Common use of Remediation Activities Clause in Contracts

Remediation Activities. (a) Except as set forth in Section 7.09(b), from and after the Closing, Seller shall control all remedial actions and all negotiations with any Governmental Authority or any other Person in respect to all Environmental Claims that are subject to Seller’s indemnification obligations under Section 12.03 with counsel, consultants or contractors selected by Seller (to be reasonably acceptable to Purchaser), provided that Seller shall (i) keep Purchaser reasonably informed as to the status of the foregoing, (ii) promptly provide Purchaser with any material non-privileged related information, documentation and correspondence, and (iii) exercise reasonable best efforts to consult with Purchaser prior to exchanges of material information or material negotiations with any Person (Purchaser to make itself reasonably available and without unreasonable delay as to same). Such remedial actions and negotiations shall be performed in a commercially reasonable manner, including, to the extent allowed or authorized by applicable Environmental Law or the Governmental Authority having jurisdiction over a remedial action, the use of applicable commercial and/or industrial remediation standards and institutional controls. Seller agrees that, in conducting any remedial action or seeking a particular remedy or agreed remediation standard, it shall not unreasonably interfere with Purchaser’s business operations. Notwithstanding anything to the contrary contained herein, Seller shall not enter into any settlement or judgment, without Purchaser’s prior written consent, such consent not to be unreasonably withheld, that would encumber or impose on the Business or the Purchased Assets any restriction or condition that would materially and adversely affect the Purchaser or the Business. Purchaser may comment on Seller’s proposed remedial actions and may participate at its expense in any meetings or discussions with relevant Governmental Authorities, but Purchaser shall have no right to perform or participate in any aspect of any remedial actions performed or directed by Seller; provided, however, that Purchaser shall provide reasonable access to Seller and its environmental consultants to any property within the control of Purchaser that is subject to any remedial action obligation of Seller under this Agreement. (b) Notwithstanding anything in Section 7.09(a), from and after the Closing, Purchaser shall control all remediation actions and all negotiations with any Governmental Authority or any other Person in respect to those Special Environmental Liabilities set forth on Schedule 7.09(b). For so long as Seller is required to indemnify Purchaser and the Purchaser Indemnified Parties for such Liabilities, Seller shall reimburse Purchaser for the reasonable costs associated with continued implementation of such remedial program within 60 days of receipt of invoices for any remedial work relating thereto. Any material changes to the existing remedial program relating to such Liabilities must be approved in writing by Seller, which approval may not be unreasonably withheld, conditioned or delayed. Purchaser shall provide copies of relevant non-privileged reports and submissions to Seller regarding such remediation activities. (c) Upon completion of a remediation required under this Agreement, as evidenced by: (i) a “no further remediation” letter, or the substantial equivalent, in form and substance reasonably acceptable to Purchaser, from the Governmental Authority having jurisdiction over the location where the remediation has occurred; (ii) written confirmation, in form and substance reasonably acceptable to Purchaser, from the Governmental Authority exercising authority over Seller’s remediation work, that the underlying conditions have been remedied; or (iii) written confirmation, in form and substance reasonably acceptable to Purchaser, from the relevant Person under any remediation agreement between Seller and/or Purchaser and the relevant Person, that the underlying conditions have been remedied, then Seller shall be forever released and discharged by Purchaser and all Purchaser Indemnified Parties from any further related remediation under this Agreement. In any event, Seller’s remediation obligations with respect to the Special Environmental Liabilities shall cease at the termination of the indemnity period set forth in Section 12.06(g).

