Common use of Environmental Access, Control and Cooperation Clause in Contracts

Environmental Access, Control and Cooperation. With respect to any claim for indemnification by Purchaser Indemnitees for any Pre-Closing Environmental Liability or any breach of the representations and warranties contained in Section 4.10 or, with respect to Environmental Permits, contained in Section 4.16 (“Environmental Indemnity Claims”): (a) Notwithstanding any provision to the contrary, (i) Seller shall have the right to assume the control and/or performance of, and shall have the right to make all final decisions with respect to, any investigation, cleanup or other corrective or responsive action (“Responsive Action”) relating to any Environmental Indemnity Claim to the extent Seller’s obligation under clause (ii) (solely with respect to any breach of any covenant or agreement contained in Section 5.01), clause (iii) (except with respect to inaccuracies of the representations and warranties contained in Sections 4.01, 4.02, those portions of Sections 4.11 and 4.12 relating to title to the Transferred Assets and the first sentence of Section 4.18) or clause (iv) of Section 10.01(a) exceeds or has exceeded on a cumulative basis an amount equal to $100,000,000; provided, however, that, with respect to any Responsive Action controlled and/or performed by Seller pursuant to this Agreement, to the extent reasonably practicable from an economic and engineering standpoint, Seller shall not conduct or agree to conduct any Responsive Action in a manner that unreasonably interferes with the operations of the Business at any relevant Transferred Real Property; and (ii) Purchaser shall provide Seller, at reasonable times and after reasonable notice, access to the Transferred Real Property and Business records and employees in connection with any such control and/or performance by Seller. (b) The Party that controls and/or performs any Responsive Action relating to any Environmental Indemnity Claim under this Agreement (the “Controlling Party”) shall (i) reasonably consult with the other Party (the “Non-Controlling Party”) regarding any such Responsive Action, including the selection of any environmental consultants and the selection of, and development of any scope of work for, any Responsive Action; (ii) provide the Non-Controlling Party with an opportunity to review and comment on any submission to any Governmental Entity reasonably in advance of such submission and shall consider such comments in good faith; and (iii) provide the Non-Controlling Party with an opportunity to (A) attend any meetings with any Governmental Entity; (B) review any documents or records relating to such Responsive Action in the Controlling Party’s control that the Non-Controlling Party may reasonably request; and (C) monitor the performance of such Responsive Action and, in the case of any intrusive investigation or cleanup, and at Non-Controlling Party’s reasonable request and expense, take split samples; provided, however, that, if Purchaser is the Controlling Party, with respect to any such Environmental Indemnity Claim that could reasonably be expected to result in Loss such that Seller’s obligation under clause (ii) (solely with respect to any breach of any covenant or agreement contained in Section 5.01), clause (iii) (except with respect to inaccuracies of the representations and warranties contained in Sections 4.01, 4.02, those portions of Sections 4.11 and 4.12 relating to title to the Transferred Assets and the first sentence of Section 4.18) or clause (iv) of Section 10.01(a) would exceed on a cumulative basis an amount equal to $100,000,000, Purchaser shall not conduct, agree to, or enter any settlement or order or make any reporting to any Governmental Entity with respect to any Responsive Action (including the selection of consultants, development and selection of a scope of work, any submissions to any Governmental Entity) without the prior written consent of the Seller, which shall not be unreasonably withheld or delayed. (c) Any Responsive Action taken in connection with any Environmental Indemnity Claim shall be conducted in a workmanlike manner, using commercially reasonable and cost effective practices, standards and methods from an engineering standpoint.

