MASTER ASSET PURCHASE AGREEMENT BY ... - Canadian Stocks

event or circumstance that gave rise to such inaccuracy or breach or such Environmental
Liability arose from or was exacerbated (I) after the Initial Closing Date or the Canada Closing
Date (as applicable) in connection with any act or omission by any Buyer Indemnified Party (or
any successor owner or operator of the Acquired Real Property or Customer Site) or (II) by
Contamination or material that is released or deposited after the Initial Closing Date or the
Canada Closing Date (as applicable) and which is or becomes intermingled with Contamination
or material that may have been released or deposited prior to the Initial Closing Date or the
Canada Closing Date (as applicable); provided, that in the case of clauses (I) and (II) above,
Seller’s indemnification obligation shall be excused only to the extent of such exacerbation.
Seller shall have the right, but not the obligation, to determine the scope of and otherwise
conduct any required investigation, cleanup or remediation activities to address hazardous
materials in the Environment under applicable Environmental Law and may utilize any risk
assessment methodologies, site controls and other mechanisms authorized under applicable
Environmental Law in the performance of such investigation, cleanup or remediation activities;
provided, that such investigation, cleanup or remediation activities are adequate to address the
breaches or other liabilities arising and are consistent with the health and safety obligations of
the Local Distribution Businesses, and provided that Seller (A) provides the Buyer Indemnified
Party a reasonable opportunity to review and comment on the scope and conduct of the
investigation, cleanup or remediation activities, (B) takes into account the Buyer Indemnified
Party’s reasonable requirements, (C) uses commercially reasonable efforts to comply with any
relevant Legal Requirements in undertaking such works, (D) takes commercially reasonable
steps to avoid any material interruptions to the Buyer Indemnified Party’s activities on the
Acquired Real Property or Customer Site, (E) will at its discretion either (x) pay a lump sum
amount to Buyer, which lump sum represents a present valuation of reasonably-estimated future
costs for monitoring and active long-term remediation systems, such as groundwater pump-andtreat
expenses, or (y) pay such expenses on an ongoing forward basis as required by the Legal
Requirements (provided that Seller shall not be responsible for other maintenance or upkeep
costs) and (F) uses commercially reasonable efforts to minimize any damage to the Acquired
Real Property or Customer Site arising from or in connection with such works.
(g) Seller shall have no liability under or otherwise in connection with this
Agreement, the Canada Purchase Agreement or the transactions contemplated hereby or thereby
for any Loss to the extent arising as a result of any action taken or omitted to be taken by any
Buyer Indemnified Party prior to the Initial Closing or the Canada Closing (as applicable) other
than anything done or omitted to be done in accordance with the terms of this Agreement or the
Canada Purchase Agreement (as applicable) or with the prior written approval of Seller.
9.4 Notice. A Buyer Indemnified Party or a Seller Indemnified Party asserting a right
to indemnification pursuant to this Article 9, (an “Indemnified Party”) shall do so by furnishing
to the Party that it asserts must provide indemnification (the “Indemnifying Party”) a prompt
written notice stating, in reasonable detail, the events or conditions giving rise to the
indemnification obligation and the amount of the Losses. Promptly, and in any event within ten
(10) Business Days after receipt by an Indemnified Party of notice of any claim or the
commencement of any action or proceeding against such Indemnified Party by a third party (a
“Third Party Claim”), such Indemnified Party shall give written notice to the Indemnifying
Party, in reasonable detail, of the existence, the specific facts and circumstances, and (to the
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