Common use of Environmental Responsibility Clause in Contracts

Environmental Responsibility. (A) Seller shall conduct all negotiations with the Authorities with respect to the remediation of the Properties, for which Seller is responsible under Section 7.3(D); provided, however, that Purchaser may attend, but not actively participate in, any such negotiations. The Parties acknowledge that Seller shall have the lead responsibility for setting policy, establishing direction and conducting negotiations with the Authorities relating to the remediation of Covered Contamination, and Purchaser shall neither contact nor negotiate with the Authorities independently of Seller in connection with the remediation of Covered Contamination. Seller shall provide Purchaser with copies of all correspondence or other documents it receives from the Authorities, and shall furnish Purchaser copies of all correspondence and other documents it supplies to the Authorities, relating to any remedial action plan submitted by Seller with regard to the Properties. Purchaser shall provide Seller with copies of all correspondence and documents it receives from or provides to the Authorities during the period of Seller's remediation activities on any Property. (B) As to each Property transferred or conveyed to Purchaser, Seller shall undertake after the Closing Date, at its expense, all reporting and notification required by law and all remediation or further investigation of Covered Contamination on, under or originating from such Property, in compliance with the requirements of the Authorities and all applicable environmental laws and regulations and until Closure is obtained pursuant to this Section 7.4(B). Seller shall be entitled to the benefit of any government reimbursement funds that may be available with respect to such remediation of Covered Contamination. Seller shall coordinate administrative efforts to recover such reimbursement. Seller shall remediate the Covered Contamination on or migrating (or migrated) from any Property in accordance with all applicable laws and regulations, until: (1) Receipt of written notice from the Authorities that either no further remediation of the Covered Contamination identified in the Baseline Report is required, or that the approved remediation plan of the Covered Contamination identified in the Baseline Report has been completed; or (2) Seller has requested closure notice from the Authorities, has not received any response of any kind to its request for a closure notice for twelve (12) months and Seller has determined that the soil and groundwater has been remediated to satisfactory levels based on four (4) successive quarterly monitoring tests by a recognized environmental remediation contractor that show the level of petroleum hydrocarbons on the Property as being below or equal to the limit required by the Authorities and Seller so notifies Purchaser in writing. The satisfaction of either of the conditions set forth in clauses (1) or (2) above shall be referred to as "Closure" herein. (C) Any environmental contamination which (i) is not disclosed in the Baseline Report for a Property, if applicable, (ii) is discovered after the Closing Date on any Property or (iii) is caused after the Closing Date by Purchaser, Purchaser's tenants, franchisees, or contractors, or is caused by third parties, in an area of the Property identified in the Baseline Report as containing Covered Contamination and before Seller's remediation of such Covered Contamination has been completed, is herein referred to as "New Contamination." Purchaser shall bear the burden of proof to establish that such environmental contamination is Covered Contamination. Similarly, if any environmental contamination not disclosed in the Baseline Report for a Property is discovered after the date Seller completes the remediation contemplated by Sections 7.3 and 7.4 ("Remediation Completion Date"), Purchaser shall bear the burden of proof to establish that such environmental contamination is Covered Contamination. If any environmental contamination is discovered after the Closing Date and Purchaser meets its burden of proving that it is not New Contamination but Covered Contamination, Seller shall remediate such Covered Contamination, in compliance with applicable remediation standards in effect at such time. (D) If environmental contamination is discovered on any Property after the Closing Date, but prior to the Remediation Completion Date, Purchaser shall promptly notify Seller and act promptly to minimize the effects of such environmental contamination. If, pursuant to Section 7.4(C), Purchaser does not establish that such environmental contamination is Covered Contamination, and if Seller reasonably determines that such New Contamination will make Seller's remediation at the applicable Property significantly more difficult, more expensive, or will extend significantly the time required to complete such remediation work, Purchaser shall hire at Purchaser's sole expense a consultant mutually acceptable to Purchaser and Seller to assess the effect of such New Contamination on the environmental condition of the Property. This assessment shall include a review of the remediation work that had been done to date and the remaining cost to complete the remediation absent the New Contamination. In addition, the consultant will estimate the cost of the additional work that will be required due to the New Contamination. Purchaser will begin paying that fractional cost percentage of all further remediation work performed by Seller at the Property, determined by the following formula: (1) Purchaser's fractional cost = I - (Estimated cost to complete remediation prior to New Contamination divided by estimated cost to complete remediation after the New Contamination).