Remediation Activities. (a) Sellers shall be solely responsible for, and shall pay all Environmental Costs associated with, remediating the Environmental Conditions identified during the Buyer's Further Investigations and/or Sellers' Further Investigations or the performance of Sellers' remediation at the Independence Site, the Branford Site and, if applicable, at the Northvale Site, in accordance with the Minimum Remediation Standards and the other terms and provisions of this Section 8.2. Except as set forth otherwise provided in Section 7.09(b8.2(e), from Sellers shall have absolute control over all aspects of any remediation undertaken by Sellers. Sellers shall select and implement a remedy that, in addition to meeting the Minimum Remediation Standards, does not materially interfere with or disrupt Buyer's normal business activities at the Real Property. Sellers shall perform any investigation activities as required pursuant to this Section 8.2 in a manner that does not materially interfere with or disrupt Buyer's normal business activities at the Real Property. Sellers shall prepare a remediation plan within a reasonable time after receipt of Buyer's Further Investigation for each site, which plan shall contain a schedule that provides for the Closingprompt completion of the remediation at each site. Upon completion of each plan for each site, Seller shall control all remedial actions and all negotiations with submit it to Buyer in advance of submitting it to any Governmental Authority or any other Person in respect Authority. Buyer shall have the right to all Environmental Claims that are subject to Seller’s indemnification obligations under Section 12.03 consult with counselSellers, consultants or contractors selected by Seller (to be reasonably acceptable to Purchaser)and comment on Sellers' remediation plans and remediation activities at Buyer's cost, provided that so long as Sellers have materially complied with their obligations under this Section 8.2, Sellers shall retain control over the preparation and implementation of the remediation plans and all remediation activities, and in its sole discretion, may accept or reject any comments or recommendations by Buyer. Buyer shall have the right to review, comment on, and observe Sellers' remediation activities at Buyer's cost, but Sellers shall retain control over Sellers' remediation activities, except as otherwise provided in Section 8.2(e). Sellers agree to provide to Buyer copies of all technical reports, studies, tests, documents or other materials in connection with Sellers' remediation activities in a timely manner. Buyer shall cooperate with and provide Seller shall (i) keep Purchaser reasonably informed as with such access to the status of Independence Site and the foregoingBranford Site as Sellers deem necessary or desirable to conduct Sellers' Further Investigations and any remediation activities, (ii) promptly provide Purchaser with any material non-privileged related information, documentation and correspondence, and (iii) exercise reasonable best efforts to consult with Purchaser prior to exchanges of material information or material negotiations with any Person (Purchaser to make itself reasonably available and without unreasonable delay as to same). Such remedial actions and negotiations shall be performed in a commercially reasonable manner, including, to the extent allowed or authorized by applicable Environmental Law or the Governmental Authority having jurisdiction over a remedial action, the use of applicable commercial and/or industrial remediation standards and institutional controls. Seller agrees that, in conducting any remedial action or seeking a particular remedy or agreed remediation standard, it shall not unreasonably interfere with Purchaser’s business operations. Notwithstanding anything to the contrary contained herein, Seller shall not enter into any settlement or judgment, without Purchaser’s prior written consent, such consent not to be unreasonably withheld, that would encumber or impose on the Business or the Purchased Assets any restriction or condition that would materially and adversely affect the Purchaser or the Business. Purchaser may comment on Seller’s proposed remedial actions and may participate at its expense in any meetings or discussions with relevant Governmental Authorities, but Purchaser shall have no right to perform or participate in any aspect of any remedial actions performed or directed by Seller; provided, however, that Purchaser Sellers shall provide reasonable access do so in a manner that does not materially disrupt Buyer's normal business activities. Sellers shall obtain a "No Further Action" letter or equivalent document from the applicable state governmental agency concluding that no further remediation activities are required at the sites. Sellers shall submit to Seller and its environmental consultants to any property within the appropriate regulatory authority a remediation plan in a reasonably timely manner, but in no case later than two (2) years after the Closing Date, unless a delay is caused by factors outside the control of Purchaser that is subject to Sellers, including but not limited to, unforeseen environmental conditions at the Site, delays caused by Third Parties, or delays in governmental review or approval of any remedial action obligation of Seller under this Agreement. (b) Notwithstanding anything in Section 7.09(a), from and after submittals by Sellers. Sellers shall complete the Closing, Purchaser shall control all remediation actions and all negotiations with any Governmental Authority or any other