Environmental Responsibilities. (a) The Parties acknowledge that Seller is currently undertaking Property Remedial Measures as set forth on Schedule 8.5(a); provided that Schedule 8.5(a) may be amended prior to the Closing Date in accordance with Section 7.4. Purchaser understands that Seller shall have no obligation to perform any environmental remediation except for the Property Remedial Measures set forth on Schedule 8.5(a), as may be amended pursuant to Section 7.4. Notwithstanding the foregoing, if an ESA or any Environmental Compliance Testing conducted by Purchaser (or any ESA or Environmental Compliance Testing conducted by Seller) prior to the Closing reveals a release of petroleum or Hazardous Substances at any of the Properties which is required to be reported to the Applicable State Environmental Agencies, and which have not been previously reported to Applicable State Environmental Agencies, then Purchaser shall advise Seller and Seller shall promptly, but in all cases prior to Closing, report the same to Applicable State Environmental Agencies. Seller shall thereafter, and through Closing, use commercially reasonable efforts to seek funds, if any, which may be available from applicable local, state or federal agencies in Minnesota or Wisconsin to offset the cost of any required Property Remedial Measures. Seller agrees to be financially responsible for the cost of any Property Remedial Measures to the extent such Property Remedial Measures are not covered by insurance or do not qualify for reimbursement from trust funds from such States or other applicable governmental agency, if such Property Remedial Measures are specifically listed on Schedule 8.5(a), as may be amended pursuant to Section 7.4. “Property Remedial Measures” shall consist of the lowest cost activities reasonably required by applicable Law and by Applicable State Environmental Agencies or other applicable governmental agency to (a) clean up, remove, treat or in any other way address any contaminant or Hazardous Substances in the indoor/outdoor environment; (b) contain, mitigate or otherwise prevent the release or the threat of release or minimize the further release of any contaminant or Hazardous Substances so that it does not migrate or endanger or threaten to endanger public health or welfare of the indoor or outdoor environment; (c) perform pre-remedial studies and investigations and post-remedial monitoring and care required under the Environmental Laws; or (d) recover response or remedial costs or to secure the involvement or cooperation of other Persons potentially responsible for any cost of remediation including, without limitation, prosecuting any legal action. (b) Seller’s obligation to conduct Property Remedial Measures for the Properties identified on Schedule 8.5(a), as may be amended pursuant to Section 7.4, shall be deemed complete for purposes of this Agreement upon receipt by Seller of a written letter, order or statement from Applicable State Environmental Agencies or other appropriate Governmental Authority stating that, subject to the agency’s usual and customary reservation of rights, it will not require Seller or Purchaser to perform further Property Remedial Measures with respect to the release (“Closure Letter”), other than routine monitoring. If requested to do so by Applicable State Environmental Agencies or other appropriate Governmental Authority in connection with the performance of the Property Remedial Measures or the issuance of the Closure Letter, the Parties acknowledge that Seller or Purchaser may be asked to place reasonable activity and use limitations (“AULs”) on the Properties, including, if requested, prohibiting the use of groundwater under the Properties for potable purposes and/or restricting the use of the Properties to non-residential purposes. Seller and Purchaser, as applicable, shall promptly provide a copy of the Closure Letter to the other Party upon receipt. (c) With respect to Unknown Pollution, on the Closing Date, Purchaser shall procure and pay for a PLL Policy covering all of the Properties. Pursuant to Section 8.7(c) of the Stock Purchase Agreement, the Stock Sellers will contribute Seventy-Five Thousand and 00/100 Dollars ($75,000.00) towards payment of the premium for the PLL Policy. Such PLL Policy, to the extent available in the marketplace, shall cover remediation costs and third-party liability for Unknown Pollution as well as third-party liability for Known Pollution and shall identify Seller as an additional insured. The PLL Policy shall also include coverage for New Pollution. The PLL Policy shall be written with no less than a five (5) year term and shall have limits of $5,000,000 and a self-insured retention (“SIR”) of $50,000. Purchaser shall be responsible for the payment of the SIR. For the avoidance of doubt, Seller shall have no responsibility for losses incurred after five (5) years from the Closing Date. (d) If the Property Remedial Measures required under Section 8.5(a) have not been completed prior to the Closing Date, Seller shall remain financially responsible for the cost of any such incomplete Property Remedial Measures to the extent such Property Remedial Measures are not covered by insurance or do not qualify for reimbursement from trust funds from such States or other applicable Governmental Authority. If the Property Remedial Measures required under Section 8.5(a) have not been completed at the time of Closing, Seller shall deposit the amount reflected on Schedule 8.5(d) (the “Property Environmental Remediation Escrow”) (which Schedule shall be delivered by Seller to Purchaser at the Closing and which amount will be determined by Seller, in consultation with Purchaser, based on Seller’s reasonable estimate for the remaining expected remediation costs) into the Escrow Account to provide for the expected remediation costs for such sites. From and after the Closing Date, Seller shall use its best efforts to complete the Property Remedial Measures set forth on Schedule 8.5(a); provided, however, that (i) Seller shall keep Purchaser reasonably informed as to its progress in completing the Property Remedial Measures set forth on Schedule 8.5(a) and (ii) Purchaser shall have the right to take over responsibility for completion of the Property Remedial Measures and direct the completion of the Property Remedial Measures (which shall remain at Seller’s cost and expense) if (x) Seller is in Breach of its responsibilities under this Section 8.5, (y) Purchaser has provided written notice of such Breach to Seller, and (z) Seller fails