Exhibit 10.4


 


ENVIRONMENTAL LIABILITIES AGREEMENT


 


This ENVIRONMENTAL
LIABILITIES AGREEMENT dated as of October 3, 2003, (together with the Schedules
and Exhibits hereto, this “Agreement”) between ConocoPhillips Company (“Seller”),
a Delaware corporation, and Alimentation Couche-Tard Inc. (“Parent”), a
corporation organized under the laws of the Province of Québec, Canada (each a
“Party” and collectively, the “Parties”).


 


WHEREAS, contemporaneously
herewith, the Parties are entering into a Stock Purchase Agreement (the “Stock
Purchase Agreement”) dated as of October 3, 2003, for the sale and purchase
of all of the outstanding shares of common stock, par value $0.01 per share of
The Circle K Corporation (“the Company”);


 


AND WHEREAS the Parties have
agreed to enter into this Agreement in relation to certain environmental and
occupational health and safety matters related to the Properties and the
Divested Properties;


 


NOW, THEREFORE, in
consideration of the premises and the mutual representations, warranties, covenants
and agreements contained herein, the Parties agree as follows:


 


1.                                       Definitions; Usage.


 


For
purposes of this Agreement, the following terms shall have the following
meanings, and such meanings shall be equally applied to both the singular and
plural forms of the terms defined. 
Unless the context shall otherwise require, terms used and not defined
herein but defined or given meaning in the Stock Purchase Agreement shall have
the meanings assigned to such terms in the Stock Purchase Agreement and all
rules as to usage set forth in Section 14.14 therein shall apply hereto.


 


“Agency” shall mean
any Governmental Body having jurisdiction with respect to any environmental or
occupational health or safety matter and shall include any federal, state or
local agency or other governmental or regulatory authority with the power to
regulate UST Systems or any portion thereof, including the operation of
underground storage tanks, or the reporting, assessment and remediation of
contamination within the soil matrix or groundwater, and any court of competent
jurisdiction.


 


“Baseline Contamination”
shall mean contamination of the soil, surface water, groundwater, land, stream
sediments, surface or subsurface strata, ambient air or any other environmental
medium on, under, in, about, or from any of the Properties caused by any
Covered Substance that is (i) at or from a Property with active remediation or
monitoring (or with respect to which remediation or monitoring is planned but
has not been commenced) as of the Closing Date or known or identified
contamination as of the Closing Date and, in each case, listed on Schedule 1.1
hereto; or (ii) provided, that in either of the following cases, such
contamination shall be deemed to be Baseline Contamination only if and to the
extent that Parent shall have delivered to Seller written notification
specifying with particularity and detail the nature thereof within one hundred
eighty (180) days after the Closing Date: contamination (A) identified in any


 

















 


Identification Documents or
(B) deemed to be Baseline Contamination pursuant to Section 3(b)(iii) hereof,


 


“Baseline Corrective
Action” shall mean Corrective Action to address Baseline Contamination.


 


“Baseline Corrective
Action Costs” shall mean the Corrective Action Costs arising out of or
related to Baseline Corrective Action.


 


“Closure”
shall mean, with respect to any Baseline Contamination, the satisfaction of
either of the following:  (i) receipt of
written notice from the Agency with oversight jurisdiction that either no
further Corrective Action of such Baseline Contamination is required under
Environmental Laws, or each approved plan for all Corrective Action of such
Baseline Contamination has been completed in accordance with Environmental
Laws; or (ii) in the absence of any indication from the Agency with oversight
jurisdiction that any Corrective Action of such Baseline Contamination has not
been completed, or that further Corrective Action may be required, delivery by
Seller to Parent of a notice: (x) notifying Parent of the expiration of a
period of twelve (12) months following two written requests by Seller addressed
to the Agency with oversight jurisdiction, requesting a notice fulfilling the
requirements of clause (i) above and (y) setting forth Seller’s determination
during such 12-month period, based on four (4) successive quarterly monitoring
tests by an environmental remediation contractor mutually acceptable to both
Parent and Seller, that the Baseline Contamination has been remediated to
levels at or below requirements established pursuant to Environmental Laws in
effect as of the Closing Date and that no further Corrective Action is required
by such Environmental Laws, and (z) accompanied by a certificate of such
environmental remediation contractor (which certificate shall state that Parent
is entitled to rely thereon).


 


“Corrective
Action” shall mean any activity required to comply with Environmental Laws
to investigate, monitor and, if required, abate, clean up, remove, treat, cover
or in any other way remediate a Covered Substance.


 


“Corrective
Action Costs” shall mean: (i) costs arising from or related to Corrective
Action, including reasonably incurred investigation, monitoring, abatement,
cleanup, removal, treatment, cover or other remediation costs, Agency oversight
costs and response costs; and (ii) payment of Losses to any Agency or other
third party related to Corrective Action; provided, however, that Corrective
Action Costs required to be paid by Seller shall not include Superfund
Liability related to the Properties.


 


“Corrective Action Plan”
shall mean a plan detailing planned Corrective Action and corresponding
estimates of Corrective Action Costs.


 


“Covered
Substance” shall mean any substance or material which is regulated, defined
or designated as a “waste”, “hazardous substance”, “hazardous waste”, hazardous
chemical”, “toxic substance”, “toxic chemical”, “pollutant”, “contaminant” or
“regulated substance” or words of similar import under any Environmental Law or
is otherwise regulated under any Environmental Law.  Without limiting the generality of the foregoing, the term
“Covered Substance” includes petroleum fraction, any substance containing
petroleum or any derivative of petroleum, including any “petroleum” or
“petroleum-based substances” and any recoverable free liquid hydrocarbons,


 


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dissolved
hydrocarbon components or absorbed or vapor phase hydrocarbon, in each case
regulated by, defined in or required to be remediated  under any Environmental Law and unexploded ordinances,
ammunition, military hardware, weaponry or similar materials.


 


“Divested
Properties” shall mean those parcels of real property and other assets
located thereon, if any, which Company or any of its Subsidiaries assigned,
subleased, transferred, conveyed, surrendered, terminated, and otherwise
divested its interests in from time to time prior to the Closing Date.


 


“Elective
Work” shall mean construction, remodelling, demolition or rebuilding work
on a Property, including the installation of new tanks and/or lines, by Parent
that is not required by Seller or any Agency in connection with Baseline
Corrective Action.


 


“Environmental
Laws” shall mean any applicable laws (including the common law and the
principles thereof), regulations, rules, policies, procedures, orders or
permits or other guidance of an Agency relating to: (i) pollution, protection
or cleanup of the environment; (ii) the use, treatment, storage, disposal,
handling, manufacturing, transportation, shipment or Release of any Covered
Substance; (iii) occupational health or safety; or (iv) UST Systems or UST
Funds.


 


“Environmental
Permit” shall mean any approval, registration, authorization, certificate,
certificate of occupancy, consent, license, order, permit, variance or other
similar authorization of any Agency required by Environmental Laws for the
ownership, use or operation of the Properties, the UST Systems or any other
assets located on the Properties.


 


“Event”
shall have the meaning specified in Section 7(d) hereof.


 


“Identification
Documents” shall have the meaning specified in Section 4(a)(iv) hereof.


