Common use of Environmental Procedures Clause in Contracts

Environmental Procedures. With respect to any claims involving the investigation, remediation, removal, corrective action, containment, monitoring or other response action relating to the existence of environmental contamination, including claims made under Section 11.02(a)(i) with respect to Section 3.19, under Section 11.02(a)(v) with respect to any Excluded Environmental Liability, under Section 11.03(c) or (d) with respect to environmental matters or under Section 11.07 (collectively, “Environmental Claims”), Buyer, Seller and their respective Affiliates, as the case may be, shall act in a Commercially Reasonable Manner. Seller shall have no obligation for any Damages arising out of any Environmental Claim to the extent such Damages result from or are the consequence, in whole or in part, of any intrusive sampling, testing or monitoring of soil or groundwater performed by or on behalf of Buyer, any of its Affiliates or any of their respective Representatives, unless (and only to the extent) such action is (a) required by an Environmental Law, order, injunction, decree or ruling of any Governmental Authority or a Permit in effect at the time such action is taken; (b) subject to Section 11.05, reasonably necessary in connection with the defense or resolution of a Third-Party Claim; (c) reasonably necessary to investigate conditions that indicate an imminent and substantial endangerment to human health as reasonably determined by Buyer; (d) required pursuant to any applicable Real Property Lease as in effect as of the Closing Date or, if less restrictive, as amended thereafter; (e) reasonably necessary to obtain financing or a mortgage, or in connection with a potential sale of any Real Property or the Business; (f) conducted in connection with construction or maintenance projects at any Real Property provided that such projects serve a legitimate business purpose unrelated to conducting intrusive sampling, testing or monitoring of the Environment for purposes of seeking indemnification hereunder; or (g) conducted in connection with properly maintaining any production or drinking water xxxxx that are the responsibility of Buyer and that exist at any Real Property on the Closing Date. Buyer and Seller agree that, with respect to any Environmental Claim arising out of a Release of any Hazardous Substance, the issuance of a no further action letter or the equivalent indicia of completion issued by any Governmental Authority having jurisdiction over Releases or remediation (“NFA Letter”) shall fully resolve any investigation, remediation, removal, corrective action, containment, monitoring or other response obligation of Seller with respect to such Environmental Claim and such Release; provided, that this sentence shall not apply to the extent any Environmental Claim arising out of a claim brought by any third party is not settled as a result of the receipt of an NFA Letter; provided, further, that Seller may not invoke the receipt of the NFA Letter as a reason to avoid fulfilling any remaining obligations with respect to such Environmental Claim in the event (x) the NFA Letter contains re-openers or other provisions that reserve the right of the issuing Governmental Authority to require additional investigation, remediation, removal, corrective action, containment, monitoring or other response action with respect to Hazardous Substances (“Re-Opener”), (y) the Re-Opener is not triggered through any action or omission of Buyer, its Affiliates or their respective Representatives (other than any action described in clauses (a) through (g) of this Section 11.08) and (z) in the case of any Environmental Claim made under Section 11.02(a)(i), the Re-Opener is triggered before the fifth anniversary of the NFA Letter. In no event shall Seller be obligated to pay any Damages arising out of any Environmental Claim to the extent such Damages arise due to a change in the use of the relevant Real Property to any use other than commercial or industrial use after the Closing Date.

Environmental Procedures. With respect to any claims involving the investigation, remediation, removal, corrective action, containment, monitoring or other response action relating Notwithstanding anything to the existence of environmental contaminationcontrary in this Article 12, including claims made under Section 11.02(a)(i) with respect to Section 3.19, under Section 11.02(a)(v) with respect to any Excluded claim for indemnification hereunder for any Assumed Environmental Liability, under Excluded Environmental Liability or Warranty Breach of Section 11.03(c3.16 (Environmental Compliance) or, to the extent relating to Permits required by Environmental Law, Section 3.17 (Permits), or (d) with respect any other claim for indemnification hereunder relating in any way to environmental matters any Environmental Law or under Section 11.07 any spill, release, emission, discharge, disposal or recycling of, or exposure to, any Hazardous Material (collectively, “Environmental ClaimsMatters”), BuyerBuyer and Seller agree, Seller in addition to any other relevant provisions set forth in this Article 12 (and their respective Affiliatesin the case of any conflict between the provisions of this Section 12.06 and any other provision in Article 12, the provisions of this Section 12.06 shall apply), as the case may befollows: (a) The costs of any Remedial Action, which costs are otherwise subject to indemnification hereunder, shall act be indemnified only to the extent such costs must be incurred to, in a Commercially Reasonable Manner. Seller reasonably cost-effective manner, meet the requirements of any applicable Environmental Law or meet the legally enforceable demands of any applicable Governmental Authority, using, where possible, risk based standards, engineering or institutional controls or deed or other restrictions so long as such standards, controls or restrictions do not materially limit those industrial activities being performed on the applicable property as of Closing. (b) The Indemnifying Party shall have no obligation liability under this Agreement for any Damages to the extent (i) arising out of any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media or any disclosure, report or communication to, or initiation or encouragement of any action by, any Governmental Authority or other third party relating to any Environmental Claim Matters except to the extent such investigation, sampling, disclosure, report, communication, initiation or encouragement is required to be undertaken by an Environmental Law or pursuant to the order or directive of any Governmental Authority; or (ii) arising in connection with any construction, renovation, modification, expansion, reconstruction, shutdown, demolition, financing or closure of any asset, facility or real property at or after Closing. (c) As between Buyer and Seller, the Indemnifying Party shall have the right at its option to control such Environmental Matter, including the disclosure, investigation, negotiation, performance, remediation, monitoring, settlement and resolution of such matter. With respect to any Environmental Matter, (i) the controlling party shall keep the other party reasonably informed; and (ii) both parties agree to, and shall cause their Affiliates to, cooperate with the other party in providing reasonable access to properties and facilities and reasonably promptly provide each other with copies of all communications relating to such matter received from or delivered to any Person. (d) Buyer and Seller acknowledge that the Environmental Insurance Policy will contain its own procedures, including with respect to notice, cooperation and defense of claims, and that to the extent any of the provisions of this Article 12 conflict with the provisions of such Environmental Insurance Policy with respect to any claim that is submitted pursuant to such policy, the terms and conditions of such Environmental Insurance Policy shall prevail, provided, however, the terms of such Environmental Insurance Policy shall in no way limit any right to indemnification provided under this Agreement. (e) No Indemnifying Party shall have liability under this Agreement for any Damages to the extent such Damages result from are exacerbated by acts or are the consequence, in whole or in part, omissions of any intrusive sampling, testing or monitoring of soil or groundwater performed by or on behalf of Buyer, any of the Indemnified Party or its Affiliates or any of their respective Representatives, unless (and only to the extent) such action is (a) required by an Environmental Law, order, injunction, decree or ruling of any Governmental Authority or a Permit in effect at the time such action is taken; (b) subject to Section 11.05, reasonably necessary in connection with the defense or resolution of a Third-Party Claim; (c) reasonably necessary to investigate conditions that indicate an imminent and substantial endangerment to human health as reasonably determined by Buyer; (d) required pursuant to any applicable Real Property Lease as in effect as of the Closing Date or, if less restrictive, as amended thereafter; (e) reasonably necessary to obtain financing or a mortgage, or in connection with a potential sale of any Real Property or the Business; Affiliates. (f) conducted in connection with construction or maintenance projects at Notwithstanding anything else herein to the contrary, Seller shall have no liability under this Agreement for any Real Property provided that such projects serve a legitimate business purpose unrelated to conducting intrusive sampling, testing or monitoring of the Environment for purposes of seeking indemnification hereunder; or (g) conducted in connection with properly maintaining any production or drinking water xxxxx that are the responsibility of Buyer and that exist at any Real Property on the Closing Date. Buyer and Seller agree that, with respect Damages relating to any Environmental Claim arising out of a Release of any Hazardous Substance, the issuance of a no further action letter or the equivalent indicia of completion issued by any Governmental Authority having jurisdiction over Releases or remediation (“NFA Letter”) shall fully resolve any investigation, remediation, removal, corrective action, containment, monitoring or other response obligation of Seller with respect to such Environmental Claim and such Release; provided, that this sentence shall not apply Matters to the extent arising from or relating to the coming into force of, or the change in, any requirement or obligation set forth in any Environmental Claim arising out Law or Permit required by Environmental Law (or the interpretation or enforcement of a claim brought by any third party is not settled as a result of the receipt of an NFA Letter; provided, further, that Seller may not invoke the receipt of the NFA Letter as a reason to avoid fulfilling any remaining obligations with respect to such Environmental Claim in the event (x) the NFA Letter contains re-openers Law or other provisions that reserve the right of the issuing Governmental Authority to require additional investigation, remediation, removal, corrective action, containment, monitoring or other response action with respect to Hazardous Substances (“Re-Opener”Permit), (y) the Re-Opener is not triggered through including any action new or omission of Buyermodified standard or requirement for Remedial Action, its Affiliates on or their respective Representatives (other than any action described in clauses (a) through (g) of this Section 11.08) and (z) in the case of any Environmental Claim made under Section 11.02(a)(i), the Re-Opener is triggered before the fifth anniversary of the NFA Letter. In no event shall Seller be obligated to pay any Damages arising out of any Environmental Claim to the extent such Damages arise due to a change in the use of the relevant Real Property to any use other than commercial or industrial use after the Closing DateClosing.

