Common use of Environmental Procedures Clause in Contracts

Environmental Procedures. 9.5.1 The Purchaser Group Members shall provide prompt written notice to Seller with respect to any claim for indemnification under Sections 9.1.1(a) (with respect to the representations in Section 3.18 and 3.17, insofar as it relates to Permits issued pursuant to Environmental Law) and 9.1.2 of any order, demand, notice of potential liability, complaint or claim for indemnification by any Governmental Entity or other third party, or any other claim for indemnification that does not result for a third-party claim, in each case that may result in indemnified Losses (an “Environmental Claim”). 9.5.2 The Purchaser Group Members shall control the defense or negotiation (including, without limitation, any investigatory, response and remedial actions) of any Environmental Claim relating to the Real Property, including its compromise or settlement, with counsel and environmental consultant selected by the Purchaser Group Members reasonably acceptable to Seller. No compromise or settlement in respect of such Environmental Claim may be reached by the Purchaser Group Members without Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). 9.5.3 Seller shall have the right to control the defense or negotiation (including any investigatory, response or remedial actions) of any Environmental Claim concerning any real property other than the Real Property, including its compromise or settlement, with counsel and environmental consultant selected by Seller reasonably acceptable to the Purchaser Group Members. No compromise or settlement in respect of such Environmental Claim may be reached by Seller without the Purchaser Group Members’ prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). If Seller has the right, but elects not to, control the defense of any such Environmental Claim, the Purchaser Group Members shall control the defense of any such Environmental Claim, including its compromise or settlement, with counsel and consultant selected by the Purchaser Group Members reasonably acceptable to Seller, and no compromise or settlement in respect of such Environmental Claim may be reached by the Purchaser Group Members without Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). 9.5.4 The Purchaser Group Members or Seller, as the case may be, with respect to any matter managed and controlled by the other, with the exception of Seller-controlled matters arising under Section 9.1.2(d) or Section 9.1.2(e), shall have the right to (i) participate fully in any meetings or negotiations with any Governmental Entity or other third party (excluding meetings attended solely by counsel, consultants or other experts retained by the controlling party) with respect to any Environmental Claim, including the scope, nature and schedule for implementation of any action relating thereto and shall be provided with reasonable advance notice of the same; and (ii) review in advance and provide comments on any documents proposed to be submitted to Governmental Entities or other third parties, including any proposed or final work plan, report, compliance schedule, compliance or consent order, decree or agreement. 9.5.5 To the extent an Environmental Claim involves the remediation of or other response action to address a condition on any real property or implementation of a compliance plan to address a non-compliance with Environmental Laws at the Real Property, Seller’s indemnification and reimbursement obligation shall be applicable to and include only the amount of any Losses attributable to such remediation or other response action or compliance plan performed or implemented by Purchaser or Seller, as the case may be, in a “Commercially Reasonable Manner”, which for the purposes of this Section 9.5.5 shall mean cost-effective methods for such remediation or other response action or compliance plan permitted by applicable Environmental Laws for industrial, commercial, agricultural or, to the extent applicable, residential purposes, as the case may be, for which the relevant Real Property is used on the Closing Date, determined from the perspective of a reasonable business person whose purpose (without regard to the availability of indemnification hereunder) is to achieve compliance with Environmental Laws or minimize liability under Environmental Law or to third parties with respect to the matter giving rise to the Environmental Claim (it being understood that (i) such Commercially Reasonable Manner shall include, where feasible, the use of risk-based remedies, including natural attenuation, institutional or engineering controls, or deed restrictions, provided such remedies and controls do not unreasonably interfere with Purchaser’s use of the Real Property or Purchaser’s ability to conduct the Businesses in the manner conducted as of the Closing Date; (ii) with respect to remediation or other response action on property other than the Real Property, the Commercially Reasonable Manner shall reflect the clean-up standard for the then current use of such property or such other standard as is required by the owner of such real property; and (iii) in the event of an actual conflict between (x) a requirement under applicable Environmental Law or an order, direction or mandate by a Governmental Entity to the extent relating to the basis for the Environmental Claim giving rise to Seller’s indemnification obligation and (y) what would otherwise be a Commercially Reasonable Manner, such requirement, order direction or mandate shall be deemed the Commercially Reasonable Manner). Seller and Purchaser Group Members agree that Purchaser Group Members may elect, for operational or other reasons in its discretion, to perform or implement a remediation or other response action or compliance plan at the Real Property that goes beyond what would be considered a “Commercially Reasonable Manner,” provided Purchaser Group Members shall be solely responsible for any cost or expense in excess of the amount that would have been required to perform such remediation or other response action or implement such compliance plan in a Commercially Reasonable Manner and Seller shall have no indemnification obligation for such additional costs or expenses. 