 


“Indemnified
Person” shall have the meaning specified in Section 8(d)(i) hereof.


 


“Indemnifying
Person” shall have the meaning specified in Section 8(d)(i) hereof.


 


“Independent
Consultant” shall have the meaning specified in Section 11 hereof.


 


“New
Contamination” shall mean any contamination, whether or not a Covered
Substance is present, of the soil, surface water, groundwater, land, stream
sediments, surface or subsurface strata, ambient air or any other environmental
medium on, under, in, about, or from any of the Properties which is not
Baseline Contamination, including (i) any Release commencing after the Closing
Date and (ii) any regulated asbestos-containing materials and lead paint
required to be abated or encapsulated under Environmental Laws to the extent
such abatement or encapsulization is required as a result of being disturbed or
uncovered after the Closing Date as a result of Parent’s Elective Work.


 


“New Corrective Action”
shall mean Corrective Action to address New Contamination.


 


“New Corrective Action
Costs” shall mean the Corrective Action Costs arising out of or related to
New Corrective Action.


 


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“Phase I Environmental
Site Assessments and Preliminary Exposure Pathway Assessment Surveys” shall
mean the documents listed on Schedule 1.2 hereto.


 


“Property”,
collectively, the “Properties”, shall mean Owned Real Properties and/or
Leased Real Properties.  Property and
Properties shall not include the Divested Properties.


 


“Release” shall mean
any spilling, leaking, migrating, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing into the environment
of any Covered Substance, including, without limitation, the abandonment or
discarding of barrels, containers and other closed receptacles containing any
Covered Substance.


 


“Remediation Equipment”
shall have the meaning specified in Section 6(f) hereof.


 


“Restriction” shall
have the meaning specified in Section 5(a)(iv) hereof.


 


“Seller’s Obligations”
shall have the meaning specified in Section 10 hereof.


 


“Superfund Liability”
shall mean any liability imposed by Environmental Laws arising out of, resulting
from, occurring during, or related to the shipment, transfer or disposal of
Covered Substances, including to or at any site designated as a “Superfund”
site under the Comprehensive Environmental Response, Compensation and Liability
Act or sites designated as contaminated or for cleanup or other remediation
under state Environmental Laws.


 


“Tests” shall mean
auditing, inspecting, testing or monitoring relating to UST Systems on the
Properties, including with respect to gasoline, diesel, propane, waste oil and
fuel oil tanks, lines, cathodic protection systems, leak detection, automatic
tank gauging (including certification), Stage I and Stage II vapor recovery
equipment (including pressure decay, blockage and air-to-liquid testing),
containment devices (including hydrostatic testing), monitoring results and
site inspections.


 


“Third Party Claim”
shall have the meaning specified in Section 8(d)(i).


 


“UST Funds” shall
have the meaning specified in Section 9(a) hereof.


 


“UST Systems” shall
mean storage tanks, fill holes and fill hole covers and tops, pipelines, vapor
lines, pumps, hoses, Stage I and Stage II vapor recovery equipment, containment
devices, monitoring equipment, cathodic protection systems and other elements
associated with any of the foregoing or other systems used in the operations of
and located at the Properties.  The UST
Systems and/or their components may be underground, partially underground or
aboveground.


 


2.                                       UST System Testing and Site Inspection.


 


(a)                                  Seller
shall make available to Parent, not later than thirty (30) days before the
Closing Date, true, complete and accurate copies of all written results and
reports in Seller’s possession from such Tests as are conducted from the date
hereof.  If, based on the results of
such Tests, Seller has determined that any of the UST Systems do not comply
with Environmental Laws, Seller shall provide Parent with written notice


 


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specifying
in reasonable detail which UST Systems fail to comply and the nature of such
non-compliance.


 


(b)                                 Prior to
the Closing Date, Seller shall, at its expense:  continue to conduct, in the ordinary course of business, all
Tests and to compile written results and reports thereon as required by
Environmental Laws.  Seller shall
administer, respond to, comply with and bear all expenses in connection with
all Agency orders, notices of noncompliance, notices of violation,
administrative consent orders, demand letters and the like pertaining to the
operation of or actions and events associated with the UST Systems which occur
prior to the Closing Date.  Seller shall
deliver to Parent, promptly upon their availability after the Closing Date,
true, complete and accurate copies of all written results and reports of any
further auditing, investigating, testing or monitoring occurring prior to the
Closing Date.  If, based on the results
of such Tests, Seller has determined that any of the UST Systems do not comply
with Environmental Laws as in effect on the Closing Date, Seller shall notify
Parent of the results and reports.


 


(c)                                  Parent, at
Parent’s expense, may, but shall not be obligated to, cause supplemental Tests
to be initiated within one hundred twenty (120) days after the Closing Date,
using consultants, methodologies and times which are suggested by Parent and
approved by Seller, which approval Seller shall not unreasonably withhold or
delay.  Upon completion of any such
supplemental Tests, Parent shall furnish true, complete and accurate copies of
the results and reports of the supplemental Tests to Seller.  Seller may have representatives present for
such supplemental Tests and Parent shall reasonably co-operate to facilitate
the same.  Upon receipt of the results
of supplemental Tests, if applicable, conducted by Parent, Parent shall
promptly, but in no event later than one hundred fifty (150) days after the
Closing Date, deliver written notification to Seller of any Tests that Parent
reasonably believes demonstrate that any UST Systems do not comply with
Environmental Laws as in effect on the Closing Date, including without
limitation non-tight tanks or lines, non-functional Stage I or Stage II
systems, non-tight containment devices, non-functional automatic tank gauging
equipment or any other deficiency in UST Systems.  Such written notification shall specify, in reasonable detail,
which UST Systems are not in compliance and the nature of such non-compliance,


 


(d)                                 In the
event of any failure of any UST System to comply with Environmental Laws as in
effect on the Closing Date, as determined by Tests or by any supplemental Tests
pursuant to Sections 2(a)-(c) hereof and identified in a written notice from
Seller to Parent or a written notice by Parent to Seller within one hundred
fifty (150) days after the Closing Date, Seller shall have the option in its
sole discretion to: (A) replace or repair such UST System or the components
thereof to the extent necessary so that further Tests (which Seller shall
perform thereafter) shall demonstrate compliance of the relevant UST System
with Environmental Laws; or (B) remit to Parent, as a post-Closing Date
adjustment to the Cash Consideration, an amount equal to the actual cost
(including for labor and equipment) of replacement  or repair such UST System or the components thereof to the extent
necessary so that further Tests shall demonstrate compliance of the relevant
UST System with Environmental Laws, up to a maximum of $150,000 per UST System;
provided that Seller may repair only if (i) Seller would repair rather
than replace under Seller’s normal policies, practices, and procedures, (ii)
such


 


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repairs
are permitted under Environmental Laws, and (iii) the repair is effected by the
manufacturer, the manufacturer’s authorized contractors or Seller’s authorized
contractors.  Parent hereby acknowledges
and agrees that this Section 2(d) sets forth Seller’s sole and exclusive
liability for any failure of any UST System to comply with Environmental Laws
as in effect on the Closing Date, and that Parent shall thereafter be solely
responsible for and bear all costs for the repair or replacement of any UST
System (provided that any related Corrective Action Costs arising from
such failure, including Releases of Covered Substances which may or did result
therefrom or be connected therewith, shall be governed by the other applicable
provisions of this Agreement).


