Indemnified Environmental Matters. (1) Seller Parties hereby agree to indemnify the Buyer Indemnified Parties in respect of any and all Losses incurred by the Buyer Indemnified Parties, including, without limitation, Losses relating to Remediation or for third party claims for property damage or personal injury, in connection with Hazardous Substances that were disposed of or released into soils, groundwater, surface water, sediments or similar environmental media, prior to the Closing Date, at any of the real property that is or has been owned, leased or operated by the Meat Processing Business or the Retail Store Business (the "Real Property"). (2) Seller Parties hereby agree to indemnify the Buyer Indemnified Parties with respect to any fines and penalties that may be asserted against Buyer Indemnified Parties with respect to any violation of applicable Environmental Law by the Meat Processing Business or the Retail Store Business. For purposes of clarification, the indemnity set forth herein does not include any costs or expenses associated with any corrective actions that may be required with respect to such violations or release of ammonia. 46 <PAGE> (3) The Matters described in Sections 10.8(a)(1) are the "Indemnified Environmental Matters." (b) Seller Parties' obligation to indemnify the Buyer Indemnified Parties with respect to the Indemnified Environmental Matters shall be subject to the provisions of Article X, including, without limitation, Section 10.1(b) and Section 10.8. Furthermore, any matter subject to indemnity pursuant to Section 10.1(a) which by its nature also falls within the scope of Section 10.8(a)(1) or 10.8(a)(2) also shall be governed by the provisions of Section 10.8 to the extent applicable. (c) (1) With respect to the matters identified in Section 10.8(a)(1) that relate to Remediation of Real Property, Seller Parties shall only be required to defend, indemnify and hold harmless Buyer Indemnified Parties with respect to such Indemnified Environmental Matters to the extent that: (A) the Remediation of the Hazardous Substances is required pursuant to an applicable Environmental Law that is in effect as of the Closing; (B) the Remediation Standards applicable to the Remediation are the least stringent Remediation Standards that would be applicable based on the use of the Real Property as of the Closing Date; and (C) the Remediation shall be conducted in a reasonable, cost effective manner consistent with applicable Environmental Law. Buyer Indemnified Parties agree that they shall accept appropriate engineering controls or institutional controls, including, if necessary, deed restrictions or limitations on the drilling and use of water xxxxx, if such controls are needed in order for the parties to complete a Remediation consistent with the use of the least stringent Remediation Standards; provided, that Buyer Indemnified Parties shall not be obligated to accept engineering or institutional controls that unreasonably interfere with Buyer Indemnified Parties' operations on the Real Property if such operations are materially the same as the operations of the Seller Parties as of the Closing Date on said properties. (c) (2) Notwithstanding anything to the contrary herein, Seller Parties shall have no obligation to defend, indemnify and hold harmless the Buyer Indemnified Parties to the extent that any Remediation with respect to the Indemnified Environmental Matters results from the cessation of all or substantially all of the operations at the Real Property or a material change in the use of the Real Property.
Appears in 1 contract
Samples: Asset Purchase Agreement
Indemnified Environmental Matters. (1) Seller Parties hereby agree to indemnify the Buyer Indemnified Parties in respect of any and all Losses incurred by the Buyer Indemnified Parties, including, without limitation, Losses relating to Remediation or for third party claims for property damage or personal injury, in connection with Hazardous Substances that were disposed of or released into soils, groundwater, surface water, sediments or similar environmental media, prior to the Closing Date, at any of the real property that is or has been owned, leased or operated by the Meat Processing Business or the Retail Store Business (the "Real Property").
(2) Seller Parties hereby agree to indemnify the Buyer Indemnified Parties with respect to any fines and penalties that may be asserted against Buyer Indemnified Parties with respect to any violation of applicable Environmental Law by the Meat Processing Business or the Retail Store Business. For purposes of clarification, the indemnity set forth herein does not include any costs or expenses associated with any corrective actions that may be required with respect to such violations or release of ammonia. 46 <PAGE>.
(3) The Matters described in Sections 10.8(a)(1) are the "Indemnified Environmental Matters."