to remedy such Breach within thirty (30) days of receipt of such notice. For the avoidance of doubt, to the extent one Party receives insurance proceeds to cover Property Remedial Measures undertaken by the other Party, the Party receiving such insurance proceeds shall reimburse the other Party but only to the extent of the amounts actually expended by such Party in undertaking the Property Remedial Measures. In the event the Property Environmental Remediation Escrow is not sufficient to pay the costs of any incomplete Property Remedial Measures, Section 5.11 and this Section 8.5 shall be deemed to have been Breached by Seller and Purchaser shall be entitled to indemnification in accordance with the terms of Article X. The Property Environmental Remediation Escrow shall be distributed to pay costs and expenses incurred in performing Property Remedial Measures. Distributions from the Property Environmental Remediation Escrow will be considered payments made and amounts expended by Seller. (e) Except to the extent set forth in Section 5.11, this Section 8.5 and Article X, Seller shall have no other obligation to Purchaser, and Purchaser hereby releases and discharges Seller, for any Losses whether arising in law or equity, known or unknown, or arising before or after the Closing, in connection with or relating to the environment at, on, under or near the Properties, including but not limited to any such matters relating to the Fuel Equipment or releases of petroleum products or Hazardous Substances. (f) For purposes of clarity, after Closing, if Purchaser excavates or removes any soil on or from the Properties other than in connection with taking Property Remedial Measures set forth on Schedule 8.5(a), as may be amended pursuant to Section 7.4, or as contemplated by Schedule 8.5(d), Purchaser shall be responsible for all costs and expenses related to such excavation or removal (including, without limitation, all costs of disposal of such soil), except to the extent that such excavation or removal is a result of the existence of a Breach of Section 5.11 or this Section 8.5 by Seller, in which event Purchaser shall be indemnified for such costs and expenses in accordance with the terms of Article X of this Agreement.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (CrossAmerica Partners LP)
Environmental Responsibilities. (a) The Parties acknowledge that Seller Company is currently undertaking Property Stock Remedial Measures as set forth on Schedule 8.5(a8.7(a); provided that Schedule 8.5(a8.7(a) may be amended prior to the Closing Date in accordance with Section 7.4. Purchaser understands that Seller Sellers shall have no obligation to perform any environmental remediation except for the Property Stock Remedial Measures set forth on Schedule 8.5(a8.7(a), as may be amended pursuant to Section 7.4. Notwithstanding the foregoing, if an ESA or any Environmental Compliance Testing conducted by Purchaser (or any ESA or Environmental Compliance Testing conducted by SellerSellers) prior to the Closing reveals a release of petroleum or Hazardous Substances at any of the Properties Locations which is required to be reported to the Applicable State Environmental Agencies, and which have not been previously reported to Applicable State Environmental Agencies, then Purchaser shall advise Seller Sellers, as applicable, and Seller Sellers and Company shall promptly, but in all cases prior to Closing, report the same to Applicable State Environmental Agencies. Seller Sellers shall thereafter, and through Closing, use commercially reasonable efforts to seek funds, if any, which may be available from applicable local, state or federal agencies in Minnesota Minnesota, Michigan, South Dakota or Wisconsin to offset the cost of any required Property Stock Remedial Measures. Seller agrees Sellers agree to be financially responsible for the cost of any Property Stock Remedial Measures to the extent such Property Stock Remedial Measures are not covered by insurance or do not qualify for reimbursement from trust funds from such States or other applicable governmental agency, if such Property Stock Remedial Measures are specifically listed on Schedule 8.5(a8.7(a), as may be amended pursuant to Section 7.4. “Property Stock Remedial Measures” shall consist of the lowest cost activities reasonably required by applicable Law and by Applicable State Environmental Agencies or other applicable governmental agency to (a) clean up, remove, treat or in any other way address any contaminant or Hazardous Substances in the indoor/outdoor environment; (b) contain, mitigate or otherwise prevent the release or the threat of release or minimize the further release of any contaminant or Hazardous Substances so that it does not migrate or endanger or threaten to endanger public health or welfare of the indoor or outdoor environment; (c) perform pre-remedial studies and investigations and post-remedial monitoring and care required under the Environmental Laws; or (d) recover response or remedial costs or to secure the involvement or cooperation of other Persons potentially responsible for any cost of remediation including, without limitation, prosecuting any legal action.
(b) SellerCompany’s obligation to conduct Property Stock Remedial Measures for the Properties Locations identified on Schedule 8.5(a8.7(a), as may be amended pursuant to Section 7.4, shall be deemed complete for purposes of this Agreement upon receipt by Seller Company of a written letter, order or statement from Applicable State Environmental Agencies or other appropriate Governmental Authority stating that, subject to the agency’s usual and customary reservation of rights, it will not require Seller or Purchaser Company to perform further Property Stock Remedial Measures with respect to the release (“Closure Letter”), other than routine monitoring. If requested to do so by Applicable State Environmental Agencies or other appropriate Governmental Authority in connection with the performance of the Property Stock Remedial Measures or the issuance of the Closure Letter, the Parties acknowledge that Seller or Purchaser Company may be asked to place reasonable activity and use limitations (“AULs”) on the PropertiesLocations, including, if requested, prohibiting the use of groundwater under the Properties Locations for potable purposes and/or restricting the use of the Properties Locations to non-residential purposes. Seller and Purchaser, as applicable, Company shall promptly provide a copy of the Closure Letter to the other Party Purchaser and Sellers upon receipt.