9.5.6 Seller shall not be required to indemnify any Purchaser Group Member for any Loss resulting from voluntary sampling of soil, sediment or groundwater conducted by or initiated through the action of Purchaser, other than such actions: (i) required pursuant to any Environmental Law or Permits issued pursuant to Environmental Law, (ii) reasonably necessary to respond to an imminent hazard or emergency situation, (iii) reasonably necessary to respond to any Third Party Claim, (iv) undertaken as the result of a reasonable diligence request with respect to any future sale or financing transaction, or (v) provided such sampling is of a nature normally undertaken in connection with the activities being performed, and subject to the limitations of Section 9.5.8, undertaken in connection with any construction, repair or maintenance activities, or performed in the ordinary course of business (which includes sampling that ensues as a reasonable response to conditions otherwise discovered in the ordinary course of business but not sampling conducted without such reasonable cause). 9.5.7 Seller shall not be required to indemnify any Purchaser Group Member for any Loss to the extent resulting from (i) a change in use of the Real Property from industrial use to commercial or residential use; (ii) a change in use of the areas identified on Schedule 9.5.7 (it being understood that closure of such areas shall not be considered a change in use); or (iii) Purchaser’s failure to comply with the Voluntary Mitigation Use Restriction covering a portion of the Real Property recorded on December 23, 1998 at the Navajo County Records Office. 9.5.8 Seller shall not be required to indemnify any Purchaser Group Member for any Loss to the extent resulting from maintenance work (other than maintenance work normally performed by a prudent owner or operator of the Real Property), construction or demolition activities by or on behalf of any Purchaser Group Member on any areas identified on Schedule 9.5.8 unless such activities are required by Environmental Law or Permits issued pursuant to Environmental Law or ordered, directed or mandated by a Governmental Entity.

Environmental Procedures. 9.5.1 The Purchaser Group Members shall provide prompt written notice to Seller with respect to any claim for indemnification under Sections 9.1.1(a(i) (with respect to the representations in Section 3.18 and 3.17, insofar as it relates to Permits issued pursuant to Environmental Law) and 9.1.2 of any order, demand, notice of potential liability, complaint or claim for indemnification by any Governmental Entity or other third party, or any other claim for indemnification that does not result for a third-party claim, in each case that may result in indemnified Losses (an “Environmental Claim”). 9.5.2 The Purchaser Group Members shall control the defense or negotiation (including, without limitation, any investigatory, response and remedial actions) of any Environmental Claim relating to the Real Property, including its compromise or settlement, with counsel and environmental consultant selected by the Purchaser Group Members reasonably acceptable to Seller. No compromise or settlement in respect of such Environmental Claim may be reached by the Purchaser Group Members without Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). 9.5.3 Seller Sellers shall have the right right, but not the obligation, to conduct and control the defense or negotiation (including any investigatory, monitoring, response or remedial actions) of any Environmental Indemnity Claim concerning any real property other than the Real Propertyfor which Purchaser Indemnitees are entitled to indemnification pursuant to Section 8.2(a) or Section 8.2(b), including its resolution, compromise or settlement, with counsel and environmental consultant selected selected, if any, by Seller reasonably acceptable to the Purchaser Group MembersSellers. No resolution, compromise or settlement in respect of such Environmental Indemnity Claim may be reached by Seller Sellers without the Purchaser Group Members’ Purchaser’s prior written consent (which consent shall not be unreasonably withheld, conditioned withheld or delayed). If Seller has In the rightevent Sellers elect to control the defense or negotiation of any Environmental Indemnity Claim, but elects Purchaser shall provide Sellers with reasonable access to its properties and employees. In the event Sellers elect not to, to control the defense of any such Environmental Indemnity Claim, the Purchaser Group Members shall control the defense of any such Environmental Indemnity Claim, including its resolution, compromise or settlement, with counsel and consultant selected by the Purchaser Group Members reasonably acceptable to Seller, and no resolution, compromise or settlement in respect of such Environmental Indemnity Claim may be reached by the Purchaser Group Members without a Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned withheld or delayed). 9.5.4 The (ii) Purchaser Group Members or Sellerand Sellers, at their sole cost, as the case may be, with respect to any matter managed and controlled by the other, with the exception of Seller-controlled matters arising under Section 9.1.2(d) or Section 9.1.2(e), shall have the right to (ix) participate fully in any meetings or material negotiations with any Governmental Entity or other third party (excluding meetings attended solely by counsel, consultants or other experts retained by the controlling party) with respect to any Environmental Claim, including the scope, nature and schedule for implementation of any action relating thereto Indemnity Claim and shall be provided with reasonable advance notice of the same; same and (iiy) review in advance and provide comments on any documents proposed to be submitted to Governmental Entities Authorities or other third parties, including any proposed or final work plan, report, compliance schedule, compliance or consent order, decree or agreement. 