(b) Seller Parties' obligation to indemnify the Buyer Indemnified Parties with respect to the Indemnified Environmental Matters shall be subject to the provisions of Article X, including, without limitation, Section 10.1(b) and Section 10.8. Furthermore, any matter subject to indemnity pursuant to Section 10.1(a) which by its nature also falls within the scope of Section 10.8(a)(1) or 10.8(a)(2) also shall be governed by the provisions of Section 10.8 to the extent applicable. (c).
(1) With respect to the matters identified in Section 10.8(a)(1) that relate to Remediation of Real Property, Seller Parties shall only be required to defend, indemnify and hold harmless Buyer Indemnified Parties with respect to such Indemnified Environmental Matters to the extent that: (A) the Remediation of the Hazardous Substances is required pursuant to an applicable Environmental Law that is in effect as of the Closing; (B) the Remediation Standards applicable to the Remediation are the least stringent Remediation Standards that would be applicable based on the use of the Real Property as of the Closing Date; and (C) the Remediation shall be conducted in a reasonable, cost effective manner consistent with applicable Environmental Law. Buyer Indemnified Parties agree that they shall accept appropriate engineering controls or institutional controls, including, if necessary, deed restrictions or limitations on the drilling and use of water xxxxx, if such controls are needed in order for the parties to complete a Remediation consistent with the use of the least stringent Remediation Standards; provided, that Buyer Indemnified Parties shall not be obligated to accept engineering or institutional controls that unreasonably interfere with Buyer Indemnified Parties' operations on the Real Property if such operations are materially the same as the operations of the Seller Parties as of the Closing Date on said properties. (c).
(2) Notwithstanding anything to the contrary herein, Seller Parties shall have no obligation to defend, indemnify and hold harmless the Buyer Indemnified Parties to the extent that any Remediation with respect to the Indemnified Environmental Matters results from the cessation of all or substantially all of the operations at the Real Property or a material change in the use of the Real Property.
(d) Notwithstanding anything to the contrary herein, with respect to claims arising pursuant to Section 10.8, Seller Parties shall not be obligated to indemnify Buyer Indemnified Parties for any costs or expenses of Buyer Indemnified Parties related to the time spent on any indemnified matter by employees or management of Buyer Indemnified Parties.
(e) If Buyer Indemnified Parties or any of their affiliates intend to sell, lease, sublease or otherwise convey the Real Property, Buyer Indemnified Parties or said affiliate shall include, as a condition of such sale, lease, sublease or other agreement terms and conditions that will ensure that any institutional or engineering controls that have been accepted with respect to the Real Property are not disturbed (or, if such controls will be disturbed, will be restored at the expense of the party causing the disturbance or, if additional Remediation is required as a result of the disturbance of such controls, that such additional Remediation will be performed at the sole cost and expense of the party causing the disturbance).
(f) For purposes of this Agreement: (1) the term "Remediation Standard" means a numerical or narrative standard (whether resulting from an enacted statute, promulgated regulation, guidance or policy document issued by a regulatory agency, or developed on a case-by-case basis through a risk assessment or other methodology authorized pursuant to an applicable Environmental Law) that defines the concentrations of Hazardous Substances that may be permitted to remain in any environmental media after an investigation, remediation or containment of a release of Hazardous Substances; and (2) the term "Remediation" means any action of any kind to investigate and/or clean up a release of Hazardous Substances into an environmental medium, including, but not limited to, the following activities: (A) monitoring, investigation, assessment, treatment, cleanup, containment, removal, mitigation, response or restoration work; (B) obtaining any permits, consents, approvals or authorizations of any governmental authority necessary to conduct any such activity; (C) preparing and implementing any plans or studies for any such activity; and (D) obtaining a written notice from a Governmental Authority with jurisdiction over the site being investigated and/or cleaned up under Environmental Laws that no additional work is required by such Governmental Authority.
