EXHIBIT 10.8
ENVIRONMENTAL AGREEMENT
This ENVIRONMENTAL AGREEMENT is entered into as of November 23, 1992
by and between Union Oil Company of California, a California corporation
("Seller"), and National Auto/Truckstops, Inc., a Delaware corporation (together
with its successors and assigns, "Buyer").
WHEREAS, Buyer and Seller are entering into certain asset purchase
agreements of even date herewith (the "Purchase Agreement" and the "California
Purchase Agreements"), 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
shall have the meanings ascribed to them in the Purchase Agreement. For purposes
of this Environ mental Agreement, the following terms shall have the mean ings
respectively ascribed below:
(a) The "ACQUISITION COST" shall have the meaning ascribed
to it in Section 3(f) hereof.
(b) The "A/TS NETWORK" means (i) the A/TS Network (as defined
in the Purchase Agreement) and (ii) the Excluded Locations (as defined in the
Purchase Agreement).
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(c) "AUTO/TRUCKSTOP" means a location in the A/TS Network,
including the associated Real Property and Acquisition Assets.
(d) "BUYER INDEMNITEES" means Buyer, Buyer's Affiliates and
their respective officers, directors, employees and agents, in their capacity as
such.
(e) "DAMAGES" means all demands, claims, actions or causes of
action, assessments, losses, damages, costs, expenses, liabilities, judgments,
awards, fines, sanctions, penalties, and charges, and amounts paid or payable in
settlement, including (y) interest on cash disbursements in respect of each of
the foregoing at the lesser of the Reference Rate in effect from time to time
and the maximum interest rate permitted by law, compounded monthly, from the
date each such cash disbursement is made until the Person incurring the same
shall have been indemnified in respect thereof and (z) reasonable costs, fees
and expenses of attorneys, experts, accountants, appraisers, consultants,
witnesses, investigators and any other agents of such Person.
(f) "ENVIRONMENT" means navigable waters, waters of the
contiguous zone, ocean waters, natural resources, surface waters, groundwater,
drinking water supply, land surface, subsurface strata, ambient air, both inside
and outside of buildings and structures, and plant and animal life on earth.
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(g) "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 Acquisition Assets on or prior to the Closing
Date.
(h) "ENVIRONMENTAL COMPLIANCE ACTION" means any expenditure or
action necessary to cause any USTs, or any other 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.
(i) "ENVIRONMENTAL CONSULTANTS" shall have
the meaning ascribed to it in Section 3(d) hereof.
(j) "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.
(k) "ENVIRONMENTAL LAWS" means federal, state, local and
foreign laws, principles of common law, regulations and codes, as well as
orders, decrees, judgments
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or injunctions issued, promulgated, approved or entered thereunder, relating to
pollution or protection of the Environment.
(l) "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,
radioactive substance or waste, or any constituent of any such substance or
waste, including without limitation any such substance regulated under or
defined by any Environmental Law.
(m) "INDEPENDENT CONSULTANT" shall have the meaning ascribed
to it in Section 8 hereof.
(n) "MATERIAL ENVIRONMENTAL DAMAGES" means Environmental
Damages, individually or in the aggregate, in excess of $50,000.
(o) "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 (or any other
Persons) necessary for the operation of the Acquisition Assets or the business
of the A/TS Network in substantially the same manner as currently operated by
Seller and in compliance with applicable Environmental Laws, or affecting or
relating in any way to the business of the A/TS Network, including (i) any such
permit or approval relating to the transportation, storage or sale of any
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petroleum product or the discharge of by-products or waste material into a
public waste discharge system and (ii) any registration, approval or exemption
required under any state or federal franchise, business opportunity or similar
law.
(p) "PHASE I ENVIRONMENTAL AUDITS" means Phase I environmental
audits of the A/TS Network and the Real Property performed by ENSR at the
request of Buyer and Seller, in order to identify conditions likely to give rise
to Environmental Damages relating to or arising out of the operations or
conditions of the A/TS Network and the Real Property on or prior to the Closing
Date.
(q) "PHASE II ENVIRONMENTAL AUDITS" shall have the meaning
ascribed to it in Section 3(b) hereof.
(r) "RELEASE" means any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the Environment or into or out of any property, including the
movement of Hazardous Substances through or in the air, soil, surface water,
groundwater or property.