 


(e)                                  To the
extent required by Environmental Laws, Parent, Company or any of Company’s
Subsidiaries shall report to the relevant Agency any failure of UST Systems to
comply with Environmental Laws as identified by Parent’s supplemental Tests
after the Closing Date.


 


3.                                       Identification of Covered Substances.


 


(a)                                  Existing
Information and Documents.


 


Parent
acknowledges that some of the Properties have been used for the storage and/or
sale of Covered Substances, that UST Systems for such Covered Substances are
installed at some of the Properties and that consequently there is or may be
contamination of soil or groundwater at the Properties consisting of Covered
Substances.


 


(b)                                 Supplemental
Environmental Assessment on the Properties.


 


(i)                                     Parent
shall not undertake any supplemental assessment on the Properties on or prior
to the Closing Date other than, to the extent reasonable, visual site inspections.


 


(ii)                                  At any
time within 180 days after the Closing Date, Parent may notify Seller in
writing of any situation on any Property where the Identification Documents
indicate, based on the results of Tests, that a UST System on the Property
failed to comply with Environmental Laws. 
In such event, if reasonably necessary or desirable to determine if
there has been a Release from such UST System, Parent shall have the right to
cause an environmental assessment with respect to such Property to be performed.  At least 30 days prior to the Closing Date,
(A) Seller shall provide to Parent a list of not less than three independent
third-party consultant firms that Parent may use for such environmental
assessments, and (B) Parent and Seller shall jointly agree on a template
delineating the authorized scope of such environmental assessments.  The cost of the environmental assessment
shall be borne by Parent, unless Baseline Contamination requiring Corrective
Action is discovered during such assessment, in which case such costs shall be
borne by Seller.  The data produced by
any


 


6

















 


such
environmental assessment shall be provided concurrently to each of the
Parties.  Seller’s and Parent’s
representatives shall be allowed to be present when any work is performed by
the independent third-party consultant and shall be allowed to take split
samples, at their respective expense, should Seller or Parent choose to take
any split samples.


 


(iii)                               If Parent
delivers written notice to Seller within one hundred and eighty (180) days
after the Closing Date that an environmental assessment conducted pursuant to
Section 3(b)(ii) hereof has revealed contamination of the soil, surface water,
groundwater, land, stream sediments, surface or subsurface strata, ambient air
or any other environmental medium on, under, in, about, or from any of the
Properties caused by any Covered Substance requiring Corrective Action, such
contamination shall be deemed Baseline Contamination unless, within thirty (30)
days of such notice, Seller submits to Parent written documentation
establishing, by a preponderance of the evidence, that the Release or other
event causing the Covered Substance to be present first occurred after the
Closing Date.  If Parent disagrees that Seller has met its burden of
proof, Parent shall notify Seller to that effect, and an independent
third-party consultant jointly retained by and mutually acceptable to Parent
and Seller shall, at Seller’s sole expense, determine within thirty (30) days
of such notice whether the contamination shall be deemed to be Baseline
Contamination.


 


(iv)                              To the
extent required by Environmental Laws, Parent, Company or any of Company’s
Subsidiaries  shall report to the
relevant Agency any finding of contamination as a result of any environmental
assessment  under Section 3(b)(ii)
hereof.


 


4.                                       Environmental Representations and Warranties.


 


(a)                                  Seller
represents and warrants to Parent as follows:


 


(i)                                     Except as
set forth on Schedule 4(a)(i) hereto: (A) all material Environmental Permits
used in or necessary for the ownership or operation of the Properties have been
obtained and are in effect and, where required, applications for renewal
thereof were timely filed prior to Closing Date; and (B) Company and each of
its Subsidiaries have complied in all material respects with the requirements
of Environmental Laws and its Environmental Permits and have filed all material
reports and notices required by all Environmental Permits and all Environmental
Laws and have maintained all material records and documents in the manner and
for the periods required by such Environmental Permits and Environmental Laws.


 


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(ii)                                  Except as
set forth on Schedule 4(a)(ii) hereto: (A) neither Seller nor Company or any of
Company’s Subsidiaries has received notice of any judgment, order or decree of
any Agency or under any Environmental Law or notice of any Superfund
Liabilities relating to any of the Properties; and (B) there is no claim, action,
suit or proceeding pending or, to the best of the knowledge of Seller,
threatened by or before any third party, including any Agency, against Company
or any of Company’s Subsidiaries, relating to any Release or other
environmental condition, including any Superfund Liabilities.


 


(iii)                               Except as
set forth on Schedules 1.1 and 1.2 hereto: (A) to the best of the knowledge of
Seller, there has been no Release that requires Corrective Action on, under, in
about or from any of the Properties; (B) there is no Corrective Action underway
at any of the Properties.


 


(iv)                              Seller has
provided Parent with access to true and correct copies of all documents, data,
records and information in any form or media, including the Phase I
Environmental Site Assessments and Preliminary Exposure Pathway Assessment
Surveys and all compliance documents, data, records and information (including
with respect to statistical inventory reconciliations, tank tightness tests,
line integrity tests and automatic tank gauging tests) existing and in the
possession or under the control of or which with commercially reasonable
efforts could be in the possession or under the control of Seller or any of its
Affiliates, or any of their respective consultants or contractors, relating to
Releases or the presence of Covered Substances in soil, surface water,
groundwater, land, stream sediments, surface or subsurface strata, ambient air
or any other environmental medium on, under, in, about, or from any of the
Properties (collectively, the “Identification Documents”).


 


(b)                                 Except for
the representations and warranties contained in this Section 4, none of Seller,
any of its Affiliates, their respective officers, directors, employees, agents,
representatives, or any other Person, has made, makes or shall be deemed to
have made or to make any representation or warranty to Purchaser or Parent,
express or implied, at law or in equity, on behalf of Seller or any of its
Affiliates, regarding the Company, compliance with Environmental Laws,
Releases, or otherwise.  Except for the
representations and warranties contained in Section 4 of this Agreement, Seller
hereby disclaims, and neither Purchaser nor Parent may rely on, any such
representation or warranty whether by Seller, any of its Affiliates, any of
their respective officers, directors, employees, agents, representatives or any
other Person, notwithstanding the delivery or disclosure (whether in writing or
orally) to Purchaser or Parent or any of their officers, directors, employees,
agents or representatives or any other Person of any information, documents or
material, including, without limitation, projections, estimates


 


8

















 


or
budgets, by Seller, any of its Affiliates, any of their respective officers,
directors, employees, agents, representatives or any other Person.


 


(c)                                  Parent
hereby acknowledges and agrees to the limitations on the representations and
warranties it is receiving and on which it is relying as specified in clause
(b) of this Section 4.


 


5.                                       Conduct Of Corrective Action.


 


(a)                                  Conduct of
Baseline Corrective Action.


 


(i)                                     After the
Closing Date and until Closure, Seller shall undertake Baseline Corrective
Action and shall be responsible for Corrective Action Costs, subject to Section
5(c) hereof, provided, however, that the cost of removing and handling soil and
groundwater to the extent increased as a result of Elective Work shall be borne
by Parent pursuant to Section 7(e) hereof.


