Common use of Communication and Control Clause in Contracts

Communication and Control. In conducting any Remedial Action Required by Law with respect to Environmental Conditions on the Leased Premises, Lessor and Lessee shall adhere to the following procedures: (a) The Lead Party shall provide the non-Lead Party for review and comment drafts of any proposed work plans, reports or other submissions that the Lead Party intends to deliver or submit to a Governmental Entity prior to said submission. The non-Lead Party shall have fifteen (15) days or such shorter time as is reasonable to provide comments to the Lead Party regarding any such draft submissions. Such review shall be at the sole expense of the non-Lead Party. The Lead Party shall consider and respond to the non-Lead Party’s comments. (b) The Lead Party shall promptly provide copies to the non-Lead Party of all written notices, final submissions, final work plans and final reports and any other documents or communications to or from any Governmental Entity, concerning the Remedial Action. (c) The non-Lead Party may, at its own expense, hire its own consultants, attorneys or other professionals to monitor the Remedial Action, including any field work, and the Lead Party shall provide the non-Lead Party with the results of all such field work. During the performance of the field work, the Lead Party shall afford the non-Lead Party the opportunity to collect split samples of any samples collected by the Lead Party or its representatives. (d) The Lead Party shall provide the non-Lead Party with notice of any meetings with any Governmental Entity concerning the Remedial Action, and the non-Lead Party shall have the right to have its representatives or consultants attend such meeting at the sole expense of the non-Lead Party. (e) The non-Lead Party shall not engage in any ex parte communications with any involved Governmental Entity or other Person regarding any Remedial Action being undertaken by the Lead Party or the Environmental Conditions giving rise to such Remedial Action, without notice to and the opportunity by the Lead Party to participate in such communication; provided that the non-Lead Party may engage in a communication with an involved Governmental Entity without notice to the Lead Party if: (i) the non-Lead Party is required by Law to make a notification to the Governmental Entity within a time period that does not practicably allow an opportunity to first notify the Lead Party; provided that the non-Lead Party shall notify the Lead Party as soon as practicable following the provision of such notice; or (ii) a Governmental Entity conducts an inspection or otherwise initiates a communication with the non-Lead Party; provided that the non-Lead Party shall notify the Lead Party as soon as practicable following such communication. (f) In communications with any Governmental Entity or other Person, the non-Lead Party or any representatives of the non-Lead Party shall not advocate or take any action that would hinder, render more difficult, or render more expensive the Remedial Action to be undertaken by the Lead Party. (g) If the non-Lead Party is in possession of the site where Remedial Actions are being implemented, the Lead Party shall provide reasonable advance notice to and reasonably consult with the non-Lead Party concerning the scheduling and methods for implementing any Remedial Action with the objective of minimizing to the extent reasonably practicable interference with the non-Lead Party’s business operations at the site in question. (h) Lessee shall cooperate with all reasonable requests of Lessor and its Representatives, including providing reasonable access to the Leased Premises, Lessee’s employees, business and personal records, data and information (excluding proprietary information), and by providing reasonable access to Lessor and Lessor’s contractors to conduct any investigation of Environmental Conditions or any Remedial Action on or at any of the Leased Premises. (i) Lessor shall cooperate with all reasonable requests of Lessee and its Representatives, including providing reasonable access to the Property, Lessor’s employees, business and personal records, data and information (excluding proprietary information), and by providing reasonable access to Lessee and Lessee’s contractors to conduct any investigation of Environmental Conditions or any Remedial Action on or at the Leased Premises or Property for which Lessee is the Lead Party. (j) All information and records provided by either Party to the other shall be held strictly confidential and shall not be disclosed to any other Person (other than professionals or consultants engaged by either Party with a “need to know,” who agree to keep all of the same strictly confidential), except as may be required under Applicable Laws and Other Requirements.