Person in respect to those Special Environmental Liabilities as set forth on Schedule 7.09(bin the remedial plans in a reasonably prompt manner, including, without limitation, by conforming to the extent possible with the schedule for completion of the remediation as set forth in the remedial plans. In the event that any of Sellers' remedial plans involve any active remediation system or long-term monitoring program (excluding, by way of example, any static engineered control such as a permanent cap). For so long as Seller is required to indemnify Purchaser and the Purchaser Indemnified Parties for such Liabilities, Seller shall reimburse Purchaser for the reasonable costs associated with continued implementation of maintain and operate such remedial program within 60 days of system at its sole expense until its receipt of invoices for any remedial work relating thereto. Any material changes to the existing remedial program relating to such Liabilities must be approved in writing by Seller, which approval may not be unreasonably withheld, conditioned a final No Further Action letter or delayed. Purchaser shall provide copies of relevant non-privileged reports and submissions to Seller regarding such remediation activities. (c) Upon completion of a remediation required under this Agreement, as evidenced by: (i) a “similar documentation providing that no further remediation” letter, active remediation or the substantial equivalent, in form monitoring is required and substance reasonably acceptable to Purchaser, from the Governmental Authority having jurisdiction over the location where until the remediation has occurred; (ii) written confirmation, in form and substance reasonably acceptable to Purchaser, from is complete within the Governmental Authority exercising authority over Seller’s remediation work, that the underlying conditions have been remedied; or (iii) written confirmation, in form and substance reasonably acceptable to Purchaser, from the relevant Person under any remediation agreement between Seller and/or Purchaser and the relevant Person, that the underlying conditions have been remedied, then Seller shall be forever released and discharged by Purchaser and all Purchaser Indemnified Parties from any further related remediation under this Agreement. In any event, Seller’s remediation obligations with respect to the Special Environmental Liabilities shall cease at the termination meaning of the indemnity period set forth in Section 12.06(g)8.1 above.

Remediation Activities. (a) Except Any Remediation or portion thereof for which a Purchaser Indemnitee seeks indemnification under Section 9.2 shall be conducted so as to meet the Commercial Reasonableness Standard. (b) Subject to any limitations in the Reserved Construction Contract Rights, any Remediation shall be performed under the direction and control of WTI unless WTI elects to direct Seller to conduct such Remediation by providing Seller with written notice of its Remediation obligation. (c) If WTI intends to conduct any Remediation, it shall provide Seller with prior written notice containing, to the extent known, a description of the proposed Remediation, the projected costs thereof, any relevant deadlines for commencing the Remediation imposed by Law or a Governmental Authority and the Persons to be engaged to perform the Remediation (the "Remediation Information"). Seller may object to the proposed Remediation to the extent (1) the proposed Remediation exceeds the Commercial Reasonableness Standard, (2) the costs of all or part of the proposed Remediation are unreasonably high or (3) the contractor is not qualified to perform all or part of the work. If Seller objects to any portion of the proposed Remediation on such grounds, it shall notify WTI of its objections and the reasons therefor within thirty (30) calendar days after receipt of the Remediation Information; provided, such deadline shall be shortened to conform with any earlier deadline established by a Governmental Authority which is disclosed in the Remediation Information. Seller's failure to object by that date constitutes approval of the Remediation as described in the Remediation Information. If, in the course of performing any Remediation, any information included in the Remediation Information changes in any material way (e.g., a material increase in projected Remediation costs or change in contractors), WTI shall promptly supplement the Remediation Information in writing ("Supplemental Remediation Information"), and Seller shall have thirty (30) calendar days from its receipt of such information to raise any objections to the information contained therein; provided, such deadline shall be shortened to conform with any earlier deadline established by a Governmental Authority which is disclosed in the Supplemental Remediation Information. Any such objections shall be limited to the same grounds (1-3) as above and also shall be limited only to the Supplemental Remediation Information. Seller and WTI agree that any dispute arising from Seller's objections to any Remediation Information shall be subject to the resolution procedure set forth in Section 7.09(b9.4(h). Notwithstanding Seller's objections to the Remediation Information, from WTI may conduct the Remediation as it sees fit but shall not be entitled to recover costs to which Seller has objected unless the matter is resolved in WTI's favor in accordance with Section 9.4(h) below. WTI shall submit periodic invoices to Seller for Remediation work completed and shall be reimbursed by Seller for any costs of Remediation incurred within the overall cost