Environmental Procedures. With respect (a) Notwithstanding anything herein to the contrary, Seller shall not be liable under this Agreement for any claims involving the investigation, remediation, removal, corrective action, containment, monitoring or other response action Losses relating to the existence (x) breaches of environmental contamination, including claims made under Section 11.02(a)(i) with respect to Section 3.19, under Section 11.02(a)(v) with respect to any Excluded Environmental Liability, under Section 11.03(c) ‎Section 4.19 or (dy) with respect to environmental the matters or under Section 11.07 described in ‎Section 11.1(j) ((x) and (y) collectively, “Environmental ClaimsIndemnification Matters”), Buyer, Seller and their respective Affiliates, as the case may be, shall act in a Commercially Reasonable Manner. Seller shall have no obligation for any Damages arising out of any Environmental Claim ) to the extent such Damages result from or are the consequence, in whole or in part, Losses arise out of any intrusive sampling, testing or monitoring other invasive or subsurface investigation of soil the air, soil, sediment, rock, ground surface, subsurface strata, water or groundwater performed by or on behalf of Buyergroundwater, any of its Affiliates or any of their respective Representatives, unless (and only disclosure or report relating to the extent) such action is (a) required by an any Environmental Law, order, injunction, decree or ruling of Indemnification Matter to any Governmental Authority or a Permit in effect at the time other third party, unless Seller provides its prior written consent to such action or unless such sampling, testing, investigation, disclosure or report is taken; (b) subject to Section 11.05, reasonably necessary in connection with the defense or resolution of a Third-Party Claim; (c) reasonably necessary to investigate conditions that indicate an imminent and substantial endangerment to human health as reasonably determined by Buyer; (di) required pursuant to any applicable Environmental Law, (ii) necessary to defend against any Third Party Proceeding brought against any Buyer Indemnified Party, (iii) commercially reasonable for the renovation, construction, expansion or development of the Owned Real Property, Leased Real Property Lease or any improvements thereon, which renovation, construction, expansion or development is conducted for a legitimate business purpose (and not for the purpose of accelerating obligations under ‎Section 11.1(a) or ‎Section 11.1(j)), provided that such renovation, construction, expansion or development is consistent with Buyer’s efforts to develop the use of the Owned Real Property or Leased Real Property as a contract development and manufacturing site in effect the pharmaceutical and biopharmaceutical or biotechnology industry, or (iv) necessary to respond to an imminent and material threat to human health or the environment related to an actual or threatened Release into the environment of, or exposure to, any Hazardous Substance. (b) If any such sampling, testing or investigation permitted by ‎Section 11.4(a)(A) through ‎Section 11.4(a)(D) identifies Hazardous Substances at either the Owned Real Property or Leased Real Property that triggers any requirements under Environmental Law to take Remedial Action (including any reporting or other obligations under applicable Remediation Standards), or if the Company or Buyer is otherwise required to take such action under Environmental Law, then the results of such sampling, testing or investigation may be voluntarily reported to the applicable Governmental Authority with jurisdiction over such environmental matter; provided that (i) Buyer shall inform Seller of its intention to so report as reasonably promptly as possible and shall provide to Seller a copy of the documents to be provided to the Governmental Authority (including other material and relevant sampling, testing and investigation reports), and (ii) Seller shall have a right to comment on such documentation, and Buyer shall reasonably consider and reasonably reflect Seller’s comments with respect thereto. (c) Seller’s obligations for any Environmental Indemnification Matter shall satisfy all applicable requirements of any Governmental Authority with jurisdiction over such Environmental Indemnification Matter and under applicable Environmental Law so long as such requirements are consistent with the Business and use of the property as of the Closing Date or(or otherwise consistent with the operations of a contract development and manufacturing site in the pharmaceutical, if less restrictivebiopharmaceutical or biotechnology industry), as amended thereafter; (e) reasonably necessary including, with regard to obtain financing Remedial Actions, the receipt of a “covenant not to xxx,” “no further action” or a mortgage, or in connection with a potential sale similar written approval confirming closure of any Real Property or the Business; (f) conducted in connection with construction or maintenance projects at any Real Property provided that such projects serve a legitimate business purpose unrelated to conducting intrusive sampling, testing or monitoring of the Environment for purposes of seeking indemnification hereunder; or (g) conducted in connection with properly maintaining any production or drinking water xxxxx that are the responsibility of Buyer and that exist at any Real Property on the Closing Date. Buyer and Seller agree that, with respect to any Environmental Claim arising out of a Release of any Hazardous Substance, the issuance of a no further action letter or the equivalent indicia of completion issued by Remedial Action from any Governmental Authority having jurisdiction over Releases or remediation the completion of any such Remedial Action (any such document, a “NFA LetterClosure Document”) shall fully resolve any investigationor, remediationif such Closure Document is not available from such Governmental Authority, removala reasonably mutually agreeable written closure or similar report from the environmental consultant or engineer conducting and completing such Remedial Action, corrective action, containment, monitoring confirming that such Closure Document is not possible or other response obligation of Seller required and that no further action with respect regard to such Environmental Claim and Remedial Action is required (any such Release; provideddocument, that this sentence shall not apply to the extent any Environmental Claim arising out a “Consultant Closure”). The issuance of a claim brought Closure Document by any third party is not settled as a result Governmental Authority or the issuance of a Consultant Closure shall constitute the receipt completion of an NFA Letter; provided, further, that Seller may not invoke the receipt of the NFA Letter as a reason to avoid fulfilling any remaining Seller’s obligations with respect to for such Environmental Claim in the event (x) the NFA Letter contains re-openers or other provisions that reserve the right of the issuing Governmental Authority to require additional investigationIndemnification Matter, remediation, removal, corrective action, containment, monitoring or other response action with respect to Hazardous Substances (“Re-Opener”), (y) the Re-Opener is not triggered through any action or omission of Buyer, its Affiliates or their respective Representatives (other than any action described in clauses (a) through (g) of this Section 11.08) unless and (z) in the case of any Environmental Claim made under Section 11.02(a)(i), the Re-Opener is triggered before the fifth anniversary of the NFA Letter. In no event shall Seller be obligated to pay any Damages arising out of any Environmental Claim to the extent such Damages arise due Closure Document or Consultant Closure is voided or the subject of such Closure Document or Consultant Closure is otherwise reopened by such Governmental Authority. (d) As between Seller and any Buyer Indemnified Party, Seller shall have the right at its option to control any Environmental Indemnification Matter that is subject to indemnification under this Agreement, including the disclosure, investigation, negotiation, performance, remediation, monitoring, settlement and resolution of such matter; provided, however, that the provisions of ‎Section 11.3 shall control any Third Party Proceeding relating to any Environmental Indemnification Matter. With respect to any Environmental Indemnification Matter, the controlling party shall (i) keep the other party reasonably informed and shall, and shall cause their Affiliates to, cooperate with the other party and its representatives, provide to the other party and its representatives reasonable access to relevant properties, facilities, information and documents and reasonably promptly provide to the other party and its representatives copies of all relevant communications received from or delivered to any other Person and (ii) not unreasonably interfere with the continuing use, renovation, construction, expansion or development of such relevant property by Buyer or its Affiliates, so long as such use, renovation, construction, expansion or development is consistent with the operations of a change contract development and manufacturing site in the use of the relevant Real Property to any use other than commercial pharmaceutical and biopharmaceutical or industrial use after the Closing Datebiotechnology industry.

