EXHIBIT 10.9
ENVIRONMENTAL AGREEMENT
This ENVIRONMENTAL AGREEMENT is entered into as of July 22, 1993 by
and among BP Exploration & Oil Inc., an Ohio corporation ("BP"), Truckstops
Corporation of America Inc., a Delaware corporation ("TA," and together with BP,
"Seller"), and T.S. Network Corp., a Delaware corporation (together with its
successors and assigns, "Buyer").
WHEREAS, Buyer and Seller are entering into an asset purchase
agreement of even date herewith (the "Asset Purchase Agreement"), and Buyer and
Seller desire to set forth their respective obligations with respect to
environmental matters in connection therewith.
NOW, THEREFORE, in consideration of their mutual covenants, the
aforementioned parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
have the meanings ascribed to them in the Asset Purchase Agreement. For purposes
of this Environmental Agreement, the following terms shall have the meanings
respectively ascribed below:
(a) "A/TS NETWORK means the Real Property and Purchased Assets
comprising a national auto/truckstop network.
(aa) "AUTO/TRUCKSTOP" means a location in the A/TS Network,
including the associated Real Property and Purchased Assets.
(b) "BUYER INDEMNITEES" means Buyer, Buyer's Affiliates and
their respective officers, directors, employees and agents, in their capacity as
such.
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(c) "ENVIRONMENT" means navigable ocean waters, natural
resources, surface waters, groundwater, drinking water supply, land surface,
subsurface strata and ambient air both inside and outside of buildings and
structures.
(d) "ENVIRONMENTAL ACTION" means any Proceeding, notice,
order, agreement or evaluation by any Governmental Authority or other Person as
to whether Environmental Damages of any kind exist or may be sought arising out
of or relating to the ownership or operation of the A/TS Network or the
ownership, use or condition of the Purchased Assets on or prior to the Closing
Date.
(e) "ENVIRONMENTAL COMPLIANCE ACTION" means any activity
reasonably necessary to cause any Storage Tank Systems, any pollution control
equipment, structure, device, plan or process, or any other equipment,
structure, device, plan or process subject to regulation pursuant to
Environmental Laws, located at any parcel of Real Property in the A/TS Network,
to be in compliance with applicable Environmental Laws in effect at the Closing
Date.
(f) "ENVIRONMENTAL CONSULTANTS" shall have the meaning
ascribed to it in Section 3(b) hereof.
(g) "ENVIRONMENTAL DAMAGES" means any Damages imposed or
incurred by, under or pursuant to Environmental Laws in effect as of the Closing
Date; PROVIDED, HOWEVER, that with respect to conditions requiring Remedial
Action by Seller pursuant to Section 4(a), it means any Damages imposed or
incurred by, under or pursuant to Environmental Laws in effect as of the
Sign-Off Date.
(h) "ENVIRONMENTAL LAWS" means federal, state and local laws,
principles of common law, regulations and codes, as well as orders, decrees,
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judgments or injunctions issued, promulgated, approved or entered thereunder,
relating to pollution or protection of the Environment.
(i) "HAZARDOUS SUBSTANCE" means any toxic substance or waste,
pollutant, hazardous substance or waste, contaminant, special waste, industrial
substance or waste, petroleum or petroleum-derived substance or waste, or any
toxic or hazardous constituent of any such substance or waste, including without
limitation any such substance regulated under or defined by any Environmental
Law.
(j) "INDEPENDENT CONSULTANT" shall have the meaning
ascribed to it in Section 8 hereof.
(k) "MATERIAL ENVIRONMENTAL DAMAGES" means Environmental
Damages, individually or in the aggregate, in excess of $250,000 in the
aggregate.
(l) "PERMIT" means any approval, registration, authorization,
certificate, certificate of occupancy, consent, license, order or permit or
other similar authorization of or with any Governmental Authority required by
applicable Environmental Laws in effect on or prior to the Closing Date for the
ownership or operation of the Purchased Assets or the business of the A/TS
Network.
(m) "PHASE I ENVIRONMENTAL AUDITS" means audits of the A/TS
Network and the Real Property performed by and on behalf of Sellers in
accordance with the Phase I scope of work attached hereto as Exhibit A.
(n) "PHASE II ENVIRONMENTAL AUDITS" means assessments of
the A/TS Network and the Real Property in accordance with the Phase II scope of
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work attached hereto as Exhibit B, as modified to incorporate any additional
work recommended at individual Auto/Truckstops by the Phase I Environmental
Audits.
(o) "RELEASE" means any spilling, leaking, emitting, pumping,
injecting, discharging, escaping, leaching or disposing of Hazardous Substances
into the Environment.
(p) "REMEDIAL ACTION" means all activities, whether undertaken
pursuant to judicial or administrative order or otherwise, reasonably necessary
to comply with applicable Environmental Laws, to investigate, monitor and, if
required, clean up, remove, treat, cover or in any other way adjust Hazardous
Substances in the Environment but excluding Environmental Compliance Action.