Environmental Access, Control and Cooperation. With respect to any claim for indemnification by Purchaser Issuer Indemnitees for any Pre-Closing Environmental Liability or any breach of the representations and warranties contained in Section 4.10 or, with respect to Environmental Permits, contained in Section 4.16 3.11 (“Environmental Indemnity Claims”): (a) Notwithstanding any provision to the contrary, (i) Seller Transferor shall have the right to assume the control and/or performance of, and shall have the right to make all final decisions with respect to, any investigation, cleanup or other corrective or responsive action (“Responsive Action”) relating to any Environmental Indemnity Claim to the extent Seller’s obligation under clause (ii) (solely with respect to any breach of any covenant or agreement contained in Section 5.01), clause (iii) (except with respect to inaccuracies of the representations and warranties contained in Sections 4.01, 4.02, those portions of Sections 4.11 and 4.12 relating to title to the Transferred Assets and the first sentence of Section 4.18) or clause (iv) of Section 10.01(a) exceeds or has exceeded on a cumulative basis an amount equal to $100,000,000Claim; provided, however, that, with respect to any Responsive Action controlled and/or performed by Seller Transferor pursuant to this Agreement, to the extent reasonably practicable from an economic and engineering standpoint, Seller Transferor shall not conduct or agree to conduct any Responsive Action in a manner that unreasonably interferes with the operations of the Transferred Business at any relevant Transferred Real Property; and (ii) Purchaser Issuer shall (or shall cause its Subsidiaries to) provide SellerTransferor, at reasonable times and after reasonable notice, access to the Transferred Real Property and Transferred Business records and employees in connection with any such control and/or performance by SellerTransferor. (b) The Party party that controls and/or performs any Responsive Action relating to any Environmental Indemnity Claim under this Agreement (the “Controlling Party”) shall (i) reasonably consult with the other Party party (the “Non-Controlling Party”) regarding any such Responsive Action, including the selection of any environmental consultants and the selection of, and development of any scope of work for, any Responsive Action; (ii) provide the Non-Controlling Party with an opportunity to review and comment on any submission to any Governmental Entity Authority reasonably in advance of such submission and shall consider such comments in good faith; and (iii) provide the Non-Controlling Party with an opportunity to (A) attend any meetings with any Governmental EntityAuthority; (B) review any documents or records relating to such Responsive Action in the Controlling Party’s control that the Non-Controlling Party may reasonably request; and (C) monitor the performance of such Responsive Action and, in the case of any intrusive investigation or cleanup, and at Non-Controlling Party’s reasonable request and expense, take split samples; provided, however, that, if Purchaser Issuer or GPI is the Controlling Party, with respect to any such Environmental Indemnity Claim that could reasonably be expected to result in Loss such that Seller’s obligation under clause (ii) (solely with respect to any breach of any covenant Claim, Issuer or agreement contained in Section 5.01)GPI shall not, clause (iii) (except with respect to inaccuracies of the representations and warranties contained in Sections 4.01as required by Law, 4.02, those portions of Sections 4.11 and 4.12 relating to title to the Transferred Assets and the first sentence of Section 4.18) or clause (iv) of Section 10.01(a) would exceed on a cumulative basis an amount equal to $100,000,000, Purchaser shall not conduct, agree to, or enter any settlement or order or make any reporting to any Governmental Entity Authority with respect to any Responsive Action (including the selection of consultants, development and selection of a scope of work, any submissions to any Governmental EntityAuthority) without the prior written consent of the SellerTransferor, which shall not be unreasonably withheld or delayed. (c) Any Responsive Action taken in connection with any Environmental Indemnity Claim shall be conducted in a workmanlike manner, using commercially reasonable and cost effective practices, standards and methods from an engineering standpoint.