(s) "REMEDIAL ACTION" means all actions, whether undertaken
pursuant to judicial or administrative order or otherwise, reasonably necessary
to comply with applicable Environmental Laws, to (A) clean up, remove, treat,
cover or in any other way adjust Hazardous Substances in the Environment; (B)
prevent or control the Release of Hazardous Substances so that they do not
migrate or endanger or threaten to endanger public health or welfare or the
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indoor or outdoor Environment; or (C) perform remedial studies, investigations,
restoration and post-remedial studies, investigations and monitoring on, about
or in any real property.
(t) "SIGN-OFF DATE" shall have the meaning ascribed to it in
Section 4(c).
(u) "USTS" means any underground or aboveground storage tanks
or related piping or dispensers.
2. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES. To Seller's
knowledge, Seller hereby represents and warrants to Buyer as follows:
(a) Except as set forth in Schedule 2(a), the ownership and
operation of the A/TS Network and the ownership, use and condition of the
Acquisition Assets are in compliance with Environmental Laws, with the exception
of instances of noncompliance which are not, in the aggregate, reasonably likely
to result in Material Environmental Damages;
(b) Except as set forth in Schedule 2(b), Seller holds all
Permits required pursuant to Environmental Laws for ownership, and Seller and
the Operators, collectively, hold all Permits required pursuant to Environmental
Laws for operation, of the A/TS Network and the Acquisition Assets, with the
exception of any failures to hold any such Permits which are not, in the
aggregate, reasonably likely to result in Material Environmental Damages; all
such Permits are in full force and effect, no
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action to revoke or modify any of such Permits is pending, and the ownership and
operation of the A/TS Network and the ownership, use and condition of the
Acquisition Assets are in compliance with all terms and conditions thereof, with
the exception of instances of noncompliance which are not, in the aggregate,
reasonably likely to result in Material Environmental Damages;
(c) Except as set forth in Schedule 2(c), Seller has not
received any notification, whether direct or indirect, that the A/TS Network or
the Acquisition Assets are or may be subject to any Environmental Action;
(d) Except as set forth in Schedule 2(d), the A/TS Network and
the Acquisition Assets are not subject to any obligation pursuant to
Environmental Laws to perform Remedial Action; and
(e) Except as set forth in Schedule 2(e), the ownership and
operation of the A/TS Network and the Acquisition Assets are not reasonably
likely to be 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 conducted by ENSR.
(b) Phase II environmental audits of the A/TS Network and the
Real Property shall be undertaken after the Closing Date by the Environmental
Consultants in
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accordance with the Phase II Scope of Work set forth as Schedule A hereto (the
"Phase II Environmental Audits").
(c) The costs of conducting the Phase II Environmental Audits
shall be borne as follows: (i) Buyer shall pay one-half of the cost of the Phase
II Environmental Audits up to $500,000, but in no event shall Buyer pay more
than $500,000 toward the cost of the Phase II Environmental Audits; and (ii)
Seller shall pay the remainder of the cost of the Phase II Environmental Audits.
The Environmental Consultants shall provide copies of the Phase II Environmental
Audits and all other reports, notices, test results and other communications
simultaneously to Buyer and Seller.
(d) The selection of the environmental consultants which shall
undertake each of the Phase II Environmental Audits (the "Environmental
Consultants") shall be determined by agreement of Seller and Buyer, which shall
jointly direct the Environmental Consultants in the conduct of the Phase II
Environmental Audits. In the event that the Seller and Buyer cannot agree on the
selection of an Environmental Consultant, each of the Seller and Buyer shall
select an environmental consultant, and those environmental consultants together
shall select the Environmental Consultant.
(e) Phase II Environmental Audits of each of the
Auto/Truckstops in the A/TS Network must be completed within seven (7) years of
the Closing Date, and Phase II
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Environmental Audits of a minimum of fourteen (14) Auto/Truckstops in the A/TS
Network must be completed during each year of that seven year period (each year
will be deemed to terminate on the anniversary of the Closing Date); PROVIDED,
HOWEVER, that the Phase II Environmental Audits for all Auto/Truckstops at which
steel underground storage tanks are located must be completed by December 31,
1996.
(f) If Seller proposes to perform any Environmental Compliance
Action and/or Remedial Action at any parcel of Real Property pursuant to a
remediation plan which will result in the cessation of all or substantially all
of the operations of the truckstop at that parcel of Real Property for a period
in excess of ninety (90) days, or if implementation of any such Environmental
Compliance Action and/or Remedial Action does result in the cessation of all or
substantially all of the operations of the truckstop at that parcel of Real
Property for a period in excess of ninety (90) days, Buyer shall have the option
to cause Seller to acquire from Buyer Buyer's interest in such parcel of Real
Property and in the related Acquisition Assets for the fair market value of the
same (giving due consideration to all relevant factors including, without
limitation, the replacement cost of the interest in the parcel of Real Property
and related Acquisition Assets), as determined by a qualified appraiser who is a
member of the Appraisal Institute, selected by mutual agreement of the parties
hereto (or, if the parties cannot agree, selected by
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the American Arbitration Association), calculated without diminution of the fair
market value on the basis of the estimated cost of any Remedial Action or
Environmental Compliance Action required pursuant to applicable Environmental
Laws or any other likely Environmental Damages (the "Acquisition Cost").
