DRAFT DOCUMENTS PREPARED IN CONNECTION WITH SUCH MATTERS AND SHALL
REASONABLY CONSIDER THE PURCHASER'S COMMENTS.
THE SELLER SHALL PROVIDE ALL
PLANS, REPORTS, PLEADINGS AND OTHER DOCUMENTS IN DRAFT FORM TO THE PURCHASER IN
A REASONABLE TIME PRIOR TO DELIVERING SUCH DOCUMENTS TO A GOVERNMENTAL ENTITY OR
CLAIMANT, AND THE SELLER SHALL REASONABLY CONSIDER THE PURCHASER'S COMMENTS
THEREON.
WHERE AN ONSITE REMEDIAL ACTION IS REQUIRED, THE SELLER AGREES TO USE
COMMERCIALLY REASONABLE EFFORTS TO AVOID (I) UNREASONABLE INTERFERENCE WITH THE
OPERATIONS OF ANY REAL PROPERTY PROVIDED THERE IS NO CHANGE AFTER THE CLOSING
DATE OR (II) UNREASONABLY RESTRICTING THE ABILITY TO USE ANY REAL PROPERTY FOR
THE USE IT WAS EMPLOYED ON THE CLOSING DATE OR FOR SUBSTANTIALLY SIMILAR USES,
WITHOUT THE CONSENT OF THE PURCHASER, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED.
(D)
THE SELLER AND THE PURCHASER SHALL COOPERATE FULLY IN ALL ASPECTS
OF ANY INVESTIGATION, DEFENSE, PRE-TRIAL ACTIVITIES, TRIAL, COMPROMISE,
SETTLEMENT, DISCHARGE OR REMEDIAL ACTION ARISING IN CONNECTION WITH ANY CLAIM IN
RESPECT OF WHICH INDEMNITY IS SOUGHT, INCLUDING, BUT NOT LIMITED TO, BY
PROVIDING THE OTHER PARTY WITH REASONABLE ACCESS TO:
(I) EMPLOYEES AND OFFICERS
(INCLUDING AS WITNESSES); (II) OTHER RELEVANT INFORMATION; AND (III) FACILITIES;
PROVIDED THAT IN EACH CASE, SUCH ACCESS SHALL BE GIVEN AT REASONABLE TIMES AND
UPON REASONABLE NOTICE AND WITHOUT UNDUE INTERRUPTION TO SUCH PARTY'S BUSINESS
OR PERSONNEL.
SO LONG AS THE SELLER IS IN GOOD FAITH DEFENDING AND/OR RESOLVING
A HISTORICAL ENVIRONMENTAL LIABILITY UNDER THIS SECTION, THE PURCHASER SHALL NOT
COMPROMISE, SETTLE OR IN ANY MANNER INTERFERE WITH THE DEFENSE OR RESOLUTION OF
SUCH HISTORICAL ENVIRONMENTAL LIABILITY.
IF THE SELLER DOES NOT ASSUME THE
DEFENSE AND/OR RESOLUTION OF ANY SUCH HISTORICAL ENVIRONMENTAL LIABILITY CLAIM
OR LITIGATION IN ACCORDANCE WITH THE TERMS HEREOF, THE PURCHASER MAY DEFEND
AND/OR RESOLVE HISTORICAL ENVIRONMENTAL LIABILITY IN A COMMERCIALLY REASONABLE
MANNER, INCLUDING SETTLING CLAIMS OR LITIGATION (AFTER GIVING PRIOR WRITTEN
NOTICE OF THE SAME TO THE SELLER AND OBTAINING THE PRIOR WRITTEN CONSENT OF THE
SELLER WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD, CONDITIONED OR
DELAYED).
(E)
IN CONNECTION WITH ANY REMEDIAL ACTION COVERED BY THE INDEMNITIES
IN SECTIONS 8.02(G) AND 8.02(H), THE SELLER SHALL ONLY BE REQUIRED TO UNDERTAKE
OR REIMBURSE LOSSES INCURRED IN THE COURSE OF REMEDIAL ACTION CONDUCTED IN A
"LOWEST-COST COMMERCIALLY REASONABLE
71
MANNER," WHICH SHALL MEAN, THE LOWEST COST METHODS PERMITTED BY APPLICABLE
ENVIRONMENTAL LAW DETERMINED FROM THE PERSPECTIVE OF A REASONABLE BUSINESS
PERSON ACTING WITHOUT REGARD TO THE AVAILABILITY OF INDEMNIFICATION HEREUNDER TO
ACHIEVE COMPLIANCE WITH ENVIRONMENTAL LAW (TAKING ALL RELEVANT CIRCUMSTANCES
INTO CONSIDERATION, INCLUDING THE LOWEST-COST METHOD THAT WOULD MINIMIZE
EXPOSURE TO ADDITIONAL LOSSES THAT WOULD BE SUBJECT TO INDEMNIFICATION
HEREUNDER).
SUCH LOWEST-COST COMMERCIALLY REASONABLE MANNER SHALL INCLUDE,
WHERE APPROPRIATE, THE USE OF RISK-BASED REMEDIES, INSTITUTIONAL OR ENGINEERING
CONTROLS, OR DEED RESTRICTIONS, PROVIDED SUCH REMEDIES, CONTROLS, OR
RESTRICTIONS DO NOT:
(I) UNREASONABLY INTERFERE WITH THE OPERATIONS OF ANY REAL
PROPERTIES PROVIDED THERE IS NO CHANGE TO SUCH PROPERTIES AFTER THE CLOSING
DATE, OR (II) UNREASONABLY RESTRICT