Environmental Indemnification by Seller. (a) Subject to the applicable limitations provided in Section 10.1 and this Section 10.3 and the obligations of Buyer set forth in this Section 10.3, for a period of twenty-four (24) months from and after the Closing Date, Seller shall indemnify and hold harmless the Buyer Indemnified Parties from and against any and all Covered Liabilities arising out of (i) the breach of any of the representations and warranties contained in Section 3.12, (ii) the matters set forth on SCHEDULE 3.12(B), to the extent that those matters require remediation under or pursuant to any Hazardous Substances Laws, as the same shall exist as of the Closing Date, (iii) the treatment, storage or disposal, prior to the Closing Date, of Hazardous Materials or any other petroleum products used or generated in or related to the operation of the Business, and (iv) the presence of Hazardous Materials in the fixtures, structures, soil, groundwater or air to the extent that the presence of such Hazardous Materials occurred prior to the Closing Date. (b) Seller's liability under this Section 10.3 shall be subject to the following: (i) With respect to any Covered Liability which is the subject of Section 10.3(a) arising out of the release of any Hazardous Materials or any petroleum products to the environment prior to the Closing Date at any facility that is or was operated by the Business or Seller: (A) With respect to conditions where Seller agrees that it has liability upon presentation of a sufficient claim by Buyer, Seller shall have the option to either: (1) cause the necessary remediation to be accomplished at Seller's direction and expense using Seller's personnel, consultants, and/or contractors, in accordance with the provisions of Section 10.3(b)(i)(E), in which event Buyer shall furnish necessary access to the facility and shall make available (to the extent it does not unreasonably interfere with Buyer's business or operations and at Seller's cost and expense) utilities and like services required to enable Seller's personnel, consultants, and contractors to perform their work, and shall promptly comply with all reasonable requests by such personnel, consultants, and contractors relating to the remediation work, at the expense of Seller (which expense shall be credited toward the aggregate liability of Seller for purposes of the limitations set forth in Section 10.1) (PROVIDED that, any remediation performed by Seller or at Seller's direction, shall be performed in a manner that does not unreasonably interfere with Buyer's operations); or (2) require Buyer to accomplish the remediation at Buyer's direction using Buyer's personnel, consultants, and/or contractors, PROVIDED, HOWEVER, that as a precondition Seller shall have delivered to Buyer, prior to the initiation of any such remediation, cash funds or a letter of credit (from a financial institution and containing such terms and conditions as are reasonably acceptable to Buyer), in an amount estimated by an environmental consultant acceptable to Buyer and Seller to cover all reasonable expenses to be incurred by Buyer in connection with that remediation (which funds shall be credited toward the aggregate liability of Seller for purposes of the limitations set forth in Section 10.1). (1) With respect to conditions where Seller does not agree that it has liability or where Buyer presents a deficient claim, then Seller shall have the same options as described in Section 10.3(b)(i)(A), except that Seller shall have no obligation to deposit with Buyer any cash funds or letter of credit under Section 10.3(b)(i)(A)(2) and neither party shall have any obligation to reimburse the other party for any cost or expense incurred by such other party in connection with the remediation until and unless there has been a final resolution of the relative liabilities of the parties thereto by mutual agreement or under the provisions of Section 12.12. Either party may initiate arbitration under the provisions of Section 12.12 with respect to any claim under this Section 10.3(b)(i)(B)(1) at any point, whether prior to or after commencement of remediation. (2) In any situation covered by this Section 10.3, the party conducting the remediation work shall indemnify each of the Seller Indemnified Parties or the Buyer Indemnified Parties, as the case may be, from and against any Covered Liabilities arising from any third-party claims for personal injury or property damage from the performance of the remediation work, whether based upon negligence, strict liability or any other theory of recovery in either law or equity. (C) Seller's liability to remediate contamination or to indemnify Buyer and the Buyer Indemnified Parties therefor under this Section 10.3 shall be limited to: (1) Covered Liabilities arising out of conditions or matters set forth on SCHEDULE 3.12(B); and (2) conditions or matters not set forth on SCHEDULE 3.12(B) which constitute a breach of the representations and warranties contained in Section 3.12. (D) Except as required by law or with the express prior written consent of Seller in each instance, or unless Buyer determines in the exercise of its reasonable business judgment that such action is necessary to prevent Hazardous Materials Contamination or liability for Buyer related to Hazardous Materials Contamination that constitutes Covered Liabilities, Buyer shall not take action or fail to take action which has the effect of triggering, accelerating, or expanding Seller's liability to remediate any contamination (or to pay for such remediation). Notwithstanding any other provision herein, Seller shall have no liability for, and Buyer shall indemnify and hold Seller Indemnified Parties harmless against, any breach by Buyer of this Section 10.3(b)(i)(D). (E) The party directing any remediation work shall deliver all workplans to the other party for prior written approval not to be unreasonably withheld or delayed, provide the other party with reasonable notice prior to commencing any remediation work, require that consultants and contractors obtain insurance in the types and amounts reasonably appropriate considering the scope and extent of the remediation work, permit representatives of the other party to observe the remediation work at all reasonable times and in a manner which does not unreasonably interfere with the progress of the remediation, perform all remediation work in accordance with all applicable laws, dispose of all Hazardous Materials generated in connection with such remediation work in the name of such party, and promptly furnish to the other party copies of all reports concerning the remediation (including forecasts of expenditures, budgets, and other financial information) which may be prepared by or for the party performing the remediation and all correspondence to or from environmental agencies concerning the remediation or the condition being remediated. All reports, other than those given to a Government Authority, shall be treated as confidential by the party receiving such reports and shall not be disclosed to third parties. All contractors performing any remediation work on behalf of Seller shall, as a precondition to performing any such work, deliver to Buyer a written waiver, in form and substance satisfactory to Buyer, of all rights to assert any liens or claims against Buyer or any of its properties. The review, oversight and other expenses incurred by the party not performing the remediation work, whether payable to environmental consultants, contractors or otherwise, shall not be considered Covered Liabilities and shall not be subject to reimbursement by the other party. (F) Seller shall have no responsibility and shall bear no cost to remediate any condition of contamination to a greater degree or extent than that which is required by applicable Hazardous Substances Laws. (ii) With respect to any Covered Liability arising out of any alleged, actual or threatened contamination at a site which is not, and has not been, a facility operated by the Business, or arising out of the inclusion of any facility, whether operated by the Business or not, as part of a multi-party CERCLA (or state superfund) site, then: (A) Notwithstanding any other provision in this Agreement to the contrary, Seller's liability shall be limited to those matters as to which Buyer shall, by the fifth (5th) anniversary of the Closing Date, have given Seller notice specifying in reasonable detail the basis on which liability arising from the operation of the Business prior to the Closing Date is claimed; PROVIDED, HOWEVER, that Seller shall have no liability whatsoever, unless Buyer shall have given Seller prompt notice upon receiving a claim or notice from the U.S. Environmental Protection Agency (the "EPA") or any other Government Authority or upon learning of facts that could give rise to such a claim; and (B) If either Buyer or Seller is named in the claim or notice, Buyer and Seller shall each cooperate and assist the other in the investigation and defense of any indemnified claims by the EPA or any other Government Authority or other Person and shall furnish such information relating to the claim as may be reasonably requested by the other party. Each party shall permit representatives of the other party to interview such party's personnel and to examine and copy all non-confidential records of the Business which may be relevant to the defense of any such claim. (iii) For purposes of the reimbursement obligations described in this Section 10.3, "promptly" shall mean payment in immediately available funds within thirty (30) days after receipt from any of the Seller Indemnified Parties or Buyer Indemnified Parties, as the case may be, of a demand for indemnity payment or reimbursement, or if such demand is contested, within thirty (30) days of resolution of such conflict in the demanding party's favor by mutual agreement or under the procedures of Section 12.
Appears in 1 contract
Environmental Indemnification by Seller. (a) Subject to the applicable limitations terms and conditions of this Article VIII, and in addition to its indemnification obligations under Article VI, Seller shall indemnify Buyer and its Affiliates in respect of, and hold Buyer and its Affiliates harmless against, any and all Damages incurred or suffered by Buyer or any Affiliate thereof (in connection with, arising or resulting from or relating from or relating to:
(i) The 1995 Agreed Order, without any limitation as to time;
(ii) The R&H Oil Company Site, without any limitation as to time; and
(iii) Any and all other Environmental Matters and/or Releases of Materials of Environmental Concern at or on Seller Properties, and any Off-Site Liabilities, existing as of the Closing Date or arising from events occurring prior to such date, provided Buyer asserts a claim or claims therefore in Section 10.1 and this Section 10.3 and accordance with the obligations of Buyer procedures set forth in this Agreement prior to the tenth (10th) anniversary of the date hereof.
(b) To the extent that Seller’s obligations and liabilities, or Buyer’s claim for indemnification, under this Section 10.3, for 8.2 relates to a period of twenty-four (24) months from and after the Closing DateSeller Property, Seller shall indemnify be obligated under this Section 8.2 if and hold harmless the Buyer Indemnified Parties from and against any and all Covered Liabilities arising out of only if:
(i) the breach applicable Seller Property has been operated only for commercial or industrial purposes (including related office, warehouse, sale and service activities); and
(ii) Buyer has provided Seller with reasonable access to the applicable Seller Property, and has reasonably cooperated with Seller (including but not limited to providing access to appropriate employees of Buyer), in connection with the Seller’s performance of any environmental remediation actions and programs at Seller Properties for which Seller has responsibility under this Agreement, if any.
(c) The Parties agree that, except as required by the TCEQ in connection with the 1995 Agreed Order, Seller shall have no obligation or liability under Sections 8.2(a), 8.3(a)(i) or 8.3(a)(iii) to perform any actions, or to pay any Damages arising from the performance of any actions, that remediate a Seller Property to a risk-based level that is more stringent than that required to allow the use of the representations property for industrial or commercial uses.