Environmental Responsibility. (Aa) Seller shall conduct Buyer specifically acknowledges and agrees that it is solely responsible at its sole cost and expense for, and assumes all negotiations with the Authorities with respect to the remediation of the Properties, for which Seller is responsible under Section 7.3(D); provided, however, that Purchaser may attend, but not actively participate inEnvironmental Liabilities and all risk associated with, any such negotiations. The Parties acknowledge that Seller shall have the lead responsibility for setting policyand all Contamination at, establishing direction and conducting negotiations with the Authorities relating to the remediation of Covered Contaminationon, and Purchaser shall neither contact nor negotiate with the Authorities independently of Seller in connection with the remediation of Covered Contamination. Seller shall provide Purchaser with copies of all correspondence under, or other documents it receives migrating or originating from the AuthoritiesProperties and the Purchased Assets, whether known or unknown. If Buyer transfers or assigns in part or all of its interests in the Properties and shall furnish Purchaser copies the Purchased Assets, Buyer agrees that such transfer or assignment will not release Buyer from its assumption of all correspondence and other documents it supplies to the Authorities, relating to any remedial action plan submitted by Seller with regard to the Properties. Purchaser shall provide Seller with copies of all correspondence and documents it receives from or provides to the Authorities during the period of Seller's remediation activities on any Propertysuch Environmental Liabilities. (Bb) As In addition to each Property transferred Buyer’s obligations under Section 5.1, no later than thirty (30) days after Closing (or conveyed to Purchasersooner if required by Governmental Entities), Buyer shall submit or enter into any other documentation required by Governmental Entities, and Seller shall undertake cooperate, to transfer from Seller to Buyer, agreements or obligations regarding the Purchased Assets, including but not limited to, compliance with any outstanding orders of any Governmental Entity or ongoing groundwater monitoring and/or soil or groundwater remediation required under the Environmental Laws (the “Existing Obligations”). Buyer shall provide copies of any documentation associated with such efforts to Seller and take all necessary actions to substitute itself as the responsible party for any actions or activities relating to Contamination at, on, under, or originating or migrating from the Properties and the Purchased Assets. This shall include, without limitation, the execution or assumption of all agreements or orders containing terms and conditions required by the Governmental Entity for Buyer to fulfill its obligations under this Agreement. (c) Buyer further agrees to undertake, at its sole expense, from and after the Closing Date, at its expense, all other reporting and notification required under the Environmental Laws for Contamination and shall undertake, in good faith and with due diligence, all Remediation Activities of Contamination that are required by law the relevant Governmental Entities and all remediation or further investigation of Covered Contamination on, under or originating from such Property, in compliance with the requirements of the Authorities and all applicable environmental laws and regulations and until Closure is obtained pursuant to this Section 7.4(B). Seller shall be entitled Environmental Laws, including but not limited to the benefit of any government reimbursement funds that may be available with respect to such remediation of Covered Contamination. Seller shall coordinate administrative efforts to recover such reimbursement. Seller shall remediate the Covered Contamination on or migrating (or migrated) from any Property in accordance with all applicable laws and regulations, until: (1) Receipt of written notice from the Authorities that either no further remediation of the Covered Contamination identified in the Baseline Report is required, or that the approved remediation plan of the Covered Contamination identified in the