Environmental Procedures. With respect to Seller’s and Parent’s indemnification obligations relating in any claims involving way to Section 3.13, the following additional provisions shall apply: (i) If such Claim relates to the Release of a Hazardous Substance at, on or under the real property that the Acquired Company or any Subsidiary currently or formerly owned or leased, the necessity for any investigation or remediation (“Corrective Action”) shall be determined pursuant to the Environmental Laws in effect at the Closing. If Corrective Action is, or may be required, in addition to providing access pursuant to Section 8.04(d), and for no additional consideration, Purchaser shall permit and provide access to Seller to conduct its own investigation, remediation, removal, corrective action, containment, monitoring testing or other response action relating to the existence of environmental contamination, including claims made under Section 11.02(a)(i) Corrective Action with respect to Section 3.19the matter, provided that such access shall not unreasonably interfere with the operations of the Business; (ii) Purchaser and Seller shall provide the other with the results, including analytical data, of any investigation or testing conducted by either of them, or, if available, any third party. Purchaser shall also provide to Seller a copy of all Purchaser communications to or from any Governmental Authority, including information or reports, with regard to any matter related to Hazardous Materials that may constitute a Claim; (iii) Except as may otherwise be required by Law, Purchaser shall not contact any Governmental Authority with respect to the subject matter of the indemnification Claim without prior notice to, and consultation with, Seller. Purchaser shall, if practicable, provide Seller a reasonable opportunity to participate in any discussions or negotiations with any Governmental Authority concerning such matter; (iv) If Corrective Action is required under Section 11.02(a)(v) Environmental Laws with respect to any Excluded Environmental Liabilityindemnity Claims, under Section 11.03(c) or Purchaser shall give Seller a reasonable opportunity to develop and implement a plan of Corrective Action, such plan to be subject to Purchaser’s approval (d) with respect not to environmental matters or under Section 11.07 (collectively, “Environmental Claims”be unreasonably withheld), Buyerand, if requested, reasonably cooperate with Seller (at Seller’s cost) in the development and implementation of such plan on a cost-effective basis; (v) Purchaser shall reasonably cooperate with Seller in performing such tasks as Seller and their respective Affiliatesits technical professionals and representatives may reasonably request as being necessary to complete any Corrective Action being undertaken by Seller. Without limiting the scope of the foregoing, as Purchaser shall cause its employees to reasonably cooperate with Seller, its agents, employees and technical professionals; (vi) Notwithstanding any of the case may beforegoing, shall act in a Commercially Reasonable Manner. Seller shall have no obligation to indemnify the Purchaser for (A) any Damages arising out of relating to any Hazardous Material which was Released (i) after the Closing Date, or (ii) which would not require remediation under, any Environmental Claim to the extent such Damages result from or are the consequence, in whole or in part, of any intrusive sampling, testing or monitoring of soil or groundwater performed by or on behalf of Buyer, any of its Affiliates or any of their respective Representatives, unless (and only to the extent) such action is (a) required by an Environmental Law, order, injunction, decree or ruling of any Governmental Authority or a Permit in effect at the time such action is taken; (b) subject to Section 11.05, reasonably necessary in connection with the defense or resolution of a Third-Party Claim; (c) reasonably necessary to investigate conditions that indicate an imminent and substantial endangerment to human health as reasonably determined by Buyer; (d) required pursuant to any applicable Real Property Lease Laws as in effect as of the Closing Date or, if less restrictive, as amended thereafter; (e) reasonably necessary to obtain financing or a mortgage, or in connection with a potential sale of any Real Property or the Business; (f) conducted in connection with construction or maintenance projects at any Real Property provided that such projects serve a legitimate business purpose unrelated to conducting intrusive sampling, testing or monitoring of the Environment for purposes of seeking indemnification hereunder; or (g) conducted in connection with properly maintaining any production or drinking water xxxxx that are the responsibility of Buyer and that exist at any Real Property on the Closing Date. Buyer and ; or (B) any remediation costs in excess of the minimum costs reasonably required to comply with Environmental Laws as in effect on the Closing Date, it being expressly acknowledged that Seller agree thatis responsible for Corrective Action only to the extent necessary to obtain closure or a “no further action” designation to commercial background standards; provided, with respect to any Environmental Claim arising out of a Release of any Hazardous Substancehowever, the issuance of a no further action letter or the equivalent indicia of completion issued by any Governmental Authority having jurisdiction over Releases or remediation foregoing provisions (“NFA Letter”i) – (vi) shall fully resolve any investigation, remediation, removal, corrective action, containment, monitoring or other response obligation of only apply to a specific situation as to which it is reasonably foreseeable that Seller and/or Parent will have liability for indemnifiable Damages with respect to such Environmental Claim and such Release; provided, that this sentence shall not apply to the extent any Environmental Claim arising out of a claim brought by any third party is not settled as a result of the receipt of an NFA Letter; provided, further, that Seller may not invoke the receipt of the NFA Letter as a reason to avoid fulfilling any remaining obligations with respect to such Environmental Claim in the event (x) the NFA Letter contains re-openers or other provisions that reserve the right of the issuing Governmental Authority to require additional investigation, remediation, removal, corrective action, containment, monitoring or other response action with respect to Hazardous Substances (“Re-Opener”), (y) the Re-Opener is not triggered through any action or omission of Buyer, its Affiliates or their respective Representatives (other than any action described in clauses (a) through (g) of this Section 11.08) and (z) in the case of any Environmental Claim made under Section 11.02(a)(i), the Re-Opener is triggered before the fifth anniversary of the NFA Letter. In no event shall Seller be obligated to pay any Damages arising out of any Environmental Claim to the extent such Damages arise due to a change in the use of the relevant Real Property to any use other than commercial or industrial use after the Closing Datesituation.