Communication and Control. In conducting (i) The Party that has the right to assume control of a response to an Environmental Liability related to the Owned Real Property or Leased Real Property in accordance with this Section 9.7(e) shall be designated as the “Lead Party” for purposes of such Environmental Liability. (A) The Seller shall be the Lead Party and have the right to assume control of, direct and implement any Remedial Action defense or other response relating to any Preexisting Environmental Condition or any Seller New Environmental Condition on, at or affecting the Owned Real Property or Leased Real Property, subject to the conditions herein. (B) The Buyer shall be the Lead Party and have the right to assume control of, direct and implement any Remedial Action, defense or other response relating to any Buyer New Environmental Condition on, at or affecting the Owned Real Property or Leased Real Property. (C) If it is determined that an Environmental Condition on, at or affecting the Owned Real Property or Leased Real Property is the result of a Buyer New Environmental Condition in combination with either a Preexisting Environmental Condition or a Seller New Environmental Condition, the Party with the greater proportionate responsibility shall be the Lead Party and have the right to assume control of, direct and implement any Remedial Action, defense or other response relating to such Environmental Condition. (ii) Within thirty (30) days after receiving notice of a claim pursuant to Section 9.5(a), the Buyer or the Seller, as appropriate, shall notify the other party of its intent to act as Lead Party. (iii) Notwithstanding subparagraphs (i) and (ii) above, each Party retains the rights to take any action that it deems necessary to protect its interests in accordance with Section 9.5(b). (iv) The Lead Party shall promptly commence the Remedial Actions Required by Law and shall diligently pursue such Remedial Actions Required by Law in compliance with applicable Environmental Laws. (v) With respect to Remedial Actions relating to any Preexisting Environmental Conditions on Condition, Seller New Environmental Condition or Buyer New Environmental Condition associated with the Owned Real Property or Leased PremisesReal Property, Lessor and Lessee the Parties shall adhere to the following procedures: (aA) The Lead Party shall provide the non-Lead Party for review and comment drafts of any proposed work plans, reports or other submissions that the Lead Party intends to deliver or submit to a Governmental Entity Authority prior to said submission. The non-Lead Party shall have fifteen thirty (1530) days or such shorter time as is reasonable to provide comments to the Lead Party regarding any such draft submissions. Such review shall be at the sole expense of the non-Lead Party. The Lead Party shall consider and respond to the non-Lead Party’s comments. (bB) The Lead Party shall promptly provide copies to the non-Lead Party of all written notices, final submissions, final work plans and final reports reports, and any other documents or communications to or from any Governmental Entity, Authority concerning the Remedial Action. (cC) The non-Lead Party may, at its own expense, hire its own consultants, attorneys or other professionals to monitor the Remedial Action, including any field work, and the Lead Party shall provide the non-Lead Party with the results of all such field work. During the performance of the field work, the Lead Party shall afford the non-Lead Party the opportunity to collect split samples of any samples collected by the Lead Party or its representatives. (dD) The Lead Party shall provide the non-Lead Party with notice of any meetings with any Governmental Entity Authority concerning the Remedial Action, and the non-Lead Party shall have the right to have its representatives or consultants attend such meeting at the sole expense of the non-Lead Party. (e) The non-Lead Party shall not engage in any ex parte communications with any involved Governmental Entity or other Person regarding any Remedial Action being undertaken by the Lead Party or the Environmental Conditions giving rise to such Remedial Action, without notice to and the opportunity by the Lead Party to participate in such communication; provided that the non-Lead Party may engage in a communication with an involved Governmental Entity without notice to the Lead Party if: (i) the non-Lead Party is required by Law to make a notification to the Governmental Entity within a time period that does not practicably allow an opportunity to first notify the Lead Party; provided that the non-Lead Party shall notify the Lead Party as soon as practicable following the provision of such notice; or (ii) a Governmental Entity conducts an inspection or otherwise initiates a communication with the non-Lead Party; provided that the non-Lead Party shall notify the Lead Party as soon as practicable following such communication. (f) In communications with any Governmental Entity or other Person, the non-Lead Party or any representatives of the non-Lead Party shall not advocate or take any action that would hinder, render more difficult, or render more expensive the Remedial Action to be undertaken by the Lead Party. (gE) If the non-Lead Party is in possession of the site where Remedial Actions are being implemented, the Lead Party shall provide reasonable advance notice to and reasonably consult with the non-Lead Party concerning the scheduling and methods for implementing any Remedial Action with the objective of minimizing to the extent reasonably practicable interference with the non-Lead Party’s business operations at the site in question. (hvi) Lessee The non-Lead Party agrees to refrain from any ex parte communications with any involved Governmental Authority