(c) With respect to Unknown Pollution, on the Closing Date, Purchaser shall procure and pay for a PLL Policy covering all of the PropertiesLocations. Pursuant Sellers agree to Section 8.7(c) of the Stock Purchase Agreement, the Stock Sellers will contribute Seventy-Five Thousand and 00/100 Dollars ($75,000.00) towards payment of the premium for the such PLL Policy, which shall be deducted at Closing. Such PLL Policy, to the extent available in the marketplace, shall cover remediation costs and third-party liability for Unknown Pollution as well as third-party liability for Known Pollution and shall identify Seller Sellers, Company, and Team Investments as an additional insuredinsureds. The PLL Policy shall also include coverage for New Pollution. The PLL Policy shall be written with no less than a five (5) year term and shall have limits of $5,000,000 and a self-insured retention (“SIR”) of $50,000. Purchaser shall be responsible for the payment of the SIR. For the avoidance of doubt, Seller Sellers shall have no responsibility for losses incurred after five (5) years from the Closing Date.
(d) If the Property Stock Remedial Measures required under this Section 8.5(a8.7(a) have not been completed prior to the Closing Date, Seller Sellers shall remain financially responsible for the cost of any such incomplete Property Stock Remedial Measures to the extent such Property Stock Remedial Measures are not covered by insurance or do not qualify for reimbursement from trust funds from such States or other applicable Governmental Authoritygovernmental agency. If the Property Stock Remedial Measures required under Section 8.5(a8.7(a) have not been completed at the time of ClosingClosing (other than Stock Remedial Measures relating to Excluded Assets), Seller Sellers shall deposit the amount reflected on Schedule 8.5(d8.7(d) (the “Property Stock Environmental Remediation Escrow”) (which Schedule shall be delivered by Seller Sellers to Purchaser at the Closing and which amount will be determined by SellerSellers, in consultation with Purchaser, based on Seller’s Sellers’ reasonable estimate estimates for the remaining expected remediation costs) into the Escrow Account to provide for the expected remediation costs for such sites. From and after the Closing Date, Seller Sellers shall use its their best efforts to complete the Property Stock Remedial Measures set forth on Schedule 8.5(a8.7(a); provided, however, that (i) Seller Sellers shall keep Purchaser and Company reasonably informed as to its their progress in completing the Property Stock Remedial Measures set forth on Schedule 8.5(a8.7(a) and (ii) Company and Purchaser shall have the right to take over responsibility for completion of the Property Stock Remedial Measures and direct the completion of the Property Stock Remedial Measures (which shall remain at Seller’s Sellers’ cost and expense) if (x) Seller is Sellers are in Breach of its their responsibilities under this Section 8.58.7, (y) Purchaser has provided written notice of such Breach to SellerSellers, and (z) Seller fails Sellers fail to remedy such Breach within thirty (30) days of receipt of such notice. For the avoidance of doubt, to the extent one Party receives insurance proceeds to cover Property Stock Remedial Measures undertaken by the other Party, the Party receiving such insurance proceeds shall reimburse the other Party but only to the extent of the amounts actually expended by such Party in undertaking the Property Stock Remedial Measures. In the event the Property Stock Environmental Remediation Escrow is not sufficient to pay the costs of any incomplete Property Stock Remedial Measures, Section 5.11 5.20 and this Section 8.5 8.7 shall be deemed to have been Breached by Seller Sellers and Purchaser shall be entitled to indemnification in accordance with the terms of Article X. The Property Stock Environmental Remediation Escrow shall be distributed to pay costs and expenses incurred in performing Property Stock Remedial Measures. Distributions from the Property Stock Environmental Remediation Escrow will be considered payments made and amounts expended by SellerSellers.
(e) Except to the extent set forth in Section 5.115.20, this Section 8.5 8.7 and Article XSection 10.2, Seller Sellers shall have no other obligation to Purchaser, and Purchaser hereby releases and discharges SellerSellers, for any Losses whether arising in law or equity, known or unknown, or arising before or after the Closing, in connection with or relating to the environment at, on, under or near the PropertiesLocations and the Previous Locations, including but not limited to any such matters relating to the Fuel Equipment or releases of petroleum products or Hazardous Substances.
(f) For purposes of clarity, after Closing, if Purchaser or Company excavates or removes any soil on or from the Properties Locations other than in connection with taking Property Stock Remedial Measures set forth on Schedule 8.5(a8.7(a), as may be amended pursuant to Section 7.4, or as contemplated by Schedule 8.5(d8.7(d), Purchaser shall be responsible for all costs and expenses related to such excavation or removal (including, without limitation, all costs of disposal of such soil), except to the extent that such excavation or removal is a result of the existence of a Breach of Section 5.11 5.20 or this Section 8.5 8.7 by SellerSellers, in which event Purchaser shall be indemnified for such costs and expenses in accordance with the terms of Article X of this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (CrossAmerica Partners LP)
Environmental Responsibilities. (a) The Parties acknowledge that Seller is currently undertaking Property Remedial Measures as set forth on Schedule 8.5(a); provided that Schedule 8.5(a) may be amended prior to the Closing Date in accordance with Section 7.4. Purchaser understands that Seller shall have no obligation to perform any environmental remediation except If a Phase I or TSTT (but, for the Property Remedial Measures set forth on Schedule 8.5(a)avoidance of doubt, as may be amended pursuant to Section 7.4. Notwithstanding the foregoing, if an ESA or not any Environmental Compliance Testing Phase II) conducted by Purchaser Buyer (or any ESA or Environmental Compliance Testing TSTT conducted by Seller) prior to the Closing reveals a release reveals, or prior to Closing, Buyer or Seller otherwise becomes aware of, any Releases of Hazardous Materials or petroleum spills (or Hazardous Substances at such Releases or petroleum spills are otherwise discovered prior to Closing) at, on, or migrating from the Facilities or any other property associated with the Business, or any other environmental contamination of any of the Properties Facilities or Business, which is are required to be reported to the Applicable State Environmental Agenciesa Governmental Authority, and which have not been previously reported to Applicable State Environmental Agenciesreported, then Purchaser the Party discovering such Release of Hazardous Materials shall advise Seller the other Party, and Seller shall shall, when required by Environmental Laws, promptly, but in all cases prior to Closing, report the same to Applicable State such Governmental Authority in accordance with applicable Environmental AgenciesLaws and the definition and schedule of Known Releases, Section 4.15(f), shall be amended to specifically include all such matters. Seller shall thereafterthereafter diligently and in a timely manner undertake and complete Remedial Measures (as described below) for all Known Releases, consistent with a commercial use standard and the requirements of applicable Governmental Authority; provided if such Remedial Measures relating to the Known Releases cannot be completed by to the Closing Date, then Buyer agrees to assume such liabilities in accordance with Section 2.03(h) and manage the completion of such Remedial Measures; provided Seller shall indemnify Buyer for the third party costs of such Remedial Measures, to the extent not recovered from the Assigned Insurance Policies, state tank funds, assigned escrows, New PLL Policy or any other third party source. Notwithstanding the forgoing, if any Release is caused by Buyer or its TSTT Contractor, or is a Phase II Identified Release, (i) Seller shall not be required to update the definition and schedule of Known Releases, Section 4.15(f), or indemnify Buyer with respect to any such Release, and (ii) Buyer shall be obligated to in a timely manner undertake and complete Remedial Measures (as described below) for all such Releases consistent with a commercial use standard and the requirements of applicable Governmental Authority.
(b) Seller shall diligently and in a timely manner continue to perform (or ensure that third parties contractually obligated to perform such Remedial Measures continue to perform) and complete (where possible) Remedial Measures regarding the Known Releases through Closingthe Closing Date. Seller shall, to the extent not recovered from the Assigned Insurance Policies, state tank funds, assigned escrows, New PLL Policy or any other third party source with respect to such Known Releases, indemnify Buyer from and against all Losses to Buyer (including those resulting from or relating to demands, claims, actions or causes of action, assessments or other losses, costs and expenses relating thereto, third party interest and penalties thereon and reasonable attorneys’ fees and related disbursements and other expenses in respect thereof) by reason of or related to the Known Releases (except those caused by Buyer or its TSTT Contractor or is a Phase II Identified Release). Seller’s financial responsibility and obligations to diligently and in a timely manner undertake such Remedial Measures prior to the Closing Date and to indemnify Buyer as described in this Section 6.05 are: (i) subject to but in no way conditioned or limited by the availability of Assigned Insurance Policies, state tank funds, assigned escrows, New PLL Policy or any other third party source; and (ii) are not subject to the procedures described in Article VIII.
(c) Notwithstanding anything herein to the contrary, Seller’s indemnification and financial responsibility obligations to be performed from and after Closing with respect to Known Releases for which Seller is responsible as provided in this Agreement: (x) will be satisfied solely based on (and shall be limited to) an offset to any future amounts payable under the Installment Payments (to the extent not recovered from the Assigned Insurance Policies, state tank funds, assigned escrows, New PLL Policy or any other third party source), (y) shall expire on the second (2nd) anniversary of the Closing Date, and (z) shall be reduced by any amounts recovered by Buyer from the Assigned Insurance Policies, state tank funds, assigned escrows, New PLL Policy or any other third party source (with Seller retaining the rights to any escrows associated with such Known Releases relating to any previous acquisitions completed by Seller which are not assignable). Notwithstanding anything herein to the contrary, to the extent there are any open claims or reasonably identified prospective claims for which an Indemnification Notice has been delivered for such indemnification obligations of the Company within such two (2) year period, Buyer and Seller will agree upon an amount from such Installment Payments to be reserved in escrow (deposited with Computershare Trust Company, N.A., or another third party escrow agent if agreed to by Transit and GPMI, under the terms of a customary and reasonable escrow agreement to be entered by the escrow agent, Transit, and GPMI, with Transit and GPMI acting reasonably and in good faith) to cover such claims; provided, further, that such costs will be reduced if and to the extent amounts are recovered by Buyer under any state or federal UST System or AST System funding mechanism to the extent actually received or credited to the Indemnified Party from the applicable Governmental Authority, or escrows established by Seller or assigned with respect to such Known Releases to the extent actually received or credited to Xxxxx (with Seller retaining the rights to any escrows associated with such Known Releases relating to any previous acquisitions completed by Seller which are not assignable). For avoidance of doubt, Xxxxx agrees to first seek to recover all such costs from the Assigned Insurance Policies, state tank funds, assigned escrows, New PLL Policy or any other third party source prior to seeking to recover from Seller.
(d) Without in any way limiting Seller’s financial responsibilities and indemnification obligations set forth in Section 6.04 or Section 6.05(a) above, Buyer shall undertake and proceed with Remedial Measures in a reasonably expeditious manner, consistent with commercial standards and in compliance with any and all deadlines and other requirements provided by a Governmental Authority. Seller and Xxxxx shall cooperate with each other to facilitate the performance of the Remedial Measures. Seller shall have the right to review and approve, in its sole discretion, any financial expenditures related to the Remedial Measures for which Seller has financial responsibility hereunder. Xxxxx agrees to use commercially reasonable efforts to seek maintain (and refrain from knowing or willful actions that would compromise materially) the potential eligibility of the Facilities to participate in and receive the benefits of the Assigned Insurance Policies, state tank funds, if anyassigned escrows, New PLL Policy or any other third party source, for which Seller Entities or Buyer may be available from applicable local, state or federal agencies in Minnesota or Wisconsin eligible. The obligation to offset the cost of any required Property Remedial Measures. Seller agrees to be financially responsible for the cost of any Property conduct Remedial Measures for
(e) Nothing contained in this Section 6.05 or anywhere else in this Agreement shall be construed as an admission regarding any responsibility, wrongdoing, liability, or damages by Seller. Accordingly, Seller reserves its right to the extent such Property Remedial Measures are not covered pursue any and all claims for Losses, damages, injunctive relief, declaratory relief, indemnity, and contribution that it has against third parties, and nothing contained in this Agreement shall alter or in any way affect any right Seller may have against any third parties or any defenses Seller may have to any and all claims by insurance any third parties.
(f) Within thirty (30) days after Closing, or do not qualify for reimbursement from trust funds from such States or other applicable governmental agency, if such Property Remedial Measures are specifically listed on Schedule 8.5(a), as may be amended pursuant to Section 7.4. “Property Remedial Measures” shall consist of the lowest cost activities reasonably required by applicable Law if earlier, Buyer shall deliver fully completed and by Applicable State Environmental Agencies signed “Notification for Underground Storage Tanks,” “Notification for Aboveground Storage Tanks” or other similarly required registration or notice forms or documents to the applicable governmental agency to (a) clean up, remove, treat or in any other way address any contaminant or Hazardous Substances in the indoor/outdoor environment; (b) contain, mitigate or otherwise prevent the release or the threat of release or minimize the further release of any contaminant or Hazardous Substances so Governmental Authorities where UST Systems and AST Systems are located for every UST System and AST System that it does not migrate or endanger or threaten to endanger public health or welfare is a part of the indoor Purchased Assets (and for which such a form is required by applicable Environmental Law to be filed) listing Buyer as the owner and/or operator of such UST Systems and AST Systems, and Buyer shall thereafter take all actions necessary for coverage and rights to compensation from, under applicable Law, any available state or outdoor environment; (c) perform pre-remedial studies federal funds for UST Systems and investigations AST Systems and post-remedial monitoring and care otherwise establish financial responsibility required under Environmental Law for such UST Systems and AST Systems. The provisions of this Section 6.05(f) shall survive the Environmental Laws; or (d) recover response or remedial costs or to secure the involvement or cooperation of other Persons potentially responsible for any cost of remediation including, without limitation, prosecuting any legal actionClosing.
(bg) Seller’s obligation to conduct Property Remedial Measures for the Properties identified on Schedule 8.5(a), as may be amended pursuant to Section 7.4, shall be deemed complete for purposes of this Agreement upon receipt by Seller of a written letter, order or statement from Applicable State Environmental Agencies or other appropriate Governmental Authority stating that, subject to the agency’s usual and customary reservation of rights, it will not require Seller or Purchaser to perform further Property Remedial Measures with respect to the release (“Closure Letter”), other than routine monitoring. If requested to do so by Applicable State Environmental Agencies or other appropriate Governmental Authority in connection with the performance of the Property Remedial Measures or the issuance of the Closure Letter, the Parties acknowledge that Seller or Purchaser may be asked to place reasonable activity and use limitations (“AULs”) on the Properties, including, if requested, prohibiting the use of groundwater under the Properties for potable purposes and/or restricting the use of the Properties to non-residential purposes. Seller and Purchaser, as applicable, shall promptly provide a copy of the Closure Letter to the other Party upon receipt.
(c) With respect to Unknown Pollution, on the Closing Date, Purchaser shall procure and pay for a PLL Policy covering all of the Properties. Pursuant to Section 8.7(c) of the Stock Purchase Agreement, the Stock Sellers will contribute Seventy-Five Thousand and 00/100 Dollars ($75,000.00) towards payment of the premium for the PLL Policy. Such PLL Policy, to the extent available in the marketplace, shall cover remediation costs and third-party liability for Unknown Pollution as well as third-party liability for Known Pollution and shall identify Seller as an additional insured. The PLL Policy shall also include coverage for New Pollution. The PLL Policy shall be written with no less than a five (5) year term and shall have limits of $5,000,000 and a self-insured retention (“SIR”) of $50,000. Purchaser shall be responsible for the payment of the SIR. For the avoidance of doubt, Seller shall have no responsibility for losses incurred after five (5) years from the Closing Date.
(d) If the Property Remedial Measures required under Section 8.5(a) have not been completed prior to the Closing Date, Seller shall remain financially responsible for the cost of any such incomplete Property Remedial Measures to the extent such Property Remedial Measures are not covered by insurance or do not qualify for reimbursement from trust funds from such States or other applicable Governmental Authority. If the Property Remedial Measures required under Section 8.5(a) have not been completed at the time of Closing, Seller shall deposit the amount reflected on Schedule 8.5(d) (the “Property Environmental Remediation Escrow”) (which Schedule shall be delivered by Seller to Purchaser at the Closing and which amount will be determined by Seller, in consultation with Purchaser, based on Seller’s reasonable estimate for the remaining expected remediation costs) into the Escrow Account to provide for the expected remediation costs for such sites. From and after the Closing Date, Seller shall use its best efforts to complete the Property Remedial Measures set forth on Schedule 8.5(a); provided, however, that (i) Seller shall keep Purchaser reasonably informed as to its progress in completing the Property Remedial Measures set forth on Schedule 8.5(a) and (ii) Purchaser shall have the right to take over responsibility for completion of the Property Remedial Measures and direct the completion of the Property Remedial Measures (which shall remain at Seller’s cost and expense) if (x) Seller is in Breach of its responsibilities under this Section 8.5, (y) Purchaser has provided written notice of such Breach to Seller, and (z) Seller fails to remedy such Breach within Within thirty (30) days of receipt of such notice. For the avoidance of doubt, to the extent one Party receives insurance proceeds to cover Property Remedial Measures undertaken by the other Party, the Party receiving such insurance proceeds shall reimburse the other Party but only to the extent of the amounts actually expended by such Party in undertaking the Property Remedial Measures. In the event the Property Environmental Remediation Escrow is not sufficient to pay the costs of any incomplete Property Remedial Measures, Section 5.11 and this Section 8.5 shall be deemed to have been Breached by Seller and Purchaser shall be entitled to indemnification in accordance with the terms of Article X. The Property Environmental Remediation Escrow shall be distributed to pay costs and expenses incurred in performing Property Remedial Measures. Distributions from the Property Environmental Remediation Escrow will be considered payments made and amounts expended by Seller.
(e) Except to the extent set forth in Section 5.11, this Section 8.5 and Article X, Seller shall have no other obligation to Purchaser, and Purchaser hereby releases and discharges Seller, for any Losses whether arising in law or equity, known or unknown, or arising before or after the Closing, in connection with or relating to the environment at, on, under or near the Properties, including but not limited to any such matters relating to the Fuel Equipment or releases of petroleum products or Hazardous Substances.
(f) For purposes of clarity, after Closing, if Purchaser excavates or removes any soil on or from the Properties other than in connection with taking Property Remedial Measures set forth on Schedule 8.5(a), as may be amended pursuant to Section 7.4Closing Date, or as contemplated required by Schedule 8.5(d)applicable Law if earlier, Purchaser Buyer shall be responsible deliver a fully completed and signed application and associated information or forms and fee payments to applicable Governmental Authorities for all costs each Real Property to secure the transfer of any Environmental Permits and expenses related to otherwise establish Buyer as the new owner, operator and permittee for such excavation or removal (including, without limitationReal Property as of the Closing Date, all costs as required by applicable Environmental Law. The provisions of disposal of such soil), except to the extent that such excavation or removal is a result of the existence of a Breach of Section 5.11 or this Section 8.5 by Seller, in which event Purchaser 6.05(g) shall be indemnified for such costs and expenses in accordance with survive the terms of Article X of this Agreement.Closing
Appears in 1 contract
Environmental Responsibilities. (a) The Parties acknowledge that Seller is currently undertaking Property Remedial Measures as set forth on Schedule 8.5(a); provided that Schedule 8.5(a) may be amended prior to the Closing Date in accordance with Section 7.4. Purchaser understands that Seller shall have no obligation to perform any environmental remediation except for the Property Remedial Measures set forth on Schedule 8.5(a), as may be amended pursuant to Section 7.4. Notwithstanding the foregoing, if an ESA or any Environmental Compliance Testing conducted by Purchaser (or any ESA or Environmental Compliance Testing conducted by Seller) prior to the Closing reveals a release of petroleum or Hazardous Substances at any of the Properties which is required to be reported to the Applicable State Environmental Agencies, and which have not been previously reported to Applicable State Environmental Agencies, then Purchaser shall advise Seller and Seller shall promptly, but in all cases prior to Closing, report the same to Applicable State Environmental Agencies. Seller shall thereafter, and through Closing, use commercially reasonable efforts to seek funds, if any, which may be available from applicable local, state or federal agencies in Minnesota or Wisconsin to offset the cost of any required Property Remedial Measures. Seller agrees to be financially responsible for the cost of any Property Remedial Measures to the extent such Property Remedial Measures are not covered by insurance or do not qualify for reimbursement from trust funds from such States or other applicable governmental agency, if such Property Remedial Measures are specifically listed on Schedule 8.5(a), as may be amended pursuant to Section 7.4. “Property Remedial Measures” shall consist of the lowest cost activities reasonably required by applicable Law and by Applicable State Environmental Agencies or other applicable governmental agency to (a) clean up, remove, treat or in any other way address any contaminant or Hazardous Substances in the indoor/outdoor environment; (b) contain, mitigate or otherwise prevent the release or the threat of release or minimize the further release of any contaminant or Hazardous Substances so that it does not migrate or endanger or threaten to endanger public health or welfare of the indoor or outdoor environment; (c) perform pre-remedial studies and investigations and post-remedial monitoring and care required under the Environmental Laws; or (d) recover response or remedial costs or to secure the involvement or cooperation of other Persons potentially responsible for any cost of remediation including, without limitation, prosecuting any legal action.
(b) Seller’s obligation to conduct Property Remedial Measures for the Properties identified on Schedule 8.5(a), as may be amended pursuant to Section 7.4, shall be deemed complete for purposes of this Agreement upon receipt by Seller of a written letter, order or statement from Applicable State Environmental Agencies or other appropriate Governmental Authority stating that, subject to the agency’s usual and customary reservation of rights, it will not require Seller or Purchaser to perform further Property Remedial Measures with respect to the release (“Closure Letter”), other than routine monitoring. If requested to do so by Applicable State Environmental Agencies or other appropriate Governmental Authority in connection with the performance of the Property Remedial Measures or the issuance of the Closure Letter, the Parties acknowledge that Seller or Purchaser may be asked to place reasonable activity and use limitations (“AULs”) on the Properties, including, if requested, prohibiting the use of groundwater under the Properties for potable purposes and/or restricting the use of the Properties to non-residential purposes. Seller and Purchaser, as applicable, shall promptly provide a copy of the Closure Letter to the other Party upon receipt.
(c) With respect to Unknown Pollution, on the Closing Date, Purchaser shall procure and pay for a PLL Policy covering all of the Properties. Pursuant to Section 8.7(c) of the Stock Purchase Agreement, the Stock Sellers will contribute Seventy-Five Thousand and 00/100 Dollars ($75,000.00) towards payment of the premium for the PLL Policy. Such PLL Policy, to the extent available in the marketplace, shall cover remediation costs and third-party liability for Unknown Pollution as well as third-party liability for Known Pollution and shall identify Seller as an additional insured. The PLL Policy shall also include coverage for New Pollution. The PLL Policy shall be written with no less than a five (5) year term and shall have limits of $5,000,000 and a self-insured retention (“SIR”) of $50,000. Purchaser shall be responsible for the payment of the SIR. For the avoidance of doubt, Seller shall have no responsibility for losses incurred after five (5) years from the Closing Date.
(d) If the Property Remedial Measures required under Section 8.5(a) have not been completed prior to the Closing Date, Seller shall remain financially responsible for the cost of any such incomplete Property Remedial Measures to the extent such Property Remedial Measures are not covered by insurance or do not qualify for reimbursement from trust funds from such States or other applicable Governmental Authority. If the Property Remedial Measures required under Section 8.5(a) have not been completed at the time of Closing, Seller shall deposit the amount reflected on Schedule 8.5(d) (the “Property Environmental Remediation Escrow”) (which Schedule shall be delivered by Seller to Purchaser at the Closing and which amount will be determined by Seller, in consultation with Purchaser, based on Seller’s reasonable estimate for the remaining expected remediation costs) into the Escrow Account to provide for the expected remediation costs for such sites. From and after the Closing Date, Seller shall use its best efforts to complete the Property Remedial Measures set forth on Schedule 8.5(a); provided, however, that (i) Seller shall keep Purchaser reasonably informed as to its progress in completing the Property Remedial Measures set forth on Schedule 8.5(a) and (ii) Purchaser shall have the right to take over responsibility for completion of the Property Remedial Measures and direct the completion of the Property Remedial Measures (which shall remain at Seller’s cost and expense) if (x) Seller is in Breach of its responsibilities under this Section 8.5, (y) Purchaser has provided written notice of such Breach to Seller, and (z) Seller fails to remedy such Breach within thirty (30) days of receipt of such notice. For the avoidance of doubt, to the extent one Party receives insurance proceeds to cover Property Remedial Measures undertaken by the other Party, the Party receiving such insurance proceeds shall reimburse the other Party but only to the extent of the amounts actually expended by such Party in undertaking the Property Remedial Measures. In the event the Property Environmental Remediation Escrow is not sufficient to pay the costs of any incomplete Property Remedial Measures, Section 5.11 and this Section 8.5 shall be deemed to have been Breached by Seller and Purchaser shall be entitled to indemnification in accordance with the terms of Article X. The Property Environmental Remediation Escrow shall be distributed to pay costs and expenses incurred in performing Property Remedial Measures. Distributions from the Property Environmental Remediation Escrow will be considered payments made and amounts expended by Seller.
(e) Except to the extent set forth in Section 5.11, this Section 8.5 and Article X, Seller shall have no other obligation to Purchaser, and Purchaser hereby releases and discharges Seller, for any Losses whether arising in law or equity, known or unknown, or arising before or after the Closing, in connection with or relating to the environment at, on, under or near the Properties, including but not limited to any such matters relating to the Fuel Equipment or releases of petroleum products or Hazardous Substances.
(f) For purposes of clarity, after Closing, if Purchaser excavates or removes any soil on or from the Properties other than in connection with taking Property Remedial Measures set forth on Schedule 8.5(a), as may be amended pursuant to Section 7.4, or as contemplated by Schedule 8.5(d), Purchaser shall be responsible for all costs and expenses related to such excavation or removal (including, without limitation, all costs of disposal of such soil), except to the extent that such excavation or removal is a result of the existence of a Breach of Section 5.11 or this Section 8.5 by Seller, in which event Purchaser shall be indemnified for such costs and expenses in accordance with the terms of Article X of this Agreement.,
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Environmental Responsibilities. (a) The Parties acknowledge that Seller Company is currently undertaking Property Stock Remedial Measures as set forth on Schedule 8.5(a8.7(a); provided that Schedule 8.5(a8.7(a) may be amended prior to the Closing Date in accordance with Section 7.4. Purchaser understands that Seller Sellers shall have no obligation to perform any environmental remediation except for the Property Stock Remedial Measures set forth on Schedule 8.5(a8.7(a), as may be amended pursuant to Section 7.4. Notwithstanding the foregoing, if an ESA or any Environmental Compliance Testing conducted by Purchaser (or any ESA or Environmental Compliance Testing conducted by SellerSellers) prior to the Closing reveals a release of petroleum or Hazardous Substances at any of the Properties Locations which is required to be reported to the Applicable State Environmental Agencies, and which have not been previously reported to Applicable State Environmental Agencies, then Purchaser shall advise Seller Sellers, as applicable, and Seller Sellers and Company shall promptly, but in all cases prior to Closing, report the same to Applicable State Environmental Agencies. Seller Sellers shall thereafter, and through Closing, use commercially reasonable efforts to seek funds, if any, which may be available from applicable local, state or federal agencies in Minnesota Minnesota, Michigan, South Dakota or Wisconsin to offset the cost of any required Property Stock Remedial Measures. Seller agrees Sellers agree to be financially responsible for the cost of any Property Stock Remedial Measures to the extent such Property Stock Remedial Measures are not covered by insurance or do not qualify for reimbursement from trust funds from such States or other applicable governmental agency, if such Property Stock Remedial Measures are specifically listed on Schedule 8.5(a8.7(a), as may be amended pursuant to Section 7.4. “Property Stock Remedial Measures” shall consist of the lowest cost activities reasonably required by applicable Law and by Applicable State Environmental Agencies or other applicable governmental agency to (a) clean up, remove, treat or in any other way address any contaminant or Hazardous Substances in the indoor/outdoor environment; (b) contain, mitigate or otherwise prevent the release or the threat of release or minimize the further release of any contaminant or Hazardous Substances so that it does not migrate or endanger or threaten to endanger public health or welfare of the indoor or outdoor environment; (c) perform pre-remedial studies and investigations and post-remedial monitoring and care required under the Environmental Laws; or (d) recover response or remedial costs or to secure the involvement or cooperation of other Persons potentially responsible for any cost of remediation including, without limitation, prosecuting any legal action.
