AFTER THE INDEMNIFIED PARTY HAS GIVEN NOTICE OF THE THIRD-PARTY CLAIM THAT THE
INDEMNIFYING PARTY WILL INDEMNIFY THE INDEMNIFIED PARTY FROM