There can be more than one Remedial Action at a Real Property.
(q) "SELLER INDEMNITEES" means Seller, Seller's Affiliates and
their respective officers, directors, employees and agents, in their capacity as
such.
(r) "SELLER'S KNOWLEDGE" or "knowledge of any Seller"
means the actual knowledge of any of the following persons: J.R. Rocco,
X.X. Xxxxxx, X.X. Xxxx, X.X. Xxxxxx, X.X. Xxxxxx, Xxxxxxxx X. Xxxx, Xxxxx X.
XxXxxx, Xxxxx X. Xxxxxx, Xx Xxxx or Xxx Xxxxxx.
(s) "SIGN-OFF DATE" shall have the meaning ascribed to it in
Section 4(c).
(t) "STORAGE TANK SYSTEMS" means any system of one or more
underground or aboveground storage tanks and any related piping.
2. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES. To Seller's
knowledge, Seller hereby represents and warrants to Buyer as follows:
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(a) Except as set forth in Schedule 1, the ownership and
operation of the A/TS Network and the ownership and use of the Purchased Assets
are in substantial compliance with Environmental Laws, with the exception of
instances of noncompliance which are not reasonably likely to result in Material
Environmental Damages;
(b) Except as set forth in Schedule 2, Seller holds all
Permits, with the exception of any failures to hold any such Permits which are
not reasonably likely to result in Material Environmental Damages; all such
Permits are in full force and effect, no action to revoke or modify any of such
Permits is pending, and the ownership and operation of the A/TS Network and the
ownership and use of the Purchased Assets are in compliance with all terms and
conditions thereof, with the exception of instances of noncompliance which are
not reasonably likely to result in Material Environmental Damages;
(c) Except as set forth in Schedule 3, Seller has not received
any notification, whether direct or indirect, that the A/TS Network or the
Purchased Assets are or may be subject to any Environmental Action or any
obligation pursuant to Environmental Laws to perform Remedial Action, or subject
to Material Environmental Damages, arising out of the presence of Hazardous
Substances on, in or under any location which is not part of the A/TS Network.
3. ENVIRONMENTAL AUDITS.
(a) Phase I Environmental Audits of the A/TS Network and the
Real Property have been or will be conducted prior to the Closing Date.
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(b) Phase II Environmental Audits of the A/TS Network and the
Real Property have been or will be conducted prior to the Closing Date by an
environmental consultant, chosen by the Seller from a list of environmental
consultants agreed to by Buyer and Seller (hereinafter, the "Environmental
Consultant"); PROVIDED, HOWEVER, that Phase II Environmental Audit activities
will not be performed at any area of any Auto/Truckstop at which Seller is
performing Remedial Action pursuant to the requirements of any Governmental
Authority as of the time of the Phase II Environmental Audit of the
Auto/Truckstop.
(c) The costs of conducting the Phase I Environmental Audits
and Phase II Environmental Audits shall be borne by Seller. Seller shall have
sole responsibility for the direction of Environmental Consultants in the
conduct of the Phase II Environmental Audits. Seller shall promptly provide to
Buyer copies of the Phase I and Phase II Environmental Audits and all associated
sampling data, notices, test results, draft reports and correspondence with any
Governmental Authority. Phase I and Phase II Audit Reports shall be provided to
Buyer no less than 14 days prior to the Closing Date.
4. Covenant to Undertake Remedial Action
AND ENVIRONMENTAL COMPLIANCE ACTION.
(a) In the event that the Phase I Environmental Audits or the
Phase II Environmental Audits identify any conditions with respect to which any
Remedial Action or Environmental Compliance Action is required by applicable
Environmental Laws at any parcel of Real Property, then, as to such conditions,
Seller shall, as promptly as is reasonably practicable, (i) undertake such
Remedial
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Action as is necessary to achieve compliance with applicable Environmental Laws
in effect as of the Sign-Off Date; and (ii) undertake such Environmental
Compliance Action as is necessary to achieve compliance with applicable
Environmental Laws in effect as of the Closing Date; provided that Section 7(b),
rather than this Section 4(a) shall apply, according to its terms, to a Remedial
Action being performed by Seller in the event that Buyer has failed to operate
the relevant Auto/Truckstop in a manner consistent with the operation of the
Auto/Truckstop prior to the Closing Date and in accordance in material respects
with applicable Environmental Laws in effect after the Closing Date and such
failure has resulted in a Release of Hazardous Substances.
(b) Seller shall have the exclusive right to manage and
control all Remedial Actions and Environmental Compliance Actions (collectively
"Actions") undertaken pursuant to Section 4(a), subject to the requirements of
this Environmental Agreement.
