ENVIRONMENTAL REMEDIATION – WHO GETS TO CLEAN UP THE MESS

Jack Fersko* Farer Fersko, a Professional Association Westfield, New Jersey

• Post – Closing Right of Access Agreement - granting a right of access to Seller, who retains responsibility to complete cleanup post-closing

• General contract clauses imposing responsibility upon Buyer to complete cleanup post – closing and granting Seller a right of access in the event Seller is required to complete a cleanup post – closing because a Buyer, who contracts to assume such responsibility, defaults in its contract obligation

• Post – Closing Agreement, Covenants and Servitudes - granting a release to Seller and imposing upon Buyer all post – No Further Action Letter requirements when Seller has cleaned up property by way of engineering and institutional controls and on – going monitoring is required

* Mr. Fersko is a member of Farer Fersko, a Professional Association, in Westfield, New Jersey, where he chairs the Industrial and Commercial Real Estate and Business Department. The author gratefully acknowledges the assistance of Robert A. Stout, Jr., a summer associate in the Industrial and Commercial Real Estate and Business Department of Farer Fersko, in the preparation of these materials.

Right of Access Agreement1

Right of Access Agreement (“Agreement”) between,

[Enter Party Name], with offices at [Enter Party Address], referred to in this Agreement as “Licensee”,

- and – [Enter Party Name], with offices at [Enter Party Address], referred to in this Agreement as “Licensor”.

Background

A. Licensor is the owner of the premises commonly known and designated as [enter address] and referred to in the Agreement as “Premises.”

B. Licensee was the owner of the Premises prior to the sale of the Premises to Licensor.

C. Licensee transferred ownership of the Premises to Licensor subject to the Licensee’s post-closing obligation to complete all environmental remediation required by the contract of sale, and to obtain and deliver to Licensor a site – wide No Further Action Letter (the “Closure Letter”), from (insert the responsible governmental authority). 2

D. In order to comply with the contract of sale, Licensee desires a right of access to the Premises for itself and its environmental consultants, contractors, and their respective subcontractors (collectively and individually, “Consultant”), for the purpose of performing certain environmental investigation, monitoring and remediation activities at the Premises.

E. Licensor is willing to grant Licensee and Consultant a limited and non-exclusive right of access to the Premises upon the terms and conditions set forth in this Agreement.

Now, therefore, in consideration of the Premises and the mutual covenants contained in this Agreement, the parties agree as follows:

1 Portions in Italics are intended to represent optional language, which either expands or restricts the rights granted by Licensor. 2 In all instances where “(responsible governmental authority)” is noted, it is appropriate to limit the wording to a particular state agency vested with authority over the matter being addressed. Also, the title of the final closure letter from the appropriate governmental authority will vary state to state, and should be properly titled.

Definitions 1. “Contaminants” shall include, without limitation, any regulated substance, toxic substance, hazardous substance, hazardous waste, pollution, pollutant or contaminant, as defined or referred to in the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. §9601 et seq.; the Water Pollution and Control Act, 33 U.S.C. §1251 et seq.; the “Tank Laws” as defined below; (insert any applicable state laws and regulations); together with any amendments thereto, regulations promulgated thereunder and all successor legislation and regulations, as well as words of similar purport or meaning referred to in any other applicable federal, state, county or municipal statute, ordinance, rule or regulation.

2. "Environmental Documents" means all environmental documentation in the possession or under the control of Licensee, its employees, agents, Consultant, or all of them, concerning the Premises or its environs, including, without limitation, all sampling plans, cleanup plans, preliminary assessment plans and reports, site investigation plans and reports, remedial investigation plans and reports, remedial action plans and reports or the equivalent, sampling results, sampling result reports, data, diagrams, charts, maps, analyses, conclusions, quality assurance/quality control documentation, correspondence to or from the (insert the responsible governmental authority) or any other Governmental Authority, submissions to the (insert the responsible governmental authority) or any other Governmental Authority and directives, orders, approvals and disapprovals issued by the(insert the responsible governmental authority) or any other Governmental Authority.

3. “Governmental Authority” shall mean the federal, state, county or

municipal government, or any department, agency, bureau or other similar type body obtaining authority therefrom or created pursuant to any Laws.

4. “Laws” shall mean each and every applicable federal, state, county or

municipal statute, ordinance, rule, regulation, order, directive or requirement, together with all successor statutes, ordinances, rules, regulations, orders or requirements, of any Governmental Authority, including, without limitation, Laws in any way related to Contaminants.

5. “Tank Laws” shall mean the federal underground storage tank law,

Subtitle I of the Resource Conservation and Recovery Act of 1976, as amended, P.L. 98-616, 42 U.S.C. §6901 et seq., (insert any applicable state law or regulation), together with any amendments thereto, regulations promulgated thereunder and all substitutions thereof, as well as each and every applicable county and municipal law, ordinance, rule and regulation, and any successor law, ordinance, rule and regulation.

Right and Conditions of Access

1. The Background section of this Agreement is incorporated herein by reference as if set forth at length.

2. Licensor grants to Licensee and Consultant, the non-exclusive and limited license (the “License”) to enter upon the Premises, upon the terms and conditions set forth in this Agreement, to perform such environmental investigation, monitoring and remediation activities3 as shall be necessary in order for Licensee to obtain the Closure Letter (the “Environmental Activities”).

3. Licensee shall perform the Environmental Activities promptly and

diligently, at Licensee’s sole cost and expense, in accordance with the terms and conditions of this Agreement, and shall obtain and deliver the Closure Letter to Licensor.

