BY
PURCHASER, ENVIRONMENTAL ASSESSMENTS OF ANY OF THE PROPERTIES AND ALL STRUCTURES
THEREON FOR THE PURPOSE OF DETERMINING WHETHER THERE EXISTS ANY HAZARDOUS
SUBSTANCE ON, ABOUT OR UNDERNEATH THE PROPERTIES OR ANY STRUCTURE THEREON OR
THEREUNDER, OR MIGRATING OR THREATENING TO MIGRATE FROM ANY OF THE PROPERTIES OR
ANY STRUCTURE THEREON OR THEREUNDER, OR ANY CONDITION, CIRCUMSTANCE, OR ACTIVITY
WHICH CONSTITUTES A VIOLATION OF OR NONCOMPLIANCE WITH ANY ENVIRONMENTAL LAWS
("PHASE I
19
ENVIRONMENTAL SITE ASSESSMENT").
PRIOR TO CLOSING, IF PURCHASER'S PHASE I
ENVIRONMENTAL SITE ASSESSMENT CONCLUDES THAT FURTHER INVESTIGATION IS WARRANTED,
PURCHASER SHALL PROVIDE TO SELLER A COPY OF THE PROPOSAL FOR A PHASE II
INVESTIGATION, WHICH SELLER MAY APPROVE IN ITS SOLE DISCRETION.
PURCHASER SHALL
PROVIDE SELLER COPIES OF ANY PHASE I OR PHASE II ENVIRONMENTAL SITE ASSESSMENT
REPORTS TO SELLER, UPON SELLER'S REQUEST.
SELLER SHALL PROVIDE TO PURCHASER AND
PURCHASER'S CONSULTANTS ACCESS TO THE FACILITY DURING NORMAL BUSINESS HOURS AND
UPON REASONABLE NOTICE.
5.05
NOTICE OF BREACH.
PENDING CLOSING, EACH PARTY SHALL PROVIDE NOTICE
TO THE OTHER PARTY WITHIN TEN (10) DAYS OF BECOMING AWARE OF ANY MATERIAL BREACH
OF (X) ANY REPRESENTATIONS OR WARRANTIES OF SUCH NOTIFYING PARTY CONTAINED IN
THIS AGREEMENT OR (Y) ANY OF THE COVENANTS OF SUCH NOTIFYING PARTY CONTAINED IN
THIS AGREEMENT.
5.06
WORKFORCE.
PENDING CLOSING AND SUBJECT TO SELLER'S PRIOR WRITTEN
CONSENT, PURCHASER MAY INTERVIEW SELLER'S EMPLOYEES WHO ARE EMPLOYED AT THE
FACILITY TO DETERMINE WHETHER PURCHASER WISHES TO MAKE OFFERS OF EMPLOYMENT TO
ANY SUCH EMPLOYEE(S); PROVIDED, HOWEVER, THAT TO THE EXTENT ANY SUCH EMPLOYEE
ACCEPTS AN OFFER OF EMPLOYMENT FROM PURCHASER (OR ANY OF ITS AFFILIATES OR
AGENTS), PURCHASER AGREES NOT TO PERMIT, OR TO CAUSE ITS AFFILIATES OR AGENTS
NOT TO PERMIT, SUCH EMPLOYEES TO COMMENCE EMPLOYMENT WITH PURCHASER (OR ANY OF
ITS AFFILIATES OR AGENTS) PRIOR TO THE CLOSING DATE.
5.07
COOPERATION.
(A)
EACH PARTY AGREES THAT AFTER THE CLOSING DATE IT WILL USE ITS
COMMERCIALLY REASONABLE EFFORTS TO COOPERATE WITH AND MAKE AVAILABLE TO THE
OTHER PARTY, UPON REASONABLE NOTICE AND DURING NORMAL BUSINESS HOURS, BOOKS AND
RECORDS AND INFORMATION OF OR RELATING TO THE PURCHASED ASSETS AND OTHER MATTERS
RELEVANT TO THIS AGREEMENT WHICH ARE NECESSARY OR USEFUL IN CONNECTION WITH
PURCHASER'S OPERATION OR MAINTENANCE OF THE PURCHASED ASSETS, ANY PROCEEDING BY
A GOVERNMENTAL AUTHORITY, PREPARATION OF TAX RETURNS, OR ANY CLAIM BY OR AGAINST
A THIRD PARTY INVOLVING THE PURCHASED ASSETS (OTHER THAN IN CONNECTION WITH
DISPUTES BETWEEN THE PARTIES).
THE PARTY REQUESTING ANY SUCH BOOKS AND RECORDS,
INFORMATION, OR COOPERATION SHALL BEAR ALL OF THE OUT-OF-POCKET COSTS AND
EXPENSES OF THE OTHER PARTY REASONABLY INCURRED IN CONNECTION THEREWITH
(INCLUDING OUT-OF-POCKET EXPENSES TO THIRD PARTIES INCURRED BY ANY PARTY).
(B)
PURCHASER AND SELLER SHALL COOPERATE IN GOOD FAITH PENDING THE
CLOSING DATE TO INSURE THAT THERE IS NO INTERRUPTION IN PHONE OR ELECTRICAL
SERVICE TO THE FACILITY.
(C)
PURCHASER AND SELLER SHALL COOPERATE IN GOOD FAITH PENDING THE
CLOSING DATE TO PROVIDE TO PURCHASER THE BENEFITS REFERENCED IN THAT LETTER
DATED OCTOBER 10,