(g) If Seller reacquires from Buyer pursuant to Section 3(f)
an interest in any parcel of Real Property and related Acquisition Assets, at
such time as Seller has accomplished (i) all Remedial Action as is necessary to
achieve compliance with applicable Environmental Laws in effect as of the
Sign-Off Date (as that term is defined in Section 4(c)), including without
limitation the reduction of concentrations of Hazardous Substances to levels
which are below any levels or standards contained in any applicable
Environmental Laws in effect as of the Sign-Off Date, and (ii) all Environmental
Compliance Action as is necessary to achieve compliance with applicable
Environmental Laws in effect as of the Closing Date, Seller shall obtain either
(x) a written statement by a Governmental Authority with jurisdiction over the
condition to the effect that compliance with applicable Environmental Laws has
been achieved and no further action is required, or (y) a certification of an
independent engineer mutually acceptable to Buyer and Seller to the same effect,
for each and every Remedial Action and Environmental Compliance Action required
by applicable Environmental Laws at such parcel of Real
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Property, and, for each such parcel of Real Property, a certification of an
independent engineer mutually acceptable to Buyer and Seller to the effect that
the Hazardous Substances remaining on the parcel of Real Property will not cause
that parcel of Real Property to be subject to a restriction on use or transfer
pursuant to Environmental Laws. Upon receipt of all such statements and/or
certifications with respect to such parcel of Real Property, Seller shall
promptly so notify Buyer, and Buyer shall have the option, for a period of
ninety (90) days from receipt of such notice, to repurchase the interest in such
parcel of Real Property and related Acquisition Assets for the Acquisition Cost,
PROVIDED, HOWEVER, that, if Buyer repurchases the interest in such parcel of
Real Property and related Acquisition Assets, Seller shall remain obligated to
indemnify Buyer pursuant to Section 5 of this Environmental Agreement with
respect to the parcel of Real Property and related Acquisition Assets in the
same manner as if the interest in such parcel of Real Property and related
Acquisition Assets had not been reacquired by Seller pursuant to Section 3(f).
(h) All taxes resulting from the transactions contemplated by
Sections 3(f) and 3(g), including any sales and use taxes and any real property
transfer taxes, shall be borne by Seller.
4. Covenant to Undertake Remedial
ACTION AND ENVIRONMENTAL COMPLIANCE ACTION.
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(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 or in the vicinity of any parcel of Real Property in the
A/TS Network (including the Excluded Locations), then, as to such conditions,
Seller shall, as promptly as is reasonably practicable and, with respect to
Environmental Compliance Actions, no later than ninety days after the Buyer and
Seller have agreed, or the Independent Consultant has determined, that such
Environmental Compliance Action is required, (i) undertake such Remedial Action
as is necessary to achieve compliance with applicable Environmental Laws in
effect as of the Sign-Off Date, including without limitation the reduction of
concentrations of Hazardous Substances to levels which are below any levels or
standards contained in any 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, HOWEVER, that any interest in a parcel of Real
Property which has been repurchased by Seller pursuant to Section 3(f) shall not
be subject to the requirements of this Section except as otherwise provided
herein; and, PROVIDED, FURTHER, that Section 5, rather than this Section 4,
shall apply in the event that Buyer has failed to operate
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the relevant Auto/Truckstop in a manner consistent with the operation of the
Auto/Truckstop prior to the Closing Date and such failure has resulted in a
Release of Hazardous Substances which materially increases the scope or extent
of the required Environmental Compliance Action or Remedial Action.
(b) After the Closing Date, Buyer and Seller each shall have
the right to determine whether notice to any Governmental Authority or any other
Person is required by applicable Environmental Laws with respect to conditions
identified in the Phase I Environmental Audits or the Phase II Environmental
Audits and each shall promptly notify the other of any determination that such
notice is required; and (ii) shall determine by agreement whether the conduct of
any Remedial Action or Environmental Compliance Action is required by applicable
Environmental Laws with respect to conditions identified in the Phase I
Environmental Audits or the Phase II Environmental Audits. In all other
respects, Seller shall have the exclusive right to manage and control all
actions undertaken pursuant to Section 4(a), subject to the other terms of this
Environmental Agreement.