(d) Buyer shall give prompt written notification to Seller of the commencement of any action, suit or proceeding for which indemnification under this Section 8.3 may be sought or, if earlier, upon the assertion of any claim or commencement of any inquiry for which indemnification under this Section 8.3 may be sought, whereupon Seller shall assume control of the defense and warranties contained settlement of such action, suit, proceeding, claim or inquiry in accordance with and subject to the limitations provided in this Section 3.128.3(d). If a mandatory obligation of the kind specified in Sections 8.2 or 8.3(a)(iii) exists: (i) Seller shall determine, the actions to be taken in order to comply with or satisfy such mandatory obligation, (ii) any such proposed actions shall not unreasonably interfere with Buyer’s ability to conduct its normal business activities on the matters set forth on SCHEDULE 3.12(B), to the extent that those matters require remediation under or pursuant to any Hazardous Substances Laws, as the same shall exist as of the Closing Dateproperty, (iii) the treatment, storage or disposal, prior Buyer shall be provided reasonable notice and opportunity to the Closing Date, of Hazardous Materials or any other petroleum products used or generated in or related to the operation of the Businesscomment (at its own cost and expense) upon Seller’s plans for addressing such mandatory obligation, and (iv) the presence of Hazardous Materials in the fixturesno such plans shall be implemented without Buyer’s prior approval, structureswhich shall not be unreasonably conditioned, soil, groundwater withheld or air to the extent that the presence of such Hazardous Materials occurred prior to the Closing Datedelayed.
(be) Seller's liability under this Section 10.3 shall be subject In addition to the following:
(i) With respect to any Covered Liability which is the subject of Section 10.3(a) arising out agreements of the release of any Hazardous Materials or any petroleum products to the environment prior to the Closing Date at any facility that is or was operated by the Business or Seller:
(A) With respect to conditions where Seller agrees that it has liability upon presentation of a sufficient claim by Buyer, Seller shall have the option to either:
(1) cause the necessary remediation to be accomplished at Seller's direction and expense using Seller's personnel, consultants, and/or contractors, in accordance with the provisions of Section 10.3(b)(i)(E), in which event Buyer shall furnish necessary access to the facility and shall make available (to the extent it does not unreasonably interfere with Buyer's business or operations and at Seller's cost and expense) utilities and like services required to enable Seller's personnel, consultants, and contractors to perform their work, and shall promptly comply with all reasonable requests by such personnel, consultants, and contractors relating to the remediation work, at the expense of Seller (which expense shall be credited toward the aggregate liability of Seller for purposes of the limitations Parties set forth in Section 10.1, Buyer shall, and shall cause its Affiliates to, cooperate with Seller (as Seller may reasonably request) (PROVIDED that, any remediation performed by Seller or at Seller's direction, shall be performed in a manner that does not unreasonably interfere with Buyer's operations); or
(2) require Buyer to accomplish the remediation at Buyer's direction using Buyer's personnel, consultants, and/or contractors, PROVIDED, HOWEVER, that as a precondition Seller shall have delivered to Buyer, prior to the initiation of any such remediation, cash funds or a letter of credit (from a financial institution and containing such terms and conditions as are reasonably acceptable to Buyer), in an amount estimated by an environmental consultant acceptable to Buyer and Seller to cover all reasonable expenses to be incurred by Buyer in connection with that remediation (which funds shall be credited toward the aggregate liability of Seller for purposes of the limitations set forth in Section 10.1).
(1) With respect to conditions where Seller does not agree that it has liability or where Buyer presents a deficient claim, then Seller shall have the same options as described in Section 10.3(b)(i)(A), except that Seller shall have no obligation to deposit with Buyer any cash funds or letter of credit under Section 10.3(b)(i)(A)(2) and neither party shall have any obligation to reimburse the other party for any cost or expense incurred by such other party in connection with the remediation until prosecution, defense, settlement or performance of Seller’s agreements in Sections 8.2 and unless there has been a final resolution 8.3. Without limiting the generality of the relative liabilities of the parties thereto by mutual agreement or under the provisions of Section 12.12. Either party may initiate arbitration under the provisions of Section 12.12 foregoing, as to all matters with respect to any claim under this Section 10.3(b)(i)(B)(1) at any point, whether prior to or after commencement of remediation.
(2) In any situation covered by this Section 10.3, the party conducting the remediation work shall indemnify each of the which Seller Indemnified Parties or the Buyer Indemnified Parties, as the case may be, from and against any Covered Liabilities arising from any third-party claims for personal injury or property damage from the performance of the remediation work, whether based upon negligence, strict liability or any other theory of recovery in either law or equity.
(C) Seller's liability to remediate contamination or has agreed to indemnify Buyer and the Buyer Indemnified Parties therefor under this Section 10.3 shall be limited to:
(1) Covered Liabilities arising out of conditions or matters set forth on SCHEDULE 3.12(B); and
(2) conditions or matters not set forth on SCHEDULE 3.12(B) which constitute a breach of the representations and warranties contained in Section 3.12.
(D) Except as required by law or with the express prior written consent of Seller in each instanceits Affiliates, or unless Buyer determines in the exercise of its reasonable business judgment that such action is necessary to prevent Hazardous Materials Contamination or liability for Buyer related to Hazardous Materials Contamination that constitutes Covered Liabilitiesat Seller’s request, Buyer shall not take action or fail and shall cause its Affiliates to take action which has the effect of triggeringsign such documents, accelerating, or expanding Seller's liability to remediate any contamination (or to pay for assign such remediation). Notwithstanding any other provision herein, Seller shall have no liability forrights, and Buyer shall indemnify and hold take such actions as Seller Indemnified Parties harmless against, any breach by Buyer of this Section 10.3(b)(i)(D)may reasonably request.
(E) The party directing any remediation work shall deliver all workplans to the other party for prior written approval not to be unreasonably withheld or delayed, provide the other party with reasonable notice prior to commencing any remediation work, require that consultants and contractors obtain insurance in the types and amounts reasonably appropriate considering the scope and extent of the remediation work, permit representatives of the other party to observe the remediation work at all reasonable times and in a manner which does not unreasonably interfere with the progress of the remediation, perform all remediation work in accordance with all applicable laws, dispose of all Hazardous Materials generated in connection with such remediation work in the name of such party, and promptly furnish to the other party copies of all reports concerning the remediation (including forecasts of expenditures, budgets, and other financial information) which may be prepared by or for the party performing the remediation and all correspondence to or from environmental agencies concerning the remediation or the condition being remediated. All reports, other than those given to a Government Authority, shall be treated as confidential by the party receiving such reports and shall not be disclosed to third parties. All contractors performing any remediation work on behalf of Seller shall, as a precondition to performing any such work, deliver to Buyer a written waiver, in form and substance satisfactory to Buyer, of all rights to assert any liens or claims against Buyer or any of its properties. The review, oversight and other expenses incurred by the party not performing the remediation work, whether payable to environmental consultants, contractors or otherwise, shall not be considered Covered Liabilities and shall not be subject to reimbursement by the other party.
(F) Seller shall have no responsibility and shall bear no cost to remediate any condition of contamination to a greater degree or extent than that which is required by applicable Hazardous Substances Laws.
(ii) With respect to any Covered Liability arising out of any alleged, actual or threatened contamination at a site which is not, and has not been, a facility operated by the Business, or arising out of the inclusion of any facility, whether operated by the Business or not, as part of a multi-party CERCLA (or state superfund) site, then:
(A) Notwithstanding any other provision in this Agreement to the contrary, Seller's liability shall be limited to those matters as to which Buyer shall, by the fifth (5th) anniversary of the Closing Date, have given Seller notice specifying in reasonable detail the basis on which liability arising from the operation of the Business prior to the Closing Date is claimed; PROVIDED, HOWEVER, that Seller shall have no liability whatsoever, unless Buyer shall have given Seller prompt notice upon receiving a claim or notice from the U.S. Environmental Protection Agency (the "EPA") or any other Government Authority or upon learning of facts that could give rise to such a claim; and
(B) If either Buyer or Seller is named in the claim or notice, Buyer and Seller shall each cooperate and assist the other in the investigation and defense of any indemnified claims by the EPA or any other Government Authority or other Person and shall furnish such information relating to the claim as may be reasonably requested by the other party. Each party shall permit representatives of the other party to interview such party's personnel and to examine and copy all non-confidential records of the Business which may be relevant to the defense of any such claim.