9.5.5 To (iii) Sellers and Purchaser agree that the extent issuance in respect of an Environmental Indemnity Claim involves of a “no further action” letter or the equivalent indicia of completion issued by any Governmental Authority having jurisdiction over remediation (“NFA Letter”) shall constitute completion of a Seller’s obligation for such Environmental Indemnity Claim; provided, however, that in the event the NFA Letter contains re-openers or other provisions that reserve the right of the issuing Governmental Authority to require additional investigation and/or remediation of Hazardous Substances or other response action to address a condition on any real property or implementation seek additional damages (“Re-Opener”) and that Re-Opener is triggered before the twentieth anniversary of a compliance plan to address a non-compliance with Environmental Laws at the Real Property, Seller’s indemnification and reimbursement obligation shall be applicable to and include only the amount of any Losses attributable to such remediation or other response action or compliance plan performed or implemented by Purchaser or Seller, as the case may be, in a “Commercially Reasonable Manner”, which for the purposes of this Section 9.5.5 shall mean cost-effective methods for such remediation or other response action or compliance plan permitted by applicable Environmental Laws for industrial, commercial, agricultural or, to the extent applicable, residential purposes, as the case may be, for which the relevant Real Property is used on the Closing Date, determined from Seller shall not invoke the perspective receipt of a reasonable business person whose purpose (without regard the NFA Letter to the availability of indemnification hereunder) is to achieve compliance with Environmental Laws or minimize liability under Environmental Law or to third parties avoid fulfilling its obligations with respect to the matter giving rise to the such Environmental Claim Indemnity Claim. (it being understood that (iiv) such Commercially Reasonable Manner shall include, where feasible, the use of risk-based remedies, including natural attenuation, institutional or engineering controls, or deed restrictions, provided such remedies and controls do not unreasonably interfere with Purchaser’s use of the Real Property or Purchaser’s ability to conduct the Businesses in the manner conducted as of the Closing Date; (ii) with respect to remediation or other response action on property other than the Real Property, the Commercially Reasonable Manner shall reflect the clean-up standard for the then current use of such property or such other standard as is required by the owner of such real property; and (iii) in In the event of an actual conflict any inconsistency between (x) a requirement under applicable Environmental Law or an orderthe terms of this Section 8.2 and the other provisions in ARTICLE VIII, direction or mandate by a Governmental Entity to the extent relating to the basis for the Environmental Claim giving rise to Seller’s indemnification obligation and (y) what would otherwise be a Commercially Reasonable Manner, such requirement, order direction or mandate provisions of this Section 8.2 shall be deemed the Commercially Reasonable Manner). Seller and Purchaser Group Members agree that Purchaser Group Members may elect, for operational or other reasons in its discretion, to perform or implement a remediation or other response action or compliance plan at the Real Property that goes beyond what would be considered a “Commercially Reasonable Manner,” provided Purchaser Group Members shall be solely responsible for any cost or expense in excess of the amount that would have been required to perform such remediation or other response action or implement such compliance plan in a Commercially Reasonable Manner and Seller shall have no indemnification obligation for such additional costs or expensescontrol. 9.5.6 Seller shall not be required to indemnify any Purchaser Group Member for any Loss resulting from voluntary sampling of soil, sediment or groundwater conducted by or initiated through the action of Purchaser, other than such actions: (i) required pursuant to any Environmental Law or Permits issued pursuant to Environmental Law, (ii) reasonably necessary to respond to an imminent hazard or emergency situation, (iii) reasonably necessary to respond to any Third Party Claim, (iv) undertaken as the result of a reasonable diligence request with respect to any future sale or financing transaction, or (v) provided such sampling is of a nature normally undertaken in connection with the activities being performed, and subject to the limitations of Section 9.5.8, undertaken in connection with any construction, repair or maintenance activities, or performed in the ordinary course of business (which includes sampling that ensues as a reasonable response to conditions otherwise discovered in the ordinary course of business but not sampling conducted without such reasonable cause). 9.5.7 Seller shall not be required to indemnify any Purchaser Group Member for any Loss to the extent resulting from (i) a change in use of the Real Property from industrial use to commercial or residential use; (ii) a change in use of the areas identified on Schedule 9.5.7 (it being understood that closure of such areas shall not be considered a change in use); or (iii) Purchaser’s failure to comply with the Voluntary Mitigation Use Restriction covering a portion of the Real Property recorded on December 23, 1998 at the Navajo County Records Office. 9.5.8 Seller shall not be required to indemnify any Purchaser Group Member for any Loss to the extent resulting from maintenance work (other than maintenance work normally performed by a prudent owner or operator of the Real Property), construction or demolition activities by or on behalf of any Purchaser Group Member on any areas identified on Schedule 9.5.8 unless such activities are required by Environmental Law or Permits issued pursuant to Environmental Law or ordered, directed or mandated by a Governmental Entity.