Baseline Report has been completed; or (2) Seller has requested closure notice from the Authorities, has not received any response of any kind to its request for a closure notice for twelve (12) months and Seller has determined that the soil and groundwater has been remediated to satisfactory levels based on four (4) successive quarterly monitoring tests by a recognized environmental remediation contractor that show the level of petroleum hydrocarbons on the Property as being below or equal to the limit required by the Authorities and Seller so notifies Purchaser in writing. The satisfaction of either of the conditions set forth in clauses (1) or (2) above shall be referred to as "Closure" hereinExisting Obligations. (Cd) Any environmental contamination which Prior to Closing, Buyer shall obtain Storage Tank Liability Insurance Policies and Premises Pollution Liability III Insurance Policies with coverage limits of at least $25,000,000.00 (icollectively, the “Environmental Insurance Policies”) is not disclosed to cover all existing known and unknown conditions for the Properties and the Purchased Assets and will list Seller as an additional, named insured. Buyer shall be required to maintain the Environmental Insurance Policies in the Baseline Report full force and effect for a Property, if applicable, period of at least five (ii5) is discovered years after the Closing Date on any Property or and will provide Seller with evidence of such Environmental Insurance Policies (iii) is caused after the Closing Date by Purchaser, Purchaser's tenants, franchisees, or contractors, or is caused by third parties, in an area including documentation of full payment of the Property identified in premiums for the Baseline Report as containing Covered Contamination and before Seller's remediation of such Covered Contamination has been completed, is herein referred to as "New Contamination." Purchaser shall bear the burden of proof to establish that such environmental contamination is Covered Contamination. Similarly, if any environmental contamination not disclosed in the Baseline Report for a Property is discovered after the date Seller completes the remediation contemplated by Sections 7.3 and 7.4 ("Remediation Completion Date"), Purchaser shall bear the burden of proof to establish that such environmental contamination is Covered Contamination. If any environmental contamination is discovered after the Closing Date and Purchaser meets its burden of proving that it is not New Contamination but Covered Contamination, Seller shall remediate such Covered Contamination, in compliance with applicable remediation standards in effect at such time. (D) If environmental contamination is discovered on any Property after the Closing Date, but prior to the Remediation Completion Date, Purchaser shall promptly notify Seller and act promptly to minimize the effects of such environmental contamination. If, pursuant to Section 7.4(C), Purchaser does not establish that such environmental contamination is Covered Contamination, and if Seller reasonably determines that such New Contamination will make Seller's remediation at the applicable Property significantly more difficult, more expensive, or will extend significantly the time required to complete such remediation work, Purchaser shall hire at Purchaser's sole expense a consultant mutually acceptable to Purchaser and Seller to assess the effect of such New Contamination on the environmental condition full terms of the Property. This assessment shall include a review policies) at Closing and thereafter within five (5) days of the remediation work that had been done to date and the remaining cost to complete the remediation absent the New Contamination. In addition, the consultant will estimate the cost of the additional work that will be required due to the New Contamination. Purchaser will begin paying that fractional cost percentage of all further remediation work performed by Seller at the Property, determined by the following formula: (1) Purchaser's fractional cost = I - (Estimated cost to complete remediation prior to New Contamination divided by estimated cost to complete remediation after the New Contamination)Seller’s request.