(c) With respect to each condition requiring Remedial Action
by Seller pursuant to Section 4(a), Seller shall deliver to Buyer either (i) a
written statement by a Governmental Authority with jurisdiction over the
condition to the effect that compliance with applicable Environmental Laws has
been achieved or no further action is required under applicable Environmental
Laws, or (ii) a certification of an independent consultant, mutually acceptable
to Buyer and Seller to the same effect. The date on which such written statement
of a Governmental Authority and/or certification of an independent consultant is
received by Buyer shall be the "Sign-Off Date" for the Remedial Action in issue.
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(d) If Remedial Action entails the removal of all or any part
of any otherwise sound Storage Tank System, Seller shall restore that portion of
the Storage Tank System in compliance with Environmental Laws, provided that
Buyer shall have the option, at its own expense, to modify the Storage Tank
System.
5. STORAGE TANK SYSTEM TESTING.
(a) TESTING STORAGE TANKS. Seller, at Seller's expense, shall
conduct a tightness test of any underground storage tank and associated piping
("UST System"), which is in use on the Real Properties relating to the storage
or dispensing of motor fuel, heating fuel or used oil, PROVIDED, HOWEVER, that
Seller shall not be obligated to perform a tightness test on any UST System that
has been tightness tested during the 6-month period prior to the Closing Date.
Seller shall use reasonable efforts to test UST Systems at sites comprised
primarily of steel tanks within 3 months prior to Closing. Tightness tests on
any UST System shall be performed in accordance with the requirements of 40 CFR
Part 280. At least fourteen (14) business days prior to the Closing Date, Seller
shall furnish to Buyer copies of the test results and any study reports(s).
(b) RIGHTS TO REPAIR, REPLACE OR REMOVE.
(i) FAILED FIBERGLASS TANKS: If any fiberglass tank
does not test tight at any Real Property, Seller will, at its option,
either repair or remove and replace any such failed fiberglass tank with a
like-kind tank in accordance with applicable Environmental Laws.
(ii) If Seller chooses to repair said tank, such
repair shall be done in accordance with applicable Environmental Laws and
in
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accordance with manufacturer specifications. Upon completion of any tank
repair, Seller shall cause the tank again to be tightness tested and shall
furnish copies of the test results to Buyer. If test results indicate that
a repaired tank cannot be suitably repaired, Seller shall replace the tank
with a like-kind tank.
(iii) FAILED FIBERGLASS PIPING: If any fiberglass
piping does not test tight at any Property, Seller will, at its option,
either repair or replace any such failed fiberglass piping with like-kind
piping.
(A) If Seller chooses to replace said piping, such
replacement shall be done in accordance with applicable
Environmental Laws and in accordance with manufacturer
specifications.
(B) If Seller chooses to repair said piping, such
repair shall be done in accordance with applicable Environmental
Laws and in accordance with manufacturer specifications. Upon
completion of any piping repair, Seller shall cause the piping to
again be tightness tested and shall furnish copies of the test
results to Buyer. If test results indicate that repaired piping
cannot be suitably repaired, Seller shall replace the repaired
piping with like-kind piping.
(iv) FAILED STEEL TANKS: If any steel tank does not
test tight at any Real Property, Seller will, at its option, either repair
or remove and replace any such failed steel tank in accordance with
applicable Environmental Laws.
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If Seller chooses to replace a steel tank, replacement shall be done
with a tank of Seller's choosing in accordance with applicable
Environmental Laws and in accordance with manufacturer specifications. If
Buyer requests the replacement of an otherwise sound steel tank at a Real
Property, the upgrade of any tank at a Real Property, or the installation
of a replacement tank at a different location on a Real Property, Buyer
shall bear the additional cost of replacing the otherwise sound tank,
upgrading the tank or relocating the tank field. Buyer shall reimburse
Seller within thirty (30) days after receipt of Seller's request for
payment and invoices. This payment provision shall survive any termination
of the Asset Purchase Agreement, in whole or as it relates to a specific
Auto/Truckstop.
(v) FAILED STEEL PIPING: If any steel piping does not
test tight at any Real Property, Seller will replace such failed steel
piping with like-kind piping in accordance with applicable Environmental
Laws and in accordance with manufacturer specifications. If Buyer requests
the replacement of all piping at a Real Property or the upgrade of piping
or relocation of replacement piping to a different location on a Real
Property, Buyer shall bear the additional cost of replacing the
non-leaking piping, relocating the piping and/or upgrading the piping.
Buyer shall reimburse Seller within thirty (30) days after receipt of
Seller's request for payment and invoices. This payment provision shall
survive any termination of the Asset Purchase Agreement, in whole or as it
relates to a specific Auto/Truckstop.