budget for the Remediation within thirty (30) days after submission of each invoice therefor accompanied by reasonable documentation substantiating the Closingcompleted work. (d) If WTI elects to direct Seller to perform the Remediation pursuant to Section 9.4(b) above, Seller shall control all remedial actions furnish WTI with the Remediation Information within thirty (30) calendar days of receipt of such direction or such shorter time as may be necessary to conform with an earlier deadline established by a Governmental Authority. WTI may object to the Remediation proposed by Seller if (1) the Remediation does not meet the Commercial Reasonableness Standard or (2) the contractor is not qualified to perform the Remediation work for which it is proposed to be hired. If WTI objects to any portion of the proposed Remediation on such grounds, it shall notify Seller of its objections and all negotiations the reasons therefor within thirty (30) calendar days after receipt of the notice; provided, such deadline shall be shortened to conform with any earlier deadline established by a Governmental Authority which is disclosed in the Remediation Information. If WTI fails to object, Seller may proceed with the Remediation in accordance with the Remediation Information. WTI's acceptance of the identity of the contractor(s) to perform the Remediation shall not alter, waive or relieve Seller's obligation to have the Remediation performed under this Section 9.4 or impose any other Person liability on WTI. If in respect the course of performing any Remediation, any information included in the Remediation Information changes in any material way (e.g., a material increase in projected Remediation costs or change in contractors), Seller shall promptly supplement the Remediation Information in writing and the Purchaser shall have thirty (30) calendar days from its receipt of such Supplemental Remediation Information to all Environmental Claims that are raise any objections to the information contained therein; provided, such deadline shall be shortened to conform with any earlier deadline established by a Governmental Authority which is disclosed in the Supplemental Remediation Information. Any such objections shall be limited to the same grounds (1-2) as above and also shall be limited only to the Supplemental Remediation Information. Any dispute shall be subject to Seller’s indemnification obligations under the resolution procedure set forth in Section 12.03 9.4(h). (e) If WTI conducts the Remediation, it shall (i) use Commercially Reasonable Efforts to minimize costs of the Remediation; (ii) conduct the Remediation in accordance with counselthe Commercial Reasonableness Standard; and (iii) allow Seller or its agent reasonable access to the property for the sole purpose of monitoring the Remediation, consultants so long as Seller or contractors selected by its agent does not interfere with the Remediation or WTI's operations. The parties agree that WTI may conduct the Remediation in excess of the Commercial Reasonableness Standard, but WTI shall not be entitled to reimbursement from Seller for any incremental costs associated with WTI's efforts which exceed the Commercial Reasonableness Standard. (to be reasonably acceptable to Purchaser)f) If Seller performs the Remediation, provided that Seller shall (i) keep Purchaser reasonably informed as to the status promptly commence and diligently pursue completion of the foregoing, Remediation; (ii) promptly provide Purchaser with indemnify WTI from any material non-privileged related informationdamages, documentation and correspondence, losses or claims arising out of Seller's performance of the Remediation; and (iiiiv) exercise reasonable best efforts use Commercially Reasonable Efforts to consult with Purchaser prior minimize disruption to exchanges of material information or material negotiations with any Person (Purchaser to make itself reasonably available and without unreasonable delay as to same)WTI's business operations arising from the Remediation. Such remedial actions and negotiations shall be performed in a commercially reasonable manner, including, to the extent allowed or authorized by applicable Environmental Law or the Governmental Authority having jurisdiction over a remedial action, the use of applicable commercial and/or industrial remediation standards and institutional controls. Seller agrees that, in conducting any remedial action or seeking a particular remedy or agreed remediation standard, it shall not unreasonably interfere with Purchaser’s business operations. Notwithstanding anything to the contrary contained herein, Seller shall not enter into conduct, propose to any settlement Governmental Authority, or judgmentretain any contractor to conduct, any Remediation which could materially impact WTI's or the Facility's current or future operations, without Purchaser’s prior WTI's written consent, such which consent shall not to be unreasonably withheld, that would encumber delayed, or impose on conditioned. (g) A party conducting the Remediation shall (i) except in an emergency, provide reasonable advance notice to the other party of the Remediation prior to undertaking it; (ii) keep the other party reasonably informed of the progress of any such Remediation and the schedule for completing such Remediation; (iii) within 5 Business Days of receipt, submit to the other party copies of all written communications, filings, reports, correspondence or other writings, photographs or materials received from any person, entity or governmental agency in connection with any such Remediation; (iv) provide