Appears in 1 contract
Indemnified Environmental Matters. (1A) Seller Parties hereby agree to indemnify the If a Buyer Indemnified Parties in respect Indemnitee becomes aware of any and all Losses incurred by the Buyer Indemnified Parties, including, without limitation, Losses relating Events that are likely to Remediation or for third party claims for property damage or personal injury, in connection with Hazardous Substances that were disposed of or released into soils, groundwater, surface water, sediments or similar environmental media, prior give rise to the Closing Date, at any of the real property that is or has been owned, leased or operated by the Meat Processing Business or the Retail Store Business an indemnification claim under (the "Real Property").
i) Section 8.2(a)(i) (2) Seller Parties hereby agree to indemnify the Buyer Indemnified Parties with respect to any fines and penalties that may be asserted against Buyer Indemnified Parties with respect to any violation of applicable Environmental Law by the Meat Processing Business or the Retail Store Business. For purposes of clarification, the indemnity set forth herein does not include any costs or expenses associated with any corrective actions that may be required with respect to such violations or release of ammonia. 46 <PAGE>
(3) The Matters described in Sections 10.8(a)(1) are the "Indemnified Environmental Matters."
(b) Seller Parties' obligation to indemnify the Buyer Indemnified Parties with respect to the representations and warranties set forth in Section 4.17), (ii) Section 8.2(a)(ii) (with respect to the Excluded Liabilities set forth in Section 2.4(g)) or (iii) items one (1) through five (5) set forth in Section 8.2(a) of the Disclosure Schedules (collectively, “Indemnified Environmental Matters”), the Buyer Indemnitees shall promptly give notice (“Environmental Claim Notice”) to Seller and the Members. Failure of the Buyer Indemnitees to give an Environmental Claim Notice pursuant to this Section 8.2(c)(iv)(A) shall not relieve Seller or the Members of their obligations, except to the extent that Seller or the Members are actually materially prejudiced by such failure. Within thirty (30) days of providing any Environmental Claim Notice, the Buyer Indemnitees shall elect whether to assume the defense or control of such Indemnified Environmental Matter; provided, however, the foregoing notwithstanding, prior to any such election, the Buyer Indemnitees may take any action necessary to preserve any defense or appeal rights, including any request to a Governmental Authority to reconsider the terms and conditions of any Order or any notice of appeal of an Order to a Governmental Authority. If the Buyer Indemnitees elect to assume the defense or control (including the planning or implementation of any Remedial Actions or other response action) of the Indemnified Environmental Matter, the Buyer Indemnitees shall, without prejudice to any of their rights hereunder, defend or control such Indemnified Environmental Matter at the Members’ expense.
(B) If the Buyer Indemnitees elect not to assume the defense or control of such Indemnified Environmental Matters anytime within such thirty (30) day period, then Seller or the Members shall be subject obligated to defend or control such Indemnified Environmental Matters, at Seller’s and the Members’ own expense and by counsel and experts chosen by Seller and the Members and reasonably satisfactory to the provisions Buyer Indemnitees.
(C) The party that has assumed the control or defense of Article X, including, without limitation, Section 10.1(b) and Section 10.8. Furthermore, any matter subject to indemnity Indemnified Environmental Matter pursuant to Section 10.1(a) which by its nature also falls within the scope of Section 10.8(a)(18.2(c)(iv)(A) or 10.8(a)(2Section 8.2(c)(iv)(B) also shall (i) provide the other party with the right to participate in any meetings or negotiations with any Governmental Authorities or other third parties and reasonable advance notice of any such meetings or negotiations, (ii) provide the other party with the right to review in advance and provide comments on any draft or final documents proposed to be governed by submitted to Governmental Authorities or other third parties, and (iii) keep the provisions of Section 10.8 to the extent applicable. (c)
(1) With respect to the matters identified in Section 10.8(a)(1) that relate to Remediation of Real Property, Seller Parties shall only be required to defend, indemnify and hold harmless Buyer Indemnified Parties other party reasonably informed with respect to such Indemnified Environmental Matters to the extent that: (A) the Remediation of the Hazardous Substances is required pursuant to an applicable Environmental Law that is in effect as of the Closing; (B) the Remediation Standards applicable to the Remediation are the least stringent Remediation Standards that would be applicable based on the use of the Real Property as of the Closing Date; and (C) the Remediation shall be conducted in a reasonable, cost effective manner consistent with applicable Environmental Law. Buyer Indemnified Parties agree that they shall accept appropriate engineering controls or institutional controlsMatter, including, if necessary, deed restrictions or limitations on at the drilling and use of water xxxxx, if such controls are needed in order for the parties to complete a Remediation consistent with the use reasonable request of the least stringent Remediation Standards; providedother party, that providing copies of all documents provided to, or received from, any Governmental Authority or any other third party in connection with such Indemnified Environmental Matter. The Buyer Indemnified Parties shall not be obligated Indemnitees and Seller and the Members covenant and agree to accept engineering or institutional controls that unreasonably interfere with Buyer Indemnified Parties' operations on maintain the Real Property if such operations are materially confidence of all drafts and comments provided by the same as the operations of the Seller Parties as of the Closing Date on said properties. (c)other party.