Environmental Procedures. With respect to Seller's and Parent's indemnification obligations relating in any claims involving way to Section 3.13, the following additional provisions shall apply: (i) If such Claim relates to the Release of a Hazardous Substance at, on or under the real property that the Acquired Company or any Subsidiary currently or formerly leased, the necessity for any investigation or remediation ("Corrective Action") shall be determined pursuant to the Environmental Laws in effect at the Closing. If Corrective Action is, or may be required, in addition to providing access pursuant to Section 8.04(d), and for no additional consideration, Purchaser shall permit and provide access to Seller to conduct its own investigation, remediation, removal, corrective action, containment, monitoring testing or other response action relating to the existence of environmental contamination, including claims made under Section 11.02(a)(i) Corrective Action with respect to Section 3.19the matter, provided that such access shall not unreasonably interfere with the operations of the Business; (ii) Purchaser and Seller shall provide the other with the results, including analytical data, of any investigation or testing conducted by either of them, or, if available, any third party. Purchaser shall also provide to Seller a copy of all Purchaser communications to or from any Governmental Authority, including information or reports, with regard to any matter related to Hazardous Materials that may constitute a Claim; (iii) Except as may otherwise be required by Law, Purchaser shall not contact any Governmental Authority with respect to the subject matter of the indemnification Claim without prior notice to, and consultation with, Seller. Purchaser shall, if practicable, provide Seller a reasonable opportunity to participate in any discussions or negotiations with any Governmental Authority concerning such matter; (iv) If Corrective Action is required under Section 11.02(a)(v) Environmental Laws with respect to any Excluded Environmental Liabilityindemnity Claims, under Section 11.03(c) or Purchaser shall give Seller a reasonable opportunity to develop and implement a plan of Corrective Action, such plan to be subject to Purchaser's approval (d) with respect not to environmental matters or under Section 11.07 (collectively, “Environmental Claims”be unreasonably withheld), Buyerand, if requested, reasonably cooperate with Seller (at Seller's cost) in the development and implementation of such plan on a cost-effective basis; (v) Purchaser shall reasonably cooperate with Seller in performing such tasks as Seller and their respective Affiliatesits technical professionals and representatives may reasonably request as being necessary to complete any Corrective Action being undertaken by Seller. Without limiting the scope of the foregoing, as Purchaser shall cause its employees to reasonably cooperate with Seller, its agents, employees and technical professionals; (vi) Notwithstanding any of the case may beforegoing, shall act in a Commercially Reasonable Manner. Seller shall have no obligation to indemnify the Purchaser for (A) any Damages arising out of relating to any Hazardous Material which was Released (i) after the Closing Date, or (ii) which would not require remediation under, any Environmental Claim to the extent such Damages result from or are the consequence, in whole or in part, of any intrusive sampling, testing or monitoring of soil or groundwater performed by or on behalf of Buyer, any of its Affiliates or any of their respective Representatives, unless (and only to the extent) such action is (a) required by an Environmental Law, order, injunction, decree or ruling of any Governmental Authority or a Permit in effect at the time such action is taken; (b) subject to Section 11.05, reasonably necessary in connection with the defense or resolution of a Third-Party Claim; (c) reasonably necessary to investigate conditions that indicate an imminent and substantial endangerment to human health as reasonably determined by Buyer; (d) required pursuant to any applicable Real Property Lease Laws as in effect as of the Closing Date or, if less restrictive, as amended thereafter; (e) reasonably necessary to obtain financing or a mortgage, or in connection with a potential sale of any Real Property or the Business; (f) conducted in connection with construction or maintenance projects at any Real Property provided that such projects serve a legitimate business purpose unrelated to conducting intrusive sampling, testing or monitoring of the Environment for purposes of seeking indemnification hereunder; or (g) conducted in connection with properly maintaining any production or drinking water xxxxx that are the responsibility of Buyer and that exist at any Real Property on the Closing Date. Buyer and ; or (B) any remediation costs in excess of the minimum costs reasonably required to comply with Environmental Laws as in effect on the Closing Date, it being expressly acknowledged that Seller agree thatis responsible for Corrective Action only to the extent necessary to obtain closure or a "no further action" designation to commercial background standards; provided, with respect to any Environmental Claim arising out of a Release of any Hazardous Substancehowever, the issuance of a no further action letter or the equivalent indicia of completion issued by any Governmental Authority having jurisdiction over Releases or remediation foregoing provisions (“NFA Letter”i) - (vi) shall fully resolve any investigation, remediation, removal, corrective action, containment, monitoring or other response obligation of only apply to a specific situation as to which it is reasonably foreseeable that Seller and/or Parent will have liability for indemnifiable Damages with respect to such Environmental Claim and such Release; provided, that this sentence shall not apply to the extent any Environmental Claim arising out of a claim brought by any third party is not settled as a result of the receipt of an NFA Letter; provided, further, that Seller may not invoke the receipt of the NFA Letter as a reason to avoid fulfilling any remaining obligations with respect to such Environmental Claim in the event (x) the NFA Letter contains re-openers or other provisions that reserve the right of the issuing Governmental Authority to require additional investigation, remediation, removal, corrective action, containment, monitoring or other response action with respect to Hazardous Substances (“Re-Opener”), (y) the Re-Opener is not triggered through any action or omission of Buyer, its Affiliates or their respective Representatives (other than any action described in clauses (a) through (g) of this Section 11.08) and (z) in the case of any Environmental Claim made under Section 11.02(a)(i), the Re-Opener is triggered before the fifth anniversary of the NFA Letter. In no event shall Seller be obligated to pay any Damages arising out of any Environmental Claim to the extent such Damages arise due to a change in the use of the relevant Real Property to any use other than commercial or industrial use after the Closing Datesituation.

Environmental Procedures. With respect to Seller's and Parent's indemnification obligations relating in any claims involving way to Section 3.13, the following additional provisions shall apply: (i) If such Claim relates to the Release of a Hazardous Substance at, on or under the real property that the Acquired Company or any Subsidiary currently or formerly owned or leased, the necessity for any investigation or remediation ("Corrective Action") shall be determined pursuant to the Environmental Laws in effect at the Closing. If Corrective Action is, or may be required, in addition to providing access pursuant to Section 8.04(d), and for no additional consideration, Purchaser shall permit and provide access to Seller to conduct its own investigation, remediation, removal, corrective action, containment, monitoring testing or other response action relating to the existence of environmental contamination, including claims made under Section 11.02(a)(i) Corrective Action with respect to Section 3.19the matter, provided that such access shall not unreasonably interfere with the operations of the Business; (ii) Purchaser and Seller shall provide the other with the results, including analytical data, of any investigation or testing conducted by either of them, or, if available, any third party. Purchaser shall also provide to Seller a copy of all Purchaser communications to or from any Governmental Authority, including information or reports, with regard to any matter related to Hazardous Materials that may constitute a Claim; (iii) Except as may otherwise be required by Law, Purchaser shall not contact any Governmental Authority with respect to the subject matter of the indemnification Claim without prior notice to, and consultation with, Seller. Purchaser shall, if practicable, provide Seller a reasonable opportunity to participate in any discussions or negotiations with any Governmental Authority concerning such matter; (iv) If Corrective Action is required under Section 11.02(a)(v) Environmental Laws with respect to any Excluded Environmental Liabilityindemnity Claims, under Section 11.03(c) or Purchaser shall give Seller a reasonable opportunity to develop and implement a plan of Corrective Action, such plan to be subject to Purchaser's approval (d) with respect not to environmental matters or under Section 11.07 (collectively, “Environmental Claims”be unreasonably withheld), Buyerand, if requested, reasonably cooperate with Seller (at Seller's cost) in the development and implementation of such plan on a cost-effective basis; (v) Purchaser shall reasonably cooperate with Seller in performing such tasks as Seller and their respective Affiliatesits technical professionals and representatives may reasonably request as being necessary to complete any Corrective Action being undertaken by Seller. Without limiting the scope of the foregoing, as Purchaser shall cause its employees to reasonably cooperate with Seller, its agents, employees and technical professionals; (vi) Notwithstanding any of the case may beforegoing, shall act in a Commercially Reasonable Manner. Seller shall have no obligation to indemnify the Purchaser for (A) any Damages arising out of relating to any Hazardous Material which was Released (i) after the Closing Date, or (ii) which would not require remediation under, any Environmental Claim to the extent such Damages result from or are the consequence, in whole or in part, of any intrusive sampling, testing or monitoring of soil or groundwater performed by or on behalf of Buyer, any of its Affiliates or any of their respective Representatives, unless (and only to the extent) such action is (a) required by an Environmental Law, order, injunction, decree or ruling of any Governmental Authority or a Permit in effect at the time such action is taken; (b) subject to Section 11.05, reasonably necessary in connection with the defense or resolution of a Third-Party Claim; (c) reasonably necessary to investigate conditions that indicate an imminent and substantial endangerment to human health as reasonably determined by Buyer; (d) required pursuant to any applicable Real Property Lease Laws as in effect as of the Closing Date or, if less restrictive, as amended thereafter; (e) reasonably necessary to obtain financing or a mortgage, or in connection with a potential sale of any Real Property or the Business; (f) conducted