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6. STEEL UST SYSTEMS REPLACEMENT. All steel UST Systems known to
Seller to be located on a Property are identified on Schedule 4. Those steel UST
Systems that test tight will be conveyed to Buyer pursuant to the provisions of
the Asset Purchase Agreement. After the Closing, Buyer shall comply with all
Environmental Laws applicable to Buyer in respect of such steel UST Systems,
including without limitation any required removal, replacement or closure of
such UST Systems. Buyer shall provide to Seller a copy of any such closure
report within thirty (30) business days after receipt thereof. Buyer shall
provide Seller with at least thirty (30) days' notice prior to removing such
tanks. Seller and/or its representative shall have the right to be present on a
property doing any tank removal pursuant to this Section.
7. CONTAMINATION DISCOVERED AFTER CLOSING.
(a) THIRD-PARTY CONTAMINATION. If, after the Closing Date,
contamination requiring Remedial Action is discovered at a Real Property
(whether from on-site or off-site), the Party discovering such contamination
shall promptly notify the other Party and shall report the source of any
identified Release to the appropriate Governmental Authorities. Buyer and Seller
shall cooperate in all testing and investigation necessary to establish the
source of, and responsible party with respect to, the cost of Remedial Action
caused by such contamination. Buyer and Seller agree to cooperate with each
other in either's efforts to seek reimbursement from third parties of costs
associated with such Release. If the investigation demonstrates that the
Hazardous Substances requiring Remedial Action existed on the Real Property
prior to the Closing Date, Seller shall have responsibility for such
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occurrence, including the costs of the investigation referred to in this
paragraph. Otherwise, Buyer shall have responsibility for such occurrence,
including the costs of the related investigation referred to in this paragraph.
Otherwise, Buyer shall have responsibility for such occurrence, including the
costs of the related investigation referred to in this paragraph.
(b) CONTAMINATION BY BUYER. If, after the Closing Date but
before Seller has completed a Remedial Action pursuant to this Environmental
Agreement at a Real Property, or before Buyer has taken over responsibility for
such Remedial Action, Buyer's operations cause a Release of any Hazardous
Substance requiring reporting under Environmental Laws at such Real Property,
the Party discovering such Release shall promptly notify the other Party. Buyer
shall act promptly to minimize the effects of such Release. Buyer shall hire at
Buyer's expense a consultant mutually acceptable to Seller to assess the effect
of such Release on any Remedial Action at the Real Property. In addition, the
consultant will estimate the remaining costs of completing the Remedial Action
that would have been incurred had there been no new Release (the "Original Cost
of Completion"), as well as the additional cost of completing the Remedial
Action caused by the new Release (the "Revised Cost of Completion"). In the
event that Buyer and Seller are unable to agree upon these estimates, either may
seek prompt resolution of the dispute pursuant to Paragraph 12 of this
Agreement. In the event that the Revised Cost of Completion exceeds the Original
Cost of Completion, Seller shall pay to Buyer the present value of the Original
Cost of Completion. In exchange for such payment, Buyer shall take over
responsibility for the original Remedial Action and the Remedial Action caused
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by the new Release (the "Expanded Remedial Action"), and shall provide to Seller
a release of liability for the costs of completing the Expanded Remedial Action.
By acceptance of such payment and/or execution of any such release, Buyer shall
be deemed to have accepted responsibility for the Expanded Remedial Action as
set forth above. In the event that the Original Costof Completion exceeds the
Revised Cost of Completion, Buyer will pay Seller the present value of the
Revised Cost of Completion, Seller will retain responsibility for completion of
the Expanded Remedial Action, and Seller will provide Buyer with a release of
liability for the cost of completing the Expanded Remedial Action.
8. SELLER'S ACCESS AFTER CLOSING. For purposes of this Agreement,
Seller's access to the Real Property after Closing shall be subject to the
following terms and conditions. For purposes of this Section, "Owner" shall
refer to Buyer and/or its designated representative and "Licensee" shall refer
to Seller and/or its designated representative.
(a) Owner will permit access to and entry upon a Real Property
to Licensee as necessary to conduct and complete Actions pursuant to this
Environmental Agreement.
(b) Except in the event of an emergency, Licensee shall
provide Owner with at least five (5) business days' notice prior to beginning
any drilling, construction, and equipment installation, as well as other
activity that may disrupt normal business operations on a Real Property.
(c) Owner shall use its best efforts not to unreasonably
interfere with the Licensee while Licensee exercises its rights of ingress and
egress to
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perform the Actions. Licensee shall use its best efforts to perform the Action
in a manner which minimizes disruption to Owner's business activities and to the
Real Property.
(d) Promptly upon completion of an Action, Licensee shall
restore the Real Property to substantially the condition which existed
immediately prior to the commencement of the Action, and said restoration is to
be completed to Owner's reasonable satisfaction.
(e) Sellers shall promptly provide to Owner copies of all
scopes of work, final reports, correspondence with any Governmental Authority,
and sampling data related to, or which result from, any Actions on a Real
Property. Owner shall provide to Licensee copies of any correspondence with or
between Owner and any applicable Governmental Authority which involves or
relates to any matters described in this Environmental Agreement or which could
impact Licensee's Actions at any Real Property.