 


(ii)                                  During its
conduct of Baseline Corrective Action, Seller shall (i) comply in all material
respects with all laws and regulations, including Environmental Laws and health
and safety requirements, applicable to such Corrective Action and (ii) be
responsible for any related reporting and notification in compliance with the
requirements of Environmental Laws.


 


(iii)                               Seller
shall conduct all negotiations with the relevant Agency with respect to such
Baseline Corrective Action; provided, however, that Parent may
attend, but not actively participate in, any such negotiations.  Parent acknowledges that Seller shall have
the lead responsibility for setting policy, establishing direction and
conducting negotiations with the Agency relating to Baseline Corrective Action,
and that Parent shall neither intentionally contact nor negotiate with the
Agency independently of Seller in connection with Baseline Corrective
Action.  Seller shall promptly provide
Parent with copies of all communications, correspondence and other documents it
receives from or supplies to the Agency relating to Baseline Corrective Action.


 


(iv)                              Seller
shall conduct Baseline Corrective Action: (A) to the levels required by
Environmental Laws using any approved methodology (including risk-based
closure); (B) in such a way as to reasonably accommodate Parent’s use and
minimize interference with the business operations, whether current or planned,
of Parent, Company and Company’s Subsidiaries, provided that any such planned
business operations do not require more stringent cleanup standards than those
required by the applicable Agency; and (C) subject to requirements imposed by
the Agency with oversight


 


9

















 


jurisdiction.  If the Agency with oversight jurisdiction
determines that less stringent cleanup levels are appropriate for the Property
on the condition that such site is subject to a deed notice, use restriction or
other covenant running with the title to the land (“Restriction”),
Seller may request Parent to accept such Restriction if it does not interfere
with the Property’s then current use, and Parent shall not unreasonably
withhold its acceptance thereof.


 


(v)                                 Seller
shall be deemed to be the generator of all waste caused by or originating from
all Baseline Corrective Action and shall sign all manifests required for
transportation and disposal of any such waste and contaminated soil or
groundwater.


 


(vi)                              Seller
makes no representation or warranty regarding the length of time required for
Seller to complete Baseline Corrective Action, provided that Seller shall pursue
the same diligently and in a good and workmanlike manner and otherwise in
compliance with this Agreement.


 


(b)                                 Conduct of
New Corrective Action.


 


(i)                                     After the
Closing Date, Parent shall undertake New Corrective Action and shall be
responsible for New Corrective Action Costs.


 


(ii)                                  During its
conduct of New Corrective Action, Parent shall be responsible for related
reporting and notification in compliance with the requirements of Environmental
Laws.


 


(iii)                               Parent
shall provide, upon any reasonable request by Seller, any information
materially relevant to Seller in respect of New Corrective Action relating to
all Properties which are the subject of Baseline Corrective Action.  Seller shall keep such information received
from Parent confidential except as required by law.


 


(iv)                              Parent
shall conduct all negotiations with the relevant Agency with respect to New
Corrective Action.  Seller acknowledges
that Parent shall have responsibility for setting policy, establishing
direction and conducting negotiations with the Agency relating to New
Corrective Action, and Seller shall neither intentionally contact nor negotiate
with the Agency independently of Parent in connection with such New Corrective
Action.


 


(c)                                  New
Findings During Baseline Corrective Action.


 


(i)                                     In the
event that, during Baseline Corrective Action, a Party discovers soil or
groundwater contamination caused by a Covered Substance not previously
identified, such Party shall provide


 


10

















 


written
notice to the other Party within thirty (30) days and each Party shall provide
the other Party with all evidence relevant to such contamination within fifteen
(15) days of receipt of such notice. 
Such contamination shall be deemed New Contamination unless, within
thirty (30) days of such notice, Parent submits to Seller written documentation
establishing, by a preponderance of the evidence, that the Release or
contamination caused by a Covered Substance is Baseline Contamination for which
Parent provided timely notice within one hundred eighty (180) days after the
Closing Date.  If Seller disagrees that Parent has met its burden of
proof, Seller shall notify Parent, and an independent third party consultant
jointly retained by and mutually acceptable to Parent and Seller shall, at
Parent’s sole expense, determine within thirty (30) days of such notice whether
such contamination shall be deemed to be Baseline Contamination or New
Contamination.


 


(ii)                                  Upon
Seller’s notice to Parent of its determination that any New Contamination will
make Baseline Corrective Action at a Property significantly more expensive,
Seller and Parent shall negotiate in good faith to agree to a cost allocation
(in the form of a fractional cost percentage attributable to each of them) to be
applied to further Baseline Corrective Action Costs.  If Seller and Parent are unable to agree upon such cost
allocation within thirty (30) days after Seller’s notice, an independent third
party consultant jointly retained by and mutually acceptable to Parent and
Seller shall, at Parent’s sole expense, assess the effect of such New
Contamination on the environmental condition of the Property.  Such assessment shall include a review of
the Baseline Corrective Action performed to date and its best estimate of the
remaining cost to complete the Baseline Corrective Action absent the New
Contamination.  In addition, the
consultant shall provide its best estimate of the cost of the additional
Corrective Action that will be required due to the New Contamination.  Parent and Seller agree to fully cooperate
with the consultant and to be bound by the consultant’s determination of the
relevant cost allocation with respect to such Corrective Action.  On the basis of the mutually agreed upon or
the consultant’s determined cost allocation, from the time of the discovery of
the New Contamination until satisfaction of Seller’s responsibility for
Baseline Corrective Action Costs, Seller’s responsibility for Baseline
Corrective Action Costs shall be reduced as follows, and the portion of such
costs which are the reduction for Seller shall instead become the
responsibility of Parent:


 


Parent’s
share of Baseline Corrective Action Costs relating to New Contamination shall
be determined by dividing the estimated cost to complete the Baseline
Corrective Action prior


 


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to
New Contamination by the estimated cost to complete Corrective Action after the
New Contamination and subtracting the quotient from one.  As an example, if the estimated cost to
complete Baseline Corrective Action prior to New Contamination is $100,000
(calculated at the time the New Contamination is discovered) and the estimated
cost to complete Baseline Corrective Action after New Contamination is
$150,000, then Parent’s fractional cost equals: 1 - (100,000 divided by
150,000), or 1 - .667, which results in Parent paying one-third (.333) of
Baseline Corrective Action costs incurred after the New Contamination is
discovered.


 


(iii)                               Parent
shall reimburse Seller for Parent’s share (if any) of Baseline Corrective
Action Costs pursuant to Section 5(c)(ii) hereof within thirty (30) days of
Parent’s receipt of a detailed invoice, or within such time Parent shall notify
Seller in writing of disputed invoice amounts and withhold payment of those
disputed amounts.  Only disputed amounts
may be withheld.  If the Parties are
unable to resolve the disputed amounts within a reasonable time, the dispute
may be submitted for dispute resolution in accordance with Section 11 hereof.