(c) With respect to each condition requiring Remedial Action
or Environmental Compliance Action by Seller pursuant to Section 4(a), Seller
shall be required to 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
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Laws has been achieved and no further action is required, or (ii) a
certification of an independent engineer, mutually acceptable to Buyer and
Seller, to the same effect, and, in either case, a certification of an
independent engineer, mutually acceptable to Buyer and Seller, to the effect
that the Hazardous Substances remaining on the relevant parcel of Real Property
will not cause that parcel of Real Property to be subject to a restriction on
use or transfer pursuant to Environmental Laws. The date on which such written
statement of a Governmental Authority and/or certification of an independent
engineer is received by Buyer shall be the "Sign-Off Date."
(d) If the Phase I Environmental Audits or the Phase II
Environmental Audits identify conditions at any parcel of Real Property which
require Remedial Action which entails removal of any USTs, (i) to the extent
that the USTs cannot be reinstalled in a manner and condition which is in
compliance with Environmental Laws, Seller shall bear the cost of the
replacement USTs, and (ii) to the extent that the USTs can be reinstalled in a
manner and condition which is in compliance with Environmental Laws, Buyer shall
have the option, at its own expense, to provide replacement USTs.
5. SELLER'S ENVIRONMENTAL INDEMNIFICATION.
Seller hereby agrees that it shall 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
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any condition existing 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 on or before the Closing Date (irrespective of whether any such
condition is identified in the Phase I Environmental Audits or the Phase II
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.
6. INDEMNIFICATION PROCEDURE.
(a) Whenever any claim shall arise for indemnification
hereunder, the Buyer Indemnitee shall promptly notify Seller of the claim and,
when known, the facts constituting the basis for such claim. If the Buyer
Indemnitee fails to provide Seller with such notice prior to the time at which
Seller's ability to defend against such claim is prejudiced by the failure to
provide such notice, Seller will not be obligated to indemnify the Buyer
Indemnitee with respect to such portion of the claim as to which Seller's
ability to defend has been prejudiced by such failure. Seller may, upon written
notice to the Buyer Indemnitee within 30 calendar days of receipt of the notice
specified in the first sentence of this paragraph, assume the defense of any
such claim if Seller acknowledges to the
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Buyer Indemnitee Buyer Indemnitee's right to indemnity pursuant hereto in
respect of the entirety of such claim. If Seller assumes the defense of any such
claim, Seller shall select counsel reasonably acceptable to the Buyer Indemnitee
to conduct the defense of such claim, shall take all steps necessary in the
defense or settlement thereof and shall at all times diligently and promptly
pursue the resolution thereof. If Seller shall have assumed the defense of any
claim in accordance with this Section, Seller shall be authorized to consent to
a settlement of, or the entry of any judgment arising from, any such claim,
without the prior written consent of the Buyer Indemnitee; PROVIDED, HOWEVER,
that Seller 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 claim 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, that
Seller shall not be authorized to encumber any of the assets of the Buyer
Indemnitees or to agree to any restriction that would apply to or affect any of
the Buyer Indemnitees, or its conduct of business; AND PROVIDED, FURTHER, that a
condition to any such settlement shall be a complete and unconditional
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release of the Buyer Indemnitee with respect to such claim. The Buyer Indemnitee
shall be entitled to participate in (but not control) the defense of any such
action, with its own counsel and at its own expense; PROVIDED, HOWEVER, that the
Buyer Indemnitee will not unilaterally communicate with the Persons or
Governmental Authorities which have made or will decide such claim or interfere
with the Seller's defense of such action, and will cooperate and consult with
Seller with respect to such Buyer Indemnitee's participation in the defense of
such action. Buyer shall, and shall cause each of its Affiliates, officers,
employees, consultants and agents and each other Buyer Indemnitee to, cooperate
fully with Seller in the defense of any claim pursuant to this Section. If
Seller does not assume the defense of any claim resulting therefrom in
accordance with the terms of this Section, the Buyer Indemnitee may defend
against such claim in such manner as it may deem appropriate, including settling
such claim after giving notice of the same to Seller, on such terms as the Buyer
Indemnitee may deem appropriate; PROVIDED, HOWEVER, that nothing in this Section
shall limit Seller's right to defend itself against any claim by a Governmental
Authority or any other Person other than the Buyer arising out of or relating to
the subject matter of any such claim for indemnification.