(iii) For purposes of the reimbursement obligations described in this Section 10.3, "promptly" shall mean payment in immediately available funds within thirty (30) days after receipt from any of the Seller Indemnified Parties or Buyer Indemnified Parties, as the case may be, of a demand for indemnity payment or reimbursement, or if such demand is contested, within thirty (30) days of resolution of such conflict in the demanding party's favor by mutual agreement or under the procedures of Section 12.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Perkinelmer Inc)
Environmental Indemnification by Seller. (a) Subject to the applicable limitations provided terms and conditions of this Article VIII, with respect to any valid claim properly asserted in Section 10.1 and this Section 10.3 and writing by Buyer prior to the obligations first anniversary of Buyer set forth in this Section 10.3, for a period of twenty-four (24) months from and after the Closing Date, Seller shall indemnify Buyer in respect of, and hold Buyer harmless the Buyer Indemnified Parties from and against any and all Covered Liabilities arising out of against:
(i) the breach any Damages incurred or suffered by Buyer or any Affiliate thereof (other than with respect to an Excluded Liability) as a result of any failure by Seller to comply with any applicable Environmental Law prior to the Closing Date in connection with the Business; provided that such Damages result directly from (A) compliance by Buyer or any Affiliate thereof with an order issued by a Governmental Entity or by a court in a proceeding commenced by a Governmental Entity which establishes a mandatory obligation to rectify such failure to comply with applicable Environmental Law, or (B) the mandatory obligation of the representations and warranties contained Business or any Affiliate of Buyer to pay a fine or penalty which is imposed by a Governmental Entity or a court in Section 3.12, a proceeding commenced by a Governmental Entity as a result of such failure to comply with applicable Environmental Law; and
(ii) any Damages incurred or suffered by Buyer or any Affiliate thereof (other than with respect to an Excluded Liability) as a result of any Release of Materials of Environmental Concern to the matters set forth Environment in connection with the Business that occurred prior to the Closing Date; provided that, such Damages result directly from a legal obligation arising pursuant to Environmental Laws on SCHEDULE 3.12(Bthe part of Buyer or any Affiliate thereof to investigate, remediate or pay Damages on account of said Release of Materials of Environmental Concern; provided further, however, that, in the case of both clauses (i) and (ii), to the extent Buyer's claim for indemnification relates to a Business Property, Seller shall be obligated under this Section 8.2 if and only if (A) Buyer has operated the applicable Business Property continuously for commercial or industrial purposes (including related office, warehouse, sale and service activities) and not sold, transferred or sublet that those matters require remediation under property during such one year indemnification period or pursuant thereafter during the pendency of any claim asserted prior to any Hazardous Substances Laws, as the same shall exist first anniversary of the Closing Date and (B) Buyer has retained responsibility for and continued to perform remedial actions and programs in existence and operation at the Business Properties as of the Closing Date, (iii) the treatment, storage or disposal, prior to the Closing Date, of Hazardous Materials or any other petroleum products used or generated in or related to the operation of the Business, and (iv) the presence of Hazardous Materials in the fixtures, structures, soil, groundwater or air to the extent that the presence of such Hazardous Materials occurred prior to the Closing Dateif any.
(b) Seller's liability Buyer shall give prompt written notification to Seller of the commencement of any action, suit or proceeding for which indemnification under this Section 10.3 8.2 may be sought or, if earlier, upon the assertion of any claim or commencement of any inquiry for which indemnification under this Section 8.2 may be sought, whereupon Seller shall be subject to assume exclusive control of the following:
defense and settlement of such action, suit, proceeding, claim or inquiry. Without limiting the generality of the foregoing, if a mandatory obligation of the kind specified in Section 8.2(a) exists: (i) With respect Seller shall determine, control and undertake the actions to any Covered Liability which is be taken in order to comply with or satisfy such mandatory obligation, including the subject of Section 10.3(a) arising out of the release performance of any Hazardous Materials further investigation or any petroleum products to the environment prior to the Closing Date at any facility that is or was operated by the Business or Seller:
remediation; (Aii) With respect to conditions where Seller agrees that it has liability upon presentation of a sufficient claim by Buyer, Seller shall have the option to either:
(1) cause the necessary remediation to be accomplished at Seller's direction and expense using Seller's personnel, consultants, and/or contractors, in accordance with the provisions of Section 10.3(b)(i)(E), in which event Buyer shall furnish necessary access be provided reasonable notice and opportunity to the facility and shall make available comment (to the extent it does not unreasonably interfere with Buyer's business or operations and at Seller's its own cost and expense) utilities and like services required to enable upon Seller's personnel, consultants, plans for addressing such mandatory obligation; (iii) Buyer shall allow access to Seller and its agents and independent contractors necessary to allow Seller to perform their work, and shall promptly actions to be taken in order to comply with or satisfy a mandatory obligation under this Section 8.2(b); and (iv) Seller and its agents and independent contractors shall make all reasonable requests by such personnel, consultants, and contractors relating efforts to the remediation work, at the expense of Seller (which expense shall be credited toward the aggregate liability of Seller for purposes of the limitations set forth in perform any mandatory obligation under this Section 10.1) (PROVIDED that, any remediation performed by Seller or at Seller's direction, shall be performed 8.2 in a manner that does not unreasonably interfere with Buyer's operations); oroccupation and use of the Business Properties.
(2c) require Buyer to accomplish the remediation at Buyer's direction using Buyer's personnel, consultants, and/or contractors, PROVIDED, HOWEVER, that as a precondition Seller shall have delivered to Buyer, prior In addition to the initiation of any such remediation, cash funds or a letter of credit (from a financial institution and containing such terms and conditions as are reasonably acceptable to Buyer), in an amount estimated by an environmental consultant acceptable to Buyer and Seller to cover all reasonable expenses to be incurred by Buyer in connection with that remediation (which funds shall be credited toward the aggregate liability of Seller for purposes agreements of the limitations Parties set forth in Section 10.1).
, Buyer shall, and shall cause its Affiliates to, cooperate with Seller (1as Seller may reasonably direct) With respect to conditions where Seller does not agree that it has liability or where Buyer presents a deficient claim, then Seller shall have the same options as described in Section 10.3(b)(i)(A), except that Seller shall have no obligation to deposit with Buyer any cash funds or letter of credit under Section 10.3(b)(i)(A)(2) and neither party shall have any obligation to reimburse the other party for any cost or expense incurred by such other party in connection with the remediation until and unless there has been a final resolution prosecution, defense, settlement or performance of Seller's agreements in this Section 8.2. Without limiting the generality of the relative liabilities of the parties thereto by mutual agreement or under the provisions of Section 12.12. Either party may initiate arbitration under the provisions of Section 12.12 foregoing, as to all matters with respect to any claim under this Section 10.3(b)(i)(B)(1) at any point, whether prior to or after commencement of remediation.
(2) In any situation covered by this Section 10.3, the party conducting the remediation work shall indemnify each of the which Seller Indemnified Parties or the Buyer Indemnified Parties, as the case may be, from and against any Covered Liabilities arising from any third-party claims for personal injury or property damage from the performance of the remediation work, whether based upon negligence, strict liability or any other theory of recovery in either law or equity.
(C) Seller's liability to remediate contamination or has agreed to indemnify Buyer and the Buyer Indemnified Parties therefor under this Section 10.3 shall be limited to:
(1) Covered Liabilities arising out of conditions or matters set forth on SCHEDULE 3.12(B); and
(2) conditions or matters not set forth on SCHEDULE 3.12(B) which constitute a breach of the representations and warranties contained in Section 3.12.
(D) Except as required by law or with the express prior written consent of Seller in each instance, or unless Buyer determines in the exercise of its reasonable business judgment that such action is necessary to prevent Hazardous Materials Contamination or liability for Buyer related to Hazardous Materials Contamination that constitutes Covered LiabilitiesAffiliates, Buyer shall, and shall not take action or fail cause its Affiliates to take action which has the effect of triggering, accelerating, or expanding Seller's liability (i) assign to remediate any contamination Seller (or to pay for such remediation). Notwithstanding any other provision hereinits designee) all existing contracts with independent consultants, Seller shall have no liability for, and Buyer shall indemnify and hold Seller Indemnified Parties harmless against, any breach by Buyer of this Section 10.3(b)(i)(D).
(E) The party directing any remediation work shall deliver all workplans to the other party for prior written approval not to be unreasonably withheld or delayed, provide the other party with reasonable notice prior to commencing any remediation work, require that consultants and contractors obtain insurance in the types and amounts reasonably appropriate considering the scope and extent of the remediation work, permit representatives of the other party to observe the remediation work at all reasonable times and in a manner which does not unreasonably interfere with the progress of the remediation, perform all remediation work in accordance with all applicable laws, dispose of all Hazardous Materials generated in connection with such remediation work in the name of such party, and promptly furnish to the other party copies of all reports concerning the remediation (including forecasts of expenditures, budgets, attorneys and other financial information) which may be prepared by or for the party performing the remediation and all correspondence advisors relating to or from environmental agencies concerning the remediation or the condition being remediated. All reportssuch matters, other than those given to a Government Authority, shall be treated as confidential by the party receiving such reports and shall not be disclosed to third parties. All contractors performing any remediation work on behalf of Seller shall, as a precondition to performing any such work, deliver to Buyer a written waiver, in form and substance satisfactory to Buyer, of all rights to assert any liens or claims against Buyer or any of its properties. The review, oversight and other expenses incurred by the party not performing the remediation work, whether payable to environmental consultants, contractors or otherwise, shall not be considered Covered Liabilities and shall not be subject to reimbursement by the other party.
(F) Seller shall have no responsibility and shall bear no cost to remediate any condition of contamination to a greater degree or extent than that which is required by applicable Hazardous Substances Laws.
(ii) With waive all professional conflicts and take other reasonable steps necessary to allow any counsel representing the Business with respect to any Covered Liability arising out of any alleged, actual such matters to represent Seller (or threatened contamination at a site which is notits designee) with respect to such matters, and has not been, a facility operated by the Business, or arising out of the inclusion of any facility, whether operated by the Business or not, as part of a multi-party CERCLA (or state superfund) site, then:
(A) Notwithstanding any other provision in this Agreement to the contrary, Seller's liability shall be limited to those matters as to which Buyer shall, by the fifth (5th) anniversary of the Closing Date, have given Seller notice specifying in reasonable detail the basis on which liability arising from the operation of the Business prior to the Closing Date is claimed; PROVIDED, HOWEVER, that Seller shall have no liability whatsoever, unless Buyer shall have given Seller prompt notice upon receiving a claim or notice from the U.S. Environmental Protection Agency (the "EPA") or any other Government Authority or upon learning of facts that could give rise to such a claim; and
(B) If either Buyer or Seller is named in the claim or notice, Buyer and Seller shall each cooperate and assist the other in the investigation and defense of any indemnified claims by the EPA or any other Government Authority or other Person and shall furnish such information relating to the claim as may be reasonably requested by the other party. Each party shall permit representatives of the other party to interview such party's personnel and to examine and copy all non-confidential records of the Business which may be relevant to the defense of any such claim.
