Common use of Phase I Reports Clause in Contracts

Phase I Reports. After the date of this Agreement but prior to the Closing Date, with respect to each parcel of Owned Real Property and Leased Real Property listed on Section 3J of the Seller Disclosure Letter, Seller shall engage ENVIRON International Corporation (“ENVIRON”) to deliver (i) to Seller a Phase I report that meets the requirements of the ASTM-05 Standard (collectively, “Phase I Reports”) and (ii) to each of Buyer and the lenders for the Debt Financing (or an agent therefor) a copy of the Phase I reports and a reliance letter in customary form for each Phase I Report. Buyer and Buyer Sub each agrees that the Phase I Reports and the information contained therein are subject to the confidentiality restrictions set forth in Section 8C hereof. All fees and expenses of the environmental consultants related to such Phase I Reports shall become due and payable upon the earlier to occur of the Closing and the termination of this Agreement in accordance with its terms and shall be treated as Shared Expense Amount, with each of Seller and Buyer responsible for its Responsible Share Percentage multiplied by fees and expenses related to the Phase I Reports; provided that Seller’s obligations pursuant to clause (y) foregoing shall be deemed satisfied at the Closing to the extent any such fees and expenses are deducted from the Equity Value Amount (including through the calculation of Shared Expense Amount), in which case Buyer and Buyer Sub shall be responsible for paying all such fees and expenses. If a party pays an amount in excess of what it is required to pay pursuant to the foregoing sentence, it shall be entitled to reimbursement from the other party of such overpayment amount. Seller shall cooperate with Buyer in its review of the Phase I Reports, including by making personnel of Seller, Seller’s attorneys and ENVIRON available to discuss the results thereof and, if any of such Phase I Reports report a Recognized Environmental Condition, as defined in the above-referenced ASTM standards (a “REC”) that (a) was not reported in any phase I reports, environmental reports and/or other due diligence information or documentation made available to Buyer, Buyer Sub and/or any of their representatives prior to the date hereof, (b) in the reasonable judgment of Buyer or Seller, is not covered by the indemnification obligations of Sellers (as defined in the OMX Purchase Agreement) pursuant to Article 17 of the OMX Purchase Agreement, (c) would reasonably be expected to result in liability to Buyer or its post-Closing Subsidiaries in excess of $2,000,000, and (d) in the reasonable judgment of Buyer or Seller, has a material uncertainty as to the extent of the liability to Buyer or it post-Closing Subsidiaries, then within 10 days after receipt of each such Phase I Report, either party may request that further investigation of any such REC be conducted by ENVIRON or another contractor agreed upon by the parties (a “Phase II Investigation”), with the expense of the Phase II Investigation to be shared in the same manner as the Phase I Reports. In either case, the results of the Phase II Investigation shall be made available to both parties and the scope of the investigation and technical details shall be consented to by both Buyer and Seller, such consent not to be unreasonably withheld.

Phase I Reports. After (a) Between the date of this Agreement but prior signing and the Closing, the Seller Parties shall permit the Buyer Parties to have access to the Closing Date, with respect to each parcel of Scheduled Owned Real Property and Leased shall use Reasonable Efforts to assist the Buyer Parties in obtaining access to the Real Property listed on Section 3J subject to the Scheduled Leases, in each case for the purpose of conducting at the Seller Disclosure Letter, Seller shall engage ENVIRON International Corporation (“ENVIRON”) to deliver (i) to Seller Buyer Parties’ sole cost and expense a Phase I report environmental site assessment (including a Phase I environmental site assessment as developed by the American Society of Testing and Materials and designated as E1527-05 and “All Appropriate Inquiry” standard assessment as developed by the U.S. Environmental Protection Agency and codified in 40 C.F.R. Part 312, or analogous assessment); provided, however, that meets such Phase I access shall not include sampling of any media whatsoever, intrusive or otherwise, without the requirements prior approval of the ASTM-05 Standard Sellers Representative, and provided further that the Buyer Parties shall provide the Sellers Representative with copies of any resulting reports, summary charts or audits as promptly as practicable following any Buyer Party’s receipt thereof (collectivelybut, “Phase I Reports”) and (ii) in any event, prior to each Closing), whether in the form of final or draft documentation. The Buyer and the lenders for the Debt Financing (or an agent therefor) a copy of Parties shall use Reasonable Efforts to complete the Phase I reports and a reliance letter environmental site assessments as promptly as practicable, but, in customary form for each Phase I Reportany event, no later than 30 days following the execution of this Agreement. Any consultants selected by the Buyer and Buyer Sub each agrees that Parties to conduct the Phase I Reports and the information contained therein are subject environmental site assessments shall be reasonably acceptable to the confidentiality restrictions set forth in Section 8C hereof. All fees and expenses of the environmental consultants related to such Phase I Reports shall become due and payable upon the earlier to occur of the Closing and the termination of this Agreement in accordance with its terms and shall be treated as Shared Expense Amount, with each of Seller and Buyer responsible for its Responsible Share Percentage multiplied by fees and expenses related to the Phase I Reports; provided that Seller’s obligations pursuant to clause (y) foregoing shall be deemed satisfied at the Closing to the extent any such fees and expenses are deducted from the Equity Value Amount (including through the calculation of Shared Expense Amount), in which case Buyer and Buyer Sub shall be responsible for paying all such fees and expenses. If a party pays an amount in excess of what it is required to pay pursuant to the foregoing sentence, it shall be entitled to reimbursement from the other party of such overpayment amount. Seller shall cooperate with Buyer in its review of the Phase I Reports, including by making personnel of Seller, Seller’s attorneys and ENVIRON available to discuss the results thereof and, if any of such Phase I Reports report a Recognized Environmental Condition, as defined in the above-referenced ASTM standards (a “REC”) that (a) was not reported in any phase I reports, environmental reports and/or other due diligence information or documentation made available to Buyer, Buyer Sub and/or any of their representatives prior to the date hereof, Sellers Representative. (b) in In the reasonable judgment of Buyer or Seller, is not covered by the indemnification obligations of Sellers (as defined in the OMX Purchase Agreement) pursuant to Article 17 of the OMX Purchase Agreement, (c) event that a Phase I Report reflects a potential environmental matter which would reasonably be expected to result materially and adversely impair Buyer’s ability to conduct the Business in liability to Buyer or its post-Closing Subsidiaries in excess of $2,000,000, and (d) in the reasonable judgment of Buyer or Seller, has a material uncertainty as to the extent of the liability to Buyer or it post-Closing Subsidiaries, then within 10 days after receipt of each such Phase I Report, either party may request that further investigation of any such REC be conducted by ENVIRON or another contractor agreed upon by the parties (a “Phase II Investigation”), with the expense of the Phase II Investigation to be shared in substantially the same manner as conducted prior to the Phase I ReportsEffective Time, then Buyer will be entitled to terminate this Agreement by providing written notice of termination to the Sellers Representative unless (i) Sellers remedy the environmental matter prior to Closing or (ii) Sellers and Buyer mutually agree to a plan of action pursuant to which Sellers will remedy the environmental matter following the Closing. In either caseIf applicable, the results Sellers and Buyer agree to use their respective reasonable, good faith efforts to reach a mutually acceptable plan of the Phase II Investigation shall be made available to both parties and the scope of the investigation and technical details shall be consented to by both Buyer and Seller, such consent not to be unreasonably withheldaction.