4. Licensee shall coordinate the performance of the Environmental Activities with a representative of Licensor, designated by Licensor from time to time, which coordination shall include, without limitation, all time schedules proposed to any Governmental Authority with respect to the Environmental Activities. 5. Any wells installed at the Premises as part of the Environmental Activities shall be flush mounted, covered in a manner reasonably acceptable to Licensor, and installed at a location approved in advance by Licensor. All wells installed at the Premises as a part of the Environmental Activities shall be closed promptly upon receipt of authorization from the (insert the responsible governmental authority),4 authorization for which shall be sought by Licensee as soon as is reasonably practicable. 6. All Environmental Activities shall be performed during normal business hours or at such other time or times as Licensor shall designate. Licensee shall use its best efforts to perform all Environmental Activities, and to locate all investigation, monitoring and remediation apparatus and structures, in such a manner as to minimize the impact on the operations of Licensor (and the tenants of Licensor). Licensor shall have the opportunity to propose alternatives to minimize the impact on Licensor (and its tenants) of the conduct of any Environmental Activities, and subject to the approval of the appropriate Governmental Authority, Licensee shall implement such alternatives if they have no material adverse effect on the timeliness, effectiveness or cost to Licensee of the performance of the Environmental Activities. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Environmental Activities unreasonably interfere with Licensor’s operations at the Premises (or the operations of Licensor’s tenants). Furthermore, the Licensee’s activities shall not impair the Licensor’s ability to obtain financing with respect to the Premises or operations.5

3 Alternatively, specific environmental activities may be enumerated here, depending upon the terms of the contract of sale. 4 If any document needs to be completed memorializing the closure of the well, a clause indicating that should be included here, placing the burden of obtainment on the Licensee. 5 To the extent that the Premises is to undergo re-development activities, language should be inserted coordinating those efforts with the activities of the Licensee.

7. Licensee shall, at its sole cost and expense, promptly dispose of and cause Consultant to promptly dispose of off of the Premises, all equipment, material, soil, water and debris associated with the Environmental Activities. Licensee shall be deemed the owner and generator of all waste produced or otherwise resulting from the Environmental Activities. 8. Licensee shall not store, nor shall it permit Consultant to store, any Contaminants on the Premises. 9. Licensee shall immediately fill any excavation with certified clean fill. 10. All work performed at the Premises by or on behalf of Licensee, including without limitation the Environmental Activities, shall meet with the approval of all Governmental Authorities. 11. All work performed at the Premises by or on behalf of Licensee, including without limitation the Environmental Activities, shall, once begun, be completed promptly and diligently, and paid for in full by Licensee, free and clear of all mechanic’s and other liens and encumbrances, and shall be performed in accordance with all Laws. All work performed by or on behalf of Licensee, including without limitation the Environmental Activities, shall be done in a good and workmanlike manner, and in such a manner so as not to cause any damage to the Premises or interference with the use and occupancy of the Premises by Licensor, any person or entity obtaining rights of use and occupancy through Licensor, or their respective agents, employees or invitees. Licensee shall, to the reasonable satisfaction of Licensor, and at such times and upon such terms and conditions as Licensor shall determine in its sole and absolute discretion, either repair or replace, as the case may be, any damage done to the Premises during any entry, and shall substantially restore the Premises, to its original condition at the time the entry commenced.

12. Prior to each entry upon the Premises, Licensee shall:

(a) Furnish and cause the Consultant to furnish to Licensor, and cause to be maintained and kept in effect, without expense to Licensor, at all times that any entry is made upon the Premises, insurance against claims for personal injury (including death), and property damage, under a policy or policies of commercial general liability insurance of not less than $5,000,000 in respect to bodily injury (including death), and $5,000,000 for property damage, each occurrence/aggregate, naming Licensor and its mortgagee, if any, as additional insureds, which coverage shall include, without limitation, coverage for completed operations, contractual liability and independent contractor liability. Each policy shall be on an occurrence basis and not a claims made basis. Each policy shall provide that it cannot be canceled without thirty (30) days prior written notice to Licensor, and each policy shall be issued by a recognized responsible insurance company licensed to do business in the State of ___________________, without any co-insurance or self-insurance, and with a

deductible not to exceed $10,000. Proof of payment of the premium of each policy and each replacement policy shall also be delivered to Licensor.

(b) Furnish and cause the Consultant to furnish to Licensor and

cause to maintained and kept in effect, without expense to Licensor, at all times that any entry is made upon the Premises, adequate workers' compensation insurance to cover employees of Licensee and Consultant engaged in work at the Premises.

(c) Furnish and cause the Consultant to furnish to Licensor and

cause to be maintained and kept in effect, without expense to Licensor, at all times that any entry is made upon the Premises, automobile liability insurance, insuring against claims for personal injury (including death), and property damage, under a policy of not less than $1,000,000 in respect to bodily injury (including death), and $1,000,000 for property damage, each occurrence/aggregate. Each policy shall provide that it cannot be canceled without thirty (30) days prior written notice to Licensor, and each policy shall be issued by a recognized responsible insurance company licensed to do business in the State of ___________________, without any co-insurance or self-insurance, and with a deductible not to exceed $10,000. Proof of payment of the premium of each policy and each replacement policy shall also be delivered to Licensor.

(d) Furnish or cause the Consultant to furnish to Licensor and cause

to be maintained and kept in effect, without expense to Licensor, at all times that any entry is made upon the Premises, contractor's pollution liability insurance of not less than $3,000,000, naming Licensor and its mortgagee, if any, additional insureds. Each policy shall be on an occurrence basis and not a claims made basis. Each policy shall provide that it cannot be canceled without thirty (30) days prior written notice to Licensor, and each policy shall be issued by a recognized responsible insurance company licensed to do business in the State of ___________________, without any co-insurance or self-insurance, and with a deductible not to exceed $10,000. Proof of payment of the premium of each policy and each replacement policy shall also be delivered to Licensor.