Environmental Procedures. 9.5.1 The Purchaser Group Members (i) Except as otherwise provided in Sections 16.6(d)(ii)-(iv), the indemnification procedures of Sections 16.5(a) and 16.5(b) shall provide prompt written notice to Seller with respect apply to any claim party seeking indemnification for indemnification under Sections 9.1.1(a) Indemnified Off-Site Environmental Costs or Indemnified Environmental Costs (with respect to the representations in Section 3.18 and 3.17collectively, insofar as it relates to Permits issued pursuant to Environmental Law) and 9.1.2 of any order, demand, notice of potential liability, complaint or claim for indemnification by any Governmental Entity or other third party, or any other claim for indemnification that does not result for a third-party claim, in each case that may result in indemnified Losses (an “"Environmental Claim”"). 9.5.2 The (ii) Except as otherwise provided in Section 16.6(d)(iii), Purchaser Group Members shall control the defense or negotiation (including, without limitation, any investigatory, response and remedial actions) of any Environmental Claim relating to the Real Property, including its compromise or settlement, with counsel and environmental consultant selected by the Purchaser Group Members reasonably acceptable to Seller. No compromise or settlement in respect of such Environmental Claim may be reached by the Purchaser Group Members without Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). 9.5.3 Seller shall have the right to control the defense or negotiation (including any investigatory, response or remedial actions) of any Environmental Claim concerning any real property other than for which Purchaser or the Real PropertyPurchaser Designees are entitled to indemnification pursuant to Section 16.6(a)(ii)(B), (C) or (D), including its resolution, compromise or settlement, with counsel and environmental consultant selected selected, if any, by Seller Purchaser reasonably acceptable to the Purchaser Group MembersSeller. No resolution, compromise or settlement in respect of such Environmental Claim may be reached by Seller Purchaser without the Purchaser Group Members’ Seller's prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). If Seller In the event Purchaser has the right, but elects not to, control the defense of any such Environmental Claim, the Purchaser Group Members Seller shall control the defense of any such Environmental Claim, including its resolution, compromise or settlement, with counsel and consultant selected by the Purchaser Group Members reasonably acceptable to SellerPurchaser, and no resolution, compromise or settlement in respect of such Environmental Claim may be reached by the Purchaser Group Members Seller without Seller’s Purchaser's prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). 9.5.4 The (iii) Seller shall control the defense or negotiation (including any investigatory, response or remedial actions) of any Environmental Claim for which Purchaser Group Members or the Purchaser Designees are entitled to indemnification pursuant to Section 16.6(a)(i), 16.6(a)(ii)(A) or 16.6(a)(ii)(D) (to the extent related to Section 16.6(a)(i) or Section 16.6(a)(ii)(A)) and any other Environmental Claim under Section 16.6(a) that is a Third-Party Claim by a non-governmental party, including its final resolution, with counsel and environmental consultant, if any, selected by Seller reasonably acceptable to Purchaser. No resolution, compromise or settlement in respect of such Environmental Claim may be reached by Seller without Purchaser's prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). (iv) Purchaser or Seller, at their sole cost, as the case may be, with respect to any matter managed and controlled by the other, with the exception of Seller-controlled matters arising under Section 9.1.2(d) or Section 9.1.2(e), shall have the right to (i) participate fully in any meetings or material negotiations with any Governmental Entity or other third party (excluding meetings attended solely by counsel, consultants or other experts retained by the controlling party) with respect to any Environmental Claim, including the scope, nature and schedule for implementation of any action relating thereto Claim and shall be provided with reasonable advance notice of the same; and (ii) review in advance and provide comments on any documents proposed to be submitted to Governmental Entities governmental authorities or other third parties, including any proposed or final work plan, report, compliance schedule, compliance or consent order, decree or agreement. 9.5.5 To the extent an Environmental Claim involves the remediation of or other response action to address a condition on any real property or implementation of a compliance plan to address a non-compliance with Environmental Laws at the Real Property, Seller’s indemnification and reimbursement obligation shall be applicable to and include only the amount of any Losses attributable to such remediation or other response action or compliance plan performed or implemented by Purchaser or Seller, as the case may be, in a “Commercially Reasonable Manner”, which for the purposes of this Section 9.5.5 shall mean cost-effective methods for such remediation or other response action or compliance plan permitted by applicable Environmental Laws for industrial, commercial, agricultural or, to the extent applicable, residential purposes, as the case may be, for which the relevant Real Property is used on the Closing Date, determined from the perspective of a reasonable business person whose purpose (without regard to the availability of indemnification hereunder) is to achieve compliance with Environmental Laws or minimize liability under Environmental Law or to third parties with respect to the matter giving rise to the Environmental Claim (it being understood that (i) such Commercially Reasonable Manner shall include, where feasible, the use of risk-based remedies, including natural attenuation, institutional or engineering controls, or deed restrictions, provided such remedies and controls do not unreasonably interfere with Purchaser’s use of the Real Property or Purchaser’s ability to conduct the Businesses in the manner conducted as of the Closing Date; (ii) with respect to remediation or other response action