(iii) For purposes of the reimbursement obligations described in this Section 10.3sign such documents, "promptly" shall mean payment in immediately available funds within thirty (30) days after receipt from any of the assign such rights, and take such actions as Seller Indemnified Parties or Buyer Indemnified Parties, as the case may be, of a demand for indemnity payment or reimbursement, or if such demand is contested, within thirty (30) days of resolution of such conflict in the demanding party's favor by mutual agreement or under the procedures of Section 12reasonably request.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Trex Medical Corp)
Environmental Indemnification by Seller. (a) Subject to the applicable limitations provided in Section 10.1 and remaining provisions of this Section 10.3 13.9, Seller agrees to indemnify each of the Company Indemnified Parties and the Metaldyne Indemnified Parties against, and agrees to hold each of them harmless from, any and all Environmental Liabilities relating to, arising out of, in connection with or in respect of any Known Environmental Conditions. Seller's indemnification obligations of Buyer set forth in under this Section 10.3, for a period 13.9(a) shall not be subject to any limits as to amount or time.
(b) Subject to the remaining provisions of twenty-four (24) months from and after the Closing Datethis Section 13.9, Seller agrees to indemnify each of the Company Indemnified Parties and Metaldyne Indemnified Parties against, and agrees to hold each of them harmless from, any and all Environmental Liabilities relating to, arising out of, in connection with or in respect of any Unknown Environmental Conditions; provided, however, that: (i) no Indemnified Person shall be entitled to make a claim against Seller under this Section 13.9(b) unless such claim is made on or prior to [*]; and (ii) Seller shall only be required to indemnify and hold harmless the Buyer Company Indemnified Parties and Metaldyne Indemnified Parties from and against [*] of such Environmental Liabilities unless and until the aggregate amount of all such Environmental Liabilities exceeds [*], in which event Seller shall be obligated to indemnify and hold harmless the Company Indemnified Parties and Metaldyne Indemnified Parties from and against [*] of such Environment Liabilities in excess of [*].
(c) Notwithstanding any and all Covered other provision of this Agreement, the indemnification obligations of Seller under this Section 13.9 shall not be subject to the provisions of Sections 13.5 through 13.8.
(d) Notwithstanding any other provision of this Agreement, Seller shall have no obligation to indemnify, defend or hold harmless the Company Indemnified Parties or Metaldyne Indemnified Parties for Environmental Liabilities arising out of or any Losses whatsoever under this Section 13.9 to the extent such Environmental Liabilities or Losses (i) arise out of or result from Remedial Action that exceeds the breach standards necessary to (A) bring an Environmental Condition into compliance with Environmental Law or (B) satisfy the requirements of any of an applicable Governmental Authority with respect to an Environmental Condition to the representations and warranties contained in Section 3.12, extent required by Environmental Law or (ii) result from or would not have arisen but for (A) Metaldyne or any Metaldyne Indemnified Party undertaking any invasive drilling and sampling of soil or groundwater other than as required by or for (w) the matters set forth on SCHEDULE 3.12(B)Phase II ESA, (x) any Environmental Law in effect at the time of such drilling or sampling, any Environmental Permit or any applicable Governmental Authority, (y) any commercial transaction relating to or involving the Real Property or the Transferred Assets (including, without limitation, the Facility) or (z) any construction, erection, removal, repair, maintenance, demolition, alteration, modification or relocation of any physical improvement or structure, (B) any change of the use of any Real Property after the Closing Date to a non-industrial or non-commercial use or (C) any disclosure by the Company, Metaldyne or any of their Affiliates to any applicable Governmental Authority of information or data, where such disclosure is not otherwise required by any Environmental Law in effect at the time of such disclosure.
(e) From and after the Closing, Seller shall control all Remedial Action and negotiations with any Governmental Authority in respect of all Environmental Conditions. Seller shall make its environmental personnel and consultants reasonably available to Metaldyne to discuss Environmental Conditions. Metaldyne shall provide Seller and its environmental consultants with reasonable access to the Real Property and Seller shall provide Metaldyne with copies of all non-privileged information with respect to Remedial Action to be taken in respect of such Environmental Conditions. Such Remedial Actions shall be performed in a commercially reasonable manner, including, to the extent allowed or authorized by applicable Environmental Law or the Governmental Authority with jurisdiction over a Remedial Action, the use of applicable Remediation Standards. Seller shall select consultants and contractors to implement such Remedial Action (not reasonably objected to by Metaldyne) and shall also provide Metaldyne and its environmental consultants with copies of all non-privileged Environmental Reports, analytical data, correspondence, directives, orders and documents submitted to or received by Seller from any Governmental Authority in connection with the Remedial Action and other non-privileged documents created or received by or on behalf of Seller in connection with the Remedial Action. Seller shall afford Metaldyne a reasonable opportunity to comment on Seller's proposed response to an Environmental Condition, and Seller shall not unreasonably refuse to incorporate Metaldyne's comments.
(f) Metaldyne shall inform Seller promptly in writing of any Environmental Condition or Environmental Claim in respect of which Seller may have an indemnification obligation under this Section 13.9; provided that those matters require remediation the failure of Metaldyne to so promptly inform Seller shall not affect the rights of the Company Indemnified Parties or Metaldyne Indemnified Parties Buyer except to the extent (if any) that Seller shall have been prejudiced thereby.
(g) Seller shall have no obligation to indemnify, defend and hold harmless the Company Indemnified Parties and Metaldyne Indemnified Parties for Environmental Liabilities under this Section 13.9 to the extent that such Environmental Liabilities result solely from or pursuant to the extent such Environmental Liabilities are increased as a result of any Hazardous Substances Laws, as the same shall exist Environmental Law which is not binding and in effect as of the Closing Date, (iii) the treatment, storage or disposal, prior to the Closing Date, of Hazardous Materials or any other petroleum products used or generated Environmental Permit that is not required to be in or related to the operation effect as of the Business, and (iv) the presence of Hazardous Materials in the fixtures, structures, soil, groundwater or air to the extent that the presence of such Hazardous Materials occurred prior to the Closing Date.
(bh) Seller's liability Following the Closing, absent willful concealment or fraud, claims for indemnification pursuant to this Section 13.9 and claims for specific performance of covenants of Seller under this Section 10.3 shall 13.9 shall, collectively, be subject to the following:
(i) With respect to any Covered Liability which is sole and exclusive remedies of the subject of Section 10.3(a) Company Indemnified Parties and Metaldyne Indemnified Parties for claims and damages arising out of the release of any Environmental Laws, Environmental Claims, Environmental Conditions, Environmental Liabilities, Environmental Permits, Hazardous Materials or any petroleum products to the environment prior to the Closing Date at matters addressed in Section 2.5(b) or Section 5.21 or any facility that is or was operated by the Business or Seller:
(A) With Losses with respect to conditions where Seller agrees that it has liability upon presentation of a sufficient claim by Buyer, Seller shall have the option to either:
(1) cause the necessary remediation to be accomplished at Seller's direction and expense using Seller's personnel, consultants, and/or contractors, in accordance with the provisions of Section 10.3(b)(i)(E), in which event Buyer shall furnish necessary access to the facility and shall make available (to the extent it does not unreasonably interfere with Buyer's business or operations and at Seller's cost and expense) utilities and like services required to enable Seller's personnel, consultantsthereto, and contractors the Company Indemnified Parties and Metaldyne Indemnified Parties shall not be entitled to perform their workbring, and shall promptly comply with all reasonable requests by such personnelhereby irrevocably waive, consultantsany other claims, and contractors relating to rights or causes of action against Seller, whether in equity or in law. The right of indemnification provided in this Section 13.9 is solely for the remediation work, at the expense of Seller (which expense shall be credited toward the aggregate liability of Seller for purposes benefit of the limitations set forth in Section 10.1) (PROVIDED that, any remediation performed by Seller or at Seller's direction, shall be performed in a manner that does not unreasonably interfere with Buyer's operations); or
(2) require Buyer to accomplish the remediation at Buyer's direction using Buyer's personnel, consultants, and/or contractors, PROVIDED, HOWEVER, that as a precondition Seller shall have delivered to Buyer, prior to the initiation of any such remediation, cash funds or a letter of credit (from a financial institution and containing such terms and conditions as are reasonably acceptable to Buyer), in an amount estimated by an environmental consultant acceptable to Buyer and Seller to cover all reasonable expenses to be incurred by Buyer in connection with that remediation (which funds shall be credited toward the aggregate liability of Seller for purposes of the limitations set forth in Section 10.1).
(1) With respect to conditions where Seller does not agree that it has liability or where Buyer presents a deficient claim, then Seller shall have the same options as described in Section 10.3(b)(i)(A), except that Seller shall have no obligation to deposit with Buyer any cash funds or letter of credit under Section 10.3(b)(i)(A)(2) and neither party shall have any obligation to reimburse the other party for any cost or expense incurred by such other party in connection with the remediation until and unless there has been a final resolution of the relative liabilities of the parties thereto by mutual agreement or under the provisions of Section 12.12. Either party may initiate arbitration under the provisions of Section 12.12 with respect to any claim under this Section 10.3(b)(i)(B)(1) at any point, whether prior to or after commencement of remediation.
(2) In any situation covered by this Section 10.3, the party conducting the remediation work shall indemnify each of the Seller Company Indemnified Parties or the Buyer and Metaldyne Indemnified Parties, as the case may beand such right will not be extended, from and against any Covered Liabilities arising from any third-party claims for personal injury directly or property damage from the performance of the remediation workindirectly, whether based upon negligence, strict liability or to any other theory Person. For the avoidance of recovery in either law or equity.