13. Prior to each entry upon the Premises, Licensee shall:

(a) At least seven (7) business days in advance of each entry, request, in

writing, permission to enter upon the Premises, which request shall set forth: (i) the date and time of the entry upon the Premises; (ii) the identity of all persons and entities who shall enter upon the Premises; (iii) the nature, location and extent of all the Environmental Activities to be performed upon the Premises; (iv) whether the persons entering upon the Premises shall be wearing any environmental protective gear; and (v) the estimated duration of the entry.

(b) Designate one individual as responsible for the entire group and shall notify the Licensor of such responsible individual in its written request for permission to enter.

(c) Receive the written approval of Licensor.

14. While on the Premises, Licensee shall, and Licensee shall cause

Consultant to comply with all reasonable written safety procedures, if any, that Licensor may from time to time impose, and which Licensor imposes or would impose upon its own employees engaged in similar work.

15. Licensor shall have the right, with or without notice, to rescind its

approval with respect to any entry in the event Licensee, or anyone entering upon the Premises on its behalf, fails to comply with any term, condition or covenant of this Agreement.

(Alternative additional language) Notwithstanding the foregoing, and except in the event of an emergency, Licensor

shall only have the right to rescind its approval with respect to any entry if Licensor has given Licensee five (5) days notice, setting forth the nature of the failure, and Licensee does not cure the failure within such five (5) day period. If Licensee is unable, however, to cure the failure within such five (5) day period through no fault of its own, but is diligently prosecuting a cure, then such five (5) day period shall be extended for such time as the Licensee may reasonably require in order to cure the failure, provided that throughout such extension, Licensee diligently endeavors to cure the failure, provides written notice to Licensor of the reason for Licensee’s inability to cure the failure and the status of its efforts to cure the failure,[ and the failure is cured within thirty (30) days of the giving of such five (5) day notice].

16. Each entry shall be deemed complete upon completion of the work outlined within the notice referred to in paragraph [13] above.

17. Contemporaneously with the signing of this Agreement, and subsequently, promptly upon receipt, Licensee shall deliver to Licensor all Environmental Documents generated by or on behalf of Licensee, whether currently or hereafter existing.

18. Licensee shall notify Licensor promptly upon scheduling any meetings between Licensee or anyone acting on behalf of Licensee, and any Governmental Authority, concerning the Premises or Contaminants at or about the Premises, or both, of the date and time of each meeting, and Licensor, its agents and representatives, shall have the right, without the obligation, to attend and participate in each such meeting.

19. Licensee shall give Licensor at least five (5) business days notice of any samples to be taken at the Premises in order that Licensor or Licensor's employees, agents or representatives, or all of them, may be present at the time of the sampling, and Licensor, its employees, agents or representatives, or all of them, shall have the right, without the obligation, to be present at the time of sampling and, at Licensee's cost and expense, to split all samples.

20. Licensee shall indemnify, defend with counsel satisfactory to Licensor in its sole and absolute discretion, and hold Licensor, its officers, directors, members, partners, shareholders and employees harmless from and against any and all claims,

liabilities, losses, penalties, damages and costs, foreseen or unforeseen, including, without limitation, reasonable counsel, engineering and other professional or expert fees which any or all of them may incur or may have incurred, resulting directly or indirectly, wholly or partly, from (a) any entry upon the Premises by Licensee, Consultant, or anyone acting on behalf of either or both of them, (b) the Environmental Activities, or (c) any action or omission of Licensee, Consultant, or anyone acting on behalf of either or both of them. This paragraph shall survive the expiration or earlier termination of this Agreement.

21. Licensee shall promptly notify the appropriate Governmental Authority in accordance with Laws, of all Contaminants discovered at the Premises, and shall take whatever action is required by any Governmental Authority in regard to the Contaminants, including, without limitation, the establishment, to the satisfaction of Licensor, of any remediation funding source or other security that may be required by any Governmental Authority, and the investigation, monitoring and remediation of such Contaminants. 22. Notwithstanding anything to the contrary set forth in this Agreement, (a) in no event shall the Environmental Activities involve the use of (i) any engineering controls, including, without limitation, capping, (ii) institutional controls, including, without limitation, a deed notice, declaration of environmental restriction or other institutional control notice pursuant to Laws, (iii) a groundwater classification exception area for natural remediation of groundwater contamination, or (iv) a well restriction area, and (b) the Environmental Activities shall be performed to meet the most stringent remediation standards for soil, surface water and groundwater.6

23. This Agreement is not intended to and does not affect any claim that any party to this Agreement may have [against one another, or] against any other person who is not a party to this Agreement, with respect to Contaminants, the Environmental Activities, the Premises or otherwise. There are no intended third-party beneficiaries of this Agreement.

24. All notices required or permitted by this Agreement shall be in writing and shall be sent by certified mail, return receipt requested, addressed as follows:

If to Licensor: ------------------------- ------------------------- -------------------------

With Copy to: ------------------------- ------------------------- -------------------------

If to Licensee: -------------------------

6 The critical determination to be resolved between Seller and Buyer concerns the nature of the cleanup. Will a Seller be able to use engineering controls, institutional controls, a groundwater classification exception area and/or well restriction area, and if so, who will be responsible for future maintenance, reporting and monitoring obligations that may result from any of the foregoing clean up methods? Also, in the event of a failure of any of such methods, who will have future remediation obligations?