on property other than the Real Property, the Commercially Reasonable Manner shall reflect the clean-up standard for the then current use of such property or such other standard as is required by the owner of such real property; and (iii) in the event of an actual conflict between (x) a requirement under applicable Environmental Law or an order, direction or mandate by a Governmental Entity to the extent relating to the basis for the Environmental Claim giving rise to Seller’s indemnification obligation and (y) what would otherwise be a Commercially Reasonable Manner, such requirement, order direction or mandate shall be deemed the Commercially Reasonable Manner). Seller and Purchaser Group Members agree that Purchaser Group Members may elect, for operational or other reasons in its discretion, to perform or implement a remediation or other response action or compliance plan at the Real Property that goes beyond what would be considered a “Commercially Reasonable Manner,” provided Purchaser Group Members shall be solely responsible for any cost or expense in excess of the amount that would have been required to perform such remediation or other response action or implement such compliance plan in a Commercially Reasonable Manner and Seller shall have no indemnification obligation for such additional costs or expenses. 9.5.6 Seller shall not be required to indemnify any Purchaser Group Member for any Loss resulting from voluntary sampling of soil, sediment or groundwater conducted by or initiated through the action of Purchaser, other than such actions: (i) required pursuant to any Environmental Law or Permits issued pursuant to Environmental Law, (ii) reasonably necessary to respond to an imminent hazard or emergency situation, (iii) reasonably necessary to respond to any Third Party Claim, (iv) undertaken as the result of a reasonable diligence request with respect to any future sale or financing transaction, or (v) provided such sampling is of a nature normally undertaken in connection with the activities being performed, and subject to the limitations of Section 9.5.8, undertaken in connection with any construction, repair or maintenance activities, or performed in the ordinary course of business (which includes sampling that ensues as a reasonable response to conditions otherwise discovered in the ordinary course of business but not sampling conducted without such reasonable cause). 9.5.7 Seller shall not be required to indemnify any Purchaser Group Member for any Loss to the extent resulting from (i) a change in use of the Real Property from industrial use to commercial or residential use; (ii) a change in use of the areas identified on Schedule 9.5.7 (it being understood that closure of such areas shall not be considered a change in use); or (iii) Purchaser’s failure to comply with the Voluntary Mitigation Use Restriction covering a portion of the Real Property recorded on December 23, 1998 at the Navajo County Records Office. 9.5.8 Seller shall not be required to indemnify any Purchaser Group Member for any Loss to the extent resulting from maintenance work (other than maintenance work normally performed by a prudent owner or operator of the Real Property), construction or demolition activities by or on behalf of any Purchaser Group Member on any areas identified on Schedule 9.5.8 unless such activities are required by Environmental Law or Permits issued pursuant to Environmental Law or ordered, directed or mandated by a Governmental Entity.

Environmental Procedures. 9.5.1 The Purchaser Group Members With respect to Environmental Liabilities, Seller shall provide prompt written notice have the right to direct, manage and control, and take such actions as in Seller's reasonable judgment are necessary in connection with any defense, Remedial Action, or other resolution of any claim, event or condition which is a Retained Environmental Liability subject to indemnification under this Agreement or which is a result of the breach of any representation or warranty in Section 4.17, if Seller is responsible for more than fifty percent of the Liability under this Agreement. Seller and Buyer agree to cooperate in good faith with respect to all Remedial Actions. Buyer shall provide Seller with access to any claim for indemnification under Sections 9.1.1(a) (with respect property subject to the representations in Section 3.18 and 3.17indemnity reasonably necessary for Seller to perform the defense, insofar as it relates to Permits issued pursuant to Environmental Law) and 9.1.2 of any order, demand, notice of potential liability, complaint or claim for indemnification by any Governmental Entity Remedial Action or other third partyresolution provided that Seller shall have first notified Buyer in advance of requiring such access. In addition to the foregoing, or any other claim for indemnification that does not result for a third-party claim, Seller shall (A) expeditiously commence and use diligent efforts to complete all Remedial Actions; (B) comply in each case that may result in indemnified Losses (an “Environmental Claim”). 9.5.2 The Purchaser Group Members shall control the defense or negotiation all material respects with all applicable laws (including, without limitation, any investigatoryEnvironmental Laws); (C) conduct the work in a manner that will not unreasonably interfere with Buyer's operation of the Business or compromise the safety of those on the property; (D) use environmental consultants and engineers reasonably acceptable to Buyer and require such consultants and engineers to obtain and maintain liability insurance, response including contractor's pollution liability coverage, in the form and remedial actionsat levels typically obtained and maintained for remediation projects and naming Buyer as an additional insured; (E) provide Buyer with copies of any Environmental Claim workplans seven (7) days prior to submittal to any Governmental Authority, or such shorter time as necessary to comply with Governmental Authority requests, data generated in connection with any investigations, sampling or monitoring, material correspondence with Governmental Authorities, and other material, non-privileged documents relating to the Real Property, including its compromise or settlement, with counsel workplans (and environmental consultant selected by the Purchaser Group Members reasonably acceptable to Seller. No compromise or settlement in respect of such Environmental Claim may be reached by the Purchaser Group Members without Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). 