(2D) Notwithstanding anything herein to the contrary hereincontrary, if Seller Parties shall have no obligation and the Members fail to defend, indemnify and hold harmless the Buyer Indemnified Parties to the extent that any Remediation act promptly with respect to the any Indemnified Environmental Matters results from Matter the cessation control or defense of all which Seller and the Members are obligated to assume pursuant to Section 8.2(c)(iv)(B), the Buyer Indemnitees may, at Seller’s and the Members’ sole expense, exercise control or substantially all defense of the operations at the Real Property or a material change such Indemnified Environmental Matter and may resolve such Indemnified Environmental Matter in the use of the Real PropertyBuyer Indemnitees’ sole discretion.
Appears in 1 contract
Samples: Asset Purchase Agreement (Quality Distribution Inc)
Indemnified Environmental Matters. (1A) Seller Parties hereby agree to indemnify the If a Buyer Indemnified Parties in respect Indemnitee becomes aware of any and all Losses incurred by the Buyer Indemnified Parties, including, without limitation, Losses relating Events that are likely to Remediation or for third party claims for property damage or personal injury, in connection with Hazardous Substances that were disposed of or released into soils, groundwater, surface water, sediments or similar environmental media, prior give rise to the Closing Date, at any of the real property that is or has been owned, leased or operated by the Meat Processing Business or the Retail Store Business an indemnification claim under (the "Real Property").
i) Section 8.2(a)(i) (2) Seller Parties hereby agree to indemnify the Buyer Indemnified Parties with respect to any fines and penalties that may be asserted against Buyer Indemnified Parties with respect to any violation of applicable Environmental Law by the Meat Processing Business or the Retail Store Business. For purposes of clarification, the indemnity set forth herein does not include any costs or expenses associated with any corrective actions that may be required with respect to such violations or release of ammonia. 46 <PAGE>
(3) The Matters described in Sections 10.8(a)(1) are the "Indemnified Environmental Matters."
(b) Seller Parties' obligation to indemnify the Buyer Indemnified Parties with respect to the representations and warranties set forth in Section 4.17), (ii) Section 8.2(a)(ii) (with respect to the Excluded Liabilities set forth in Section 2.4(h)) or (iii) items one (1) through six (6) set forth in Section 8.2(a) of the Disclosure Schedules (collectively, “Indemnified Environmental Matters”), the Buyer Indemnitees shall promptly give notice (“Environmental Claim Notice”) to Seller and the Member. Failure of the Buyer Indemnitees to give an Environmental Claim Notice pursuant to this Section 8.2(c)(iv)(A) shall not relieve Seller or the Member of their obligations, except to the extent that Seller or the Member are actually materially prejudiced by such failure. Within thirty (30) days of providing any Environmental Claim Notice, the Buyer Indemnitees shall elect whether to assume the defense or control of such Indemnified Environmental Matter; provided, however, the foregoing notwithstanding, prior to any such election, the Buyer Indemnitees may take any action necessary to preserve any defense or appeal rights, including any request to a Governmental Authority to reconsider the terms and conditions of any Order or any notice of appeal of an Order to a Governmental Authority. If the Buyer Indemnitees elect to assume the defense or control (including the planning or implementation of any investigation, remediation or other response action) of the Indemnified Environmental Matter, the Buyer Indemnitees shall, without prejudice to any of their rights hereunder, defend or control such Indemnified Environmental Matter at the Member’s expense.
(B) If the Buyer Indemnitees elect not to assume the defense or control of such Indemnified Environmental Matters anytime within such thirty (30) day period, then Seller or the Member shall be subject obligated to defend or control such Indemnified Environmental Matters, at Seller’s and the Member’s own expense and by counsel and experts chosen by Seller and the Member and reasonably satisfactory to the provisions Buyer Indemnitees.