(b) Seller shall not be obligated to provide indemnification
pursuant to this Environmental Agreement with respect to matters or conditions
for which Buyer has
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not provided notice of a claim for indemnification pursuant to Section 6(a)
hereof before the eleventh anniversary of the Closing Date; PROVIDED, HOWEVER,
that any claim for indemnification pursuant to this Environmental Agreement
which concerns matters or conditions at an Auto/Truckstop may be timely
asserted, and Seller shall be obligated to provide indemnification with respect
thereto, by notice provided at any time before the later of (i) the eleventh
anniversary of the Closing Date, or (ii) the latest Sign-Off Date for any
Environmental Compliance Actions or Remedial Actions undertaken pursuant to
Section 4 of this Environmental Agreement at the Auto/Truckstop which is the
subject of the claim for indemnification.
(c) Notwithstanding any other provision hereof, the right of
the Buyer to indemnification pursuant to this Environmental Agreement shall not
be diminished in any way by the knowledge of the Buyer, and/or its failure to
inform Seller, prior to the Closing Date of conditions giving rise to
Environmental Damages which are otherwise indemnifiable pursuant to this
Environmental Agreement.
7. 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
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fashion of all significant developments concerning conditions or actions giving
rise to claims for indemnification hereunder.
(b) Seller and its representatives shall have the right, at
reasonable times and upon reasonable prior notice, to enter the parcels of Real
Property in the A/TS Network for the purpose of undertaking activities relating
to its obligations pursuant to this Environmental Agreement.
(c) 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 relevant
parcel of Real Property in the A/TS Network.
(d) 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 Environmental 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 required or directed by any Governmental
Authority of competent jurisdiction, without prejudice to Buyer's right to seek
indemnification therefor under this Environmental Agreement.
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8. 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 disputes
arising under Environmental Laws (the "Independent Consultant"). The Independent
Consultant shall have the right to obtain the assistance of qualified legal
counsel 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
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competent jurisdiction may enter judgment thereon. The dispute resolution
procedures of this Section 8 shall constitute the exclusive remedy of the
parties hereto with respect to any disputes arising out of this Environmental
Agreement.
9. CONFLICT WITH PURCHASE AGREEMENT. This Environmental Agreement is
intended to modify and supplement certain of the terms of the Purchase Agreement
with respect to Seller's obligations to Buyer. In the event of any conflict or
ambiguity between the Purchase Agreement and this Environmental Agreement, the
provisions of this Environmental Agreement shall control.
10. OTHER RIGHTS. All rights and remedies of Buyer 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 Buyer.
11. 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.
12. 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
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waiver, by the party against whom the waiver is to be effective.
(b) No waiver by either party of any default,
misrepresentation 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. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
13. 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
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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:
Union Oil Company of California
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇▇▇▇▇
and by telecopy to: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Union Oil Company of California
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇
and by telecopy to: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Buyer, to:
National Auto/Truckstops, Inc.
c/o Unocal Petroleum Products and
Chemicals Division
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and by telecopy to: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Clipper Group, L.P.
Park Avenue Plaza
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
and by telecopy to: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
24
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
and by telecopy to: (▇▇▇) ▇▇▇-▇▇▇▇
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.
14. 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. 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, 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, upon notice to, but without the
consent of, Seller. Buyer
25
shall also be permitted to assign any or all of its rights hereunder to one or
more of its lenders. This Environmental 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 California.
15. SEVERABILITY, ETC. 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. This
Environmental Agreement shall be a continuing agreement, and without limiting
the above, shall survive satisfaction of the conditions of the Environmental
Agreement. The remedies of Buyer hereunder are not intended to be exclusive of
any other right or remedy now or hereafter existing under or existing at law, in
equity, or by statute, any of which alone, or together, may be fully exercised
by Buyer.
16. 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
26
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.
17. JURISDICTION. Each of the parties hereto irrevocably submits to
the jurisdiction of any state or federal court sitting in the County of Los
Angeles, State of California, in any action or proceeding arising out of or
relating to this Environmental 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.
18. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in
27
the construction or interpretation hereof. All references to a Section include
all subparts hereof.
19. CONSTRUCTION. The language used in this Environmental Agreement
will be deemed to be the language chosen by the parties hereto to express 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. Whenever the word "including" is used in this Environmental
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.
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.
UNION OIL COMPANY OF CALIFORNIA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Title: Sr. Vice President
----------------------------
NATIONAL AUTO/TRUCKSTOPS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
NATIONAL AUTO/TRUCKSTOPS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President