the Purchased Assets other party with a reasonable opportunity to comment in advance upon any restriction written communications, filings, reports, correspondence or condition that would materially other writings given to any governmental agency in connection with such Remediation and adversely affect will consider timely provided comments in good faith; (v) perform the Purchaser or Remediation in accordance with applicable Environmental Law and applicable Law; and (vi) to the Business. Purchaser may comment on Seller’s proposed remedial actions and may extent possible, provide the other party with a reasonable opportunity to participate at its expense in any meetings with any Governmental Authority regarding the Remediation; provided, however, that the failure to provide such notice, information or discussions with relevant Governmental Authorities, but Purchaser shall have no right opportunity to perform comment or participate in shall not relieve the other Party of its obligation hereunder, except to the extent such other Party is actually and materially prejudiced thereby. Regardless of which party conducts the Remediation, Seller shall be responsible for executing any aspect manifests for the off-site disposal of any remedial actions performed Hazardous Materials which were placed on the Parcel during Seller's use and/or occupancy thereof and generated during the course of such Remediation to the extent authorized by Law. (h) To the extent either party objects to the Remediation Information it receives from the other party, WTI and Seller will attempt to resolve the disputed aspects of the Remediation Information within thirty (30) Business Days of a party's receipt of the other party's objection (or directed sooner if an earlier deadline has been imposed by a Governmental Authority regarding the Remediation at issue). Any dispute that cannot be so resolved shall be submitted for binding resolution on a timely basis to an environmental consultant or commercial arbitrator with demonstrated environmental remediation expertise jointly chosen and retained by the parties, with costs split equally between WTI and Seller; provided, however, that Purchaser the environmental consultant/arbitrator so chosen shall provide reasonable access to Seller and its environmental consultants to any property within the control of Purchaser that is subject to any remedial action obligation of Seller under this Agreement. (b) Notwithstanding anything in Section 7.09(a), from and after the Closing, Purchaser shall control all remediation actions and all negotiations with any Governmental Authority or any other Person in respect to those Special Environmental Liabilities set forth on Schedule 7.09(b). For so long as Seller is required to indemnify Purchaser and the Purchaser Indemnified Parties for such Liabilities, Seller shall reimburse Purchaser for the reasonable costs associated with continued implementation of such remedial program within 60 days of receipt of invoices for any remedial work relating thereto. Any material changes to the existing remedial program relating to such Liabilities must be approved in writing by Seller, which approval may not be unreasonably withheld, conditioned or delayed. Purchaser shall provide copies of relevant non-privileged reports and submissions to Seller regarding such remediation activities. (c) Upon completion of a remediation required under this Agreement, as evidenced by: neither (i) a “have previously performed services for Seller, either WTI or any of their respective Affiliates, unless such services are disclosed to the other party and the other party raises no further remediation” letterobjection, or the substantial equivalent, in form and substance reasonably acceptable to Purchaser, from the Governmental Authority having jurisdiction over the location where the remediation has occurred; nor (ii) written confirmation, in form and substance reasonably acceptable be eligible to Purchaser, from the Governmental Authority exercising authority over Seller’s remediation work, that the underlying conditions have been remedied; or (iii) written confirmation, in form and substance reasonably acceptable to Purchaser, from the relevant Person under perform any remediation agreement between Seller and/or Purchaser and the relevant Person, that the underlying conditions have been remedied, then Seller shall be forever released and discharged by Purchaser and all Purchaser Indemnified Parties from any further related remediation under this Agreement. In any event, Seller’s remediation obligations services with respect to the Special Environmental Liabilities Remediation at issue (other than in the context of resolving the related dispute pursuant to this Section 9.4(h)). If either party prevails with respect to every position which it asserts to the environmental consultant/arbitrator in a dispute resolution procedure, it shall cease at be entitled to payment of all of its costs arising from the termination dispute resolution by the other party, which costs shall include, but not be limited to, consultants' and attorneys' fees and the fees of the indemnity period environmental consultant/arbitrator. (i) Notwithstanding the foregoing, Seller shall have the right to contest whether the Remediation is subject to the indemnification provisions set forth in Section 12.06(g)9.2, which dispute shall be resolved in accordance with Section 11.12; provided that Seller notifies WTI of its contesting of the Remediation and the reasons therefor within ninety (90) days after Seller's receipt or delivery of the Remediation Information.