 


(iv)                              If
Parent’s fractional portion of Baseline Corrective Action Costs with respect to
a particular Property due to New Contamination as calculated pursuant to
Section 5(c)(ii) hereof should exceed fifty percent (50%), Parent shall have
the right to, and shall upon request by Seller, take over the conduct of and
shall assume the ongoing Baseline Corrective Action at the Property, with the
costs of such Corrective Action continuing to be shared between the Parties as
set forth in Section 5(c)(ii) hereof.  If
Parent takes over conduct of any Baseline Corrective Action, (A) Parent shall
assume the obligations of Seller relating to Baseline Corrective Action
specified in Section 5(a) hereof, and (B) the reimbursement mechanisms Section
5(c)(iii) hereof shall be applied in reverse.


 


6.                                       Access.


 


(a)                                  Upon
reasonable notice, Parent shall cause Company and its Subsidiaries to permit
access to and entry upon the Properties by Seller (including all employees,
agents and independent contractors of Seller) and to access any environmental
records or documents as necessary: (i) to conduct Baseline Corrective Action;
and (ii) to the extent relevant to Baseline Corrective Action, to observe and
monitor any audit or inspection conducted by any Agency (in which case Parent
shall use commercially reasonable efforts to provide at least 24 hours advance
notice to Seller except in the case of unannounced Agency audits or
inspections).  Parent shall also fully
cooperate with Seller’s fulfillment of its duties and obligations hereunder by
providing Seller with such


 


12

















 


records
and documents that are in Parent’s possession as Seller may reasonably need to
conduct Corrective Action at any of the Divested Properties.


 


(b)                                 Seller
shall provide Parent with at least ten (10)  Business
Days notice prior to commencement of any drilling, construction, or equipment
installation, and any other activity that may disrupt business operations at
any of the Properties.  If Parent
desires to reschedule the commencement thereof, it shall so notify Seller at
least five (5) Business Days prior to the time for which access has been
requested, and Seller shall reschedule the activity to a reasonable mutually
convenient time in order to minimize the disruption to Parent’s operations.


 


(c)                                  Seller
shall obtain and maintain, and cause its employees, agents and independent
contractors to obtain and maintain, all necessary permits, utility markings,
notifications, licenses or certifications for itself and its contractors and
other agents required in the course of its access to the Properties to conduct
Baseline Corrective Action.


 


(d)                                 During
their access to the Properties to conduct Baseline Corrective Action, Seller
shall, and shall cause its employees, agents and independent contractors to (i)
act in a safe and commercially reasonable manner, (ii) take steps reasonably
necessary to prevent injury to persons or damage to property, and (iii) comply
with the reasonable requirements of Parent, Company and Company’s Subsidiaries
in connection with such access, including as to security, confidentiality,
insurance, health and safety compliance and damage repair and restoration.


 


(e)                                  Within a
reasonable period of time after completion of Baseline Corrective Action,
Seller shall restore the Properties as necessary to address any conditions
substantially caused by Seller’s conduct of Baseline Corrective Action.


 


(f)                                    In the
event that Parent or its employees or agents, or any lessees or occupants of
any Property, cause damage after Closing to any monitoring well and/or
associated piping, testing or remediation equipment or to any other property or
equipment being used after Closing by Seller in connection with Baseline
Corrective Action (“Remediation Equipment”), Parent shall reimburse
Seller for any out-of-pocket costs, expenses or losses in excess of (US) one
thousand dollars (US $1,000), but no claim for special, exemplary,
consequential or indirect damages or for lost profit shall be asserted by
Seller in connection therewith against Parent. 
Notwithstanding the foregoing, Seller shall have the right to pursue
such damage claims against any independent contractor of Parent who after
Closing causes damage to any Remediation Equipment.  All Remediation Equipment owned by Seller shall remain the
property of Seller and may be removed upon completion of Baseline Corrective
Action at any Property.


 


(g)                                 Except as
provided herein, Parent shall not interfere with the rights of Seller or its
employees, agents or independent contractors to access or enter the Properties
to conduct Baseline Corrective Action.


 


13

















 


7.                                       Parent’s Responsibilities
During Baseline Corrective Action.


 


During
the course of Baseline Corrective Action at any Property, Parent shall
undertake the following, but solely with respect to that Property:


 


(a)                                  Reporting
to Seller.  Parent shall
promptly provide Seller with: (i) copies of all communications, correspondence
and other documents it receives from or supplies to the Agency relating to the
Baseline Corrective Action; (ii) all preliminary or final results of Tests and
certification of distribution and storage systems at that Property (including
all failures, inconclusive or passing results) conducted by Parent and available
to Parent; and (iii) upon Parent’s acquiring knowledge thereof, notice of any
Release of any Covered Substance.


 


(b)                                 Requested
Testing or Certification.  At
the reasonable request of Seller, in the event of a Release or the discovery of
soil or groundwater contamination caused by a Covered Substance and not
previously identified, Parent shall conduct, at Seller’s expense, Tests,
audits, inspections or certifications of any component of any distribution,
storage or monitoring systems at the Property within fifteen (15) days of the
request.  Parent shall furnish the
results of such Tests, audits, inspections or certifications to Seller within
fifteen (15) days of receipt of the results. 
Seller may have representatives present for such Tests, audits, inspections
or certifications.


 


(c)                                  Compliance
with Environmental Laws. 
Parent shall report any Release or contamination of soil or groundwater
at the Property to the Agency as required under Environmental Laws and submit
and retain inventory, maintenance and other compliance records for the Property
as required under Environmental Laws. 
Parent shall become the responsible party under Environmental Laws for
any New Contamination, whether reported to the Agency by Parent or not, unless
such contamination is caused by Seller during Baseline Corrective Action.


 


(d)                                 Future
Lease Expiration/Termination or Sale of Property (if Applicable).  Parent shall give written notice to Seller:
(i) thirty (30) days in advance of expiration or early termination by Parent of
a lease for any portion of the Properties upon which Baseline Corrective Action
is being conducted; provided, however, that if such lease
expiration is the result of Parent’s decision not to exercise any extension or
renewal option provided for in such lease, Parent shall give Seller at least
sixty (60) days’ notice of such election to not extend or renew the lease; and
(ii) thirty (30) days in advance of any pending sale of any of the Properties
upon which Baseline Corrective Action is being conducted (such termination,
expiration or sale being referred to below as an “Event”).  In such event, if there is an ongoing
obligation to continue to conduct Baseline Corrective Action, Parent shall
either arrange for continued access to the Property or Seller shall, at Seller’s
sole election, make a lump sum payment to Parent equal to the net present value
of the Baseline Corrective Action Cost with


 


14

















 


respect
to such Property after the Event in satisfaction of such obligation, calculated
in the manner set out in Schedule 7(d)(i) to this Agreement, and Parent shall
execute and deliver to Seller a written release in the form of Schedule
7(d)(ii) to this Agreement.