9.5.3 Seller Buyer shall have a right to consult with Seller and to review and comment on the workplans, and Seller will consider and incorporate all reasonable comments of Buyer which are timely provided); (F) provide Buyer with prior notice of and the right to control attend, as an observer but not a participant, meetings or material conference calls with Governmental Authorities regarding the defense Remedial Action; and (G) provide Buyer the right to approve (such approval not to be unreasonably withheld or negotiation (including delayed) any investigatory, response or remedial actions) activities which could reasonably be expected to interfere with the operation of any Environmental Claim concerning any real property other than the Real Property, including its compromise or settlement, with counsel and environmental consultant selected by Business. Seller reasonably acceptable shall perform the Remedial Action to the Purchaser Group Members. No compromise minimum standards required under Environmental Laws or settlement by the Governmental Authority with lead oversight jurisdiction, as such standards or requirements are in respect effect at the time of such Environmental Claim may be reached by Seller without the Purchaser Group Members’ prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). If Seller has the right, but elects not to, control the defense completion of any such Environmental Claim, Remedial Action (the Purchaser Group Members shall control the defense of any such Environmental Claim, including its compromise or settlement, with counsel and consultant selected by the Purchaser Group Members reasonably acceptable to Seller"Remedial Action Standard"), and no compromise or settlement in respect of such Environmental Claim may be reached by the Purchaser Group Members without Seller’s prior written consent (which consent Seller shall not be unreasonably withheld, conditioned or delayed). 9.5.4 The Purchaser Group Members or Seller, as the case may be, with respect to any matter managed and controlled by the other, with the exception of Seller-controlled matters arising under Section 9.1.2(d) or Section 9.1.2(e), shall have the right to obtain (i) participate fully in any meetings or negotiations with any Governmental Entity or other third party a full and unconditional release of liability (excluding meetings attended solely by counsel, consultants or other experts retained by the controlling partyreleasing Buyer) with respect relating to any Environmental Third Party Claim, including the scope, nature and schedule for implementation of any action relating thereto and shall be provided with reasonable advance notice of the same; and (ii) review in advance and provide comments on any documents proposed to be submitted to a "no further remedial action required" letter or similar acknowledgement from a Governmental Entities or other third parties, including any proposed or final work plan, report, compliance schedule, compliance or consent order, decree or agreement. 9.5.5 To the extent an Environmental Claim involves the remediation of or other response action to address a condition on any real property or implementation of a compliance plan to address a non-compliance with Environmental Laws at the Real Property, Seller’s indemnification and reimbursement obligation shall be applicable to and include only the amount of any Losses attributable to such remediation or other response action or compliance plan performed or implemented by Purchaser or Seller, as the case may be, in a “Commercially Reasonable Manner”, which for the purposes of this Section 9.5.5 shall mean cost-effective methods for such remediation or other response action or compliance plan permitted by applicable Environmental Laws for industrial, commercial, agricultural Authority or, if no such letter or acknowledgement is routinely issued, a certification by Seller's environmental consultant or engineer reasonably acceptable to Buyer that the extent applicable, residential purposes, as the case may be, for which the relevant Real Property is used on the Closing Date, determined from the perspective of a reasonable business person whose purpose (without regard to the availability of indemnification hereunder) is to achieve compliance with Environmental Laws or minimize liability under Environmental Law or to third parties with respect to the matter giving rise to the Environmental Claim (it being understood that (i) such Commercially Reasonable Manner shall include, where feasible, the use of risk-based remedies, including natural attenuation, institutional or engineering controls, or deed restrictions, provided such remedies and controls do not unreasonably interfere with Purchaser’s use of the Real Property or Purchaser’s ability to conduct the Businesses in the manner conducted as of the Closing Date; (ii) with respect to remediation or other response action on property other than the Real Property, the Commercially Reasonable Manner shall reflect the clean-up standard for the then current use of such property or such other standard as is required by the owner of such real property; and (iii) in the event of an actual conflict between (x) a requirement under applicable Environmental Law or an order, direction or mandate by a Governmental Entity to the extent relating to the basis for the Environmental Claim giving rise to Seller’s indemnification obligation and (y) what would otherwise be a Commercially Reasonable Manner, such requirement, order direction or mandate shall be deemed the Commercially Reasonable Manner). Seller and Purchaser Group Members agree that Purchaser Group Members may elect, for operational or other reasons in its discretion, to perform or implement a remediation or other response action or compliance plan at the Real Property that goes beyond what would be considered a “Commercially Reasonable Manner,” provided Purchaser Group Members shall be solely responsible for any cost or expense in excess of the amount that would have Remedial Action Standard has been required to perform such remediation or other response action or implement such compliance plan in a Commercially Reasonable Manner and Seller shall have no indemnification obligation for such additional costs or expensesachieved. 