Remediation Activities. (a) Except as set forth in Section 7.09(b), from and after the Closing, Seller shall control all remedial actions and all negotiations with any Governmental Authority or any other Person in respect to all Environmental Claims that are subject to Seller’s indemnification obligations under Section 12.03 with counsel, consultants or contractors selected by Seller (to be reasonably acceptable to Purchaser), provided that Seller shall (i) keep Purchaser reasonably informed as to the status of the foregoing, (ii) promptly provide Purchaser with any material non-privileged related information, documentation and correspondence, and (iii) exercise reasonable best efforts to consult with Purchaser prior to exchanges of material information or material negotiations with any Person (Purchaser to make itself reasonably available and without unreasonable delay as to same). Such remedial actions and negotiations shall be performed in a commercially reasonable manner, including, to the extent allowed or authorized by applicable Environmental Law or the Governmental Authority having jurisdiction over a remedial action, the use of applicable commercial and/or industrial remediation standards and institutional controls. Seller agrees that, in conducting any remedial action or seeking a particular remedy or agreed remediation standard, it shall not unreasonably interfere with Purchaser’s business operations. Notwithstanding anything to the contrary contained herein, Seller shall not enter into any settlement or judgment, without Purchaser’s prior written consent, such consent not to be unreasonably withheld, that would encumber or impose on the Business or the Purchased Assets any restriction or condition that would materially and adversely affect the Purchaser or the Business. Purchaser may comment on Seller’s proposed remedial actions and may participate at its expense in any meetings or discussions with relevant Governmental Authorities, but Purchaser shall have no right to perform or participate in any aspect of any remedial actions performed or directed by Seller; provided, however, that Purchaser shall provide reasonable access to Seller and its environmental consultants to any property within the control of Purchaser that is subject to any remedial action obligation of Seller under this Agreement. (b) Notwithstanding anything in Section 7.09(a), from and after the Closing, Purchaser shall control all remediation actions and all negotiations with any Governmental Authority or any other Person in respect to those Special Environmental Liabilities set forth on Schedule 7.09(b). For so long as Seller is required to indemnify Purchaser and the Purchaser Indemnified Parties for such Liabilities, Seller shall reimburse Purchaser for the reasonable costs associated with continued implementation of such remedial program within 60 days of receipt of invoices for any remedial work relating thereto. Any material changes to the existing remedial program relating to such Liabilities must be approved in writing by Seller, which approval may not be unreasonably withheld, conditioned or delayed. Purchaser shall provide copies of relevant non-privileged reports and submissions to Seller regarding such remediation activities. (c) Upon completion of a remediation required under this Agreement, as evidenced by: (i) a “no further remediation” letter, or the substantial equivalent, in form and substance reasonably acceptable to Purchaser, from the Governmental Authority having jurisdiction over the location where the remediation has occurred; (ii) written confirmation, in form and substance reasonably acceptable to Purchaser, from the Governmental Authority exercising authority over Seller’s remediation work, that the underlying conditions have been remedied; or (iii) written confirmation, in form and substance reasonably acceptable to Purchaser, from the relevant Person under any remediation agreement between Seller and/or Purchaser and the relevant Person, that the underlying conditions have been remedied, then Seller shall be forever released and discharged by Purchaser and all Purchaser Indemnified Parties from any further related remediation under this Agreement. In any event, Seller’s remediation obligations with respect to the Special Environmental Liabilities shall cease at the termination of the indemnity period set forth in Section 12.06(g).. ARTICLE VIII