(f) Prior to and during an Action, Licensee shall take all
steps which are reasonably necessary to prevent injury to persons or damage to
property resulting from or in any way connected with the Action.
(g) Licensee shall indemnify and hold harmless the Owner
against any Damages incurred by Owner, and any liens and encumbrances that may
be filed or attach against a Real Property, in connection with Actions that
Licensee performs on a Real Property. No contractor, subcontractor, material
man, agent, officer, director or employee of the Licensee shall have any right
to a lien against a Real Property or any part thereof for any work, labor or
materials furnished to
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Licensee for the Actions performed on a Real Property, unless otherwise mandated
by applicable law.
(h) After Closing, Licensee's right of access to a Real
Property shall terminate when (i) Owner assumes responsibility for the Remedial
Action at such Real Property, or (ii) Licensee completes the Actions at such
Real Property pursuant to this Environmental Agreement.
(i) Buyer will pay any and all costs, claims, rents or charges
which Seller may incur if access to a Real Property is not granted in accordance
with this Environmental Agreement.
(j) Owner agrees to be responsible and reimburse Licensee for
any damage or loss that Owner, its employees, agents, invitees, lessees,
occupants of a Real Property, contractors, successors or assigns cause, whether
sole, joint or concurrent, to any test or monitoring well, remediation equipment
and/or associated piping, or any other property or equipment installed or
otherwise used by Licensee.
9. SELLER'S ENVIRONMENTAL INDEMNIFICATION.
(a) Subject to the limitations contained herein, Seller hereby
agrees to indemnify, defend and hold harmless the Buyer Indemnitees in respect
of any and all Environmental Damages incurred by any Buyer Indemnitee as a
result of or otherwise in connection with the Release and subsequent migration
of Hazardous Substances on or before the Closing Date on, under, in or about any
of the Real Property, or resulting from the ownership or operation of the A/TS
Network and the Purchased Assets on or before the Closing Date, irrespective of
whether any such condition is identified in the Phase I Environmental Audits or
the Phase II
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Environmental Audits, including, without limiting the generality of the
foregoing, all such Environmental Damages arising out of or relating to (a) any
breach of any representation or warranty made by Seller in this Environmental
Agreement or (b) the breach of any covenant, agreement or obligation of Seller
contained in this Environmental Agreement.
(b) Subject to the limitations contained herein, Buyer hereby
agrees to indemnify, defend and hold harmless the Seller Indemnitees in respect
of any and all Environmental Damages incurred by any Seller Indemnitees as a
result of or otherwise in connection with the Release of any Hazardous Substance
after the Closing Date on, under, in or about any of the Real Property or
resulting from the ownership or operation of the A/TS Network and the Purchased
Assets after the Closing Date, including, without limiting the generality of the
foregoing, all such Environmental Damages arising out of or relating to (a) any
breach of any representation or warranty made by Buyer in these Provisions, or
(b) the breach of any covenant, agreement or obligation of Buyer contained in
these Provisions, provided, however, that Buyer shall have no obligation to
indemnify Seller for any Environmental Damages with respect to which Seller has
agreed to indemnify Buyer, as set forth in Section 9(a) hereof.
10. INDEMNIFICATION PROCEDURE.
(a) Whenever any claim shall arise for indemnification
hereunder, the party seeking indemnification (the "Indemnitee") shall promptly
notify the other party (the "Indemnitor") of the claim and, to the extent known,
the facts constituting the basis for such claim. If an Indemnitor's ability to
defend against a
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suit, action, notice, demand or proceeding by a Governmental Authority or third
party ("Proceeding") is prejudiced by the failure or delay in providing such
notice, the Indemnitor will not be obligated to indemnify the Indemnitee with
respect to such portion of the liability arising from the Proceeding as to which
the Indemnitor's ability to defend has been prejudiced by such failure or delay.