9.5.6 Seller shall not be required to indemnify any Purchaser Group Member for any Loss resulting from voluntary sampling of soil, sediment or groundwater conducted by or initiated through the action of Purchaser, other than such actions: (i) required pursuant to any Environmental Law or Permits issued pursuant to Environmental Law, (ii) reasonably necessary to respond to an imminent hazard or emergency situation, (iii) reasonably necessary to respond to any Third Party Claim, (iv) undertaken as the result of a reasonable diligence request with respect to any future sale or financing transaction, or (v) provided such sampling is of a nature normally undertaken in connection with the activities being performed, and subject to the limitations of Section 9.5.8, undertaken in connection with any construction, repair or maintenance activities, or performed in the ordinary course of business (which includes sampling that ensues as a reasonable response to conditions otherwise discovered in the ordinary course of business but not sampling conducted without such reasonable cause). 9.5.7 Seller shall not be required to indemnify any Purchaser Group Member for any Loss to the extent resulting from (i) a change in use of the Real Property from industrial use to commercial or residential use; (ii) a change in use of the areas identified on Schedule 9.5.7 (it being understood that closure of such areas shall not be considered a change in use); or (iii) Purchaser’s failure to comply with the Voluntary Mitigation Use Restriction covering a portion of the Real Property recorded on December 23, 1998 at the Navajo County Records Office. 9.5.8 Seller shall not be required to indemnify any Purchaser Group Member for any Loss to the extent resulting from maintenance work (other than maintenance work normally performed by a prudent owner or operator of the Real Property), construction or demolition activities by or on behalf of any Purchaser Group Member on any areas identified on Schedule 9.5.8 unless such activities are required by Environmental Law or Permits issued pursuant to Environmental Law or ordered, directed or mandated by a Governmental Entity.

Environmental Procedures. 9.5.1 The Purchaser Group Members (i) Seller shall provide prompt written notice have the right, but not the obligation, to Seller with respect to any claim for indemnification under Sections 9.1.1(a) (with respect to the representations in Section 3.18 conduct and 3.17, insofar as it relates to Permits issued pursuant to Environmental Law) and 9.1.2 of any order, demand, notice of potential liability, complaint or claim for indemnification by any Governmental Entity or other third party, or any other claim for indemnification that does not result for a third-party claim, in each case that may result in indemnified Losses (an “Environmental Claim”). 9.5.2 The Purchaser Group Members shall control the defense or negotiation (including, without limitation, including any investigatory, monitoring, response and or remedial actions) of any Environmental Indemnity Claim relating for which Purchaser Indemnitees are entitled to the Real Propertyindemnification pursuant to Section 8.2(a) or Section 8.2(b), including its resolution, compromise or settlement, with counsel and environmental consultant selected selected, if any, by the Purchaser Group Members reasonably acceptable to Seller. No resolution, compromise or settlement in respect of such Environmental Indemnity Claim may be reached by Seller without Purchaser’s prior consent (which consent shall not be unreasonably withheld, conditioned or delayed) unless the resolution, settlement or compromise involves only the payment of monetary damages. In the event Seller elects to control the defense or negotiation of any Environmental Indemnity Claim, Purchaser Group Members shall provide Seller with reasonable access to its properties and employees. In the event Seller elects not to control the defense of any Environmental Indemnity Claim, Purchaser shall control the defense of such Environmental Indemnity Claim, including its resolution, compromise or settlement, and no resolution, compromise or settlement in respect of such Environmental Indemnity Claim may be reached by Purchaser without Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). 9.5.3 Seller shall have the right to control the defense or negotiation (including any investigatory, response or remedial actionsii) of any Environmental Claim concerning any real property other than the Real Property, including its compromise or settlement, with counsel Purchaser and environmental consultant selected by Seller reasonably acceptable to the Purchaser Group Members. No compromise or settlement in respect of such Environmental Claim may be reached by Seller without the Purchaser Group Members’ prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). If Seller has the right, but elects not to, control the defense of any such Environmental Claim, the Purchaser Group Members shall control the defense of any such Environmental Claim, including its compromise or settlement, with counsel and consultant selected by the Purchaser Group Members reasonably acceptable to Seller, and no compromise or settlement in respect of such Environmental Claim may be reached by the Purchaser Group Members without Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). 9.5.4 The Purchaser Group Members or Sellerat their sole cost, as the case may be, with respect to any matter managed and controlled by the other, with the exception of Seller-controlled matters arising under Section 9.1.2(d) or Section 9.1.2(e), shall have the right to (ix) participate fully in any meetings or material negotiations with any Governmental Entity or other third party (excluding meetings attended solely by counsel, consultants or other experts retained by the controlling party) with respect to any Environmental Claim, including the scope, nature and schedule for implementation of any action relating thereto Indemnity Claim and shall be provided with reasonable advance notice of the same; same and (iiy) review in advance and provide comments on any documents proposed to be submitted to Governmental Entities Authorities or other third parties, including any proposed or final work plan, report, compliance schedule, compliance or consent order, decree or agreement. 