(C) Seller's liability to remediate contamination or to indemnify Buyer and the Buyer Indemnified Parties therefor under doubt, this Section 10.3 shall be limited to:
(113.9(h) Covered Liabilities arising out of conditions or matters set forth on SCHEDULE 3.12(B); and
(2) conditions or matters not set forth on SCHEDULE 3.12(B) which constitute a breach of the representations and warranties contained in Section 3.12.
(D) Except as required by law or with the express prior written consent of Seller in each instance, or unless Buyer determines in the exercise of its reasonable business judgment that such action is necessary to prevent Hazardous Materials Contamination or liability for Buyer related to Hazardous Materials Contamination that constitutes Covered Liabilities, Buyer shall not take action or fail to take action which has the effect of triggering, accelerating, or expanding Seller's liability to remediate any contamination (or to pay for such remediation). Notwithstanding any other provision herein, Seller shall have no liability for, and Buyer shall indemnify and hold Seller Indemnified Parties harmless against, any breach by Buyer of this Section 10.3(b)(i)(D).
(E) The party directing any remediation work shall deliver all workplans to the other party for prior written approval not to be unreasonably withheld or delayed, provide the other party with reasonable notice prior to commencing any remediation work, require that consultants and contractors obtain insurance in the types and amounts reasonably appropriate considering the scope and extent of the remediation work, permit representatives of the other party to observe the remediation work at all reasonable times and in limit a manner which does not unreasonably interfere with the progress of the remediation, perform all remediation work in accordance with all applicable laws, dispose of all Hazardous Materials generated in connection with such remediation work in the name of such party, and promptly furnish to the other party copies of all reports concerning the remediation (including forecasts of expenditures, budgets, and other financial information) which may be prepared by or for the party performing the remediation and all correspondence to or from environmental agencies concerning the remediation or the condition being remediated. All reports, other than those given to a Government Authority, shall be treated as confidential by the party receiving such reports and shall not be disclosed to third parties. All contractors performing any remediation work on behalf of Seller shall, as a precondition to performing any such work, deliver to Buyer a written waiver, in form and substance satisfactory to Buyer, of all rights to assert any liens or claims against Buyer or any of its properties. The review, oversight and other expenses incurred by the party not performing the remediation work, whether payable to environmental consultants, contractors or otherwise, shall not be considered Covered Liabilities and shall not be subject to reimbursement by the other party.
(F) Seller shall have no responsibility and shall bear no cost to remediate any condition of contamination to a greater degree or extent than that which is required by applicable Hazardous Substances Laws.
(ii) With respect to any Covered Liability arising out of any alleged, actual or threatened contamination at a site which is not, and has not been, a facility operated by the Business, or arising out of the inclusion of any facility, whether operated by the Business or not, as part of a multi-party CERCLA (or state superfund) site, then:
(A) Notwithstanding any other provision in this Agreement to the contrary, Seller's liability shall be limited to those matters as to which Buyer shall, by the fifth (5th) anniversary of the Closing Date, have given Seller notice specifying in reasonable detail the basis on which liability arising from the operation of the Business prior to the Closing Date is claimed; PROVIDED, HOWEVER, that Seller shall have no liability whatsoever, unless Buyer shall have given Seller prompt notice upon receiving a claim or notice from the U.S. Environmental Protection Agency (the "EPA") or any other Government Authority or upon learning of facts that could give rise to such a claim; and
(B) If either Buyer or Seller is named in the claim or notice, Buyer and Seller shall each cooperate and assist the other in the investigation and defense of any indemnified claims by the EPA or any other Government Authority or other Person and shall furnish such information relating to the claim as may be reasonably requested by the other party. Each party shall permit representatives of the other party to interview such party's personnel and ability to examine and copy all non-confidential records of the Business which may be relevant to the defense of bring other claims after Closing under any such claimRelated Agreement.
(iii) For purposes of the reimbursement obligations described in this Section 10.3, "promptly" shall mean payment in immediately available funds within thirty (30) days after receipt from any of the Seller Indemnified Parties or Buyer Indemnified Parties, as the case may be, of a demand for indemnity payment or reimbursement, or if such demand is contested, within thirty (30) days of resolution of such conflict in the demanding party's favor by mutual agreement or under the procedures of Section 12.
Appears in 1 contract
Environmental Indemnification by Seller. (a) Subject to the applicable limitations provided terms and conditions of this Article VIII, with respect to any valid claim properly asserted in Section 10.1 and this Section 10.3 and writing by Buyer prior to the obligations first anniversary of Buyer set forth in this Section 10.3, for a period of twenty-four (24) months from and after the Closing Date, Seller shall indemnify Buyer in respect of, and hold Buyer harmless the Buyer Indemnified Parties from and against any and all Covered Liabilities arising out of against:
(i) the breach any Damages incurred or suffered by Buyer or any Affiliate thereof (other than with respect to an Excluded Liability) as a result of any failure by Seller to comply with any applicable Environmental Law prior to the Closing Date in connection with the Business; provided that such -------- Damages result directly from (A) compliance by Buyer or any Affiliate thereof with an order issued by a Governmental Entity or by a court in a proceeding commenced by a Governmental Entity which establishes a mandatory obligation to rectify such failure to comply with applicable Environmental Law, or (B) the mandatory obligation of the representations and warranties contained Business or any Affiliate of Buyer to pay a fine or penalty which is imposed by a Governmental Entity or a court in Section 3.12, a proceeding commenced by a Governmental Entity as a result of such failure to comply with applicable Environmental Law; and
(ii) any Damages incurred or suffered by Buyer or any Affiliate thereof (other than with respect to an Excluded Liability) as a result of any Release of Materials of Environmental Concern to the matters set forth Environment in connection with the Business that occurred prior to the Closing Date; provided that, such Damages result directly from a legal obligation arising -------- pursuant to Environmental Laws on SCHEDULE 3.12(Bthe part of Buyer or any Affiliate thereof to investigate, remediate or pay Damages on account of said Release of Materials of Environmental Concern; provided further, however, that, in the case of both clauses (i) and (ii), to -------- ------- ------- the extent Buyer's claim for indemnification relates to a Business Property, Seller shall be obligated under this Section 8.2 if and only if (A) Buyer has operated the applicable Business Property continuously for commercial or industrial purposes (including related office, warehouse, sale and service activities) and not sold, transferred or sublet that those matters require remediation under property during such one year indemnification period or pursuant thereafter during the pendency of any claim asserted prior to any Hazardous Substances Laws, as the same shall exist first anniversary of the Closing Date and (B) Buyer has retained responsibility for and continued to perform remedial actions and programs in existence and operation at the Business Properties as of the Closing Date, (iii) the treatment, storage or disposal, prior to the Closing Date, of Hazardous Materials or any other petroleum products used or generated in or related to the operation of the Business, and (iv) the presence of Hazardous Materials in the fixtures, structures, soil, groundwater or air to the extent that the presence of such Hazardous Materials occurred prior to the Closing Dateif any.
(b) Seller's liability Buyer shall give prompt written notification to Seller of the commencement of any action, suit or proceeding for which indemnification under this Section 10.3 8.2 may be sought or, if earlier, upon the assertion of any claim or commencement of any inquiry for which indemnification under this Section 8.2 may be -97- sought, whereupon Seller shall be subject to assume exclusive control of the following:
defense and settlement of such action, suit, proceeding, claim or inquiry. Without limiting the generality of the foregoing, if a mandatory obligation of the kind specified in Section 8.2(a) exists: (i) With respect Seller shall determine, control and undertake the actions to any Covered Liability which is be taken in order to comply with or satisfy such mandatory obligation, including the subject of Section 10.3(a) arising out of the release performance of any Hazardous Materials further investigation or any petroleum products to the environment prior to the Closing Date at any facility that is or was operated by the Business or Seller:
remediation; (Aii) With respect to conditions where Seller agrees that it has liability upon presentation of a sufficient claim by Buyer, Seller shall have the option to either:
(1) cause the necessary remediation to be accomplished at Seller's direction and expense using Seller's personnel, consultants, and/or contractors, in accordance with the provisions of Section 10.3(b)(i)(E), in which event Buyer shall furnish necessary access be provided reasonable notice and opportunity to the facility and shall make available comment (to the extent it does not unreasonably interfere with Buyer's business or operations and at Seller's its own cost and expense) utilities and like services required to enable upon Seller's personnel, consultants, plans for addressing such mandatory obligation; (iii) Buyer shall allow access to Seller and its agents and independent contractors necessary to allow Seller to perform their work, and shall promptly actions to be taken in order to comply with or satisfy a mandatory obligation under this Section 8.2(b); and (iv) Seller and its agents and independent contractors shall make all reasonable requests by such personnel, consultants, and contractors relating efforts to the remediation work, at the expense of Seller (which expense shall be credited toward the aggregate liability of Seller for purposes of the limitations set forth in perform any mandatory obligation under this Section 10.1) (PROVIDED that, any remediation performed by Seller or at Seller's direction, shall be performed 8.2 in a manner that does not unreasonably interfere with Buyer's operations); oroccupation and use of the Business Properties.
(2c) require Buyer to accomplish the remediation at Buyer's direction using Buyer's personnel, consultants, and/or contractors, PROVIDED, HOWEVER, that as a precondition Seller shall have delivered to Buyer, prior In addition to the initiation of any such remediation, cash funds or a letter of credit (from a financial institution and containing such terms and conditions as are reasonably acceptable to Buyer), in an amount estimated by an environmental consultant acceptable to Buyer and Seller to cover all reasonable expenses to be incurred by Buyer in connection with that remediation (which funds shall be credited toward the aggregate liability of Seller for purposes agreements of the limitations Parties set forth in Section 10.1).