Environmental Access, Control and Cooperation. With respect to any claim for indemnification by Purchaser Indemnitees for any Pre-Closing Environmental Liability or any breach of the representations and warranties contained in Section 4.10 or, with respect to Environmental Permits, contained in Section 4.16 4.11 (“Environmental Indemnity Claims”): (a) Notwithstanding any provision to the contrary, (i) Seller shall have the right to assume the control and/or performance of, and shall have the right to make all final decisions with respect to, any investigation, cleanup or other corrective or responsive action (“Responsive Action”) relating to any Environmental Indemnity Claim to the extent Seller’s obligation under clause (ii) (solely with respect to any breach of any covenant or agreement contained in Section 5.0110.01(a)(ii)(A), clause (iiiSection 10.01(a)(iii) (except with respect to breaches or inaccuracies of the representations and warranties contained in Sections 4.01, 4.02, those portions of Sections 4.11 and 4.12 relating to title to the Transferred Assets and the first sentence of Section 4.18Seller Fundamental Representations) or clause (iv) of Section 10.01(a10.01(a)(iv) exceeds or has exceeded on a cumulative basis an amount equal to $100,000,00036,000,000; provided, however, that, with respect to any Responsive Action controlled and/or performed by Seller pursuant to this Agreement, to the extent reasonably practicable from an economic and engineering standpoint, Seller shall not conduct or agree to conduct any Responsive Action in a manner that unreasonably interferes with the operations of the Business at any relevant Transferred Real Property; and (ii) Purchaser shall provide Seller, at reasonable times and after reasonable notice, access to the Transferred Real Property and Business records and employees in connection with any such control and/or performance by Seller. (b) The Party that controls and/or performs any Responsive Action relating to any Environmental Indemnity Claim under this Agreement (the “Controlling Party”) shall (i) reasonably consult with the other Party (the “Non-Controlling Party”) regarding any such Responsive Action, including the selection of any environmental consultants and the selection of, and development of any scope of work for, any Responsive Action; (ii) provide the Non-Controlling Party with an opportunity to review and comment on any submission to any Governmental Entity reasonably in advance of such submission and shall consider such comments in good faith; and (iii) provide the Non-Controlling Party with an opportunity to (A) attend any meetings with any Governmental Entity; (B) review any documents or records relating to such Responsive Action in the Controlling Party’s control that the Non-Controlling Party may reasonably request; and (C) monitor the performance of such Responsive Action and, in the case of any intrusive investigation or cleanup, and at Non-Controlling Party’s reasonable request and expense, take split samples; provided, however, that, if Purchaser is the Controlling Party, with respect to any such Environmental Indemnity Claim that could reasonably be expected to result in Loss such that Seller’s obligation under clause (ii) (solely with respect to any breach of any covenant or agreement contained in Section 5.0110.01(a)(ii)(A), clause (iiiSection 10.01(a)(iii) (except with respect to breaches or inaccuracies of the representations and warranties contained in Sections 4.01, 4.02, those portions of Sections 4.11 and 4.12 relating to title to the Transferred Assets and the first sentence of Section 4.18Seller Fundamental Representations) or clause (iv) of Section 10.01(a10.01(a)(iv) would exceed on a cumulative basis an amount equal to $100,000,00036,000,000, Purchaser shall not not, except as required by Law, conduct, agree to, or enter any settlement or order or make any reporting to any Governmental Entity with respect to any Responsive Action (including the selection of consultants, development and selection of a scope of work, any submissions to any Governmental Entity) without the prior written consent of the Seller, which shall not be unreasonably withheld or delayed. (c) Any Responsive Action taken in connection with any Environmental Indemnity Claim shall be conducted in a workmanlike manner, using commercially reasonable and cost effective practices, standards and methods from an engineering standpoint.