or other Person regarding any Remedial Action being undertaken by the Lead Party or the Environmental Conditions giving rise to such Remedial Action, without notice to and the opportunity by the Lead Party to participate in such communication; provided that the non-Lead Party may engage in a communication with an involved Governmental Authority without notice to the Lead Party if: (A) The non-Lead Party is required by Law to make a notification to the Governmental Authority within a time period that does not practicably allow an opportunity to first notify the Lead Party, provided that the non-Lead Party shall notify the Lead Party as soon as practicable following the provision of such notice; or (B) a Governmental Authority conducts an inspection or otherwise initiates a communication with the non-Lead Party; provided that the non-Lead Party shall notify the Lead Party as soon as practicable following such communication. In communications with any Governmental Authority or other Person regarding any such Remedial Action or underlying Environmental Condition, the non-Lead Party or any representatives of the non-Lead Party shall not advocate or take any action that would hinder, render more difficult, or render more expensive the Remedial Action to be undertaken by the Lead Party pursuant to the Lead Party’s indemnification obligations under Section 9.2. (vii) The Buyer and Buyer Group Members shall cooperate with all reasonable requests of Lessor and its Representativesthe Seller, including providing reasonable access to the Leased Premisesany Facilities, Lessee’s employees, business and personal records, data and information (excluding proprietary information), and by providing reasonable including access to Lessor the Seller and Lessorthe Seller’s contractors to conduct any investigation of Environmental Conditions or any Remedial Action on or at any of the Leased PremisesFacilities, in accordance with the Access Agreement. (iviii) Lessor The Seller shall cooperate with all reasonable requests of Lessee and its Representativesthe Buyer, including providing reasonable access to the Propertyany Facilities, Lessor’s employees, business and personal records, data and information (excluding proprietary information), and by providing reasonable access necessary to Lessee and Lessee’s contractors enable the Buyer to conduct any investigation of Environmental Conditions or any Remedial Action on or at the Leased Premises or Property for which Lessee is the Lead Partydefend against Assumed Liabilities. (j) All information and records provided by either Party to the other shall be held strictly confidential and shall not be disclosed to any other Person (other than professionals or consultants engaged by either Party with a “need to know,” who agree to keep all of the same strictly confidential), except as may be required under Applicable Laws and Other Requirements.

Communication and Control. In conducting (i) The Party that has the right to assume control of a response to an Environmental Liability related to the Owned Real Property or Leased Real Property in accordance with this Section 9.7(e) shall be designated as the “Lead Party” for purposes of such Environmental Liability. (A) The Seller shall be the Lead Party and have the right to assume control of, direct and implement any Remedial Action defense or other response relating to any Preexisting Environmental Condition or any Seller New Environmental Condition on, at or affecting the Owned Real Property or Leased Real Property, subject to the conditions herein. (B) The Buyer shall be the Lead Party and have the right to assume control of, direct and implement any Remedial Action, defense or other response relating to any Buyer New Environmental Condition on, at or affecting the Owned Real Property or Leased Real Property. (C) If it is determined that an Environmental Condition on, at or affecting the Owned Real Property or Leased Real Property is the result of a Buyer New Environmental Condition in combination with either a Preexisting Environmental Condition or a Seller New Environmental Condition, the Party with the greater proportionate responsibility shall be the Lead Party and have the right to assume control of, direct and implement any Remedial Action, defense or other response relating to such Environmental Condition. (ii) Within thirty (30) days after receiving notice of a claim pursuant to Section 9.5(a), the Buyer or the Seller, as appropriate, shall notify the other party of its intent to act as Lead Party. (iii) Notwithstanding subparagraphs (i) and (ii) above, each Party retains the rights to take any action that it deems necessary to protect its interests in accordance with Section 9.5(b). (iv) The Lead Party shall promptly commence the Remedial Actions Required by Law and shall diligently pursue such Remedial Actions Required by Law in compliance with applicable Environmental Laws. (v) With respect to Remedial Actions relating to any Preexisting Environmental Conditions on Condition, Seller New Environmental Condition or Buyer New Environmental Condition associated with the Owned Real Property or Leased PremisesReal Property, Lessor and Lessee the Parties shall adhere to the following procedures: (aA) The Lead Party shall provide the non-Lead Party for review and comment drafts of any proposed work plans, reports or other submissions that the Lead Party intends to deliver or submit to a Governmental Entity Authority prior to said submission. The non-Lead Party shall have fifteen thirty (1530) days or such shorter time as is reasonable to provide comments to the Lead Party regarding any such draft submissions. Such review shall be at the sole expense of the non-Lead Party. The Lead Party shall consider and respond to the non-Lead Party’s comments. (bB) The