Common use of Shared Liabilities Clause in Contracts

Shared Liabilities. (a) After the Distribution, GroceryCo and SnackCo shall form the Allocation Committee to determine in good faith whether GroceryCo or SnackCo shall be the Managing Party of any Shared Liability. With respect to any Shared Liability, the Indemnifying Party or the Indemnified Party, as applicable, may, within 15 days after receipt of the notice given by the Indemnified Party pursuant to Section 5.5(a), make a written request to the Allocation Committee for a determination as to the Managing Party (a “Determination Request”). If the Allocation Committee reaches a determination (which shall be made within 15 days after a Determination Request on a matter submitted to the Allocation Committee by either of GroceryCo or SnackCo), then that determination shall be binding on the members of the GroceryCo Group and the SnackCo Group and their respective successors and assigns. In the event that the Allocation Committee cannot reach a determination within 15 days after the making of such Determination Request, then the Allocation Committee shall request the CPR Institute, New York City, to appoint an expert determiner to select the Managing Party. GroceryCo and SnackCo shall be jointly and severally responsible for the fees and expenses of the CPR Institute and the fees and expenses of the expert determiner. The Allocation Committee shall request CPR Institute (or if CPR Institute is not able to act in such a manner, a similar independent Third Party selected by GroceryCo and SnackCo) to appoint the expert determiner within four Business Days after receiving the request. Within two Business Days after the appointment, and with the cooperation of GroceryCo and SnackCo, the expert determiner shall meet separately (via telephone), for no more than 90 minutes, with representatives of GroceryCo and with representatives of SnackCo, to obtain their respective positions on the selection of the Managing Party. The expert determiner shall issue the decision on the selection of the Managing Party to the Allocation Committee within one Business Day after completion of the second meeting. The decision shall not be accompanied with reasons. (b) Either GroceryCo or SnackCo shall be the “Managing Party” of each Shared Liability. In determining which party shall be the Managing Party, the Allocation Committee shall consider as the primary factor in such a determination which party is subject to the greater financial, operational and reputational risk or exposure in connection with such Shared Liability, including the relative Applicable Proportions with respect to such Shared Liability. The Allocation Committee shall also consider such other factors as the Allocation Committee deems appropriate, including, if applicable, which party has control over the potentially relevant documentation and possible witnesses with respect to such Shared Liability and which party has more relevant expertise in managing similar liabilities. (c) The Managing Party shall be responsible for managing, and shall have the authority to manage, the defense and resolution (including, subject to Section 5.5(b)(iv), settlement) of a Shared Liability. The Non-Managing Party shall not be entitled to raise as a defense to its obligations to pay any amount in respect of any Shared Liability that the Non-Managing Party was not consulted in the response to or defense thereof (except to the extent such consultation was required under this Agreement), that such party’s views or opinions as to the conduct of such response to or defense or the reasonableness of any settlement were not accepted or adopted, that such party does not approve of the quality or manner of the response to or defense thereof or that such Shared Liability was incurred by reason of a settlement rather than by a judgment or other determination of liability. (d) Any amount owed in respect of any Shared Liability shall be remitted within 30 days after the party entitled to such amount provides an invoice (including reasonable supporting information with respect thereto) to the party owing such amount. (e) With respect to any Environmental Liability that is a Shared Liability under clause (b) of the definition of “Shared Liability”: (i) Unless the parties jointly agree that one is not necessary, the Managing Party shall retain a qualified independent environmental consultant (a “Consultant”), which Consultant shall be subject to the Non-Managing Party’s approval (such approval not to be unreasonably withheld). The Managing Party’s contract with the Consultant shall expressly state that the Non-Managing Party may rely upon the Consultant’s work. The Managing Party shall undertake such defense, prosecution, investigation, containment and/or remediation in a commercially reasonable fashion in accordance with Environmental Laws for facilities of the type being remediated such that any Remedial Action complies with only the minimum requirements of Environmental Laws and shall not cause, through its own inaction, any undue delay in obtaining written notice from the appropriate Regulatory Authority that no further investigation or remediation is necessary with respect to the matter that is the subject of the indemnification claim, or, if no Regulatory Authority is involved in such matter, either a good faith determination from the Consultant that no further investigation or remediation is required to bring the property that is the subject of the Remedial Action into conformance with the minimum requirements of Environmental Laws for facilities of the type being remediated or other resolution of the investigation or remediation reasonably acceptable to the Non-Managing Party. The Managing Party shall promptly provide copies to the Non-Managing Party of all notices, correspondence, draft reports, submissions, work plans and final reports and shall give the Non-Managing Party a reasonable opportunity (at the Non-Managing Party’s own expense) to comment on any submissions the Managing Party intends to deliver or submit to the appropriate Regulatory Authority prior to such submission; provided, however, that the Managing Party shall not make such submission to the appropriate Regulatory