in connection with construction or maintenance projects at any Real Property provided that such projects serve a legitimate business purpose unrelated to conducting intrusive sampling, testing or monitoring of the Environment for purposes of seeking indemnification hereunder; or (g) conducted in connection with properly maintaining any production or drinking water xxxxx that are the responsibility of Buyer and that exist at any Real Property on the Closing Date. Buyer and ; or (B) any remediation costs in excess of the minimum costs reasonably required to comply with Environmental Laws as in effect on the Closing Date, it being expressly acknowledged that Seller agree thatis responsible for Corrective Action only to the extent necessary to obtain closure or a "no further action" designation to commercial background standards; provided, with respect to any Environmental Claim arising out of a Release of any Hazardous Substancehowever, the issuance of a no further action letter or the equivalent indicia of completion issued by any Governmental Authority having jurisdiction over Releases or remediation foregoing provisions (“NFA Letter”i) - (vi) shall fully resolve any investigation, remediation, removal, corrective action, containment, monitoring or other response obligation of only apply to a specific situation as to which it is reasonably foreseeable that Seller and/or Parent will have liability for indemnifiable Damages with respect to such Environmental Claim and such Release; provided, that this sentence shall not apply to the extent any Environmental Claim arising out of a claim brought by any third party is not settled as a result of the receipt of an NFA Letter; provided, further, that Seller may not invoke the receipt of the NFA Letter as a reason to avoid fulfilling any remaining obligations with respect to such Environmental Claim in the event (x) the NFA Letter contains re-openers or other provisions that reserve the right of the issuing Governmental Authority to require additional investigation, remediation, removal, corrective action, containment, monitoring or other response action with respect to Hazardous Substances (“Re-Opener”), (y) the Re-Opener is not triggered through any action or omission of Buyer, its Affiliates or their respective Representatives (other than any action described in clauses (a) through (g) of this Section 11.08) and (z) in the case of any Environmental Claim made under Section 11.02(a)(i), the Re-Opener is triggered before the fifth anniversary of the NFA Letter. In no event shall Seller be obligated to pay any Damages arising out of any Environmental Claim to the extent such Damages arise due to a change in the use of the relevant Real Property to any use other than commercial or industrial use after the Closing Datesituation.

Environmental Procedures. With respect to any claims involving the investigation, remediation, removal, corrective action, containment, monitoring or other response action relating Notwithstanding anything to the existence of environmental contaminationcontrary in this Article 13, including claims made under Section 11.02(a)(i) with respect to Section 3.19, under Section 11.02(a)(v) with respect to any Excluded claim for indemnification hereunder for any Assumed Environmental Liability, under Retained Environmental Liability or Warranty Breach of Section 11.03(c3.16 (Environmental Compliance) or, to the extent relating to Permits required by Environmental Law, Section 3.17 (Permits), or (d) with respect any other claim for indemnification hereunder relating in any way to environmental matters any Environmental Law or under Section 11.07 any Release, disposal or recycling of, or exposure to, any Hazardous Material (collectively, “Environmental ClaimsMatters”), BuyerBuyer and Seller agree, Seller in addition to any other relevant provisions set forth in this Article 13 (and their respective Affiliatesin the case of any conflict between the provisions of this Section 13.06 and any other provision in Article 13, the provisions of this Section 13.06 shall apply), as follows: (a) The costs of any Remedial Action, which costs are otherwise subject to indemnification hereunder, shall be indemnified only to the extent such costs must be incurred to meet, in a reasonably cost-effective manner, the requirements of any applicable Environmental Law or to meet the legally enforceable demands of any applicable Governmental Authority, using, where possible, risk based standards, engineering or institutional controls or deed or other restrictions so long as such standards, controls or restrictions do not materially limit those industrial activities being performed on the applicable property as of Closing; provided that in the case may beof real property (other than the Real Property or Refinery Easements) that is used for non-industrial activities, such standards, controls or restrictions shall act in a Commercially Reasonable Manner. Seller not materially limit the activities being performed on such real property as of Closing. (b) The Indemnifying Party shall have no obligation liability under this Agreement for any Damages to the extent (i) arising out of any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media or any disclosure, report or communication to, or initiation or encouragement of any action by, any Governmental Authority or other third party relating to any Environmental Claim Matters, unless such investigation, sampling, disclosure, report, communication, initiation or encouragement is required by Environmental Law or a Governmental Authority or is consistent with the Indemnified Party’s bona fide, ordinary course business practice and policy as of the date hereof for conducting its refinery operations, which practice and policy do not provide for post acquisition Phase II investigations or base line assessments, and is not undertaken to create a liability for the Indemnifying Party or (ii) arising in connection with any construction, renovation, modification, expansion, reconstruction, shutdown, demolition, financing or closure of any asset, facility or real property at or after Closing. (c) As between Buyer and Seller, the Indemnifying Party shall have the right at its option to control such Environmental Matter, including the disclosure, investigation, negotiation, performance, remediation, monitoring, settlement and resolution of such matter; provided that if Seller is the controlling party, it must use reasonable efforts not to unreasonably disrupt or interfere with Buyer’s operation of the Business. The Indemnifying Party may not settle a matter that would impose obligations under Environmental Law on the Indemnified Party without the Indemnified Party’s prior written approval, such approval not to be unreasonably withheld. With respect to any Environmental Matter, (i) the controlling party shall keep the other party reasonably informed; (ii) Buyer and Seller agree to, and shall cause their Affiliates to, cooperate with the other party in providing reasonable access to properties and facilities and reasonably promptly provide each other with copies of all communications relating to such matter received from or delivered to any Person; (iii) with respect to the performance of any Remedial Actions conducted at the Real Property, Seller shall, and shall cause its Affiliates to, comply, in all material respects, with all reasonable safety and security requirements that are required by Buyer and provided in advance to Seller in writing. (d) Buyer and Seller acknowledge that the Environmental Insurance Policy contains its own procedures, including with respect to notice, cooperation and defense of claims, and that to the extent any of the provisions of this Article 13 conflict with the provisions of the Environmental Insurance Policy with respect to any claim that is submitted pursuant to such policy, the terms and conditions of such Environmental Insurance Policy shall prevail, provided, however, the terms of the Environmental Insurance Policy shall in no way limit any right to indemnification provided under this Agreement. (e) No Indemnifying Party shall have liability under this Agreement for any Damages to the extent such Damages result from are exacerbated by acts or are the consequence, in whole or in part, omissions of any intrusive sampling, testing or monitoring of soil or groundwater performed by or on behalf of Buyer, any of the Indemnified Party or its Affiliates or any of their respective Representatives, unless (and only to the extent) such action is (a) required by an Environmental Law, order, injunction, decree or ruling of any Governmental Authority or a Permit in effect at the time such action is taken; (b) subject to Section 11.05, reasonably necessary in connection with the defense or resolution of a Third-Party Claim; (c) reasonably necessary to investigate conditions that indicate an imminent and substantial endangerment to human health as reasonably determined by Buyer; (d) required pursuant to any applicable Real Property Lease as in effect as of the Closing Date or, if less restrictive, as amended thereafter; (e) reasonably necessary to obtain financing or a mortgage, or in connection with a potential sale of any Real Property or the Business; (f) conducted in connection with construction or maintenance projects at any Real Property provided that such projects serve a legitimate business purpose unrelated to conducting intrusive sampling, testing or monitoring of the Environment for purposes of seeking indemnification hereunder; or (g) conducted in connection with properly maintaining any production or drinking water xxxxx that are the responsibility of Buyer and that exist at any Real Property on the Closing Date. Buyer and Seller agree that, with respect to any Environmental Claim arising out of a Release of any Hazardous Substance, the issuance of a no further action letter or the equivalent indicia of completion issued by any Governmental Authority having jurisdiction over Releases or remediation (“NFA Letter”) shall fully resolve any investigation, remediation, removal, corrective action, containment, monitoring or other response obligation of Seller with respect to such Environmental Claim and such Release; provided, that this sentence shall not apply to the extent any Environmental Claim arising out of a claim brought by any third party is not settled as a result of the receipt of an NFA Letter; provided, further, that Seller may not invoke the receipt of the NFA Letter as a reason to avoid fulfilling any remaining obligations with respect to such Environmental Claim in the event (x) the NFA Letter contains re-openers or other provisions that reserve the right of the issuing Governmental Authority to require additional investigation, remediation, removal, corrective action, containment, monitoring or other response action with respect to Hazardous Substances (“Re-Opener”), (y) the Re-Opener is not triggered through any action or omission of Buyer, its Affiliates or their respective Representatives (other than any action described in clauses (a) through (g) of this Section 11.08) and (z) in the case of any Environmental Claim made under Section 11.02(a)(i), the Re-Opener is triggered before the fifth anniversary of the NFA Letter. In no event shall Seller be obligated to pay any Damages arising out of any Environmental Claim to the extent such Damages arise due to a change in the use of the relevant Real Property to any use other than commercial or industrial use after the Closing DateAffiliates.