Lead Party shall promptly provide copies to the non-Lead Party of all written notices, final submissions, final work plans and final reports reports, and any other documents or communications to or from any Governmental Entity, Authority concerning the Remedial Action. (cC) The non-Lead Party may, at its own expense, hire its own consultants, attorneys or other professionals to monitor the Remedial Action, including any field work, and the Lead Party shall provide the non-Lead Party with the results of all such field work. During the performance of the field work, the Lead Party shall afford the non-Lead Party the opportunity to collect split samples of any samples collected by the Lead Party or its representatives. (dD) The Lead Party shall provide the non-Lead Party with notice of any meetings with any Governmental Entity Authority concerning the Remedial Action, and the non-Lead Party shall have the right to have its representatives or consultants attend such meeting at the sole expense of the non-Lead Party. (e) The non-Lead Party shall not engage in any ex parte communications with any involved Governmental Entity or other Person regarding any Remedial Action being undertaken by the Lead Party or the Environmental Conditions giving rise to such Remedial Action, without notice to and the opportunity by the Lead Party to participate in such communication; provided that the non-Lead Party may engage in a communication with an involved Governmental Entity without notice to the Lead Party if: (i) the non-Lead Party is required by Law to make a notification to the Governmental Entity within a time period that does not practicably allow an opportunity to first notify the Lead Party; provided that the non-Lead Party shall notify the Lead Party as soon as practicable following the provision of such notice; or (ii) a Governmental Entity conducts an inspection or otherwise initiates a communication with the non-Lead Party; provided that the non-Lead Party shall notify the Lead Party as soon as practicable following such communication. (f) In communications with any Governmental Entity or other Person, the non-Lead Party or any representatives of the non-Lead Party shall not advocate or take any action that would hinder, render more difficult, or render more expensive the Remedial Action to be undertaken by the Lead Party. (gE) If the non-Lead Party is in possession of the site where Remedial Actions are being implemented, the Lead Party shall provide reasonable advance notice to and reasonably consult with the non-Lead Party concerning the scheduling and methods for implementing any Remedial Action with the objective of minimizing to the extent reasonably practicable interference with the non-Lead Party’s business operations at the site in question. (hvi) Lessee The non-Lead Party agrees to refrain from any ex parte communications with any involved Governmental Authority or other Person regarding any Remedial Action being undertaken by the Lead Party or the Environmental Conditions giving rise to such Remedial Action, without notice to and the opportunity by the Lead Party to participate in such communication; provided, that the non-Lead Party may engage in a communication with an involved Governmental Authority without notice to the Lead Party if: (A) The non-Lead Party is required by Law to make a notification to the Governmental Authority within a time period that does not practicably allow an opportunity to first notify the Lead Party, provided, that the non-Lead Party shall notify the Lead Party as soon as practicable following the provision of such notice; or (B) a Governmental Authority conducts an inspection or otherwise initiates a communication with the non-Lead Party; provided, that the non-Lead Party shall notify the Lead Party as soon as practicable following such communication. In communications with any Governmental Authority or other Person regarding any such Remedial Action or underlying Environmental Condition, the non-Lead Party or any representatives of the non-Lead Party shall not advocate or take any action that would hinder, render more difficult, or render more expensive the Remedial Action to be undertaken by the Lead Party pursuant to the Lead Party’s indemnification obligations under Section 9.2. (vii) The Buyer and Buyer Group Members shall cooperate with all reasonable requests of Lessor and its Representativesthe Seller, including providing reasonable access to the Leased Premisesany Facilities, Lessee’s employees, business and personal records, data and information (excluding proprietary information), and by providing reasonable including access to Lessor the Seller and Lessorthe Seller’s contractors to conduct any investigation of Environmental Conditions or any Remedial Action on or at any of the Leased PremisesFacilities, in accordance with the Access Agreement. (iviii) Lessor The Seller shall cooperate with all reasonable requests of Lessee and its Representativesthe Buyer, including providing reasonable access to the Propertyany Facilities, Lessor’s employees, business and personal records, data and information (excluding proprietary information), and by providing reasonable access necessary to Lessee and Lessee’s contractors enable the Buyer to conduct any investigation of Environmental Conditions or any Remedial Action on or at the Leased Premises or Property for which Lessee is the Lead Partydefend against Assumed Liabilities. (j) All information and records provided by either Party to the other shall be held strictly confidential and shall not be disclosed to any other Person (other than professionals or consultants engaged by either Party with a “need to know,” who agree to keep all of the same strictly confidential), except as may be required under Applicable Laws and Other Requirements.