Authority without a prior approval of the Non-Managing Party (which consent shall not be unreasonably withheld or unduly delayed). The Non-Managing Party may, at its own expense, hire its own consultants, attorneys or other professionals to monitor the defense, prosecution, investigation, containment and/or remediation, including any field work undertaken by the Managing Party, and the Managing Party shall provide the Non-Managing Party with copies of the results of all such field work. The type of Remedial Action undertaken by the Managing Party and the results thereof shall be subject to the approval of the Non-Managing Party, which approval shall not be unreasonably withheld. Notwithstanding the above, the Non-Managing Party shall not take any actions that shall unreasonably interfere with the Managing Party’s performance of the defense, prosecution, investigation, containment and/or remediation, nor shall the implementation of the Remedial Action hereunder unreasonably interfere with the Non-Managing Party’s operation of its business, unless otherwise required by a Governmental Authority. (ii) The Non-Managing Party shall grant the Managing Party and its Consultants, or any other qualified consultant or subcontractor engaged by the Managing Party to perform the Remedial Action, and their officers, agents, employees, and authorized representatives (collectively, the “Representatives”) access as reasonably necessary for the completion of the Remedial Action, subject to the following conditions: (A) the Non-Managing Party shall receive at least five working days’ advance notice of the Consultant’s or Representative’s intention to initially enter the properties to conduct the remedial work; however, such time period may be shortened by agreement between the parties; (B) the access to the properties granted by the Non-Managing Party hereunder shall be limited to access reasonably necessary for the execution and supervision of the Remedial Action, and the Managing Party shall use its commercially reasonable efforts to complete the Remedial Action in accordance with the schedule referenced in the scope of work for the relevant property; (C) the Managing Party shall require the Consultants and their Representatives to procure and maintain insurance consistent with industry practices; and (D) following the execution of the Remedial Action, and in no case later than 30 days after on-site activities have been completed, the Managing Party shall undertake commercially reasonable measures (determined from the perspective of an objective commercially reasonable Person who was both paying the cost of restoration and operating the business on the property that was the subject of the Remedial Action) to return the properties to their approximate condition prior to the taking of the Remedial Action (absent the contamination that was the subject of the Remedial Action), and arrange for the prompt removal of all equipment and materials brought to the relevant property by Consultants or any of their Representatives during the course of the Remedial Action.

Shared Liabilities. (a) After the DistributionEffective Time, GroceryCo EPC and SnackCo EHP shall form the Allocation Committee to determine in good faith whether GroceryCo EPC or SnackCo EHP shall be the Managing Party of any Shared Liability. With respect to any Shared Liability, the Indemnifying Party or the Indemnified PartyIndemnitee, as applicable, may, within 15 days after receipt of the notice given by the Indemnified Party Indemnitee pursuant to Section 5.5(a6.05(a), make a written request to the Allocation Committee for a determination as to the Managing Party (a “Determination Request”). If the Allocation Committee reaches a determination (which shall be made within 15 days after a Determination Request on a matter submitted to the Allocation Committee by either of GroceryCo EHP or SnackCoEPC), then that determination shall be binding on the members of the GroceryCo EHP Group and the SnackCo EPC Group and their respective successors and assigns. In the event that the Allocation Committee cannot reach a determination within 15 days after the making of such Determination Request, then the Allocation Committee shall request the CPR Institute, New York City, to appoint an expert determiner to select the Managing Party. GroceryCo EPC and SnackCo EHP shall be jointly and severally responsible for the fees and expenses of the CPR Institute and the fees and expenses of the expert determiner. The Allocation Committee shall request CPR Institute (or if CPR Institute is not able to act in such a manner, a similar independent Third Party selected by GroceryCo EPC and SnackCoEHP) to appoint the expert determiner within four Business Days after receiving the request. Within two Business Days after the appointment, and with the cooperation of GroceryCo EPC and SnackCoEHP, the expert determiner shall meet separately (via telephone), for no more than 90 minutes, with representatives of GroceryCo EPC and with representatives of SnackCoEHP, to obtain their respective positions on the selection of the Managing Party. The expert determiner shall issue the decision on the selection of the Managing Party to the Allocation Committee within one Business Day after completion of the second meeting. The decision shall not be accompanied with reasons. (b) Either GroceryCo EPC or SnackCo EHP shall be the “Managing Party” of each Shared Liability. In determining which party shall be the Managing Party, the Allocation Committee shall consider as the primary factor in such a determination which party is subject to the greater financial, operational and reputational risk or exposure in connection with such Shared Liability, including the relative Applicable Proportions with respect to such Shared Liability. The Allocation Committee shall also consider such other factors as the Allocation Committee deems appropriate, including, if applicable, which party has control over the potentially relevant documentation and possible witnesses with respect to such Shared Liability and which party has more relevant expertise in managing similar liabilities. (c) The Managing Party shall be responsible for managing, and shall have the authority