 


(e)                                  Elective
Work.  Prior to its commencement,
Parent shall notify Seller of the design and location of any Elective Work
reasonably anticipated to impact Baseline Corrective Action.  Parent shall pay all increased Baseline
Corrective Action Costs reasonably incurred by Seller to redesign or relocate
Remediation Equipment to accommodate the Elective Work.  If Parent encounters and excavates or
removes contaminated soil or groundwater on any of the Properties while
conducting Elective Work, Parent shall solely bear the costs of removing,
recycling or disposing of the contaminated soil and groundwater, and of needed
clean fill, unless such contaminated soil or groundwater would need to be
removed, recycled or disposed of or otherwise treated as part of Baseline
Corrective Action.  Parent shall be
deemed to be the generator of all waste caused by or originating from such
Elective Work unless the waste would have been produced as a result of Baseline
Corrective Action as approved by the Agency, and Parent shall sign all
manifests required for transportation and disposal of any such waste and
contaminated soil or groundwater. 
Parent shall pay the cost of clean fill required for any excavation
caused by Elective Work on any of the Properties unless such contaminated soil
or groundwater would have been required to be removed, recycled or disposed of
as a result of Baseline Corrective Action.


 


8.                                       Indemnification Obligations.


 


(a)                                  Seller’s
Indemnification.


 


Subject to the express
provisions of this Section 8, Seller shall indemnify, defend and hold harmless
Parent from and against all Losses incurred or suffered by Parent, but only to
the extent attributable to:


 


(i)                                     any inaccuracy as of the Closing Date of any
representation or warranty made by Seller in Section 4(a) of this Agreement,
provided that Seller’s liability for any inaccuracy in any material respect of
its representation and warranty made in Section 4(a)(iv) hereof shall be
limited to treating as Identification Documents any information would have been
Identification Documents had there been no such inaccuracy;


 


(ii)                                  any breach of any covenant made by Seller in
this Agreement;


 


(iii)                               Superfund Liability of the Company and its
Affiliates or relating to the Properties or the Divested Properties, to the
extent attributable to activities or operations prior to the Closing Date; and


 


15

















 


(iv)                              any liabilities of Seller, the Company or any
of their respective Affiliates arising under Environmental Laws and relating to
the Divested Properties.


 


(b)                                 Parent’s
Indemnification.


 


Subject to the express
provisions of this Section 8, Parent shall indemnify, defend and hold harmless
Seller from and against all Losses incurred or suffered by Seller, but only to
the extent attributable to:


 


(i)                                     any inaccuracy in any material respect as of
the Closing Date of any representation or warranty made by Parent in Section
4(b) of this Agreement;


 


(ii)                                  any breach of any covenant made by Parent in
this Agreement;


 


(iii)                               Superfund Liability of the Company or
relating to the Properties, to the extent attributable to activities or
operations from and after the Closing Date;


 


(iv)                              New Contamination;


 


(v)                                 Parent’s failure from and after the Closing
Date to comply with Environmental Laws applicable to the Properties or the use
and operation thereof; and


 


(vi)                              regulated asbestos-containing materials and
lead paint required to be abated or encapsulated under Environmental Laws, to
the extent such abatement or encapsulation is required as a result of Parent’s
Elective Work.


 


(c)                                  Survival.


 


Notwithstanding anything
herein to the contrary, neither Party shall be obligated to make
indemnification payments under this Agreement with respect to Losses
attributable to inaccuracies of representations or warranties unless the
Indemnified Person shall have delivered to the Indemnifying Person written
notification, specifying with particularity and detail the nature of such
inaccuracy, on or before the date that is 12 months after the Closing Date.


 


(d)                                 Procedures
for Indemnification.


 


(i)                                     If any
suit, action, proceeding, investigation, claim or demand shall be brought or
asserted by any third person (including, without limitation, any Governmental
Body) (a “Third Party Claim”) against any Person in respect of which
indemnity may be sought pursuant to Section 8(a) or Section 8(b), such person
(the “Indemnified Person”) shall notify the Person against whom such
indemnity may be sought (the “Indemnifying Person”) in writing in
reasonable detail of the Third Party Claim within 30 days after receipt by such
Indemnified Person of formal notice of such Third Party Claim, and, thereafter,
such Indemnified Person shall promptly forward to the Indemnifying Person a
copy of all notices and documents (including court papers) received by the
Indemnified Person pursuant to the Third Party Claim; provided, however,
that the failure to give such notification within 30 days after such receipt of
formal notice and the failure to forward a copy of such notices and documents
shall not affect the obligations of the Indemnifying Person or the rights of
the Indemnified Person except to the


 


16

















 


extent
the Indemnifying Person has actually been prejudiced in a material way as a
result of such failure.  Upon the
receipt by the Indemnifying Person of notice of a Third Party Claim, the
Indemnifying Person may elect  to
assume the defense of such Third Party Claim by promptly delivering a notice to
the Indemnified Person of the assumption of such defense and to retain defense
counsel to represent the Indemnified Person. 
Any election made by an Indemnifying Person to assume the defense of a
Third Party Claim shall not be deemed an acknowledgement that such Third Party
Claim is subject to indemnification under this Section 8.  If the Indemnifying Person so elects to
assume the defense of a Third Party Claim, then (i) the Indemnified Person may
participate in such defense and employ counsel, at such Indemnified Person’s
expense, separate from the reasonably acceptable counsel employed by the
Indemnifying Person, but the Indemnifying Person shall control such defense and
shall not be liable to such Indemnified Person for the fees and expenses of the
separate counsel retained by such Indemnified Person, and (ii) the Indemnified
Person and any other Indemnified Persons will cooperate with the Indemnifying
Person in such defense, including by providing, upon the reasonable request of
the Indemnifying Person, books, records, contractual agreements, maintenance
histories and all other reasonably necessary items (including the computer
systems housing such information) and by making available employees on a
mutually convenient basis.  The
Indemnifying Person shall not be liable for any settlement of any Third Party
Claim effected without its prior written consent.  No Indemnifying Person shall, without the prior written consent
of the Indemnified Person, effect any settlement of any pending or threatened
Third Party Claim in respect of which such Indemnified Person is or could have
been a party, or is or could have been subject, and in respect of which
indemnity is or could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all Losses related to the subject matter of such pending or threatened
Third Party Claim.  The Indemnifying
Party shall, at any time, be entitled to elect to no longer defend a Third
Party Claim; provided, that the Indemnifying Person shall reasonably
assist in transitioning the defense of such Third Party Claim back to the
Indemnified Person and that the Indemnifying Person shall not be entitled to
make a claim for reimbursement of expenses incurred in connection with its
assumption of the defense of such Third Party Claim.


 


(ii)                                  In the
event any Indemnified Person should have a claim against the Indemnifying
Person under this Section 8 that does not involve a Third Party Claim being
asserted against such Indemnified Person, the Indemnified Person shall deliver
written notice of such claim, specifying with particularity and detail the
nature of such claim, with reasonable promptness to the Indemnifying
Party.  The failure by the Indemnified
Person to deliver such notification shall not relieve the Indemnifying Person
from any liability which it may have to such Indemnified Person under this
Section 8, except to the extent the Indemnifying Person has actually been
prejudiced in a material way by such failure. 
If the Indemnifying Person objects to such claim in a timely manner, the
Indemnified Person and the Indemnifying Person shall proceed in good faith to
resolve such dispute and, upon the failure to resolve such dispute, the parties
may pursue remedies in accordance with Section 11.