(C) The party that has assumed the control or defense of Article X, including, without limitation, Section 10.1(b) and Section 10.8. Furthermore, any matter subject to indemnity Indemnified Environmental Matter pursuant to Section 10.1(a) which by its nature also falls within the scope of Section 10.8(a)(18.2(c)(iv)(A) or 10.8(a)(2Section 8.2(c)(iv)(B) also shall (i) provide the other party with the right to participate in any meetings or negotiations with any Governmental Authorities or other third parties and reasonable advance notice of any such meetings or negotiations, (ii) provide the other party with the right to review in advance and provide comments on any draft or final documents proposed to be governed by submitted to Governmental Authorities or other third parties, and (iii) keep the provisions of Section 10.8 to the extent applicable. (c)
(1) With respect to the matters identified in Section 10.8(a)(1) that relate to Remediation of Real Property, Seller Parties shall only be required to defend, indemnify and hold harmless Buyer Indemnified Parties other party reasonably informed with respect to such Indemnified Environmental Matters to the extent that: (A) the Remediation of the Hazardous Substances is required pursuant to an applicable Environmental Law that is in effect as of the Closing; (B) the Remediation Standards applicable to the Remediation are the least stringent Remediation Standards that would be applicable based on the use of the Real Property as of the Closing Date; and (C) the Remediation shall be conducted in a reasonable, cost effective manner consistent with applicable Environmental Law. Buyer Indemnified Parties agree that they shall accept appropriate engineering controls or institutional controlsMatter, including, if necessary, deed restrictions or limitations on at the drilling and use of water xxxxx, if such controls are needed in order for the parties to complete a Remediation consistent with the use reasonable request of the least stringent Remediation Standards; providedother party, that providing copies of all documents provided to, or received from, any Governmental Authority or any other third party in connection with such Indemnified Environmental Matter. The Buyer Indemnified Parties shall not be obligated Indemnitees and Seller and the Member covenant and agree to accept engineering or institutional controls that unreasonably interfere with Buyer Indemnified Parties' operations on maintain the Real Property if such operations are materially confidence of all drafts and comments provided by the same as the operations of the Seller Parties as of the Closing Date on said properties. (c)other party.
(2D) Notwithstanding anything herein to the contrary hereincontrary, if Seller Parties shall have no obligation and the Member fail to defend, indemnify and hold harmless the Buyer Indemnified Parties to the extent that any Remediation act promptly with respect to the any Indemnified Environmental Matters results from Matter the cessation control or defense of all which Seller and the Member are obligated to assume pursuant to Section 8.2(c)(iv)(B), the Buyer Indemnitees may, at Seller’s and the Member’s sole expense, exercise control or substantially all defense of the operations at the Real Property or a material change such Indemnified Environmental Matter and may resolve such Indemnified Environmental Matter in the use of the Real PropertyBuyer Indemnitees’ sole discretion.
Appears in 1 contract
Samples: Asset Purchase Agreement (Quality Distribution Inc)
Indemnified Environmental Matters. (1) Seller Parties Sellers hereby agree to indemnify the Buyer Indemnified Parties in respect of any and all Losses incurred by the Buyer Indemnified Parties, including, without limitation, Losses relating to Remediation or for third party claims for property damage or personal injury, in connection with Hazardous Substances that were disposed of or released into soils, groundwater, surface water, sediments or similar environmental media, prior to the Closing Date, at any of the real property that is or has been owned, leased or operated by the Meat Processing Business or the Retail Store Business Company (the "Real Property").
(2) Seller Parties Sellers hereby agree to indemnify the Buyer Indemnified Parties with respect to any fines and penalties that may be asserted against Buyer Indemnified Parties with respect to any violation of applicable Environmental Law by the Meat Processing Business or Company prior to the Retail Store BusinessClosing Date, including, but not limited, any fines and penalties that may be asserted with respect to a release of ammonia from the facility located at 0000 XX 000xx Xxxxxx, Xxxxx, Xxxxxxx that was reported in June 2003. For purposes of clarification, the indemnity set forth herein does not include any costs or expenses associated with any corrective actions that may be required with respect to such violations or release of ammonia. 46 <PAGE>.