, Buyer shall, and shall cause its Affiliates to, cooperate with Seller (1as Seller may reasonably direct) With respect to conditions where Seller does not agree that it has liability or where Buyer presents a deficient claim, then Seller shall have the same options as described in Section 10.3(b)(i)(A), except that Seller shall have no obligation to deposit with Buyer any cash funds or letter of credit under Section 10.3(b)(i)(A)(2) and neither party shall have any obligation to reimburse the other party for any cost or expense incurred by such other party in connection with the remediation until and unless there has been a final resolution prosecution, defense, settlement or performance of Seller's agreements in this Section 8.2. Without limiting the generality of the relative liabilities of the parties thereto by mutual agreement or under the provisions of Section 12.12. Either party may initiate arbitration under the provisions of Section 12.12 foregoing, as to all matters with respect to any claim under this Section 10.3(b)(i)(B)(1) at any point, whether prior to or after commencement of remediation.
(2) In any situation covered by this Section 10.3, the party conducting the remediation work shall indemnify each of the which Seller Indemnified Parties or the Buyer Indemnified Parties, as the case may be, from and against any Covered Liabilities arising from any third-party claims for personal injury or property damage from the performance of the remediation work, whether based upon negligence, strict liability or any other theory of recovery in either law or equity.
(C) Seller's liability to remediate contamination or has agreed to indemnify Buyer and the Buyer Indemnified Parties therefor under this Section 10.3 shall be limited to:
(1) Covered Liabilities arising out of conditions or matters set forth on SCHEDULE 3.12(B); and
(2) conditions or matters not set forth on SCHEDULE 3.12(B) which constitute a breach of the representations and warranties contained in Section 3.12.
(D) Except as required by law or with the express prior written consent of Seller in each instance, or unless Buyer determines in the exercise of its reasonable business judgment that such action is necessary to prevent Hazardous Materials Contamination or liability for Buyer related to Hazardous Materials Contamination that constitutes Covered LiabilitiesAffiliates, Buyer shall, and shall not take action or fail cause its Affiliates to take action which has the effect of triggering, accelerating, or expanding Seller's liability (i) assign to remediate any contamination Seller (or to pay for such remediation). Notwithstanding any other provision hereinits designee) all existing contracts with independent consultants, Seller shall have no liability for, and Buyer shall indemnify and hold Seller Indemnified Parties harmless against, any breach by Buyer of this Section 10.3(b)(i)(D).
(E) The party directing any remediation work shall deliver all workplans to the other party for prior written approval not to be unreasonably withheld or delayed, provide the other party with reasonable notice prior to commencing any remediation work, require that consultants and contractors obtain insurance in the types and amounts reasonably appropriate considering the scope and extent of the remediation work, permit representatives of the other party to observe the remediation work at all reasonable times and in a manner which does not unreasonably interfere with the progress of the remediation, perform all remediation work in accordance with all applicable laws, dispose of all Hazardous Materials generated in connection with such remediation work in the name of such party, and promptly furnish to the other party copies of all reports concerning the remediation (including forecasts of expenditures, budgets, attorneys and other financial information) which may be prepared by or for the party performing the remediation and all correspondence advisors relating to or from environmental agencies concerning the remediation or the condition being remediated. All reportssuch matters, other than those given to a Government Authority, shall be treated as confidential by the party receiving such reports and shall not be disclosed to third parties. All contractors performing any remediation work on behalf of Seller shall, as a precondition to performing any such work, deliver to Buyer a written waiver, in form and substance satisfactory to Buyer, of all rights to assert any liens or claims against Buyer or any of its properties. The review, oversight and other expenses incurred by the party not performing the remediation work, whether payable to environmental consultants, contractors or otherwise, shall not be considered Covered Liabilities and shall not be subject to reimbursement by the other party.
(F) Seller shall have no responsibility and shall bear no cost to remediate any condition of contamination to a greater degree or extent than that which is required by applicable Hazardous Substances Laws.
(ii) With waive all professional conflicts and take other reasonable steps necessary to allow any counsel representing the Business with respect to any Covered Liability arising out of any alleged, actual such matters to represent Seller (or threatened contamination at a site which is notits designee) with respect to such matters, and has not been, a facility operated by the Business, or arising out of the inclusion of any facility, whether operated by the Business or not, as part of a multi-party CERCLA (or state superfund) site, then:
(A) Notwithstanding any other provision in this Agreement to the contrary, Seller's liability shall be limited to those matters as to which Buyer shall, by the fifth (5th) anniversary of the Closing Date, have given Seller notice specifying in reasonable detail the basis on which liability arising from the operation of the Business prior to the Closing Date is claimed; PROVIDED, HOWEVER, that Seller shall have no liability whatsoever, unless Buyer shall have given Seller prompt notice upon receiving a claim or notice from the U.S. Environmental Protection Agency (the "EPA") or any other Government Authority or upon learning of facts that could give rise to such a claim; and
(B) If either Buyer or Seller is named in the claim or notice, Buyer and Seller shall each cooperate and assist the other in the investigation and defense of any indemnified claims by the EPA or any other Government Authority or other Person and shall furnish such information relating to the claim as may be reasonably requested by the other party. Each party shall permit representatives of the other party to interview such party's personnel and to examine and copy all non-confidential records of the Business which may be relevant to the defense of any such claim.
(iii) For purposes of the reimbursement obligations described in this Section 10.3sign such documents, "promptly" shall mean payment in immediately available funds within thirty (30) days after receipt from any of the assign such rights, and take such actions as Seller Indemnified Parties or Buyer Indemnified Parties, as the case may be, of a demand for indemnity payment or reimbursement, or if such demand is contested, within thirty (30) days of resolution of such conflict in the demanding party's favor by mutual agreement or under the procedures of Section 12reasonably request.
Appears in 1 contract
Environmental Indemnification by Seller. (a) Subject to the applicable limitations provided in Section 10.1 and remaining provisions of this Section 10.3 13.9, Seller agrees to indemnify each of the Company Indemnified Parties and the Metaldyne Indemnified Parties against, and agrees to hold each of them harmless from, any and all Environmental Liabilities relating to, arising out of, in connection with or in respect of any Known Environmental Conditions. Seller's indemnification obligations of Buyer set forth in under this Section 10.3, for a period 13.9(a) shall not be subject to any limits as to amount or time.
(b) Subject to the remaining provisions of twenty-four (24) months from and after the Closing Datethis Section 13.9, Seller agrees to indemnify each of the Company Indemnified Parties and Metaldyne Indemnified Parties against, and agrees to hold each of them harmless from, any and all Environmental Liabilities relating to, arising out of, in connection with or in respect of any Unknown Environmental Conditions; provided, however, that: (i) no Indemnified Person shall be entitled to make a claim against Seller under this Section 13.9(b) unless such claim is made on or prior to [*]; and (ii) Seller shall only be required to indemnify and hold harmless the Buyer Company Indemnified Parties and Metaldyne Indemnified Parties from and against [*] of such Environmental Liabilities unless and until the aggregate amount of all such Environmental Liabilities exceeds [*], in which event Seller shall be obligated to indemnify and hold harmless the Company Indemnified Parties and Metaldyne Indemnified Parties from and against [*] of such Environment Liabilities in excess of [*].
(c) Notwithstanding any and all Covered other provision of this Agreement, the indemnification obligations of Seller under this Section 13.9 shall not be subject to the provisions of Sections 13.5 through 13.8.
(d) Notwithstanding any other provision of this Agreement, Seller shall have no obligation to indemnify, defend or hold harmless the Company Indemnified Parties or Metaldyne In- demnified Parties for Environmental Liabilities arising out of or any Losses whatsoever under this Section 13.9 to the extent such Environmental Liabilities or Losses (i) arise out of or result from Remedial Action that exceeds the breach standards necessary to (A) bring an Environmental Condition into compliance with Environmental Law or (B) satisfy the requirements of any of an applicable Governmental Authority with respect to an Environmental Condition to the representations and warranties contained in Section 3.12, extent required by Environmental Law or (ii) result from or would not have arisen but for (A) Metaldyne or any Metaldyne Indemnified Party undertaking any invasive drilling and sampling of soil or groundwater other than as required by or for (w) the matters set forth on SCHEDULE 3.12(B)Phase II ESA, (x) any Environmental Law in effect at the time of such drilling or sampling, any Environmental Permit or any applicable Governmental Authority, (y) any commercial transaction relating to or involving the Real Property or the Transferred Assets (including, without limitation, the Facility) or (z) any construction, erection, removal, repair, maintenance, demolition, alteration, modification or relocation of any physical improvement or structure, (B) any change of the use of any Real Property after the Closing Date to a non-industrial or non-commercial use or (C) any disclosure by the Company, Metaldyne or any of their Affiliates to any applicable Governmental Authority of information or data, where such disclosure is not otherwise required by any Environmental Law in effect at the time of such disclosure.
(e) From and after the Closing, Seller shall control all Remedial Action and negotiations with any Governmental Authority in respect of all Environmental Conditions. Seller shall make its environmental personnel and consultants reasonably available to Metaldyne to discuss Environmental Conditions. Metaldyne shall provide Seller and its environmental consultants with reasonable access to the Real Property and Seller shall provide Metaldyne with copies of all non-privileged information with respect to Remedial Action to be taken in respect of such Environmental Conditions. Such Remedial Actions shall be performed in a commercially reasonable manner, including, to the extent allowed or authorized by applicable Environmental Law or the Governmental Authority with jurisdiction over a Remedial Action, the use of applicable Remediation Standards. Seller shall select consultants and contractors to implement such Remedial Action (not reasonably objected to by Metaldyne) and shall also provide Metaldyne and its environmental consultants with copies of all non-privileged Environmental Reports, analytical data, correspondence, directives, orders and documents submitted to or received by Seller from any Governmental Authority in connection with the Remedial Action and other non-privileged documents created or received by or on behalf of Seller in connection with the Remedial Action. Seller shall afford Metaldyne a reasonable opportunity to comment on Seller's proposed response to an Environmental Condition, and Seller shall not unreasonably refuse to incorporate Metaldyne's comments.