Environmental Procedures. With respect to Seller's indemnification obligations relating in any way to Environmental Laws, Materials of Environmental Concern or Environmental Liabilities, the following provisions shall apply: (i) If such Claim relates to the release of Materials of Environmental Concern at, on or under the Facility, the necessity for investigation or remediation ("Corrective Action") shall be determined pursuant to the Environmental Laws in effect at the Closing. If the Corrective Action is, or may be required, in addition to providing access pursuant to Section 10.4(e) above, Purchaser shall permit Seller to conduct its own investigation, testing or corrective action with respect to the matter, at Seller's sole expense, provided such investigation, testing or corrective action does not unreasonably interfere with the operation of the Facility and the Acquired Business. (ii) Purchaser and Seller shall provide the other with the results, including analytical data, of any investigation or testing conducted by either of them or, if available, any third party. (iii) Except as may otherwise be required by Law, Purchaser shall not contact any Governmental Authority with respect to the subject matter of the indemnification Claim without prior notice to, and consultation with, Seller. (iv) Purchaser shall provide Seller a reasonable opportunity to participate in any discussions or negotiations with any Governmental Authority concerning such matter. (v) If Corrective Action is required in any such matter (pursuant to the standard above), Purchaser shall give Seller a reasonable opportunity to develop and implement a plan of Corrective Action, such plan to be subject to Purchaser's approval (not to be unreasonably withheld), and, if requested by Seller, reasonably cooperate with Seller in the development and implementation of such plan on a cost-effective basis. (vi) Purchaser shall reasonably cooperate with Seller in performing such tasks as Seller and its technical professionals and representatives may reasonably request as being necessary to complete any Corrective Action being undertaken by Seller pursuant to this Agreement, with Purchaser being compensated for any expenses incurred in connection therewith (excluding Purchaser's employee time). Without limiting the scope of the foregoing, Purchaser shall cause its employees to reasonably cooperate with Seller and to afford Seller, its agents, employees and technical professionals reasonable access to relevant records relating to the matters which may be Seller's responsibility under this Agreement, provided that such access shall not unreasonably interfere with the operations of the Facility or the Acquired Business. (vii) With respect to any claims involving the investigation, remediation, removal, corrective action, containment, monitoring or other response action relating to the existence of environmental contamination, including claims made under Section 11.02(a)(i) with respect to Section 3.19, under Section 11.02(a)(v) with respect to any Excluded Environmental Liability, under Section 11.03(c) or (d) with respect to environmental matters or under Section 11.07 (collectively, “Environmental Claims”), BuyerCorrective Action undertaken by Seller, Seller and their respective Affiliates, as the case may be, shall act in a Commercially Reasonable Manner. Seller shall have no obligation be responsible for any Damages arising out of any Environmental Claim completing such Corrective Action only to the extent such Damages result from or are the consequence, in whole or in part, of any intrusive sampling, testing or monitoring of soil or groundwater performed by or on behalf of Buyer, any of its Affiliates or any of their respective Representatives, unless (and only to the extent) such action is (a) required by an Environmental Law, order, injunction, decree or ruling of any Governmental Authority or a Permit in effect at the time such action is taken; (b) subject to Section 11.05, reasonably necessary in connection with the defense or resolution of a Third-Party Claim; (c) reasonably necessary to investigate conditions that indicate an imminent and substantial endangerment to human health as reasonably determined by Buyer; (d) required pursuant to any applicable Real Property Lease as in effect as of the Closing Date or, if less restrictive, as amended thereafter; (e) reasonably necessary to obtain financing closure or a mortgage, or in connection with a potential sale of any Real Property or the Business; (f) conducted in connection with construction or maintenance projects at any Real Property provided that such projects serve a legitimate business purpose unrelated to conducting intrusive sampling, testing or monitoring of the Environment for purposes of seeking indemnification hereunder; or (g) conducted in connection with properly maintaining any production or drinking water xxxxx that are the responsibility of Buyer and that exist at any Real Property on the Closing Date. Buyer and Seller agree that, with respect to any Environmental Claim arising out of a Release of any Hazardous Substance, the issuance of a "no further action letter or action" designation from the equivalent indicia of completion issued by any Governmental applicable Government Authority having jurisdiction over Releases or remediation (“NFA Letter”) shall fully resolve any investigation, remediation, removal, corrective action, containment, monitoring or other response obligation of Seller with respect pursuant to such applicable Environmental Claim and such Release; provided, that this sentence shall not apply to the extent any Environmental Claim arising out of a claim brought by any third party is not settled as a result of the receipt of an NFA Letter; provided, further, that Seller may not invoke the receipt of the NFA Letter as a reason to avoid fulfilling any remaining obligations with respect to such Environmental Claim in the event (x) the NFA Letter contains re-openers or other provisions that reserve the right of the issuing Governmental Authority to require additional investigation, remediation, removal, corrective action, containment, monitoring or other response action with respect to Hazardous Substances (“Re-Opener”), (y) the Re-Opener is not triggered through any action or omission of Buyer, its Affiliates or their respective Representatives (other than any action described in clauses (a) through (g) of this Section 11.08) and (z) in the case of any Environmental Claim made under Section 11.02(a)(i), the Re-Opener is triggered before the fifth anniversary of the NFA Letter. In no event shall Seller be obligated to pay any Damages arising out of any Environmental Claim to the extent such Damages arise due to a change in the use of the relevant Real Property to any use other than commercial or industrial use after the Closing DateLaws.