(b) Seller’s obligation to conduct Property Remedial Measures for the Properties identified on Schedule 8.5(a), as may be amended pursuant to Section 7.4, shall be deemed complete for purposes of this Agreement upon receipt by Seller of a written letter, order or statement from Applicable State Environmental Agencies or other appropriate Governmental Authority stating that, subject to the agency’s usual and customary reservation of rights, it will not require Seller or Purchaser to perform further Property Remedial Measures with respect to the release (“Closure Letter”), other than routine monitoring. If requested to do so by Applicable State Environmental Agencies or other appropriate Governmental Authority in connection with the performance of the Property Remedial Measures or the issuance of the Closure Letter, the Parties acknowledge that Seller or Purchaser may be asked to place reasonable activity and use limitations (“AULs”) on the Properties, including, if requested, prohibiting the use of groundwater under the Properties for potable purposes and/or restricting the use of the Properties to non-residential purposes. Seller and Purchaser, as applicable, shall promptly provide a copy of the Closure Letter to the other Party upon receipt.
(c) With respect to Unknown Pollution, on the Closing Date, Purchaser shall procure and pay for a PLL Policy covering all of the Properties. Pursuant to Section 8.7(c) of the Stock Purchase Agreement, the Stock Sellers will contribute Seventy-Five Thousand and 00/100 Dollars ($75,000.00) towards payment of the premium for the PLL Policy. Such PLL Policy, to the extent available in the marketplace, shall cover remediation costs and third-party liability for Unknown Pollution as well as third-party liability for Known Pollution and shall identify Seller as an additional insured. The PLL Policy shall also include coverage for New Pollution. The PLL Policy shall be written with no less than a five (5) year term and shall have limits of $5,000,000 and a self-insured retention (“SIR”) of $50,000. Purchaser shall be responsible for the payment of the SIR. For the avoidance of doubt, Seller shall have no responsibility for losses incurred after five (5) years from the Closing Date.
(d) If the Property Remedial Measures required under Section 8.5(a) have not been completed prior to the Closing Date, Seller shall remain financially responsible for the cost of any such incomplete Property Remedial Measures to the extent such Property Remedial Measures are not covered by insurance or do not qualify for reimbursement from trust funds from such States or other applicable Governmental Authority. If the Property Remedial Measures required under Section 8.5(a) have not been completed at the time of Closing, Seller shall deposit the amount reflected on Schedule 8.5(d) (the “Property Environmental Remediation Escrow”) (which Schedule shall be delivered by Seller to Purchaser at the Closing and which amount will be determined by Seller, in consultation with Purchaser, based on Seller’s reasonable estimate for the remaining expected remediation costs) into the Escrow Account to provide for the expected remediation costs for such sites. From and after the Closing Date, Seller shall use its best efforts to complete the Property Remedial Measures set forth on Schedule 8.5(a); provided, however, that (i) Seller shall keep Purchaser reasonably informed as to its progress in completing the Property Remedial Measures set forth on Schedule 8.5(a) and (ii) Purchaser shall have the right to take over responsibility for completion of the Property Remedial Measures and direct the completion of the Property Remedial Measures (which shall remain at Seller’s cost and expense) if (x) Seller is in Breach of its responsibilities under this Section 8.5, (y) Purchaser has provided written notice of such Breach to Seller, and (z) Seller fails to remedy such Breach within thirty (30) days of receipt of such notice. For the avoidance of doubt, to the extent one Party receives insurance proceeds to cover Property Remedial Measures undertaken by the other Party, the Party receiving such insurance proceeds shall reimburse the other Party but only to the extent of the amounts actually expended by such Party in undertaking the Property Remedial Measures. In the event the Property Environmental Remediation Escrow is not sufficient to pay the costs of any incomplete Property Remedial Measures, Section 5.11 and this Section 8.5 shall be deemed to have been Breached by Seller and Purchaser shall be entitled to indemnification in accordance with the terms of Article X. The Property Environmental Remediation Escrow shall be distributed to pay costs and expenses incurred in performing Property Remedial Measures. Distributions from the Property Environmental Remediation Escrow will be considered payments made and amounts expended by Seller.
(e) Except to the extent set forth in Section 5.11, this Section 8.5 and Article X, Seller shall have no other obligation to Purchaser, and Purchaser hereby releases and discharges Seller, for any Losses whether arising in law or equity, known or unknown, or arising before or after the Closing, in connection with or relating to the environment at, on, under or near the Properties, including but not limited to any such matters relating to the Fuel Equipment or releases of petroleum products or Hazardous Substances.
(f) For purposes of clarity, after Closing, if Purchaser excavates or removes any soil on or from the Properties other than in connection with taking Property Remedial Measures set forth on Schedule 8.5(a), as may be amended pursuant to Section 7.4, or as contemplated by Schedule 8.5(d), Purchaser shall be responsible for all costs and expenses related to such excavation or removal (including, without limitation, all costs of disposal of such soil), except to the extent that such excavation or removal is a result of the existence of a Breach of Section 5.11 or this Section 8.5 by Seller, in which event Purchaser shall be indemnified for such costs and expenses in accordance with the terms of Article X of this Agreement.
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Samples: Stock Purchase Agreement