 


(e)                                  Assignment
of Rights.  To the extent not transferred by the Company
to Seller prior to Closing or by Seller to the Company prior to Closing, as
applicable, Parent agrees to assign to Seller, and Seller agrees to assign to
Parent, all rights (whether such rights arise from insurance, contract, statute
or otherwise) that Parent or Seller may have relating to the liabilities for
which Seller, pursuant to Section 8(a), or Parent, pursuant to Section 8(b), as
applicable, has


 


17

















 


indemnified, is in the
process of indemnifying or has expressly committed to indemnify Parent or
Seller, as applicable, whether such rights arise prior to or following the
Closing.  Following the Closing, the
Parties shall cooperate in the enforcement of any such rights, including by
making available books, records, contractual agreements, maintenance histories
and all other reasonably necessary items (including the computer systems
housing such information) and by making available employees on a mutually
convenient basis.  The Parties shall
promptly transfer upon receipt any funds received in connection with such
rights.


 


(f)                                    Insurance
and Taxes.


 


The
amount that any person shall be obligated to pay pursuant to this Section 8
with respect to any Loss (i) shall be reduced by the Tax benefit actually
realized, and by any insurance proceeds received by the indemnified Person as a
result of any such Loss and (ii) shall include the payment of such amount, if
any, as shall be necessary to hold any indemnified Person harmless on an
after-tax basis from all Taxes required to be paid by such indemnified Person
with respect to such amount.


 


(g)                                 UST
Systems and Baseline Contamination.


 


Seller’s
obligations with respect to UST Systems and Baseline Contamination shall be
covered solely by Sections 2 and 9 and Sections 5 and 6, respectively, and
shall not be subject to indemnification under this Section 8.  Parent’s obligation with respect to Baseline
Corrective Action Costs, if any, shall be covered solely by Section 5 hereto
and shall not subject to indemnification under the Section 8.


 


(h)                                 Remedies
Exclusive.


 


Except
as otherwise provided herein, the remedies provided in this Section 8 shall be
exclusive and shall preclude assertion by an Indemnified Person of any other
rights or the seeking of any and all other remedies against an Indemnifying
Person for claims based on this Agreement or arising from the environmental
condition of the Properties and the UST Systems.


 


9.                                       UST Funds.


 


(a)                                  Reimbursement
claims have been and will continue to be submitted to federal, state and local
government funds for the reimbursement of Corrective Action Costs relating to
UST Systems on the Properties, including Corrective Action Costs resulting from
leaking underground storage tanks, as applicable (such funds being herein
referred to as the “UST Funds”).


 


(b)                                 Seller
shall have the right to any reimbursement amount from an UST Fund or any other
source as a result of Corrective Action Costs incurred by Seller except to the
extent such Corrective Action Costs are reimbursed by Parent. 
Parent shall have the right to any reimbursement amount from
an UST Fund or any other source as a result of Corrective Action Costs incurred
by Parent except to the extent such Corrective Action Costs are reimbursed by
Seller.


 


18

















 


(c)                                  Subject to
Section 9(d), each Party shall have the right to pursue, control, settle, waive
or release reimbursement claims from UST Funds relating to Corrective Action
Costs incurred by that Party, except to the extent such Corrective Action Costs
are reimbursed by the other Party.  To
the fullest extent permissible by applicable law, Parent execute and deliver,
or cause to be executed and delivered, for filing with the administrator of any
such UST Funds, all such documents as may be necessary or desirable to assign
to Seller any of Parent’s rights to reimbursement of such Corrective Action
Costs incurred by Seller, except to the extent such Corrective Action Costs are
reimbursed by Parent.


 


(d)                                 Parent and
Seller shall cooperate with each other in the submission and pursuit of their
respective reimbursement claims.  If the
UST Fund permits only the Party conducting the Corrective Action, or only the
registered owner of the applicable UST System, to submit and pursue
reimbursement claims for Corrective Action Costs, the Party conducting the
Corrective Action or owning the applicable UST System, as applicable, shall
complete the submission and pursuit of such reimbursement claims on behalf of
the Party incurring the Corrective Action Costs.  Upon receipt of reimbursement credits from UST Funds, each Party
shall refund to the other Party such other Party’s share of the credit as
contemplated by Section 9(b).  Parent
and Seller shall pay their respective costs associated with the submission and
pursuit of any reimbursement claim (except to the extent that such costs are
subject to indemnification by the other Party pursuant to Section 5 hereof).


 


(e)                                  In its use
and operation of the Properties, Parent shall take all commercially reasonable
actions necessary or desirable to ensure that each Property qualifies or
continues to qualify for reimbursement from the UST Funds, if any, with respect
to Baseline Corrective Action.  Parent
shall promptly reimburse Seller for the amount by which any reimbursement claim
to the UST Funds for Corrective Action Costs incurred by Seller (and not
reimbursed by Parent) is reduced or denied because of Parent’s failure to
maintain qualification of the Property for the UST Funds.


 


10.                                 Parent’s Release; Remedies Exclusive.


 


In consideration of the
covenants and agreements of Seller set forth in this Agreement, including its
remediation and indemnification obligations as provided for herein (“Seller’s
Obligations”), Parent hereby:


 


(i)  fully and irrevocably discharges and
releases Seller, its Affiliates, and each of the foregoing Persons’ current and
former directors, representatives, officers, employees and agents (the “Releasees”)
from and against all claims, causes of action, liabilities and obligations
(including claims under the Comprehensive Environmental Response Compensation
and Liability Act of 1980 as amended, (CERCLA) and the Resource Conservation
and Recovery Act of 1976, as amended (RCRA) and other Environmental Laws)
related to the injury, death, destruction, loss or damage to the person or
property of Parent, its Affiliates, and each of the foregoing Persons current
and former directors, representatives, officers, employees and agents arising
out of the environmental condition


 


19

















 


of the Properties and the
UST Systems, including the existence of Baseline Contamination or New
Contamination on, under or originating from the Properties;


 


(ii)  agrees not to bring any claim against any
Releasee related to the environmental condition of the Properties and the UST
Systems,


 


provided that the foregoing discharge and release
shall not apply to (x) Seller’s failure to fulfill, in any material respect,
Seller’s Obligations; and (y) claims by any third parties and any Agencies
relating to Baseline Contamination.


 


11.                                 Dispute Resolution.


 


Except
as provided in Sections 3(b)(ii), 3(b)(iii), 5(c)(i) and 5(c)(ii) and Schedule
5(d)(i), any disputed claim or demand between the Parent and the Seller (the “Parties”)
arising out of or relating to this Agreement shall be resolved in accordance
with and subject to the procedures and limitations of this Section 11.  If a dispute arises between the Parties and
that dispute is not resolved within a reasonable period of time, either Party
may notify the other in writing that the dispute is to be submitted to
arbitration.  Such arbitration shall be
held in the Borough of Manhattan, New York City, New York.  The Parties shall jointly select an
environmental consultant, engineer or other professional reasonably qualified
(including at least seven (7) years experience in the appropriate environmental
field) to arbitrate such dispute (“Independent Consultant”).  The Parties shall each bear their respective
legal fees and costs and one-half of the cost of the Independent
Consultant.  If the Parties cannot agree
on the Independent Consultant within sixty (60) days, either Party may apply to
the American Arbitration Association for the appointment of the Independent
Consultant.  The Independent Consultant
shall establish an expedited procedure for hearing and resolving the
dispute.  Unless the Parties agree
otherwise, the Independent Consultant shall, no more than sixty (60) days after
the Independent Consultant is retained, render a decision resolving the dispute
with a written opinion stating the reasons therefor.  The Independent Consultant’s decision shall adopt either the
Parent’s position or the Seller’s, and not any other result.  The decision of the Independent Consultant
shall be final and binding upon the Parties and, where and as appropriate, may
be filed with a court of competent jurisdiction which 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 Agreement.