Environmental Procedures. (a) Xxxxxx agrees to respond on Buyer's or the Transferred Subsidiaries' behalf and defend Buyer Indemnitees with respect to Losses arising from Environmental Liabilities, or, at Xxxxxx' option, reimburse Buyer's or the Transferred Subsidiaries' for such Losses. (b) With respect to any claims involving Environmental Liabilities for which Xxxxxx is responsible to conduct Remediation under this Master Agreement on or about any property owned, operated or leased by the investigationTransferred Subsidiaries after the Closing, remediationXxxxxx shall be responsible for such Remediation to meet the Minimum Cleanup Standard. For purposes of this Master Agreement, removalthe "Minimum Cleanup Standard" shall mean the least stringent standard acceptable under all Environmental Laws (as such laws are in effect upon the completion of the Remediation) and all Governmental Authorities with jurisdiction or, corrective actionif no such standard has been adopted, containment, monitoring promulgated or other response action relating to imposed by the existence of environmental contamination, including claims made under Section 11.02(a)(i) with respect to Section 3.19, under Section 11.02(a)(v) with respect to any Excluded Environmental Liability, under Section 11.03(c) or (d) with respect to environmental matters or under Section 11.07 (collectively, “Environmental Claims”), Buyer, Seller and their respective Affiliates, as the case may be, shall act in a Commercially Reasonable Manner. Seller shall have no obligation for any Damages arising out of any Environmental Claim to the extent such Damages result from or are the consequence, in whole or in part, of any intrusive sampling, testing or monitoring of soil or groundwater performed by or on behalf of Buyer, any of its Affiliates or any of their respective Representatives, unless (and only to the extent) such action is (a) required by an Environmental Law, order, injunction, decree or ruling of any applicable Governmental Authority or a Permit by Environmental Laws (as such laws are in effect upon the completion of the Remediation) as of the date such Remediation is being conducted, the standard to which the parties, in good faith agree; provided, however, that in no event shall the Minimum Cleanup Standard at or below a standard for which (i) Buyer or the time such action is taken; (b) subject Transferred Subsidiaries would be required to Section 11.05, reasonably necessary in connection with impose or implement controls or restrictions which would impair the defense or resolution use of a Third-Party Claim; (c) reasonably necessary to investigate conditions that indicate an imminent and substantial endangerment to human health the affected property as reasonably determined by Buyer; (d) required pursuant to any applicable Real Property Lease as in effect used as of the Closing Date orDate, if less restrictive(ii) for which additional Remediation would be required in the future to achieve and maintain compliance with Environmental Laws or to meet the requirements of Governmental Authorities, as amended thereafter; (e) reasonably necessary to obtain financing or a mortgage, or in connection with a potential sale of any Real Property or the Business; (f) conducted in connection with construction or maintenance projects at any Real Property provided that such projects serve a legitimate business purpose unrelated to conducting intrusive sampling, testing or monitoring Environmental Laws and requirements exist as of the Environment for purposes date of seeking indemnification hereunderthe completion of the Remediation; or (giii) conducted in connection with properly maintaining any production or drinking water xxxxx that are the responsibility of Buyer and that exist at any Real Property on the Closing Date. Buyer and Seller agree that, with respect to any Environmental Claim arising out of a Release of any Hazardous Substance, the issuance of a no further action letter or the equivalent indicia of completion issued by any Governmental Authority having jurisdiction over Releases or remediation (“NFA Letter”) shall which does not fully resolve any investigation, remediation, removal, corrective action, containment, monitoring or other response obligation liability of Seller Buyer Indemnitees and the Transferred Subsidiaries with respect to such Environmental Claim and such Release; provided, that this sentence shall not apply to the extent any Environmental Claim arising out of a claim brought by any third party is not settled as a result of the receipt of an NFA Lettermatter; provided, further, that Seller may not invoke the receipt of the NFA Letter as a reason to avoid fulfilling any remaining obligations with respect to such Environmental Claim in any Remediation at any property leased by the event (x) Transferred Subsidiaries, the NFA Letter contains re-openers or other provisions that reserve Minimum Cleanup Standard shall also meet the right requirements of the issuing Governmental Authority to require additional investigation, remediation, removal, corrective action, containment, monitoring or other response action with respect to Hazardous Substances (“Re-Opener”), (y) the Re-Opener is not triggered through any action or omission landlord/lessor of Buyer, its Affiliates or their respective Representatives (other than any action described in clauses (a) through (g) of this Section 11.08) and (z) in the case of any Environmental Claim made under Section 11.02(a)(i), the Re-Opener is triggered before the fifth anniversary of the NFA Letter. In no event shall Seller be obligated to pay any Damages arising out of any Environmental Claim to the extent such Damages arise due to a change in the use of the relevant Real Property to any use other than commercial or industrial use after the Closing Dateproperty.

Environmental Procedures. (a) Notwithstanding any other provision of this Agreement to the contrary, no Seller shall be liable under this Agreement for, and neither Buyer nor any of its Affiliates shall be indemnified for, any Damages relating to Environmental Matters to the extent such Damages: (i) arise out of any sampling, testing or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media, or any disclosure, report or communication relating to any Environmental Matter to any Governmental Authority or other third Person, unless such sampling, testing, investigation, disclosure, report or communication is required by Applicable Law or is necessary to respond to any Third Party Claim against any of Buyers or their Affiliates; (ii) result from any material construction, renovation, expansion, demolition, shutdown or closure of any asset, facility or real property following the Closing; or (iii) exceed those Damages that must be incurred to satisfy, in a reasonably cost-effective manner, the minimum requirements of a Governmental Authority pursuant to applicable Environmental Law using where possible risk-based standards, engineering, use or institutional controls or deed or other restrictions. (b) Other than with respect to any Specified Matter (control of which is addressed in Section 10.03(b)), as between Sellers and any of Buyers or their Affiliates, Freeport shall have the right at its option to control, or cause its Affiliates to control, any Environmental Matter that is subject to indemnification under this Agreement, including the disclosure, investigation, negotiation, performance, remediation, monitoring, settlement and resolution of such matter. With respect to any claims involving Environmental Matter (including any Specified Matter) subject to indemnification under this Agreement, (i) the investigation, remediation, removal, corrective action, containment, monitoring or controlling party shall keep the other response action relating to the existence of environmental contamination, including claims made under Section 11.02(a)(iparty reasonably informed and (ii) with respect to Section 3.19, under Section 11.02(a)(v) with respect to any Excluded Environmental Liability, under Section 11.03(c) or (d) with respect to environmental matters or under Section 11.07 (collectively, “Environmental Claims”), Buyer, Seller and their respective Affiliates, as the case may be, shall act in a Commercially Reasonable Manner. Seller shall have no obligation for any Damages arising out of any Environmental Claim to the extent such Damages result from Freeport or are the consequence, in whole or in part, of any intrusive sampling, testing or monitoring of soil or groundwater performed by or on behalf of Buyer, any of its Affiliates is the controlling party, each Buyer shall, and shall cause its Affiliates to, cooperate with Freeport and its Affiliates and representatives, provide to Freeport and its Affiliates and representatives reasonable access to properties, facilities, information and documents and reasonably promptly provide to Freeport and its Affiliates and representatives copies of all communications received from or any of their respective Representatives, unless (and only to the extent) such action is (a) required by an Environmental Law, order, injunction, decree or ruling of any Governmental Authority or a Permit in effect at the time such action is taken; (b) subject to Section 11.05, reasonably necessary in connection with the defense or resolution of a Third-Party Claim; (c) reasonably necessary to investigate conditions that indicate an imminent and substantial endangerment to human health as reasonably determined by Buyer; (d) required pursuant delivered to any applicable Real Property Lease as in effect as of the Closing Date or, if less restrictive, as amended thereafter; (e) reasonably necessary to obtain financing or a mortgage, or in connection with a potential sale of any Real Property or the Business; (f) conducted in connection with construction or maintenance projects at any Real Property provided that such projects serve a legitimate business purpose unrelated to conducting intrusive sampling, testing or monitoring of the Environment for purposes of seeking indemnification hereunder; or (g) conducted in connection with properly maintaining any production or drinking water xxxxx that are the responsibility of Buyer and that exist at any Real Property on the Closing Dateother Person. Buyer and Seller agree that, with With respect to any Environmental Claim arising out Specified Matter, (A) Buyers shall and shall cause their Affiliates to keep Freeport and its Affiliates and representatives reasonably informed, provide to Freeport and its Affiliates and representatives such other information and documents as they may reasonably request and provide to Freeport and its Affiliates and representatives copies of a Release all communications received from or delivered to any other Person, (B) Freeport shall be entitled to participate in the defense of any Hazardous Substancesuch Specified Matter and to employ, at Freeport’s expense, separate counsel of its choice for such purpose and (C) the issuance Buyers shall obtain prior written consent of a no further action letter or the equivalent indicia of completion issued by any Governmental Authority having jurisdiction over Releases or remediation Freeport (“NFA Letter”) shall fully resolve any investigation, remediation, removal, corrective action, containment, monitoring or other response obligation of Seller with respect to such Environmental Claim and such Release; provided, that this sentence which shall not apply to be unreasonably withheld) before entering into any settlement of such Specified Matter if the extent any Environmental Claim arising out of a claim brought by any third party is settlement does not settled as a result of the receipt of an NFA Letter; provided, further, that Seller may not invoke the receipt of the NFA Letter as a reason to avoid fulfilling any remaining fully and unconditionally release Freeport and its Affiliates from all liabilities and obligations with respect to such Environmental Claim in Specified Matter or the event (x) the NFA Letter contains re-openers settlement imposes injunctive or other provisions that reserve equitable relief against Freeport or its Affiliates. (c) Notwithstanding any other provision of this Agreement to the right contrary, no Seller shall have any liability for, and neither Buyer nor any of the issuing Governmental Authority to require additional investigation, remediation, removal, corrective action, containment, monitoring or other response action with respect to Hazardous Substances (“Re-Opener”), (y) the Re-Opener is not triggered through any action or omission of Buyer, its Affiliates or their respective Representatives (other than any action described in clauses (a) through (g) of this Section 11.08) and (z) in the case of any Environmental Claim made under Section 11.02(a)(i), the Re-Opener is triggered before the fifth anniversary of the NFA Letter. In no event shall Seller be obligated to pay indemnified for any Damages relating to or arising out of any Environmental Claim Specified Matter, except to the extent such Damages arise due Specified Matter Indemnifiable Costs are payable pursuant to a change clause (y) of Section 10.02(a). For the avoidance of doubt, Specified Matter Indemnifiable Costs shall not include, and no Seller shall have any liability for, (i) any attorneys’ or other legal fees, or expenses of investigation, arising out of or relating to any Specified Matter; or (ii) any expenses, costs or liabilities to the extent relating to factual allegations or claims not alleged in the use of the relevant Real Property Original Matter (as defined in Schedule 10.02) or which otherwise relate to any use other than commercial or industrial use conditions first existing after the Closing Date.