(f) Metaldyne shall inform Seller promptly in writing of any Environmental Condition or Environmental Claim in respect of which Seller may have an indemnification obligation under this Section 13.9; provided that those matters require remediation the failure of Metaldyne to so promptly inform Seller shall not affect the rights of the Company Indemnified Parties or Metaldyne Indemnified Parties Buyer except to the extent (if any) that Seller shall have been prejudiced thereby.
(g) Seller shall have no obligation to indemnify, defend and hold harmless the Company Indemnified Parties and Metaldyne Indemnified Parties for Environmental Liabilities under this Section 13.9 to the extent that such Environmental Liabilities result solely from or pursuant to the extent such Environmental Liabilities are increased as a result of any Hazardous Substances Laws, as the same shall exist Environmental Law which is not binding and in effect as of the Closing Date, (iii) the treatment, storage or disposal, prior to the Closing Date, of Hazardous Materials or any other petroleum products used or generated Environmental Permit that is not required to be in or related to the operation effect as of the Business, and (iv) the presence of Hazardous Materials in the fixtures, structures, soil, groundwater or air to the extent that the presence of such Hazardous Materials occurred prior to the Closing Date.
(bh) Seller's liability Following the Closing, absent willful concealment or fraud, claims for indemnification pursuant to this Section 13.9 and claims for specific performance of covenants of Seller under this Section 10.3 shall 13.9 shall, collectively, be subject to the following:
(i) With respect to any Covered Liability which is sole and exclusive remedies of the subject of Section 10.3(a) Company Indemnified Parties and Metaldyne Indemnified Parties for claims and damages arising out of the release of any Environmental Laws, Environmental Claims, Environmental Conditions, Environmental Liabilities, Environmental Permits, Hazardous Materials or any petroleum products to the environment prior to the Closing Date at matters addressed in Section 2.5(b) or Section 5.21 or any facility that is or was operated by the Business or Seller:
(A) With Losses with respect to conditions where Seller agrees that it has liability upon presentation of a sufficient claim by Buyer, Seller shall have the option to either:
(1) cause the necessary remediation to be accomplished at Seller's direction and expense using Seller's personnel, consultants, and/or contractors, in accordance with the provisions of Section 10.3(b)(i)(E), in which event Buyer shall furnish necessary access to the facility and shall make available (to the extent it does not unreasonably interfere with Buyer's business or operations and at Seller's cost and expense) utilities and like services required to enable Seller's personnel, consultantsthereto, and contractors the Company Indemnified Parties and Metaldyne Indemnified Parties shall not be entitled to perform their workbring, and shall promptly comply with all reasonable requests by such personnelhereby irrevocably waive, consultantsany other claims, and contractors relating to rights or causes of action against Seller, whether in equity or in law. The right of indemnification provided in this Section 13.9 is solely for the remediation work, at the expense of Seller (which expense shall be credited toward the aggregate liability of Seller for purposes benefit of the limitations set forth in Section 10.1) (PROVIDED that, any remediation performed by Seller or at Seller's direction, shall be performed in a manner that does not unreasonably interfere with Buyer's operations); or
(2) require Buyer to accomplish the remediation at Buyer's direction using Buyer's personnel, consultants, and/or contractors, PROVIDED, HOWEVER, that as a precondition Seller shall have delivered to Buyer, prior to the initiation of any such remediation, cash funds or a letter of credit (from a financial institution and containing such terms and conditions as are reasonably acceptable to Buyer), in an amount estimated by an environmental consultant acceptable to Buyer and Seller to cover all reasonable expenses to be incurred by Buyer in connection with that remediation (which funds shall be credited toward the aggregate liability of Seller for purposes of the limitations set forth in Section 10.1).
(1) With respect to conditions where Seller does not agree that it has liability or where Buyer presents a deficient claim, then Seller shall have the same options as described in Section 10.3(b)(i)(A), except that Seller shall have no obligation to deposit with Buyer any cash funds or letter of credit under Section 10.3(b)(i)(A)(2) and neither party shall have any obligation to reimburse the other party for any cost or expense incurred by such other party in connection with the remediation until and unless there has been a final resolution of the relative liabilities of the parties thereto by mutual agreement or under the provisions of Section 12.12. Either party may initiate arbitration under the provisions of Section 12.12 with respect to any claim under this Section 10.3(b)(i)(B)(1) at any point, whether prior to or after commencement of remediation.
(2) In any situation covered by this Section 10.3, the party conducting the remediation work shall indemnify each of the Seller Company Indemnified Parties or the Buyer and Metaldyne Indemnified Parties, as the case may beand such right will not be extended, from and against any Covered Liabilities arising from any third-party claims for personal injury directly or property damage from the performance of the remediation workindirectly, whether based upon negligence, strict liability or to any other theory Person. For the avoidance of recovery in either law or equity.
(C) Seller's liability to remediate contamination or to indemnify Buyer and the Buyer Indemnified Parties therefor under doubt, this Section 10.3 shall be limited to:
(113.9(h) Covered Liabilities arising out of conditions or matters set forth on SCHEDULE 3.12(B); and
(2) conditions or matters not set forth on SCHEDULE 3.12(B) which constitute a breach of the representations and warranties contained in Section 3.12.
(D) Except as required by law or with the express prior written consent of Seller in each instance, or unless Buyer determines in the exercise of its reasonable business judgment that such action is necessary to prevent Hazardous Materials Contamination or liability for Buyer related to Hazardous Materials Contamination that constitutes Covered Liabilities, Buyer shall not take action or fail to take action which has the effect of triggering, accelerating, or expanding Seller's liability to remediate any contamination (or to pay for such remediation). Notwithstanding any other provision herein, Seller shall have no liability for, and Buyer shall indemnify and hold Seller Indemnified Parties harmless against, any breach by Buyer of this Section 10.3(b)(i)(D).
(E) The party directing any remediation work shall deliver all workplans to the other party for prior written approval not to be unreasonably withheld or delayed, provide the other party with reasonable notice prior to commencing any remediation work, require that consultants and contractors obtain insurance in the types and amounts reasonably appropriate considering the scope and extent of the remediation work, permit representatives of the other party to observe the remediation work at all reasonable times and in limit a manner which does not unreasonably interfere with the progress of the remediation, perform all remediation work in accordance with all applicable laws, dispose of all Hazardous Materials generated in connection with such remediation work in the name of such party, and promptly furnish to the other party copies of all reports concerning the remediation (including forecasts of expenditures, budgets, and other financial information) which may be prepared by or for the party performing the remediation and all correspondence to or from environmental agencies concerning the remediation or the condition being remediated. All reports, other than those given to a Government Authority, shall be treated as confidential by the party receiving such reports and shall not be disclosed to third parties. All contractors performing any remediation work on behalf of Seller shall, as a precondition to performing any such work, deliver to Buyer a written waiver, in form and substance satisfactory to Buyer, of all rights to assert any liens or claims against Buyer or any of its properties. The review, oversight and other expenses incurred by the party not performing the remediation work, whether payable to environmental consultants, contractors or otherwise, shall not be considered Covered Liabilities and shall not be subject to reimbursement by the other party.
(F) Seller shall have no responsibility and shall bear no cost to remediate any condition of contamination to a greater degree or extent than that which is required by applicable Hazardous Substances Laws.
(ii) With respect to any Covered Liability arising out of any alleged, actual or threatened contamination at a site which is not, and has not been, a facility operated by the Business, or arising out of the inclusion of any facility, whether operated by the Business or not, as part of a multi-party CERCLA (or state superfund) site, then:
(A) Notwithstanding any other provision in this Agreement to the contrary, Seller's liability shall be limited to those matters as to which Buyer shall, by the fifth (5th) anniversary of the Closing Date, have given Seller notice specifying in reasonable detail the basis on which liability arising from the operation of the Business prior to the Closing Date is claimed; PROVIDED, HOWEVER, that Seller shall have no liability whatsoever, unless Buyer shall have given Seller prompt notice upon receiving a claim or notice from the U.S. Environmental Protection Agency (the "EPA") or any other Government Authority or upon learning of facts that could give rise to such a claim; and
(B) If either Buyer or Seller is named in the claim or notice, Buyer and Seller shall each cooperate and assist the other in the investigation and defense of any indemnified claims by the EPA or any other Government Authority or other Person and shall furnish such information relating to the claim as may be reasonably requested by the other party. Each party shall permit representatives of the other party to interview such party's personnel and ability to examine and copy all non-confidential records of the Business which may be relevant to the defense of bring other claims after Closing under any such claimRelated Agreement.
(iii) For purposes of the reimbursement obligations described in this Section 10.3, "promptly" shall mean payment in immediately available funds within thirty (30) days after receipt from any of the Seller Indemnified Parties or Buyer Indemnified Parties, as the case may be, of a demand for indemnity payment or reimbursement, or if such demand is contested, within thirty (30) days of resolution of such conflict in the demanding party's favor by mutual agreement or under the procedures of Section 12.