(3) The Matters matters described in Sections 10.8(a)(1) and (2) are the "Indemnified Environmental Matters."
(b) Seller PartiesSellers' obligation to indemnify the Buyer Indemnified Parties with respect to the Indemnified Environmental Matters shall be subject to the provisions of Article X, including, without limitation, Section 10.1(b) and Section 10.8. Furthermore, any matter subject to indemnity pursuant to Section 10.1(a) which by its nature also falls within the scope of Section 10.8(a)(1) or 10.8(a)(2) also shall be governed by the provisions of Section 10.8 to the extent applicable. (c).
(1) With respect to the matters identified in Section 10.8(a)(1) that relate to Remediation of Real Property, Seller Parties Sellers shall only be required to defend, indemnify and hold harmless Buyer Indemnified Parties with respect to such Indemnified Environmental Matters to the extent that: (A) the Remediation of the Hazardous Substances is required pursuant to an applicable Environmental Law that is in effect as of the Closing; (B) the Remediation Standards applicable to the Remediation are the least stringent Remediation Standards that would be applicable based on the use of the Real Property as of the Closing Date; and (C) the Remediation shall be conducted in a reasonable, cost effective manner consistent with applicable Environmental Law. Buyer Indemnified Parties agree that they shall accept appropriate engineering controls or institutional controls, including, if necessary, deed restrictions or limitations on the drilling and use of water xxxxx, if such controls are needed in order for the parties to complete a Remediation consistent with the use of the least stringent Remediation Standards; provided, that Buyer Indemnified Parties shall not be obligated to accept engineering or institutional controls that unreasonably interfere with Buyer Indemnified Parties' operations on the Real Property if such operations are materially the same as the operations of the Seller Parties Company as of the Closing Date on said properties. (c).
(2) Notwithstanding anything to the contrary herein, Seller Parties Sellers shall have no obligation to defend, indemnify and hold harmless the Buyer Indemnified Parties to the extent that any Remediation with respect to the such Indemnified Environmental Matters results from the cessation of all or substantially all of the operations at the Real Property or a material change in the use of the Real Property.
(d) Notwithstanding anything to the contrary herein, with respect to claims arising pursuant to Section 10.8, Sellers shall not be obligated to indemnify Buyer Indemnified Parties for any costs or expenses of Buyer Indemnified Parties related to the time spent on any indemnified matter by employees or management of Buyer Indemnified Parties.
(e) If Buyer Indemnified Parties or any of their affiliates intend to sell, lease, sublease or otherwise convey the Real Property, Buyer Indemnified Parties or said affiliate shall include, as a condition of such sale, lease, sublease or other agreement terms and conditions that will ensure that any institutional or engineering controls that have been accepted with respect to the Real Property are not disturbed (or, if such controls will be disturbed, will be 44 restored at the expense of the party causing the disturbance or, if additional Remediation is required as a result of the disturbance of such controls, that such additional Remediation will be performed at the sole cost and expense of the party causing the disturbance).
(f) For purposes of this Agreement: (1) the term "Remediation Standard" means a numerical or narrative standard (whether resulting from an enacted statute, promulgated regulation, guidance or policy document issued by a regulatory agency, or developed on a case-by-case basis through a risk assessment or other methodology authorized pursuant to an applicable Environmental Law) that defines the concentrations of Hazardous Substances that may be permitted to remain in any environmental media after an investigation, remediation or containment of a release of Hazardous Substances; and (2) the term "Remediation" means any action of any kind to investigate and/or clean up a release of Hazardous Substances into an environmental medium, including, but not limited to, the following activities: (A) monitoring, investigation, assessment, treatment, cleanup, containment, removal, mitigation, response or restoration work; (B) obtaining any permits, consents, approvals or authorizations of any governmental authority necessary to conduct any such activity; (C) preparing and implementing any plans or studies for any such activity; and (D) obtaining a written notice from a Governmental Authority with jurisdiction over the site being investigated and/or cleaned up under Environmental Laws that no additional work is required by such Governmental Authority.
Appears in 1 contract