Environmental Procedures. With respect to Seller’s and Parent’s indemnification obligations relating in any claims involving way to Section 3.13, the following additional provisions shall apply: (i) If such Claim relates to the Release of a Hazardous Substance at, on or under the real property that the Acquired Company or any Subsidiary currently or formerly leased, the necessity for any investigation or remediation (“Corrective Action”) shall be determined pursuant to the Environmental Laws in effect at the Closing. If Corrective Action is, or may be required, in addition to providing access pursuant to Section 8.04(d), and for no additional consideration, Purchaser shall permit and provide access to Seller to conduct its own investigation, remediation, removal, corrective action, containment, monitoring testing or other response action relating to the existence of environmental contamination, including claims made under Section 11.02(a)(i) Corrective Action with respect to Section 3.19the matter, provided that such access shall not unreasonably interfere with the operations of the Business; (ii) Purchaser and Seller shall provide the other with the results, including analytical data, of any investigation or testing conducted by either of them, or, if available, any third party. Purchaser shall also provide to Seller a copy of all Purchaser communications to or from any Governmental Authority, including information or reports, with regard to any matter related to Hazardous Materials that may constitute a Claim; (iii) Except as may otherwise be required by Law, Purchaser shall not contact any Governmental Authority with respect to the subject matter of the indemnification Claim without prior notice to, and consultation with, Seller. Purchaser shall, if practicable, provide Seller a reasonable opportunity to participate in any discussions or negotiations with any Governmental Authority concerning such matter; (iv) If Corrective Action is required under Section 11.02(a)(v) Environmental Laws with respect to any Excluded Environmental Liabilityindemnity Claims, under Section 11.03(c) or Purchaser shall give Seller a reasonable opportunity to develop and implement a plan of Corrective Action, such plan to be subject to Purchaser’s approval (d) with respect not to environmental matters or under Section 11.07 (collectively, “Environmental Claims”be unreasonably withheld), Buyerand, if requested, reasonably cooperate with Seller (at Seller’s cost) in the development and implementation of such plan on a cost-effective basis; (v) Purchaser shall reasonably cooperate with Seller in performing such tasks as Seller and their respective Affiliatesits technical professionals and representatives may reasonably request as being necessary to complete any Corrective Action being undertaken by Seller. Without limiting the scope of the foregoing, as Purchaser shall cause its employees to reasonably cooperate with Seller, its agents, employees and technical professionals; (vi) Notwithstanding any of the case may beforegoing, shall act in a Commercially Reasonable Manner. Seller shall have no obligation to indemnify the Purchaser for (A) any Damages arising out of relating to any Hazardous Material which was Released (i) after the Closing Date, or (ii) which would not require remediation under, any Environmental Claim to the extent such Damages result from or are the consequence, in whole or in part, of any intrusive sampling, testing or monitoring of soil or groundwater performed by or on behalf of Buyer, any of its Affiliates or any of their respective Representatives, unless (and only to the extent) such action is (a) required by an Environmental Law, order, injunction, decree or ruling of any Governmental Authority or a Permit in effect at the time such action is taken; (b) subject to Section 11.05, reasonably necessary in connection with the defense or resolution of a Third-Party Claim; (c) reasonably necessary to investigate conditions that indicate an imminent and substantial endangerment to human health as reasonably determined by Buyer; (d) required pursuant to any applicable Real Property Lease Laws as in effect as of the Closing Date or, if less restrictive, as amended thereafter; (e) reasonably necessary to obtain financing or a mortgage, or in connection with a potential sale of any Real Property or the Business; (f) conducted in connection with construction or maintenance projects at any Real Property provided that such projects serve a legitimate business purpose unrelated to conducting intrusive sampling, testing or monitoring of the Environment for purposes of seeking indemnification hereunder; or (g) conducted in connection with properly maintaining any production or drinking water xxxxx that are the responsibility of Buyer and that exist at any Real Property on the Closing Date. Buyer and ; or (B) any remediation costs in excess of the minimum costs reasonably required to comply with Environmental Laws as in effect on the Closing Date, it being expressly acknowledged that Seller agree thatis responsible for Corrective Action only to the extent necessary to obtain closure or a “no further action” designation to commercial background standards; provided, with respect to any Environmental Claim arising out of a Release of any Hazardous Substancehowever, the issuance of a no further action letter or the equivalent indicia of completion issued by any Governmental Authority having jurisdiction over Releases or remediation foregoing provisions (“NFA Letter”i) – (vi) shall fully resolve any investigation, remediation, removal, corrective action, containment, monitoring or other response obligation of only apply to a specific situation as to which it is reasonably foreseeable that Seller and/or Parent will have liability for indemnifiable Damages with respect to such Environmental Claim and such Release; provided, that this sentence shall not apply to the extent any Environmental Claim arising out of a claim brought by any third party is not settled as a result of the receipt of an NFA Letter; provided, further, that Seller may not invoke the receipt of the NFA Letter as a reason to avoid fulfilling any remaining obligations with respect to such Environmental Claim in the event (x) the NFA Letter contains re-openers or other provisions that reserve the right of the issuing Governmental Authority to require additional investigation, remediation, removal, corrective action, containment, monitoring or other response action with respect to Hazardous Substances (“Re-Opener”), (y) the Re-Opener is not triggered through any action or omission of Buyer, its Affiliates or their respective Representatives (other than any action described in clauses (a) through (g) of this Section 11.08) and (z) in the case of any Environmental Claim made under Section 11.02(a)(i), the Re-Opener is triggered before the fifth anniversary of the NFA Letter. In no event shall Seller be obligated to pay any Damages arising out of any Environmental Claim to the extent such Damages arise due to a change in the use of the relevant Real Property to any use other than commercial or industrial use after the Closing Datesituation.