Appears in 1 contract
Environmental Indemnification by Seller. (a) Subject to the applicable limitations provided terms and conditions of this Article VIII, with respect to any claim properly asserted in Section 10.1 and this Section 10.3 and writing by Buyer prior to the obligations second anniversary of Buyer set forth in this Section 10.3, for a period of twenty-four (24) months from and after the Closing Date, Seller shall indemnify Buyer in respect of, and hold Buyer harmless against:
(i) any Damages incurred or suffered by the Buyer Indemnified Parties from and against any and all Covered Liabilities arising out of (i) the breach as a result of any of the representations and warranties contained in Section 3.12, (ii) the matters set forth on SCHEDULE 3.12(B), failure by Seller to the extent that those matters require remediation under or pursuant to comply with any Hazardous Substances Laws, as the same shall exist as of the Closing Date, (iii) the treatment, storage or disposal, applicable Environmental Law prior to the Closing Date, of Hazardous Materials Date in connection with the Business; PROVIDED THAT such Damages result directly from (A) compliance by Buyer or any Affiliate thereof with an order or other petroleum products used enforceable directive issued by a Governmental Entity or generated by a court in a proceeding commenced by a Governmental Entity which establishes a mandatory obligation to rectify such failure to comply with applicable Environmental Law, (B) the mandatory obligation of the Business or related any Affiliate of Buyer to pay a fine or penalty which is imposed by a Governmental Entity or a court in a proceeding commenced by a Governmental Entity as a result of such failure to comply with applicable Environmental Law, or (C) the operation mandatory obligation under Environmental Law of the Business, and (iv) the presence Buyer or any Affiliate of Hazardous Materials in the fixtures, structures, soil, groundwater or air Buyer to remediate such non-compliance to the extent minimum level necessary to satisfy the responsible Governmental Entity in order to meet the cleanup criteria applicable to the activities of the Business, as and where conducted at the Business Property on the Closing Date;
(ii) any Damages incurred or suffered by the Buyer Indemnified Parties as a result of any Off-Site Liabilities, claims under Environmental Laws, Environmental Matters or Release of Materials of Environmental Concern to the Environment in connection with the Business that the presence of such Hazardous Materials occurred prior to the Closing Date; and
(iii) any Damages (including the reasonable costs incurred for environmental consultants) incurred or suffered by the Buyer Indemnified Parties as a result of actions necessary to obtain a determination from the applicable state Governmental Entity that no further remedial actions are necessary in order to address contamination in groundwater, as indicated by the groundwater analytical data identified in Section 2.16 of the Disclosure Schedule.
(b) Seller's liability Buyer shall give prompt written notification to Seller of the commencement of any action, suit or proceeding for which indemnification under this Section 10.3 8.2 may be sought or, if earlier, upon the assertion of any claim or commencement of any inquiry for which indemnification under this Section 8.2 may be sought, whereupon, except for claims arising under Section 8.2(a)(iii), Seller shall be subject to assume exclusive control of the following:
defense and settlement of such action, suit, proceeding, claim or inquiry. Without limiting the generality of the foregoing and except as expressly provided in this Article VIII, if a mandatory obligation of the kind specified in Section 8.2(a) exists: (i) With respect to any Covered Liability which is the subject of Section 10.3(a) arising out of the release of any Hazardous Materials or any petroleum products to the environment prior to the Closing Date at any facility that is or was operated by the Business or Seller:
(A) With respect to conditions where Seller agrees that it has liability upon presentation of a sufficient claim by Buyer, Seller shall have determine, control and undertake the option to either:
(1) cause the necessary remediation actions to be accomplished at Seller's direction taken in order to comply with or satisfy such mandatory obligation and expense using Seller's personnel, consultants, and/or contractors, in accordance with the provisions of Section 10.3(b)(i)(E), in which event (ii) Buyer shall furnish necessary access be provided reasonable notice and opportunity to the facility and shall make available comment (to the extent it does not unreasonably interfere with Buyer's business or operations and at Seller's its own cost and expense) utilities and like services required to enable upon Seller's personnel, consultants, and contractors to perform their work, and shall promptly comply with all reasonable requests by plans for addressing such personnel, consultants, and contractors relating mandatory obligation.
(c) In addition to the remediation work, at the expense of Seller (which expense shall be credited toward the aggregate liability of Seller for purposes agreements of the limitations Parties set forth in Section 10.1, Buyer shall, and shall cause its Affiliates to, reasonably cooperate with Seller (as Seller may reasonably direct) (PROVIDED that, any remediation performed by Seller or at Seller's direction, shall be performed in a manner that does not unreasonably interfere with Buyer's operations); or
(2) require Buyer to accomplish the remediation at Buyer's direction using Buyer's personnel, consultants, and/or contractors, PROVIDED, HOWEVER, that as a precondition Seller shall have delivered to Buyer, prior to the initiation of any such remediation, cash funds or a letter of credit (from a financial institution and containing such terms and conditions as are reasonably acceptable to Buyer), in an amount estimated by an environmental consultant acceptable to Buyer and Seller to cover all reasonable expenses to be incurred by Buyer in connection with that remediation (which funds shall be credited toward the aggregate liability of Seller for purposes of the limitations set forth in Section 10.1).
(1) With respect to conditions where Seller does not agree that it has liability or where Buyer presents a deficient claim, then Seller shall have the same options as described in Section 10.3(b)(i)(A), except that Seller shall have no obligation to deposit with Buyer any cash funds or letter of credit under Section 10.3(b)(i)(A)(2) and neither party shall have any obligation to reimburse the other party for any cost or expense incurred by such other party in connection with the remediation until and unless there has been a final resolution of the relative liabilities of the parties thereto by mutual agreement prosecution, defense, settlement or under the provisions of Section 12.12. Either party may initiate arbitration under the provisions of Section 12.12 with respect to any claim under this Section 10.3(b)(i)(B)(1) at any point, whether prior to or after commencement of remediation.
(2) In any situation covered by this Section 10.3, the party conducting the remediation work shall indemnify each of the Seller Indemnified Parties or the Buyer Indemnified Parties, as the case may be, from and against any Covered Liabilities arising from any third-party claims for personal injury or property damage from the performance of the remediation work, whether based upon negligence, strict liability or any other theory of recovery in either law or equity.
(C) Seller's liability to remediate contamination or to indemnify Buyer and the Buyer Indemnified Parties therefor under this Section 10.3 shall be limited to:
(1) Covered Liabilities arising out of conditions or matters set forth on SCHEDULE 3.12(B); and
(2) conditions or matters not set forth on SCHEDULE 3.12(B) which constitute a breach of the representations and warranties contained in Section 3.12.
(D) Except as required by law or with the express prior written consent of Seller in each instance, or unless Buyer determines in the exercise of its reasonable business judgment that such action is necessary to prevent Hazardous Materials Contamination or liability for Buyer related to Hazardous Materials Contamination that constitutes Covered Liabilities, Buyer shall not take action or fail to take action which has the effect of triggering, accelerating, or expanding Seller's liability to remediate any contamination (or to pay for such remediation). Notwithstanding any other provision herein, Seller shall have no liability for, and Buyer shall indemnify and hold Seller Indemnified Parties harmless against, any breach by Buyer of this Section 10.3(b)(i)(D).
(E) The party directing any remediation work shall deliver all workplans to the other party for prior written approval not to be unreasonably withheld or delayed, provide the other party with reasonable notice prior to commencing any remediation work, require that consultants and contractors obtain insurance in the types and amounts reasonably appropriate considering the scope and extent of the remediation work, permit representatives of the other party to observe the remediation work at all reasonable times and in a manner which does not unreasonably interfere with the progress of the remediation, perform all remediation work in accordance with all applicable laws, dispose of all Hazardous Materials generated in connection with such remediation work in the name of such party, and promptly furnish to the other party copies of all reports concerning the remediation (including forecasts of expenditures, budgets, and other financial information) which may be prepared by or for the party performing the remediation and all correspondence to or from environmental agencies concerning the remediation or the condition being remediated. All reports, other than those given to a Government Authority, shall be treated as confidential by the party receiving such reports and shall not be disclosed to third parties. All contractors performing any remediation work on behalf of Seller shall, as a precondition to performing any such work, deliver to Buyer a written waiver, in form and substance satisfactory to Buyer, of all rights to assert any liens or claims against Buyer or any of its properties. The review, oversight and other expenses incurred by the party not performing the remediation work, whether payable to environmental consultants, contractors or otherwise, shall not be considered Covered Liabilities and shall not be subject to reimbursement by the other party.
(F) Seller shall have no responsibility and shall bear no cost to remediate any condition of contamination to a greater degree or extent than that which is required by applicable Hazardous Substances Laws.
(ii) With respect to any Covered Liability arising out of any alleged, actual or threatened contamination at a site which is not, and has not been, a facility operated by the Business, or arising out of the inclusion of any facility, whether operated by the Business or not, as part of a multi-party CERCLA (or state superfund) site, then:
(A) Notwithstanding any other provision in this Agreement to the contrary, Seller's liability shall be limited to those matters as to which Buyer shall, by the fifth (5th) anniversary of the Closing Date, have given Seller notice specifying in reasonable detail the basis on which liability arising from the operation of the Business prior to the Closing Date is claimed; PROVIDED, HOWEVER, that Seller shall have no liability whatsoever, unless Buyer shall have given Seller prompt notice upon receiving a claim or notice from the U.S. Environmental Protection Agency (the "EPA") or any other Government Authority or upon learning of facts that could give rise to such a claim; and
(B) If either Buyer or Seller is named in the claim or notice, Buyer and Seller shall each cooperate and assist the other in the investigation and defense of any indemnified claims by the EPA or any other Government Authority or other Person and shall furnish such information relating to the claim as may be reasonably requested by the other party. Each party shall permit representatives of the other party to interview such party's personnel and to examine and copy all non-confidential records of the Business which may be relevant to the defense of any such claim.
(iii) For purposes of the reimbursement obligations described agreements in this Section 10.3, "promptly" shall mean payment in immediately available funds within thirty (30) days after receipt from any of the Seller Indemnified Parties or Buyer Indemnified Parties, as the case may be, of a demand for indemnity payment or reimbursement, or if such demand is contested, within thirty (30) days of resolution of such conflict in the demanding party's favor by mutual agreement or under the procedures of Section 128.2.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Thermo Electron Corp)