to manage, the defense and resolution (including, subject to Section 5.5(b)(iv6.05(b)(iv), settlement) of a Shared Liability. The Non-Managing Party shall not be entitled to raise as a defense to its obligations to pay any amount in respect of any Shared Liability that the Non-Managing Party was not consulted in the response to or defense thereof (except to the extent such consultation was required under this Agreement), that such party’s views or opinions as to the conduct of such response to or defense or the reasonableness of any settlement were not accepted or adopted, that such party does not approve of the quality or manner of the response to or defense thereof or that such Shared Liability was incurred by reason of a settlement rather than by a judgment or other determination of liability. (d) Any amount owed in respect of any Shared Liability shall be remitted within 30 days after the party entitled to such amount provides an invoice (including reasonable supporting information with respect thereto) to the party owing such amount. (e) With respect to any Environmental Liability that is a Shared Liability under clause (b) of the definition of “Shared Liability”: (i) Unless the parties jointly agree that one is not necessary, the Managing Party shall retain a qualified independent environmental consultant (a “Consultant”), which Consultant shall be subject to the Non-Managing Party’s approval (such approval not to be unreasonably withheld). The Managing Party’s contract with the Consultant shall expressly state that the Non-Managing Party may rely upon the Consultant’s work. The Managing Party shall undertake such defense, prosecution, investigation, containment and/or remediation in a commercially reasonable fashion in accordance with Environmental Laws for facilities of the type being remediated such that any Remedial Action complies with only the minimum requirements of Environmental Laws and shall not cause, through its own inaction, any undue delay in obtaining written notice from the appropriate Regulatory Authority that no further investigation or remediation is necessary with respect to the matter that is the subject of the indemnification claim, or, if no Regulatory Authority is involved in such matter, either a good faith determination from the Consultant that no further investigation or remediation is required to bring the property that is the subject of the Remedial Action into conformance with the minimum requirements of Environmental Laws for facilities of the type being remediated or other resolution of the investigation or remediation reasonably acceptable to the Non-Managing Party. The Managing Party shall promptly provide copies to the Non-Managing Party of all notices, correspondence, draft reports, submissions, work plans and final reports and shall give the Non-Managing Party a reasonable opportunity (at the Non-Managing Party’s own expense) to comment on any submissions the Managing Party intends to deliver or submit to the appropriate Regulatory Authority prior to such submission; provided, however, that the Managing Party shall not make such submission to the appropriate Regulatory Authority without a prior approval of the Non-Managing Party (which consent shall not be unreasonably withheld or unduly delayed). The Non-Managing Party may, at its own expense, hire its own consultants, attorneys or other professionals to monitor the defense, prosecution, investigation, containment and/or remediation, including any field work undertaken by the Managing Party, and the Managing Party shall provide the Non-Managing Party with copies of the results of all such field work. The type of Remedial Action undertaken by the Managing Party and the results thereof shall be subject to the approval of the Non-Managing Party, which approval shall not be unreasonably withheld. Notwithstanding the above, the Non-Managing Party shall not take any actions that shall unreasonably interfere with the Managing Party’s performance of the defense, prosecution, investigation, containment and/or remediation, nor shall the implementation of the Remedial Action hereunder unreasonably interfere with the Non-Managing Party’s operation of its business, unless otherwise required by a Governmental Authority. (ii) The Non-Managing Party shall grant the Managing Party and its Consultants, or any other qualified consultant or subcontractor engaged by the Managing Party to perform the Remedial Action, and their officers, agents, employees, and authorized representatives (collectively, the “Representatives”) access as reasonably necessary for the completion of the Remedial Action, subject to the following conditions: (A) the Non-Managing Party shall receive at least five working days’ advance notice of the Consultant’s or Representative’s intention to initially enter the properties to conduct the remedial work; however, such time period may be shortened by agreement between the parties; (B) the access to the properties granted by the Non-Managing Party hereunder shall be limited to access reasonably necessary for the execution and supervision of the Remedial Action, and the Managing Party shall use its commercially reasonable efforts to complete the Remedial Action in accordance with the schedule referenced in the scope of work for the relevant property; (C) the Managing Party shall require the Consultants and their Representatives to procure and maintain insurance consistent with industry practices; and (D) following the execution of the Remedial Action, and in no case later than 30 days after on-site activities have been completed, the Managing Party shall undertake commercially reasonable measures (determined from the perspective of an objective commercially reasonable Person who was both paying the cost of restoration and operating the business on the property that was the subject of the Remedial Action) to return the properties to their approximate condition prior to the taking of the Remedial Action (absent the contamination that was the subject of the Remedial Action), and arrange for the prompt removal of all equipment and materials brought to the relevant property by Consultants or any of their Representatives during the course of the Remedial Action.