An Indemnitor may, upon written notice to the Indemnitee within 30 calendar days
of receipt of a notice in respect of a Proceeding, assume the defense of any
such Proceeding if the Indemnitor acknowledges the Indemnitee's right to
indemnify pursuant hereto in respect of the entirety of such Proceeding. If an
Indemnitor assumes the defense of any such Proceeding, the Indemnitor shall
select counsel reasonably acceptable to the Indemnitee to conduct the defense of
such Proceeding, shall take all steps necessary in the defense or settlement
thereof and shall at all times diligently and promptly pursue the resolution
thereof. If an Indemnitor shall have assumed the defense of any Proceeding in
accordance with this Section, the Indemnitor shall be authorized to consent to a
settlement of, or the entry of any judgment arising from, any such Proceeding,
without the prior written consent of the Indemnitee; PROVIDED, HOWEVER, that the
Indemnitor shall pay or cause to be paid all amounts arising out of such
settlement or judgment concurrently with the effectiveness thereof; PROVIDED,
FURTHER, that any Remedial Action undertaken by Seller in connection with the
defense of any such Proceeding in which Seller is acting as an Indemnitor shall
be in accordance with the requirements of Section 4 hereof (including, without
limitation, the requirement that such Remedial Action be taken as is necessary
to achieve compliance with applicable Environmental Laws in effect as of the
Sign-Off Date); PROVIDED, FURTHER,
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that an Indemnitor shall not be authorized to encumber any of the assets of any
Indemnitee or to agree to any restriction that would apply to or affect the
Indemnitee, or its conduct of business; AND PROVIDED, FURTHER, that a condition
to any such settlement shall be a complete and unconditional release of the
Indemnitee with respect to such Proceeding. An Indemnitee shall be entitled to
participate in (but not control) the defense of any such Proceeding, with its
own counsel and at its own expense; PROVIDED, HOWEVER, that the Indemnitee will
not unilaterally communicate with the Persons or Governmental Authorities which
have initiated or will decide such Proceeding or interfere with the Indemnitor's
defense of such action, and will cooperate and consult with the Indemnitor with
respect to such Indemnitee's participation in the defense of such Proceeding. An
Indemnitee shall, and shall cause each of its Affiliates, officers, employees,
consultants and agents and each other Indemnitee to, cooperate fully with the
Indemnitor in the defense of any Proceeding pursuant to this Section. If an
Indemnitor does not assume the defense of any Proceeding accordance with the
terms of this Section, the Indemnitee may defend against such Proceeding in such
manner as it may deem appropriate, including settling such Proceeding after
giving notice of the same to the Indemnitor, on such terms as the Indemnitee may
deem appropriate; PROVIDED, HOWEVER, that nothing in this Section shall limit an
Indemnitor's right to defend itself against any claim by a Governmental
Authority or any other Person other than the Indemnitee arising out of or
relating to the subject matter of any such claim for indemnification.
(b) Whenever a Buyer Indemnitee becomes aware of a
condition on, in, about or under the Real Properties for which Seller is
obligated to
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provide indemnification hereunder in the absence of a Proceeding, Buyer shall
promptly provide Seller with notice of such condition. Seller may, upon written
notice to the Buyer Indemnitee within 30 calendar days, assume responsibility
for the performance of such Remedial Action or Environmental Compliance Action
as is necessary to address the condition identified in the notice.
(c) An Indemnitor shall not be obligated to provide
indemnification pursuant to this Environmental Agreement with respect to matters
or conditions for which the Indemnitee has not provided notice of a claim for
indemnification pursuant to Section 10(a) hereof before the eleventh anniversary
of the Closing Date; PROVIDED, HOWEVER, that Seller shall have no obligation to
provide indemnification with respect to Environmental Compliance Actions unless
a notice of claim is provided to Seller before the third anniversary of the
Closing Date; and further PROVIDED, HOWEVER, that any claim for indemnification
pursuant to this Environmental Agreement relating to a condition addressed by a
Remedial Action pursuant to Section 4 hereof may be timely asserted by notice
provided before the
later of (i) the eleventh anniversary of the Closing Date, or (ii) the Sign-Off
Date for such Remedial Action.
(d) Seller's obligation to indemnify Buyer in respect of
Environmental Compliance Actions shall be subject to the Cap established by
Section 8.6 of the Asset Purchase Agreement.
(e) As used in this Section, as the context may require,
Indemnitee means either Buyer Indemnitees or Seller Indemnitees.
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(f) LIMITATION ON DAMAGES. The amount of Damages recoverable
by an Indemnitee under this Agreement shall exclude punitive damages; provided,
however, that nothing herein shall preclude an Indemnitee from recovering (i)
punitive damages if the Indemnitee demonstrates a willful breach of this
Agreement by the Indemnitor or (ii) amounts paid or payable by an Indemnitee to
a third party.
(g) EXCLUSIVE REMEDIES.
(i) The Buyer agrees, on behalf of itself and the Buyer
Indemnitees, that any claim or demand against Sellers, their Affiliates,
their employees, officers, directors and agents (collectively, for the
purpose of this Section 10(g), "Seller") arising out of or relating to
Environmental Liabilities must be brought only under this Environmental
Agreement and subject to the procedures and limitations herein. Nothing in
this Environmental Agreement is intended to limit any claims Buyer, its
Affiliates or the Buyer Indemnitees may have against prior owners of the
Business or the Real Property.