Environmental Responsibility. (Aa) Seller shall conduct all negotiations with Tenant expressly covenants and agrees to indemnify the Authorities Landlord against any claim, damage, liability, costs, penalties or fines which the Landlord may suffer as a result of the Tenant's violation of any portion of ISRA, the Spill Act or any other environmental pollution caused by the Tenant in its use of the Leased Premises. The Tenant covenants and agrees to notify the Landlord immediately of any claim or notice served upon it with respect to any such claim the Tenant is in violation of ISRA or the Spill Act or is causing other environmental pollution and at its sole cost and expense to immediately take any and all actions required by law. (b) Upon the Tenant's removal from the premises he agrees, at all times after said removal to comply with and to indemnify, defend and save Landlord harmless in respect to any and all claims or causes or actions which may be asserted against Landlord by reason of Tenant's use and occupancy under ISRA, the Spill Act and any other environmental laws. Tenant further agrees to provide to Landlord, at least one month prior to the Tenant's removal from the Premises, either a Letter of Non-Applicability from the New Jersey Department of Environmental Protection and Energy ("DEPE") or a Negative Declaration and No Further Action Letter stating that there has been no discharge of hazardous substances or wastes (as defined by ISRA and the DEPE) in or around the Premises or at any other site to which discharged hazardous substances or hazardous wastes originating in or around the Premises have migrated and that any such discharged hazardous substances or hazardous wastes present at the Premises or that have migrated from the Premises have been remediated in accordance with applicable remediation of regulations. (i) Landlord will, at Tenant's sole expense except as provided for in paragraph 24(d)(ii) below, have Raritan Enviro Sciences, Inc., or such other environmental consultant appointed by Landlord, conduct an environmental survey and inspection annually (or more often, if required by Landlord) so that any environmental violations may be discovered and corrected in the Propertiesquickest time possible at the Tenant's cost and expense. Tenant shall have the right to designate an alternate company to complete the annual (or more often, for which Seller is responsible under Section 7.3(D); if required by Landlord) environmental survey, provided, however, that Purchaser may attend, but Landlord beforehand in writing approve said company which approval shall not actively participate in, any such negotiations. The Parties acknowledge that Seller shall have the lead responsibility for setting policy, establishing direction and conducting negotiations with the Authorities relating to the remediation of Covered Contamination, and Purchaser shall neither contact nor negotiate with the Authorities independently of Seller in connection with the remediation of Covered Contamination. Seller shall provide Purchaser with copies of all correspondence or other documents it receives from the Authorities, and shall furnish Purchaser copies of all correspondence and other documents it supplies to the Authorities, relating to any remedial action plan submitted by Seller with regard to the Properties. Purchaser shall provide Seller with copies of all correspondence and documents it receives from or provides to the Authorities during the period of Seller's remediation activities on any Propertybe unreasonably withheld. (Bii) As Landlord shall agree to each Property transferred pay for any and all surveys and inspections mentioned in paragraph 24(d)(i) above provided that the survey and/or inspection shows that the Tenant is not in violation of any environmental law, regulations, etc. In the event the Tenant is found to be in violation, he shall pay for that survey and/or inspection and all subsequent surveys and/or inspections the Landlord deems necessary. (d) The Tenant hereby agrees not to handle, store or conveyed dispose of any hazardous or toxic waste substance upon the Premises which is prohibited by any federal, state or local statute, ordinance or regulation. (e) The Tenant's obligations under this Article shall survive the expiration or termination of this Lease. (f) Landlord represents and warrants that the Leased Premises are free of all asbestos, asbestos-containing materials and other hazardous or toxic materials (collectively, "Hazardous Materials"). Notwithstanding any provision of the Lease to Purchaserthe contrary, Seller Tenant shall undertake after have no obligation to make any repairs, alterations or improvements to the Closing DatePremises or incur any costs or expenses whatsoever as a result of Hazardous Materials in the Premises, at its expense, all reporting and notification other than those Hazardous Materials brought onto the Premises by Tenant. Landlord shall be solely responsible for any changes to the Premises relating to Hazardous Materials or as required by law and all remediation any present or further investigation future laws, ordinances or regulations of Covered Contamination onany governmental authority, under insurance carrier or originating from such Propertyany similar body, in compliance with other than those Hazardous Materials brought onto