Environmental Access, Control and Cooperation. With respect to any claim for indemnification by Purchaser Indemnitees for any Pre-Closing Environmental Liability or any breach of the representations and warranties contained in Section 4.10 or, with respect to Environmental Permits, contained in Section 4.16 (“Environmental Indemnity Claims”): (a) Notwithstanding any provision to the contrary, (i) Seller Buyer shall have the right right, but not the obligation, to assume the control and/or performance ofperform, and shall have the right to make all final decisions with respect to, any investigation, cleanup or other corrective or responsive action (“Responsive Action”) relating to any claim for indemnification by the Buyer Indemnitees for any Pre-Closing Environmental Liabilities (“Environmental Indemnity Claim”) and any related Responsive Actions. To the extent that Xxxxx does not elect to control and/or perform the Responsive Action in accordance with Section 8.5, Transferor shall have an obligation to control and/or perform such Responsive Action. To the extent Transferor controls or performs any Responsive Action relating to any Environmental Indemnity Claim to the extent Seller’s obligation under clause (ii) (solely with respect to any breach of any covenant or agreement contained in Section 5.01), clause (iii) (except with respect to inaccuracies of the representations and warranties contained in Sections 4.01, 4.02, those portions of Sections 4.11 and 4.12 relating to title to the Transferred Assets and the first sentence of Section 4.18) or clause (iv) of Section 10.01(a) exceeds or has exceeded on a cumulative basis an amount equal to $100,000,000; provided, however, that, with respect to any Responsive Action controlled and/or performed by Seller pursuant to this Agreement, to the extent reasonably practicable from an economic and engineering standpoint, Seller (i) Transferor shall not conduct or agree to conduct any Responsive Action in a manner that unreasonably interferes with the operations of the Business at any relevant Transferred Real PropertyBusiness; and (ii) Purchaser Buyer shall (or shall cause its Subsidiaries to) provide SellerTransferor, at reasonable times and after reasonable notice, access to the Transferred Real Property and Transferred Business records and employees in connection with any such control and/or performance by SellerTransferor. (b) The Party party that controls and/or performs any Responsive Action relating to any Environmental Indemnity Claim under this Agreement (the “Controlling Party”) shall (i) reasonably consult with the other Party party (the “Non-Controlling Party”) regarding any such Responsive Action, including the selection of, and development of any scope of work for, any Responsive Action including the selection of any environmental consultants and the selection of, and development of any scope of work for, any Responsive Action; (ii) provide the Non-Controlling Party with an opportunity to review and comment on any submission to any Governmental Entity Authority reasonably in advance of such submission and shall consider such comments in good faith; and (iii) provide the Non-Controlling Party with an opportunity to (A) attend any meetings with any Governmental EntityAuthority; (B) review any documents or records relating to such Responsive Action in the Controlling Party’s control that the Non-Controlling Party may reasonably request; and (C) monitor the performance of such Responsive Action and, in the case of any intrusive investigation or cleanup, and at Non-Controlling Party’s reasonable request and expense, take split samples; provided, however, that, if Purchaser is the Controlling Party, with respect to any such Environmental Indemnity Claim that could reasonably be expected to result in Loss such that Seller’s obligation under clause (ii) (solely with respect to any breach of any covenant Claim, Buyer or agreement contained in Section 5.01)Transferor shall not, clause (iii) (except with respect to inaccuracies of the representations and warranties contained in Sections 4.01as required by Law, 4.02, those portions of Sections 4.11 and 4.12 relating to title to the Transferred Assets and the first sentence of Section 4.18) or clause (iv) of Section 10.01(a) would exceed on a cumulative basis an amount equal to $100,000,000, Purchaser shall not conduct, agree to, or enter any settlement or order or make any reporting to any Governmental Entity Authority with respect to any Responsive Action (including the selection of consultants, development and selection of a scope of work, any submissions to any Governmental EntityAuthority) without the prior written consent of the SellerBuyer or Transferor, as applicable, which shall not be unreasonably withheld withheld, conditioned or delayed. (c) Any The Controlling Party shall perform or cause to be performed any required investigations, remediation, removal, cleanup and other corrective or responsive action relating to and any Environmental Indemnity Claim (i) in accordance with this Agreement and as necessary to satisfy applicable requirements of any Governmental Authority, Environmental Law, License or Order; (ii) using qualified environmental consultants and engineers reasonably approved by the Non-Controlling Party; (iii) in a diligent and workmanlike manner that does not unreasonably interfere with the use or operation of the Transferred