------------------------- -------------------------

With Copy to: ------------------------- ------------------------- -------------------------

Licensor and Licensee may, by notice given in the same manner set forth above, designate a further or different address to which subsequent notices shall be sent. Notices shall be deemed given when received or refused.

25. The License shall terminate _________ year(s) from the date of this Agreement.

26. All obligations imposed upon Licensor shall survive the expiration or

earlier termination of this Agreement.

27. This Agreement shall be governed by the laws of the State of -____________. The parties acknowledge that this Agreement has been executed and delivered in the State of _______________, and the parties submit to the jurisdiction of the courts of the State of ________________.

28. This Agreement constitutes the entire agreement between the parties. No change, addition or modification to this Agreement shall be effective unless in writing signed by all parties.

29. Licensee shall not assign any rights or delegate any responsibility imposed under this Agreement.

30. In all references in this Agreement to any parties, persons, entities or corporations, the use of any particular gender or the plural or singular number is intended to include the appropriate gender and number as the text of this Agreement may require.

31. This Agreement shall be binding upon Licensee, its successors and permitted assigns and shall inure to the benefit of Licensor, its successors and assigns.

32. Neither Licensee nor Consultant shall record this Agreement.

33. This Agreement shall be construed reasonably to carry out its intent without presumption against or in favor of either party. If any provision hereof shall be declared invalid by any court or in any administrative proceeding, then the provisions of this Agreement shall be construed in such a manner so as to preserve the validity hereof and the substance of the transaction herein contemplated to the fullest extent possible. The captions, section and article headings are provided for purposes of convenience of reference only and are not intended to limit, define the scope of, or aid in the interpretation of any of the provisions hereof.

Signed by the parties. ___________________________

Licensor

By: Dated: ____________________________

___________________________

Licensee

By: Dated: ____________________________

General Contract Clauses Imposing Responsibility upon Buyer to Complete Cleanup Post – Closing7

(a) Buyer’s Environmental Obligations. Promptly following the closing of title, Buyer shall, at Buyer’s own cost and expense, promptly and diligently thereafter perform all environmental investigation, monitoring and remediation activities, at Buyer’s own cost and expense, and, at Buyer’s own cost and expense, promptly and diligently obtain and deliver to Seller a site – wide No Further Action Letter (the “Closure Letter”), from (insert the responsible governmental authority), with respect to the Premises (collectively and individually, “Buyer’s Environmental Obligations”). Buyer’s Environmental Obligations shall further include, without limitation, environmental investigation, monitoring and sampling; installation, maintenance and closure of monitoring wells; storage and disposal of excavated materials; installation, maintenance, storage and removal of machinery and equipment; establishment and maintenance of institutional controls, including, without limitation, a deed notice or declaration of environmental restriction; establishment and maintenance of engineering controls, including, without limitation, capping; establishment of a groundwater classification exception area for natural remediation of groundwater contamination, including, without limitation, all post-Closure Letter monitoring and remediation, and a well restriction area; and any other work required in order to obtain the Closure Letter and address and pay all natural resource damages assessed by any Governmental Authority.

(b) Access. Seller and Seller’s agents, employees, consultants and representatives (collectively “Seller’s Representatives”) shall be permitted access to the Premises for the purpose of: (i) overseeing and monitoring (without the obligation to do so) the performance by Buyer of Buyer’s Environmental Obligations; and (ii) performing, at the cost and expense of Buyer, Buyer’s obligations under this Agreement, including, without limitation, Buyer’s Environmental Obligations (without the obligation to do so), in the event Buyer breaches its obligation to perform Buyer’s Environmental Obligations in accordance with the provisions of this Agreement.

(c) No Interference. If Seller, or Seller’s Representatives, without the obligation to do so, enter upon the Premises after the closing of title, to cure any failure of Buyer to comply with any of Buyer’s Environmental Obligations, then Buyer shall not interfere or allow interference by any occupants of the Premises, or others, with the activities of Seller or Seller’s Representatives, including, without limitation, their implementing and completing Buyer’s Environmental Obligations. Buyer shall not cause or allow the disturbance, movement, placement or excavation of any materials or soils at any area of the Premises subject to any activities being undertaken or to be undertaken by or on behalf of Seller pursuant to this paragraph and shall coordinate such activities with Seller, and Seller’s Representatives. In the event of any such entry by Seller, Buyer shall, and

7 These clauses are presented from the perspective of Seller and include escrow provisions to secure the post – closing environmental obligations of Buyer. As a means of further protecting Seller, consideration should be given to inserting the post-closing obligations of Buyer into the Post - Closing Agreement, Covenants and Servitudes that follows so that the obligations survive a sale of the property by Buyer.

shall cause all occupants, successors and assigns to, promptly provide Seller with all information requested by Seller or any Governmental Authority with respect to Seller completing (without the obligation to do so) any undertakings hereunder, at no cost or expense to Seller. In addition, Buyer shall, and shall cause all occupants, successors and assigns to, promptly execute, acknowledge and deliver to Seller, at no cost or expense to Seller, all documents required by Seller in connection with Seller completing (without the obligation to do so) any undertakings hereunder in the event Buyer breaches any of Buyer’s obligations under this Agreement.

(d) Remediation. Notwithstanding anything to the contrary set forth in this Agreement, if Seller or Seller’s Representatives undertake Buyer’s Environmental Obligations pursuant to this Agreement (without any obligation to do so), Seller shall have the right to complete Buyer’s Environmental Obligations in the most cost effective manner possible, including, without limitation, through the use of engineering controls, institutional controls, a groundwater classification exception area and/or well restriction area, and Buyer shall promptly sign and acknowledge such documents as shall be necessary to implement any or all of the foregoing. (e) Buyer’s Escrow. To secure Buyer’s obligation to perform Buyer’s Environmental Obligations, contemporaneously with the closing of title, Buyer shall establish an escrow fund (the “Escrow Fund”) to be held by Escrow Agent hereinafter designated, in accordance with and subject to the following provisions:

(i) Amount of Escrow. The amount of the Escrow Fund initially established or subsequently to be replenished pursuant to the terms of this Agreement shall be agreed upon between the environmental consultants for each of Seller and Buyer. The environmental consultant for each of Seller and Buyer shall provide to each of the parties and the other consultant, a cost estimate of Buyer’s Environmental Obligations or remaining Buyer’s Environmental Obligations, as the case may be, (the “Cost Estimate”), within fifteen (15) days of the earliest request therefore by either Seller or Buyer, (which request may be made by way of a notice given by either party), and then within five (5) business days thereafter the consultants shall agree upon the Cost Estimate. Notwithstanding anything to the contrary set forth in this Agreement, in the event that the environmental consultant for either Seller or Buyer fails to provide a Cost Estimate, as required by this subparagraph (i), within the fifteen (15) day time period provided for within this subparagraph (i), then the Cost Estimate of the environmental consultant of Seller or Buyer that is provided within the fifteen (15) day time frame set forth above shall be used as the Cost Estimate for establishing or supplementing, as the case may be, the amount of the Escrow Fund, and shall be posted by Buyer upon the execution of this Agreement or otherwise added to the Escrow Fund upon determination, as the case may be. In the event each environmental consultant submits a Cost Estimate, but the environmental consultants cannot agree on the amount to establish or replenish the Escrow Fund within the time frame set forth above, a final and binding decision shall be made in accordance with the provisions of subparagraph (ii) below.

(ii) Setting Escrow Amount in the Event of a Dispute.

Subject to the provisions of subparagraph (i) above, in the event the environmental consultants for each of Seller and Buyer are unable to agree upon the amount to deposit in the Escrow Fund, then the following procedures shall be followed by Seller and Buyer:

(A) Use of Existing Cost Estimates. If the Cost Estimate of both environmental consultants is within ten (10%) percent of each other, then the amount to be deposited in the Escrow Fund shall be equal to the sum obtained by adding the two Cost Estimates together and dividing the total in half.

(B) New Cost Estimate. If the Cost Estimates are not within ten (10%) percent of each other, then [insert name of arbitrating environmental consultant] (“Decision Maker”) shall independently determine the amount to be deposited into the Escrow Fund. The determination of Decision Maker shall be a final and binding decision based upon such materials and information Decision Maker requests from the respective environmental consultants of Seller and Buyer. The decision of Decision Maker shall be made within fourteen (14) days of Seller’s or Buyer’s request, which request may be made at any time following the expiration of the time period for agreement provided for in subparagraph (i) above.

(iii) Fees of Environmental Consultants. Each of Seller and Buyer

shall pay the fees and expenses of their own environmental consultant. The parties shall bear all costs and expenses of Decision Maker equally unless Decision Maker determines that one of the parties acted in bad faith, in which event that party shall bear all expenses of resolving the issue at hand.

(iv) Escrow Terms. The Escrow Fund shall be held by the Escrow Agent and administered pursuant to the following:

(A) Appointment of Escrow Agent. Seller and Buyer appoint

___________________________, (insert name of Seller’s attorney) to serve as Escrow Agent pursuant to and in accordance with the terms and conditions set forth in this Agreement, and the Escrow Agent accepts the appointment as Escrow Agent upon the terms and conditions set forth in this Agreement. Buyer acknowledges that the Escrow Agent is the attorney for Seller and that such fact shall not disqualify the Escrow Agent from representing Seller in connection with any dispute between Seller and Buyer. The Escrow Agent’s duties hereunder shall be limited to the Escrow Agent’s compliance with the obligations expressly imposed upon the Escrow Agent hereunder.

(B) Non-Interest Bearing Account. The Escrow Fund shall be deposited in a non-interest bearing attorney trust account of the Escrow Agent.

(C) Maintenance of Escrow Account. Neither Seller nor Buyer shall encumber all or any part of the Escrow Fund while on deposit with the Escrow Agent. Buyer and Seller acknowledge that it is difficult to determine the precise cost to complete

Buyer’s Environmental Obligations. Therefore, if at any time the balance of the Escrow Fund falls below one hundred (100%) percent of the cost to complete Buyer’s Environmental Obligations, as agreed upon by the environmental consultant for each of Seller and Buyer, from time to time, then Buyer shall pay to the Escrow Agent the additional sums necessary to maintain the Escrow Fund in an amount equal to one hundred (100%) percent of the cost to complete Buyer’s Environmental Obligations, as agreed upon by the environmental consultant for each of Seller and Buyer from time to time. Such sums shall be added to and become part of the Escrow Fund upon receipt and collection by the Escrow Agent. Buyer shall continue to make such payments to the Escrow Agent until such time as Buyer satisfies Buyer’s Environmental Obligations under this Agreement. In the event the environmental consultants cannot from time to time agree on the amount required to replenish the Escrow Fund after following the procedures set forth in subparagraph (i) above, then a final and binding decision shall be made following the procedures set forth in subparagraphs (ii) and (iii) above.

(D) Termination. The Escrow Fund shall terminate upon the Escrow

Agent’s receipt of written confirmation from Seller and Buyer that Buyer has satisfactorily completed Buyer’s Environmental Obligations. Upon termination of the Escrow Fund, the Escrow Agent shall deliver to Buyer the remaining balance, if any, of the Escrow Fund, whereupon the obligations of the Escrow Agent shall terminate.

(E) Right to Draw Upon Escrow Fund. Subject to the obligations of

Buyer to replenish the Escrow Fund so that the Escrow Fund shall at all times be in an amount equal to one hundred (100%) percent of the cost to complete Buyer’s Environmental Obligations, Buyer shall have the right to draw upon the Escrow Fund with respect to the costs it incurs in connection with its performance of Buyer’s Environmental Obligations, by delivering to the Escrow Agent, with a copy to Seller, a notice setting forth all costs incurred by Buyer as and when such costs are incurred. Such notice shall be accompanied by a copy of the invoice(s) of the party to whom payment is to be made or has been made (and in the latter case, together with evidence of payment). The Escrow Agent shall distribute so much of the Escrow Fund as may be on deposit with the Escrow Agent to satisfy the request of Buyer: (1) directly to the party to whom payment is to be made, if Buyer has not already made payment to such party; or (2) to Buyer, if payment has already been made by Buyer and evidence of payment has been provided to Seller and the Escrow Agent.

(F) Conditions to Right to Draw Upon Escrow Fund. Prior to delivery of the Escrow Fund or a portion thereof to Buyer, the Escrow Agent shall deliver the notice of Buyer to Seller. The Escrow Agent shall allow Seller ten (10) business days from the giving of notice to object to the delivery of the requisitioned amount of the Escrow Fund. If Seller objects to the delivery of the requisitioned amount, then Seller shall deliver to the Escrow Agent a notice of objection within the ten (10) business day period, specifying the amount objected to and the basis for the objection. If within the ten (10) business day period the Escrow Agent receives a notice of objection from Seller, the Escrow Agent shall mail a copy of the notice of objection to Buyer, and so much of the requisitioned amount as was not objected to, to Buyer or the party to whom payment

is to be made, as the case may be, and the objected to portion of the requisitioned amount shall be delivered pursuant to the provisions of subparagraph (G) below.

(G) Dispute Procedure. If the Escrow Agent receives a notice of

objection to the delivery of the Escrow Fund in the manner described in subparagraph (F) above, then the Escrow Agent shall retain the sum objected to until: (1) the Escrow Agent receives instructions signed by both Seller and Buyer, setting forth the manner in which the sum objected to should be delivered; or (2) Decision Maker renders a final and binding decision on the amount to be disbursed. In the event the parties cannot agree on the amount to be disbursed after following the procedures set forth in subparagraph (i) above, then a final and binding decision shall be made by Decision Maker following the procedures set forth in subparagraphs (ii) and (iii) above.

(H) Compensation for Escrow Agent. The Escrow Agent shall serve

without compensation. If the Escrow Agent incurs any administrative fees in connection with the Escrow Fund, Buyer shall reimburse the Escrow Agent for any such fees. Additionally, if the Escrow Agent incurs any expense in connection with a dispute concerning the Escrow Fund, Seller and Buyer shall jointly and severally indemnify the Escrow Agent for any reasonable expense incurred by the Escrow Agent in connection with the dispute; however, if one party pays more than its one-half share to the Escrow Agent, then such party shall be reimbursed promptly by the other party for the excess payment. In the performance of its duties pursuant to the terms of this Agreement, the Escrow Agent shall only be liable for intentional malfeasance and otherwise the Escrow Agent is released from all liability. If any action shall be brought against the Escrow Agent for intentional malfeasance, the non-prevailing party shall bear all reasonable expenses incurred in connection with the action, including reasonable attorneys’ fees. If the Escrow Agent is made a party to any action in which no intentional malfeasance is claimed, the non-prevailing party, if found to have acted in bad faith in such litigation, shall be responsible for the payment of all reasonable expenses incurred by the Escrow Agent, including reasonable attorneys’ fees.

(I) Legal Action by Escrow Agent. The Escrow Agent shall not be

under any obligation to take any legal action in connection with the Escrow Fund or for its enforcement, or to appear in, prosecute or defend any action or legal proceeding which, in the Escrow Agent’s opinion, would or might involve the Escrow Agent in any costs, expenses or liabilities, unless and as often as required by the Escrow Agent, Seller and Buyer shall deliver to the Escrow Agent such security and indemnities reasonably required by the Escrow Agent with respect to such costs, expenses and liabilities.

(J) Right to Commence Inter-pleader Action. In the event of conflicting claims or demands upon the Escrow Agent, then notwithstanding any other provision hereof, the Escrow Agent shall, at the Escrow Agent’s option, interplead the Escrow Fund with a court of competent jurisdiction, and the non-prevailing party shall bear all costs and expenses of the interpleader action, including, without limitation, the payment of the reasonable attorneys’ fees of both the prevailing party and the Escrow Agent. Notwithstanding any contrary provisions contained herein, the Escrow Agent

shall, at all times, have full right and authority to deliver the Escrow Fund in accordance with and pursuant to joint written instructions signed by Seller and Buyer.

(K) Resignation by Escrow Agent. The Escrow Agent may resign as

Escrow Agent upon giving not less than ten (10) days notice to Seller and Buyer, specifying the effective date of the resignation, in which event, prior to the effective date of such resignation, Seller and Buyer shall appoint a successor escrow agent to serve upon the same terms, conditions and covenants set forth herein. Upon receipt of such notice, the Escrow Agent shall arrange a transfer of the Escrow Fund, or so much thereof as may be left after disbursements pursuant to this Agreement, to the successor Escrow Agent, and upon such transfer, the resigning Escrow Agent shall have no further obligations to Seller or Buyer under this Agreement. If the resigning Escrow Agent does not receive a notice from Seller and Buyer of the appointment of a successor Escrow Agent prior to the effective date of such resignation, the resigning Escrow Agent shall have the right, without the obligation, to pay the Escrow Fund into court and shall thereafter have no further obligation to Seller or Buyer hereunder.

(L) Assumptions by Escrow Agent. The Escrow Agent shall have the right to assume the genuineness of all signatures, the authenticity of all documents tendered to the Escrow Agent as originals and the conformity to the original documents of all documents submitted to the Escrow Agent as photostatic copies. The Escrow Agent shall have the right to assume that any person purporting to give notice, advice or instruction in connection with the provisions here has been duly authorized to do so. (f) Default of Buyer. Buyer shall proceed promptly and diligently, at Buyer’s own cost and expense, to satisfy Buyer’s Environmental Obligations. In the event of a claim by Seller of a default by Buyer in the satisfaction of Buyer’s Environmental Obligations, then Seller shall give Buyer notice of such default and Buyer shall then have a period of ten (10) days following the date of such notice to cure or, if the cure is such as shall likely take more then ten (10) days to complete, to commence such cure of such default. If Buyer fails to cure such default within the ten (10) day period, or, if the cure is such as shall likely take more than ten (10) days to complete, if Buyer fails to commence such cure within ten (10) days and thereafter diligently pursue such cure to a conclusion, then without waiving any other rights available to Seller under this Agreement or otherwise, Seller shall have the right (but not the obligation) to take over the completion of Buyer’s Environmental Obligations and to utilize the Escrow Fund established hereunder to pay for the costs associated with the work performed by Seller, including, without limitation, Seller’s engineering, consulting and other professional and expert fees, Seller’s reasonable attorneys fees, and the fees of any Governmental Authority (including, without limitation, oversight fees), in which event Seller’s right to draw on the Escrow Fund shall be governed by the same terms, conditions and covenants set forth herein governing Buyer and the escrow fund shall continue to be replenished by Buyer.

(g) Survival. This paragraph shall survive the closing of title.

Post Closing Agreement, Covenants and Servitudes This Post Closing Agreement, Covenants and Servitudes (the

“Agreement”), dated ______, 200_ between ______________________________________________,

with offices at ______________________________________________, hereinafter referred to in this Agreement as “Seller”,

-and-

______________________________________________,

with offices at ______________________________________________, hereinafter referred to in this Agreement as “Buyer”.

Background

A. On _________, Seller, as seller, and Buyer, as buyer, entered into an

agreement of sale (the “Agreement of Sale”), pursuant to which Seller agreed to sell to Buyer, and Buyer agreed to acquire from Seller, certain real property commonly known and designated _________________________________________, and more particularly described in Schedule A annexed, and incorporated herein by reference (the “Premises”).

B. Pursuant to the Agreement of Sale, Buyer is to undertake certain obligations with respect to the environmental condition of the Premises, which are expressed more fully in this Agreement.

C. The Agreement of Sale provides, inter alia, that upon the closing of title for the Premises, Seller and Buyer will enter into this Agreement.

Now, therefore, in consideration of the premises and the mutual covenants set forth in this Agreement, it is agreed as follows:

1. Incorporation of Background Section. The background section of

this Agreement is incorporated herein by reference as though set forth at length.

2. Completion of Buyer’s Post-NFA Obligations.

(a) Buyer’s Environmental Obligations. Reference is made to a site – wide No Further Action Letter from (insert the responsible governmental authority), obtained by Seller with respect to the Premises (the “Closure Letter”). Buyer shall be responsible for the maintenance, repair and replacement of, as well as all work required in connection with, all post- Closure Letter monitoring, biennial certification(s), end point sampling, reporting and “Remediation” (as defined below) required by (insert the responsible governmental authority), and/or any other “Governmental Authority” (as defined below) with respect to the Premises and/or any engineering controls, institutional controls, groundwater classification exception area and/or well restriction area used or imposed with respect to the Premises and/or the issuance of the Closure Letter (the “Buyer’s Post- Closure Letter Obligations”). Buyer’s Post- Closure Letter Obligations shall be performed by Buyer, at its sole cost and expense, in accordance with the requirements of all applicable “Laws” (as defined below). In the event Buyer, during any demolition and/or construction activities, disrupts, modifies or removes any aspect of the institutional and/or engineering controls at the Premises, Buyer shall do so strictly in compliance with all applicable Laws.

(b) Documents and Information. Upon the request of Seller, Buyer, the “Buyer’s Representatives” (as defined below), or any third party, as the case may be, shall deliver or cause to be delivered to Seller, all documents and information in the possession or control of Buyer, Buyer’s Representatives, or any third party, concerning Buyer’s Post- Closure Letter Obligations, whether now or hereafter existing, including, without limitation, all submissions to the (insert the responsible governmental authority), or any other Governmental Authority and all documents, correspondence, orders or directives issued by the (insert the responsible governmental authority), or any other Governmental Authority. In addition, Buyer shall notify Seller or cause Seller to be notified of all meetings with the (insert the responsible governmental authority), or any other Governmental Authority regarding Buyer’s Post-Closure Letter Obligations sufficiently in advance so that Seller has a reasonable opportunity (without the obligation to do so) to attend and participate in such meetings.

3. Injunctive Relief. In addition to, and without limiting all other rights and remedies available to Seller under this Agreement, pursuant to Law, or otherwise, Seller shall be entitled to injunctive relief with respect to any default under any of the provisions of this Agreement, and Buyer shall not raise nor permit or allow any third party to raise as a defense that Seller has an adequate remedy at Law.

4. Indemnification. Buyer shall indemnify, defend with counsel

satisfactory to Seller in its sole and absolute discretion, and hold harmless each of the “Indemnified Parties” (as defined below) from and against any and all claims, losses, costs, liabilities, penalties and damages, foreseen or unforeseen, including, without limitation, reasonable counsel, engineering and other professional and expert fees which any or all of them may incur or may have incurred, resulting directly or indirectly, wholly

or partly, from (a) Buyer’s Post - Closure Letter Obligations or (b) a breach of any obligation under this Agreement.

5. Release. Effective upon the execution and delivery of this Agreement by Buyer, Buyer, for itself and all successors and assigns, including, without limitation, all subsequent owners of and operators at the Premises, releases Seller, its successors and assigns, all predecessors in title, and each and all of their respective officers, directors, shareholders, partners, members, employees, direct and indirect parents, subsidiaries, and affiliates (collectively, the "Releasees"), of and from any and all claims and/or causes of action arising from or relating to, any environmental condition at, in, on, and/or under the Premises, and/or its environs, regardless of whether (a) the environmental condition resulted from on-site and/or off-site activities of any one or more of the Releasees, and/or any third party, (b) the environmental condition migrated from or onto the Premises, (c) the claim or cause of action arises from and/or relates to property damage, personal injury, toxic tort, or medical monitoring and/or (d) the claim or cause of action now exists or is hereafter created under common law, or now exists or is hereafter enacted pursuant to federal, state, county or municipal law or regulation, including, without limitation, claims and causes of action under: (i) the federal Comprehensive Environmental Response, Compensation, and Liability Act, the federal Resource Conservation and Recovery Act, and analogous state, county or municipal Laws; (ii) federal, state, county or municipal (A) clean water and clean air Laws; (B) Laws concerning hazardous substances or wastes and their use, generation, handling, storage or disposal; (C) Laws imposing restrictions or preconditions on closures, transactions or transfers of properties or entities; and (D) Laws governing flood plains, stream encroachment and wetlands.

6. Covenants Running with the Land. The provisions of this Agreement are deemed covenants running with the land that touch and concern the land, and are binding upon Buyer, its successors and assigns, including, without limitation, all subsequent owners of and operators at the Premises.

7. Notices. All notices required or permitted by this Agreement shall be in writing and shall be sent by certified mail, return receipt requested, addressed as follows: If to Seller: ____________________ ____________________ ____________________ With copy to: ____________________ ____________________ ____________________ If to Buyer: ____________________ ____________________ ____________________

With copy to: ____________________ ____________________ ____________________ Seller and Buyer may, by notice given in the same manner set forth above, designate a further or different address to which subsequent notices shall be sent. Notices shall be deemed given when received or refused.

8. Incorporation of Prior Agreements. This Agreement and the Agreement of Sale contain the entire understanding of the parties with respect to the subject matter hereof, and no prior or other written or oral agreement or undertaking pertaining to any such matter shall be effective for any purpose.

9. Modification of Agreement. This Agreement may not be amended

or modified, nor may any obligation hereunder be waived, orally, and no amendment, modification or waiver shall be effective for any purpose unless it is in writing and signed by the party against whom enforcement thereof is sought.

10. Interpretation. This Agreement shall be construed reasonably to carry out its intent without presumption against or in favor of either party. If any provision hereof shall be declared invalid by any court or in any administrative proceeding, then the provisions of this Agreement shall be construed in such a manner so as to preserve the validity hereof and the substance of the transaction herein contemplated to the fullest extent possible. The captions, section and article headings are provided for purposes of convenience of reference only and are not intended to limit, define the scope of, or aid in the interpretation of any of the provisions hereof.

11. Counterparts. This Agreement may be executed and delivered in several counterparts, each of which, when so executed and delivered, shall constitute an original, fully enforceable counterpart for all purposes.

12. Governing Law. This Agreement shall be governed by the laws of the State of ____________. The parties acknowledge that this Agreement has been executed and delivered in the State of _______________, and the parties submit to the jurisdiction of the courts of the State of ________________.

13. Miscellaneous. In all references in this Agreement to any parties, persons, entities or corporations, the use of any particular gender or the plural or singular number is intended to include the appropriate gender and number as the text of this Agreement may require.

14. Binding Effects. This Agreement shall be binding upon and inure to

the benefit of the parties, their successors and assigns.

15. Definitions. For the Purposes of this Agreement:

(a) Laws. “Laws” shall mean each and every applicable federal, state, county or municipal statute, ordinance, rule, regulation, order, directive or requirement, together with all successor statutes, ordinances, rules, regulations, orders or requirements, of any Governmental Authority.

(b) Governmental Authority. “Governmental Authority” shall mean

the federal, state, county or municipal government, or any department, agency, bureau or other similar type body obtaining authority therefrom or created pursuant to any Laws.

(c) Buyer’s Representatives. “Buyer’s Representative” shall mean

the employees, agents, representatives, contractors and subcontractors of Buyer.

(d) Indemnified Parties. “Indemnified Parties” shall mean Seller, its officers, directors, members, partners, shareholders and employees. (e) Remediation. “Remediation” shall include, without limitation: environmental investigation, monitoring and sampling; installation, maintenance and closure of monitoring wells; storage and disposal of excavated materials; installation, maintenance, storage and removal of machinery and equipment; establishment and maintenance of institutional controls, including, without limitation, a deed notice or declaration of environmental restriction; maintenance of engineering controls, including, without limitation, capping; on-going activities required with respect to a groundwater classification exception area for natural remediation of groundwater contamination, including, without limitation, all post-Closure Letter monitoring and remediation, and a well restriction area; and any other work required post – Closure Letter.

Signed by the parties. ___________________________

Seller

By: Dated: ___________________________

___________________________

Buyer

By: Dated: ___________________________

Add Acknowledgements Necessary for Recording