the requirements of Premises by Tenant. (g) In the Authorities and all applicable environmental laws and regulations and until Closure is obtained pursuant event Tenant should desire to this Section 7.4(B). Seller shall be entitled make any alterations, additions or improvements to the benefit Premises and is forced to incur any identifiable charges or expenses arising as a result of any government reimbursement funds that may be available Hazardous Materials in or at the Premises, other than those Hazardous Materials brought onto the Premises by Tenant and which would not have otherwise been incurred with respect to such remediation of Covered Contamination. Seller measures, Landlord shall coordinate administrative efforts to recover be fully responsible for and shall reimburse Tenant for such reimbursement. Seller expenses and rent and all other charges payable by Tenant hereunder shall remediate ▇▇▇▇▇ and the Covered Contamination on or migrating (or migrated) from any Property in accordance with all applicable laws and regulationsLease, until: (1) Receipt of written notice from the Authorities that either no further remediation of the Covered Contamination identified in the Baseline Report is requiredat Tenant's option, or that the approved remediation plan of the Covered Contamination identified in the Baseline Report has been completed; or (2) Seller has requested closure notice from the Authorities, has not received any response of any kind to its request shall be extended for a closure notice for twelve (12) months and Seller has determined that the soil and groundwater has been remediated to satisfactory levels based on four (4) successive quarterly monitoring tests by a recognized environmental remediation contractor that show the level of petroleum hydrocarbons on the Property as being below or period equal to the limit required period of the delay caused by the Authorities and Seller so notifies Purchaser in writing. The satisfaction existence of either of the conditions set forth in clauses (1) or (2) above shall be referred to as "Closure" hereinsaid Hazardous Materials. (Ch) Any environmental contamination Landlord shall indemnify and hold Tenant harmless from and against all liabilities, costs, damages and expenses which Tenant may incur (iincluding, without limitation, reasonable attorneys' fees and disbursements) is not disclosed in enforcing the Baseline Report for a Property, if applicable, (ii) is discovered after provisions of this Article or as the Closing Date on any Property or (iii) is caused after the Closing Date by Purchaser, Purchaser's tenants, franchisees, or contractors, or is caused by third parties, in an area result of the Property identified in the Baseline Report as containing Covered Contamination and before Seller's remediation presence of such Covered Contamination has been completed, is herein referred to as "New Contamination." Purchaser shall bear the burden of proof to establish that such environmental contamination is Covered Contamination. Similarly, if any environmental contamination not disclosed in the Baseline Report for a Property is discovered after the date Seller completes the remediation contemplated by Sections 7.3 and 7.4 ("Remediation Completion Date"), Purchaser shall bear the burden of proof to establish that such environmental contamination is Covered Contamination. If any environmental contamination is discovered after the Closing Date and Purchaser meets its burden of proving that it is not New Contamination but Covered Contamination, Seller shall remediate such Covered Contamination, in compliance with applicable remediation standards in effect at such time. (D) If environmental contamination is discovered on any Property after the Closing Date, but prior to the Remediation Completion Date, Purchaser shall promptly notify Seller and act promptly to minimize the effects of such environmental contamination. If, pursuant to Section 7.4(C), Purchaser does not establish that such environmental contamination is Covered Contamination, and if Seller reasonably determines that such New Contamination will make Seller's remediation Hazardous Materials at the applicable Property significantly more difficultPremises, more expensive, or will extend significantly other than those Hazardous Materials brought onto the time required to complete such remediation work, Purchaser shall hire at Purchaser's sole expense a consultant mutually acceptable to Purchaser and Seller to assess the effect of such New Contamination on the environmental condition Premises by Tenant. The indemnity obligations of the Property. This assessment Landlord under this section shall include a review survive the expiration or earlier termination of the remediation work that had been done to date and the remaining cost to complete the remediation absent the New Contamination. In addition, the consultant will estimate the cost of the additional work that will be required due to the New Contamination. Purchaser will begin paying that fractional cost percentage of all further remediation work performed by Seller at the Property, determined by the following formula: (1) Purchaser's fractional cost = I - (Estimated cost to complete remediation prior to New Contamination divided by estimated cost to complete remediation after the New Contamination)this Lease.