(ii) Sellers agree, on behalf of themselves and the BP
Indemnitees, that any claim or demand against Buyer, its Affiliates, its
employees, officers, directors and agents (collectively, for the purpose
of this Section 10(g), "Buyer") arising out of or relating to
Environmental Liabilities must be brought only under this Environmental
Agreement and subject to the procedures and limitations herein. Nothing in
this Agreement is intended to
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limit any claims Sellers, their Affiliates or the Seller Indemnitees may
have against prior owners of the Business or the Real Property.
11. COOPERATION, ACCESS, REASONABLENESS.
(a) Buyer and Seller shall cooperate with respect to the
undertaking of their mutual obligations pursuant to this Environmental
Agreement, including providing one another reasonable access to relevant records
and officers and employees with knowledge of the matters at issue, and shall
inform one another in reasonably prompt fashion of all significant developments
concerning conditions or actions giving rise to claims for indemnification
hereunder.
(b) All activities relating to the parties' obligations
pursuant to this Environmental Agreement must be undertaken in a manner in which
a prudent business person acting in a commercially reasonable manner would
undertake such work, minimizing interruptions of operations at the Real
Property.
(c) Nothing in this Environmental Agreement shall prevent
Buyer from (i) taking any reasonable and prudent interim measures in the event
of an imminent and substantial endangerment to human health, welfare or the
Environment, without prejudice to Buyer's right to seek indemnification therefor
under this Environ mental Agreement, (ii) taking any reasonable action for which
Buyer does not elect to seek indemnification, in whole or in part, under this
Agreement and (iii) taking any action lawfully required or directed by any
Governmental Authority of competent jurisdiction, without prejudice to Buyer's
right to seek indemnification therefor under this Environmental Agreement.
22
12. DISPUTE RESOLUTION. If a dispute arises between the parties
hereto and that dispute cannot be resolved within a reasonable period of time,
either party hereto may notify the other party that the dispute is to be
submitted to arbitration. In the event that notice of submission of the dispute
to arbitration is provided by either party, the parties jointly shall select an
environmental consultant or engineer reasonably qualified to arbitrate such
dispute (the "Independent Consultant"). The Independent Consultant shall have
the right to obtain the assistance of legal counsel mutually acceptable to Buyer
and Seller in arbitrating the dispute, if the Independent Consultant determines
that such assistance is necessary. Notwithstanding any other provision hereof,
the parties hereto shall each bear one-half of the cost of the Independent
Consultant and its legal counsel, if any. If the parties hereto cannot agree on
an Independent Consultant, they shall apply to the American Arbitration
Association for the appointment of an Independent Consultant. The Independent
Consultant shall establish an expedited procedure for hearing and resolving the
dispute. Unless the parties hereto agree otherwise, the Independent Consultant
shall be required to render a decision resolving the dispute, with a written
opinion stating the reasons therefor, no more than 60 days after the Independent
Consultant is retained. The decision of the Independent Consultant shall be
final and binding and a court of competent jurisdiction may enter judgment
thereon. The dispute resolution procedures of this Section 12 shall constitute
the exclusive remedy of the parties hereto with respect to any disputes arising
out of this Environmental Agreement.
13. CONFLICT WITH PURCHASE AGREEMENT. This Environmental
Agreement is intended to modify and supplement certain of the terms of the
Purchase
23
Agreement with respect to the matters described herein. In the event of any
conflict or ambiguity between the Purchase Agreement and this Environmental
Agreement, the provisions of this Environmental Agreement shall control.
14. OTHER RIGHTS. All rights and remedies of any party hereunder
shall be cumulative and are expressly in addition to those now or hereafter
existing under the Purchase Agreement, or at law or in equity, any of which
alone or together may be fully exercised by either party.
15. FURTHER ASSURANCES. Each party agrees to execute additional
instruments and documents and do all such further things as may reasonably be
requested by the other in order to carry out the intent of this Environmental
Agreement.
16. WAIVERS AND AMENDMENTS.
(a) Any provision of this Environmental Agreement may be
amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Buyer and Seller, or in the case of a
waiver, by the party against whom the waiver is to be effective.
(b) No waiver by either party of any default, misrepresenta
tion or breach of warranty or covenant hereunder, whether intentional or not,
shall be deemed to extend to any prior or subsequent default, misrepresentation
or breach of warranty or covenant hereunder or affect in any way any rights
existing by virtue of any prior or subsequent occurrence. No single or partial
exercise by either party of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
24
17. NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand, claim
or other communication hereunder shall be deemed duly given (i) if personally
delivered, when so delivered, (ii) if mailed, two Business Days after having
been sent by registered or certified mail, return receipt requested, postage
prepaid and addressed to the intended recipient as set forth below, (iii) if
given by telecopier, once such notice or other communication is transmitted to
the telecopier number specified below and the appropriate answer back or
telephonic confirmation is received, provided that such notice or other
communication is promptly thereafter mailed in accordance with the provisions of
clause (ii) above or (iv) if sent through a reputable overnight delivery service
in circumstances in which such service guarantees next day delivery, the day
following being so sent.