9.5.5 To (iii) Seller and Purchaser agree that the extent issuance in respect of an Environmental Indemnity Claim involves of a “no further action” letter or the equivalent indicia of completion issued by any Governmental Authority having jurisdiction over remediation (“NFA Letter”) shall constitute completion of Seller’s obligation for such Environmental Indemnity Claim; provided, however, that in the event the NFA Letter contains re-openers or other provisions that reserve the right of the issuing Governmental Authority to require additional investigation and/or remediation of Hazardous Substances or other response action to address a condition on any real property or implementation seek additional damages (“Re-Opener”) and that Re-Opener is triggered before the twentieth anniversary of a compliance plan to address a non-compliance with Environmental Laws at the Real Property, Seller’s indemnification and reimbursement obligation shall be applicable to and include only the amount of any Losses attributable to such remediation or other response action or compliance plan performed or implemented by Purchaser or Seller, as the case may be, in a “Commercially Reasonable Manner”, which for the purposes of this Section 9.5.5 shall mean cost-effective methods for such remediation or other response action or compliance plan permitted by applicable Environmental Laws for industrial, commercial, agricultural or, to the extent applicable, residential purposes, as the case may be, for which the relevant Real Property is used on the Closing Date, determined from Seller shall not invoke the perspective receipt of a reasonable business person whose purpose (without regard the NFA Letter to the availability of indemnification hereunder) is to achieve compliance with Environmental Laws or minimize liability under Environmental Law or to third parties avoid fulfilling its obligations with respect to the matter giving rise to the such Environmental Claim Indemnity Claim. (it being understood that (iiv) such Commercially Reasonable Manner shall include, where feasible, the use of risk-based remedies, including natural attenuation, institutional or engineering controls, or deed restrictions, provided such remedies and controls do not unreasonably interfere with Purchaser’s use of the Real Property or Purchaser’s ability to conduct the Businesses in the manner conducted as of the Closing Date; (ii) with respect to remediation or other response action on property other than the Real Property, the Commercially Reasonable Manner shall reflect the clean-up standard for the then current use of such property or such other standard as is required by the owner of such real property; and (iii) in In the event of an actual conflict any inconsistency between (x) a requirement under applicable Environmental Law or an orderthe terms of this Section 8.2 and the other provisions in Article VIII, direction or mandate by a Governmental Entity to the extent relating to the basis for the Environmental Claim giving rise to Seller’s indemnification obligation and (y) what would otherwise be a Commercially Reasonable Manner, such requirement, order direction or mandate provisions of this Section 8.2 shall be deemed the Commercially Reasonable Manner). Seller and Purchaser Group Members agree that Purchaser Group Members may elect, for operational or other reasons in its discretion, to perform or implement a remediation or other response action or compliance plan at the Real Property that goes beyond what would be considered a “Commercially Reasonable Manner,” provided Purchaser Group Members shall be solely responsible for any cost or expense in excess of the amount that would have been required to perform such remediation or other response action or implement such compliance plan in a Commercially Reasonable Manner and Seller shall have no indemnification obligation for such additional costs or expensescontrol. 9.5.6 Seller shall not be required to indemnify any Purchaser Group Member for any Loss resulting from voluntary sampling of soil, sediment or groundwater conducted by or initiated through the action of Purchaser, other than such actions: (i) required pursuant to any Environmental Law or Permits issued pursuant to Environmental Law, (ii) reasonably necessary to respond to an imminent hazard or emergency situation, (iii) reasonably necessary to respond to any Third Party Claim, (iv) undertaken as the result of a reasonable diligence request with respect to any future sale or financing transaction, or (v) provided such sampling is of a nature normally undertaken in connection with the activities being performed, and subject to the limitations of Section 9.5.8, undertaken in connection with any construction, repair or maintenance activities, or performed in the ordinary course of business (which includes sampling that ensues as a reasonable response to conditions otherwise discovered in the ordinary course of business but not sampling conducted without such reasonable cause). 9.5.7 Seller shall not be required to indemnify any Purchaser Group Member for any Loss to the extent resulting from (i) a change in use of the Real Property from industrial use to commercial or residential use; (ii) a change in use of the areas identified on Schedule 9.5.7 (it being understood that closure of such areas shall not be considered a change in use); or (iii) Purchaser’s failure to comply with the Voluntary Mitigation Use Restriction covering a portion of the Real Property recorded on December 23, 1998 at the Navajo County Records Office. 9.5.8 Seller shall not be required to indemnify any Purchaser Group Member for any Loss to the extent resulting from maintenance work (other than maintenance work normally performed by a prudent owner or operator of the Real Property), construction or demolition activities by or on behalf of any Purchaser Group Member on any areas identified on Schedule 9.5.8 unless such activities are required by Environmental Law or Permits issued pursuant to Environmental Law or ordered, directed or mandated by a Governmental Entity.