EXHIBIT 10.02
ENVIRONMENTAL REMEDIATION AND INDEMNIFICATION AGREEMENT
THIS ENVIRONMENTAL REMEDIATION AND INDEMNIFICATION AGREEMENT (the
"Agreement") is executed this 6th day of February, 1998, by and among INTERCELL
Corporation, a Colorado corporation ("INTERCELL"), Jaymark, Inc., a Delaware
corporation ("Jaymark"), and California Tube Laboratory, Inc., a California
corporation ("CTL").
RECITALS
A. INTERCELL owns one hundred percent (100%) of the issued and outstanding
shares of capital stock of CTL (the "CTL Stock").
B. Jaymark wishes to acquire, and INTERCELL wishes to sell, all of the CTL
Stock in exchange for cash in accordance with the terms and subject to the
conditions set forth in that certain Stock Purchase Agreement dated as of
February 6, 1998, by and among Jaymark, INTERCELL and CTL (the "Stock Purchase
Agreement").
C. Between 1949 and January 1998, CTL operated its commercial and
industrial business on property located at 0000-0000 00xx Xxxxxx in the Live Oak
District of Santa Xxxx County, California (the "Santa Xxxx Site").
X. Xxxxx, Xxxxx & Associates has prepared a Phase I/II Environmental Site
Assessment of the Santa Xxxx Site, dated January 8, 1998 (the "Site
Assessment"), attached hereto as Exhibit A, and has discovered various toxic and
hazardous substances in the groundwater and soil underlying the Santa Xxxx Site
including, but not limited to, tetrachloroethane, trichloroethane, carbon
tetrachloride, motor oil, diesel, polychlorinated biphenyls and other various
contaminants (the "Contamination").
E. The Site Assessment has been or will be submitted to the State Water
Resources Control Board and/or the California Regional Water Quality Control
Board (Central Coast Region), the State Department of Toxic Substances Control
and the Santa Xxxx County Department of Environmental Health Services, and,
pending their review, input and instructions, further investigation regarding
the extent of the Contamination at the Santa Xxxx Site and remediation
activities at the Santa Xxxx Site will be commenced.
F. Due to the proposed acquisition of CTL by Jaymark from INTERCELL and
the discovery of the Contamination, Jaymark has requested that INTERCELL furnish
to Jaymark and CTL written confirmation that INTERCELL will complete all
investigation and remediation of the Contamination as may be required by state
and federal law, and that INTERCELL will indemnify, defend and hold harmless
Jaymark and CTL for all liabilities, claims, costs and legal proceedings arising
as a result of the Contamination.
G. INTERCELL is willing to provide such written confirmation to Jaymark
and CTL upon the terms and subject to the conditions stated herein.
NOW, THEREFORE, INTERCELL covenants and agrees as follows:
1. INTERCELL will comply with all reporting and disclosure requirements of
applicable state and federal law relating to the Contamination, including, but
not limited to, the reporting and disclosure requirements of the State Water
Resources Control Board and/or the California Regional Water
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Quality Control Board (Central Coast Region), the State Department of Toxic
Substances Control and the Santa Xxxx County Department of Environmental Health
Services, and any other regulatory agencies (the foregoing are sometimes
hereinafter collectively referred to as the "Regulating Agencies").
2. INTERCELL will, at its expense, investigate and remediate to the extent
required by applicable state or federal law the Contamination in the soil and
groundwater at the Santa Xxxx Site. INTERCELL will comply with all of the
cleanup and remediation requirements of the Regulating Agencies. In this
regard, INTERCELL will (a) quantify the extent of the Contamination affecting
the soil and groundwater, including, without limitation, installing monitoring
xxxxx, and (b) provide to the applicable Regulating Agencies a corrective action
plan to remediate the Contamination and obtain approval of such plan or other
remediation measures. INTERCELL, at its sole cost, shall be responsible for
obtaining from each of the applicable Regulating Agencies a no further action
letter with respect to the Contamination at the Santa Xxxx Site. INTERCELL
shall use its best efforts to obtain a no further action letter within 18 months
after the execution of this Agreement.
3. INTERCELL will indemnify, defend and hold harmless CTL and Jaymark,
their successors-in-interest and their respective lenders, tenants, officers,
directors, trustees, employees, agents, successors and assigns (singularly,
"Indemnitee" and collectively, the "Indemnitees") from and against any and all
claims, demands, suits, assessments, damages, fines, penalties and clean up,
remediation or other response expenses incurred by, claimed from or assessed
against any of the Indemnitees, whether foreseen or unforeseen, including, but
not limited to, any claim or claims for personal injury, property damage and
consequential damages (collectively, "Claims"), that arise out of the presence
of the Contamination at the Santa Xxxx Site. The term "Claims" as used herein
shall also include any clean up cost, remediation costs or other response costs,
expenses and legal proceedings under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery
Act (RCRA), the Clean Water Act (CWA), or any other federal, state or local law,
regulation or ordinance.
4. INTERCELL shall provide to Jaymark a copy of any and all sampling
results, investigatory data, reports, plans, correspondence, schedules and other
documents relating to the investigation and/or remediation of the Contamination.
Further, INTERCELL shall provide to Jaymark at least 48-hours advance written
notice of any meetings, conferences or hearings with or before any of the
Regulating Agencies or any personnel thereof and INTERCELL hereby agrees that
Jaymark shall have the right to attend any such meetings, conferences or
hearings.
5. Upon receipt of any claim, demand, or similar notice of liability
related to the Contamination, the Indemnitees will provide written notice to
INTERCELL of any such claim, demand or similar notice of liability at the
following address:
INTERCELL Corporation
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (303)
Attention: Xxxx Xxxxxxxxx, President
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with a copy to: Xxxxx Xxxx
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
An Indemnitee who fails to provide notice as set forth above shall be deemed to
be in breach of such notice obligation only to the extent that the delay
prejudices INTERCELL.
6. Notwithstanding anything contained herein, this Agreement shall not be
construed as an election of remedies or as a waiver of any statutory, other
contractual, or common law rights that the Indemnitees may have with respect to
the Contamination. The non-signatory Indemnitees are expressly acknowledged to
be third party beneficiaries of this Agreement and each Indemnitee is entitled
to directly enforce his or her rights hereunder.
7. In the event that any action or legal proceeding is brought to enforce
or interpret this Agreement, the prevailing party shall be entitled to
reimbursement of its reasonable attorneys' fees and costs.
8. This Agreement shall be binding upon and shall inure to the benefit of
each party's successors and assigns.
9. The indemnification, defense and hold harmless obligations of INTERCELL
contained herein shall survive the completion of INTERCELL's remediation
activities as stated in Paragraph 1 and/or the issuance of any "no further
action" letter(s) from the applicable Regulating Agencies concerning INTERCELL's
remediation of the Contamination.
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10. This Agreement shall be governed by and construed in accordance with
the laws of the State of California without regard to conflict of laws rules.
EXECUTED to be effective as of the date first above written.
INTERCELL CORPORATION, a Colorado
corporation
By /s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx, President and Chief
Executive Officer
JAYMARK, INC., a Delaware corporation
By /s/ Xxxx Xxxxxx
----------------------------------------
Xxxx Xxxxxx, President and Chief Executive
Officer
CALIFORNIA TUBE LABORATORY, INC., a
California corporation
By /s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx, President and Chief
Executive Officer
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EXHIBIT A
THE SITE ASSESSMENT
[See Attached]
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