Business or Transferred Assets; and (iv) if Transferor is the Controlling Party, in a manner that does not require or result in any lien, restriction, encumbrance or condition that would apply to or adversely affect the Transferred Business or Transferred Assets without Buyer’s written approval of such lien, restriction, encumbrance or condition. (d) In performing Responsive Actions for any Environmental Indemnity Claim, the Controlling Party shall: (i) submit to the Non-Controlling Party a written plan reflecting the activities necessary to perform the Responsive Action, which plan shall be subject to the Non-Controlling Party’s reasonable approval; (ii) provide the Non-Controlling Party with all proposed investigation and remediation plans, reports and other proposed submissions to any Governmental Authority at least fifteen (15) Business Days prior to submission of such documentation to any Governmental Authority, which proposed plans, reports and submissions shall be subject to the Non-Controlling Party’s reasonable approval; (iii) provide the Non-Controlling Party with true and complete copies of all plans, reports and other documents submitted to any Governmental Authority within five (5) Business Days after submission any Governmental Authority; (iv) provide the Non-Controlling Party with no less than fifteen (15) Business Days advance written notice of all planned activities that require access to the Transferred Real Property; and (v) keep the Non-Controlling Party reasonably informed of the progress of any such activities and the schedule for completing the Responsive Action. (e) The Controlling Party shall have satisfied its obligations with respect to a Responsive Action taken to the extent such Responsive Action is conducted to standards applicable to industrial properties, including the use of risk-based cleanup standards and natural attenuation, so long as such standards are approved by the Governmental Authority overseeing such Responsive Action. Without Buyer’s prior written approval, if Transferor is the Controlling Party, Transferor shall not seek and/or implement any engineering controls (e.g., fencing, capping, physical barriers, etc.) or institutional controls (e.g., land use restrictions, deed notifications, etc.), other than (A) a groundwater use restriction on the Transferred Real Property, and (B) a deed restriction limiting the use of the Transferred Real Property to commercial/industrial (non-residential) uses, which instruments shall be prepared and recorded as necessary. Transferor may propose institutional controls or engineering controls to Buyer, which Buyer may approve or deny in its discretion, which approval shall not be unreasonably withheld. Transferor shall have no obligation to indemnify Buyer Indemnitees pursuant to Section 8.2(b) of this Agreement for any Losses to the extent that (A) such Losses arise out of or result from any testing, sampling or other invasive investigation of, or Responsive Action relating to, the air, soil, soil gas, surface water, groundwater, sediment, building materials or other environmental media conducted by, on behalf of, or at the direction of Buyer or any of its Affiliates or any disclosure, report or communication to any Governmental Authority or other third party relating to any Environmental Indemnity Claim by, on behalf of, or at the direction of Buyer or any of its Affiliates unless such investigation, sampling, testing, Responsive Action, disclosure, report or communication (i) was required by any Governmental Authority or by any Environmental Law, License, or Order; or (ii) was reasonably necessary to defend or resolve an Action brought by a Governmental Authority or other Person (in which case, if Buyer is the Controlling Person, it will notify Transferor of its obligation and permit Transferor to participate and provide reasonable comments); or (iii) was reasonably necessary to respond to or correct an actual or perceived imminent threat of a risk to human health or the environment; or (iv) was reasonably necessary for the construction, maintenance and/or repair of the Transferred Assets, the Owned Real Property, or the Leased Real Property, which construction, maintenance and/or repair is performed for a legitimate and bona fide business purpose and would be performed in the ordinary course; provided further, that in the case of (A)(ii), (A)(iii) and (A)(iv) of this Section 8.7 such defense or resolution, response or correction, or construction, maintenance and/or repair would have been performed or undertaken even if there was not a right to indemnification under this Agreement; (B) such Losses arise in connection with any total change in property use from commercial or industrial to residential use; (C) such Losses arise from a property closure that accelerates or exacerbates any Environmental Indemnity Claim shall be conducted in for which Buyer and its Affiliates seek indemnification if such property closure would not have occurred but for a workmanlike mannerright to indemnification under this Agreement, using commercially reasonable and cost effective practicesor (D) any environmental response investigation, standards and methods from an engineering standpointcleanup, remediation or similar activity that is more comprehensive or stringent than the minimum applicable environmental standard, unless otherwise required by the appropriate Governmental Authority.