(a) If to Seller, to:
BP Exploration & Oil Inc.
000 Xxxxxx Xxxxxx
Xxxx 00-X
Xxxxxxxxx, Xxxx 00000-0000
Attention: Director, Environmental Resources
Management
and by telecopy to: 216/586-8222
with a copy under separate cover to:
BP Exploration & Oil Inc.
000 Xxxxxx Xxxxxx
Xxxx 00-X
Xxxxxxxxx, Xxxx 00000-0000
Attention: Director, Environmental Legal
Services
and by telecopy to: 216/586-4535
25
(b) If to Buyer, to:
T.S. Network Corp.
x/x Xxx Xxxxxxx Xxxxx, X.X.
Xxxx Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
and by telecopy to: 212/318-1360
with a copy to:
The Clipper Group, L.P.
Park Avenue Plaza
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
and by telecopy to: 212/318-1360
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxxx, Esq.
and by telecopy to: 212/757-3990
Either party may give any notice, request, demand, claim or other
communication hereunder using any other means (including ordinary mail or
electronic mail), but no such notice, request, demand, claim or other
communication shall be deemed to have been duly given unless and until it
actually is received by the individual for whom it is intended. Either party may
change the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other party notice in
the manner herein set forth.
26
18. MISCELLANEOUS. This Environmental Agreement may be signed in any
number of counterparts, each of which shall be deemed an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Environmental Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. This
Environ mental Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors in interest and assigns by
operation of law or otherwise. This Environmental Agreement shall be construed
and interpreted in accordance with the laws of the State of New York.
19. ASSIGNMENT. In the event of a transfer by Buyer of all or any
portion of its interest in the A/TS Network, Buyer may assign this Environmental
Agreement without the consent of Seller, to the extent that it relates to the
interest transferred, to any one or more persons, firms or entities which are
successors to such interest, including any successor to the ownership of any of
the Acquisition Assets. Buyer shall provide at least thirty days' notice to
Seller prior to the assignment. Any assignee of Buyer shall be required to
assume responsibility for all Buyer's obligations hereunder. Notwithstanding the
foregoing, Buyer shall also be permitted to assign any or all of its rights
hereunder to one or more of its lenders.
20. SEVERABILITY. If any provision of this Environmental Agreement,
or the application thereof to any person, place or circumstance, shall be held
by a court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of the Agreement and such provisions as applied to other Persons,
places and circumstances shall remain in full force and effect.
27
21. POWER AND AUTHORITY. Each party to the Environmental Agreement
hereby certifies that it: (i) is a corporation duly formed, validly existing and
in good standing under the laws of the state of its incorporation; (ii) has full
power and authority to execute this Environmental Agreement and any and all
documents which may be related thereto; and (iii) has, to the extent necessary,
obtained authorization from its Board of Directors to execute this Environmental
Agreement. The undersigned representative(s) of each party certifies that he or
she is fully authorized by the party whom he or she represents to enter into the
terms and conditions of this Environmental Agreement and to bind legally such
Party to this Environmental Agreement.
22. JURISDICTION. Each of the parties hereto irrevocably submits to
the jurisdiction of any state or federal court sitting in the County of New
York, State of New York, in any action or proceeding arising out of or relating
to this Environ mental Agreement, agrees that all claims in respect of the
action or proceeding may be heard and determined in any such court, and agrees
not to contest the jurisdiction (IN REM or IN PERSONAM) or power or decision of
such court over or pertaining to the party or with respect to the subject matter
in any court within or without the United States other than appropriate
appellate courts. Each of the parties hereto irrevocably waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond, surety, or other security that might be required of the other
party hereto with respect thereto.
23. CONSTRUCTION. The language used in this Environmental
Agreement will be deemed to be the language chosen by the parties hereto to
express
28
their mutual intent, and no rule of strict construction shall be applied against
either party. Whenever required by the context, any gender shall include any
other gender, the singular shall include the plural and the plural shall include
the singular. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the word "including" is used in this Agreement, it
shall be deemed to mean "including, without limitation," "including, but not
limited to" or other words of similar import such that the items following the
word "including" shall be deemed to be a list by way of illustration only and
shall not be deemed to be an exhaustive list of applicable items in the context
thereof.
29
IN WITNESS WHEREOF, the parties hereto have caused this
Environmental Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
BP EXPLORATION & OIL INC.
By: /s/ X.X. Xxxx
------------------------------------------
Name: X.X. Xxxx
----------------------------------------
Title: Vice President, Strategic Development
---------------------------------------
TRUCKSTOPS CORPORATION OF AMERICA INC.
By: /s/ X.X. Xxxx
------------------------------------------
Name: X.X. Xxxx
----------------------------------------
Title: Vice President, Strategic Development
---------------------------------------
T.S. NETWORK CORP.
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
----------------------------------------
Title: President
---------------------------------------