 


12.                                 Miscellaneous.


 


(a)                                  Timing of
Obligations.  Any
obligations of Parent arising under this Agreement shall arise on and not
before Closing, except where Parent has the obligation to act reasonably with
respect to an approval or other consent, which shall be effective from the date
hereof.


 


(b)                                 Entire
Agreement.  This
Agreement constitutes the entire agreement and supersedes all prior agreements,
correspondence and understandings among the Parties and their respective
Affiliates with respect to the subject matter hereof.  Parent and Seller


 


20

















 


in
entering into this Agreement do not rely upon any previous oral or implied
representation, inducement or understanding of any kind.  No promise, agreement, representation or
modification to this Agreement shall be of any force or effect between the
Parties unless set forth or provided for in this Agreement or in a written
amendment signed by both Parties.


 


(c)                                  Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without regard to its conflicts of law provisions, except that New York State
Law Section 5-1401 shall apply.


 


(d)                                 Severability.  In the event that any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality
and unenforceability of the remaining provisions shall not in any way be
affected or impaired thereby so long as the remaining provisions do not
fundamentally alter the relations among the Parties.


 


(e)                                  Table of
Contents and Headings.  The
table of contents and section headings of this Agreement are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Agreement.


 


(f)                                    Notices.  Notices shall be delivered to the Parties’
addresses as set forth in Section 14.7 of the Stock Purchase Agreement.


 


(g)                                 Assignability.  This Agreement shall be assignable by the
Parties to the extent set forth in Section 14.8 of the Stock Purchase
Agreement.


 


(h)                                 Amendments.  This Agreement may be amended, supplemented
or modified, and any provision hereof may be waived, only pursuant to a written
instrument making specific reference to this Agreement signed by each of the
Parties.


 


(i)                                     Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


(j)                                     Termination.  This
Agreement shall terminate automatically and shall have no further effect upon
termination of the Stock Purchase Agreement.


 


(k)                                  Reliance Letters. 
Seller shall use commercially reasonable efforts to obtain, prior to the Closing Date, reliance
letters binding on the authors of the Phase I Environmental Site Assessments
and Preliminary Exposure Pathway Assessment Surveys permitting reliance on such
documents by the Company, all in form and substance satisfactory to Parent,
acting reasonably.


 


21

















 


IN WITNESS WHEREOF, the
Parties have executed this Environmental Liability Agreement as of the date
first above written.


 


 


	
   

  	
  ALIMENTATION COUCHE-TARD INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  s/Alain
  Bouchard

  	
   

  
	
   

  	
   

  	
   

  	
  Alain
  Bouchard

  
	
   

  	
   

  	
   

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CONOCOPHILLIPS COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  s/William
  Gover

  	
   

  
	
   

  	
   

  	
   

  	
  William
  Gover

  
	
   

  	
   

  	
   

  	
  Authorized
  Representative

  



 

















 


SCHEDULE
7(d)(i)


 


If the lump sum payment
referenced in Section 7(d) of this Agreement (the “Amount”) is to be
calculated, the following procedure will be followed.


 


1.                    The Amount
shall equal the present value of the cost projected for Baseline Corrective
Action through Closure, less any projected Corrective Action Costs for which
Parent is responsible.  The present
value shall be determined using an annual discount rate of 7%.


 


2.                    Seller
shall notify Parent of the exercise of its option to make a lump sum payment,
which notice shall include Seller’s calculation of the Amount. 
Parent shall have a reasonable period not to exceed sixty (60) days
after receipt of Seller’s notice to notify Seller of any objection, which
notice shall include Parent’s calculation of the Amount.  In the event of such objection, Parent and
Seller shall promptly negotiate in good faith to attempt to agree on the
Amount.


 


3.                    In the
event the parties are unable, after the expiration of an additional thirty (30)
days, to agree on the Amount, Parent and Seller shall submit the dispute to an
environmental consultant, engineer, or other professional reasonably qualified
(including at least seven (7) years experience in the appropriate environmental
field) mutually acceptable to Parent and Seller, (the “Consultant”).  The Consultant will determine the Amount
based on its review of the Seller’s proposed Amount, the Parent’s proposed
Amount, and any other information as the Consultant may reasonably require.


 


4.                    Seller
shall remain liable for all Baseline Corrective Action Costs incurred prior its
notice, pursuant to Section 5 hereto.


 


5.                    Seller and
Parent shall fully cooperate with Consultant in connection with the foregoing,
and the costs of Consultant shall be paid by Seller and Parent in such
proportion as is determined by Consultant, applying its reasonable discretion.


 

















 


SCHEDULE
7(d)(ii)


 


ENVIRONMENTAL RELEASE


 


THIS AGREEMENT (“Agreement”) is made and entered into this
                
of
                
(“Effective Date”) by and between
                         ,
a
                      
corporation (“Seller”) and
                      ,
a
                   
corporation (“Parent”) upon the terms
and conditions set forth herein.


 


WHEREAS, pursuant to the terms of Environmental
Liability Agreement dated
                      
between Seller and Parent, Seller has been, or is currently, conducting or
paying all or a portion of Baseline Corrective Action Costs (as defined in
Section 1 in Environmental Liability Agreement) on all or a portion of the
Property, and


 


WHEREAS, pursuant to the Environmental Liability
Agreement, Seller and Parent may negotiate and agree upon the net present value
of the expected Seller’s share of the remaining Baseline Corrective Action
Costs respecting the Property, whereupon Seller shall pay to Parent such amount
in exchange for Parent’s assumption of environmental responsibility and
Parent’s execution of a release of Corrective Action liability with respect to
Baseline Contamination in favor of Seller; and


 


WHEREAS, Seller and Parent have agreed upon the
above-specified amount and Seller has paid such amount to Parent;


 


NOW, THEREFORE, for and in
consideration of Seller’s payment to Parent and other good and valuable
consideration, the receipt of which is hereby acknowledged, Parent, its
officers and directors, employees, agents, subsidiary and affiliate companies
and divisions, and all of its successors and assigns, does hereby RELEASE,
ACQUIT, QUIT-CLAIM and FOREVER DISCHARGE, and by virtue of these presents, does
for itself, its successors and assigns, hereby RELEASE, ACQUIT and FOREVER
DISCHARGE Seller, its Affiliates and their respective officers and directors,
its employees, agents, attorneys, their subsidiary and affiliate companies and
divisions, their insurers and underwriters at interest, and all of their
successors and assigns, of and from any obligation and liability for further
Baseline Corrective Action on the Property, and hereafter ASSUME all such
liability and obligations.


 


 


EXECUTED
the             
day of
                     ,
200  .


 


	
  SELLER

  	
  PARENT,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title: