DRAFT — CONFIDENTIAL — ATTORNEY WORK PRODUCT
SPECIAL ENVIRONMENTAL INDEMNIFICATION AND ESCROW PROVISIONS
Proposed Article X / Section 10.3 and Related Sections of the Stock Purchase Agreement
Prepared by: Calderwood & Harkness LLP Beatrice Holloway, Responsible Partner Harrison Caldwell, Of Counsel — Environmental & Land Use
Client: Crestline Packaging Solutions LLC Matter No.: 1006-00003
Date: October 21, 2022
Re: Proposed Acquisition of 100% of the Outstanding Common Stock of Allegheny Chemical Coatings, Inc. — Environmental Risk Allocation Provisions for Inclusion in Stock Purchase Agreement
NOTE: This draft is prepared for discussion purposes and reflects Buyer's proposed positions. References to Article and Section numbers correspond to the draft Stock Purchase Agreement circulated August 12, 2022. These provisions are intended to supplement, and in certain respects supersede, the general indemnification provisions set forth in Article X of the draft SPA.
INTRODUCTORY MEMORANDUM
October 21, 2022
TO: Derek Huang, General Counsel, Crestline Packaging Solutions LLC
CC: Vanessa Moretti, Deal Partner, Briarwood Capital Partners LP Patricia Okonkwo, VP EHS, Crestline Packaging Solutions LLC
FROM: Beatrice Holloway, Partner, and Harrison Caldwell, Of Counsel — Environmental & Land Use Calderwood & Harkness LLP 1900 Euclid Avenue, Suite 3200 Cleveland, OH 44115
RE: Special Environmental Indemnification and Environmental Escrow Provisions — Stock Purchase Agreement for the Acquisition of Allegheny Chemical Coatings, Inc.
Dear Derek:
Enclosed herewith for your review and comment please find our proposed draft language for the Special Environmental Indemnification and Environmental Escrow provisions to be included in the Stock Purchase Agreement (the "Agreement" or "SPA") between Crestline Packaging Solutions LLC ("Buyer") and the stockholders of Allegheny Chemical Coatings, Inc. ("ACC" or the "Company"). As you are aware, the Sellers in this transaction are Walter Kessler (62% ownership), Thomas Kessler (18% ownership), The Walter G. Kessler Revocable Trust dated March 15, 2004 (Margaret Kessler, Trustee) (12% ownership), and the ACC Employee Stock Ownership Plan (8% ownership) (collectively, the "Sellers").
These provisions have been prepared in close consultation with Harrison Caldwell and our environmental and land use practice group, drawing upon the environmental due diligence conducted by TerraVerde Environmental Consulting LLC and the preliminary risk assessments prepared in connection with the four Company Real Property sites. The provisions are designed to address the specific environmental risks identified during the diligence process and to provide Crestline with robust contractual protections appropriate to the risk profile of this acquisition.
Summary of Key Commercial Terms Proposed. The following is a summary of the principal commercial terms reflected in the enclosed draft language:
• Environmental Escrow Holdback: $4,000,000 (approximately 4.2% of the $94,500,000 Purchase Price), to be withheld from Closing proceeds and deposited into a segregated, interest-bearing Environmental Escrow Account.
• Uncapped Fundamental Environmental Indemnity: Sellers' aggregate liability for Environmental Losses arising from Pre-Closing Environmental Conditions shall be unlimited (uncapped), and such liability shall not be subject to the general indemnification cap set forth in Article X of the SPA.
• Seven-Year Survival Period: Environmental representations, warranties, and the special environmental indemnification obligations shall survive the Closing for a period of seven (7) years, independent of and significantly longer than the general representation survival period contemplated by the SPA (typically 18 to 24 months).
• Carve-Out from General Basket/Deductible: Environmental Losses shall not be subject to the general indemnification basket/deductible of $475,000 set forth in Article X, Section 10.4(b) of the SPA. Environmental claims shall be recoverable from the first dollar of loss.
• Escrow Release Mechanics: The Environmental Escrow Amount shall be released to Sellers in installments tied to the achievement of specified remediation completion milestones, with the final release occurring on the seventh anniversary of the Closing Date.
These provisions should be read in conjunction with the environmental representations and warranties proposed in Article IV, Section 4.18 of the draft SPA, which Harrison and I circulated in redline form on October 18, 2022.
Cross-References to Diligence Materials. In developing these provisions and the supporting economic analysis, we have relied upon the following diligence materials and work product, which are either final or in advanced draft form:
(a) Phase II Environmental Site Assessment Results Analysis Memorandum — McKeesport Main Plant, prepared by TerraVerde Environmental Consulting LLC, dated October 14, 2022;
(b) Vapor Intrusion Risk Assessment Memorandum — McKeesport Main Plant, Building C, prepared by TerraVerde Environmental Consulting LLC and reviewed by Calderwood & Harkness, dated October 16, 2022;
(c) Preliminary Remediation Cost Estimate — McKeesport and Clarksburg Facilities, prepared by TerraVerde Environmental Consulting LLC, dated October 18, 2022; and
(d) Comprehensive Environmental Diligence Summary (draft), prepared by Calderwood & Harkness LLP with input from TerraVerde, anticipated date October 22, 2022.
Environmental Liability Range and Escrow Justification. Based on the TerraVerde preliminary remediation cost estimate and our own independent analysis, we have established the following environmental liability range supporting the proposed escrow amount:
• Low-end estimate: $1,925,000
• High-end estimate: $4,345,000
• Proposed Environmental Escrow Amount: $4,000,000
The proposed $4,000,000 Environmental Escrow Amount represents a position between the midpoint ($3,135,000) and the high end ($4,345,000) of the estimated environmental liability range. We believe this positioning is appropriate in light of several unresolved contingencies, most significantly the fact that the Phase II analytical results for the Clarksburg Resin Blending Facility remain pending from Keystone Analytical Laboratories as of the date of this memorandum. If the Clarksburg results confirm significant contamination requiring groundwater remediation, the high-end estimate could increase materially. Accordingly, we recommend maintaining the $4,000,000 escrow position as the opening proposal, with the understanding that some negotiation on this amount is anticipated.
We look forward to discussing these provisions with you and Vanessa at the team call scheduled for October 24, 2022. In the interim, please do not hesitate to contact either of us with any questions or comments.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: Beatrice Holloway
Partner
By: Harrison Caldwell
Of Counsel — Environmental & Land Use
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SPECIAL ENVIRONMENTAL INDEMNIFICATION AND ESCROW PROVISIONS
SECTION 1: DEFINITIONS
Section 1.1 — Defined Terms
For purposes of these Special Environmental Indemnification and Escrow Provisions (these "Environmental Provisions"), the following terms shall have the meanings set forth below. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Stock Purchase Agreement, dated as of the Closing Date (the "Agreement"), by and among Buyer, the Sellers, and the Company.
"Buyer" shall mean Crestline Packaging Solutions LLC, an Ohio limited liability company, with its principal offices located at 4100 Riverside Commerce Drive, Suite 300, Dayton, OH 45402.
"Buyer Indemnified Parties" shall mean Buyer, the Company, and their respective affiliates, subsidiaries, officers, directors, members, managers, employees, agents, successors, and assigns.
"Closing Date" shall mean the date of consummation of the transactions contemplated by the Agreement. The parties have targeted the Closing Date for November 30, 2022, although the actual Closing Date shall be determined in accordance with the terms of the Agreement.
"Company" shall mean Allegheny Chemical Coatings, Inc., a Pennsylvania corporation incorporated in 1987, with its principal offices located at 2200 Iron Works Boulevard, McKeesport, PA 15132.
"Company Real Property" shall mean, collectively, the Owned Real Property and the Leased Real Property, as each such term is defined herein.
"Environmental Escrow Account" shall mean the segregated escrow account established pursuant to Section 3.1 of these Environmental Provisions, to be funded with Four Million Dollars ($4,000,000) from the Purchase Price at Closing, and held and administered by the Environmental Escrow Agent in accordance with the Environmental Escrow Agreement.
"Environmental Escrow Agent" shall mean the escrow agent designated by the parties to hold and administer the Environmental Escrow Account. The parties propose that Commonwealth National Bank, N.A., with offices at 100 East Broad Street, Columbus, OH 43215, serve as the Environmental Escrow Agent, or such other independent escrow agent as the parties may agree upon in writing prior to Closing.
"Environmental Escrow Agreement" shall mean the separate Environmental Escrow Agreement to be entered into among Buyer, Seller Representative, and the Environmental Escrow Agent at or prior to Closing, which shall govern the administration, investment, and disbursement of the Environmental Escrow Account and the Environmental Escrow Amount, and shall be in form and substance reasonably satisfactory to Buyer, Seller Representative, and the Environmental Escrow Agent.
"Environmental Escrow Amount" shall mean Four Million Dollars ($4,000,000), representing the aggregate amount to be deposited into the Environmental Escrow Account at Closing as a holdback from the Purchase Price, as further described in Section 3.1.
"Environmental Escrow Claim Notice" shall have the meaning set forth in Section 3.3.
"Environmental Escrow Period" shall mean the period commencing on the Closing Date and ending on the date that is seven (7) years after the Closing Date, subject to extension as provided in Section 4.3.
"Environmental Law" shall mean any and all federal, state, or local laws, statutes, regulations, ordinances, rules, orders, decrees, judgments, consent decrees, or governmental requirements relating to: (a) pollution or the protection of the environment, natural resources, or human health and safety (to the extent relating to exposure to Hazardous Substances or other environmental conditions); or (b) the handling, use, storage, treatment, generation, transportation, release, or disposal of Hazardous Substances. Without limiting the generality of the foregoing, the term "Environmental Law" includes each of the following, as amended from time to time, and all regulations promulgated thereunder:
(i) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. § 9601 et seq.);
(ii) the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. § 6901 et seq.);
(iii) the Clean Air Act, as amended (42 U.S.C. § 7401 et seq.);
(iv) the Federal Water Pollution Control Act (the "Clean Water Act"), as amended (33 U.S.C. § 1251 et seq.);
(v) the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. § 2601 et seq.);
(vi) the Emergency Planning and Community Right-to-Know Act, as amended ("EPCRA") (42 U.S.C. § 11001 et seq.);
(vii) the Pennsylvania Land Recycling and Environmental Remediation Standards Act (Act 2) (35 P.S. § 6026.101 et seq.);
(viii) the West Virginia Voluntary Remediation and Redevelopment Act (W. Va. Code § 22-22-1 et seq.); and
(ix) all analogous state and local laws, statutes, regulations, ordinances, and rules in the Commonwealth of Pennsylvania and the State of West Virginia applicable to the Company or the Company Real Property.
"Environmental Losses" shall mean any and all losses, liabilities, claims, damages, costs, expenses (including reasonable attorneys' fees, consultant fees, and laboratory fees), fines, penalties, judgments, settlements, and remediation costs incurred by or imposed upon any Buyer Indemnified Party arising out of, relating to, or resulting from any Pre-Closing Environmental Condition, including but not limited to:
(a) costs of Remediation or Remedial Action, including without limitation the costs of investigation, assessment, testing, monitoring, containment, removal, cleanup, abatement, mitigation, and remediation of Hazardous Substances;
(b) third-party claims for personal injury or property damage arising from exposure to Hazardous Substances or other Pre-Closing Environmental Conditions;
(c) governmental orders, directives, notices of violation, enforcement actions, or compliance obligations imposed by any governmental authority under Environmental Law;
(d) natural resource damages assessed or asserted under CERCLA, state law, or common law;
(e) diminution in property value attributable to the presence of contamination or the existence of institutional or engineering controls at any Company Real Property;
(f) business interruption losses arising from required Remediation activities, including without limitation losses attributable to facility shutdowns, production curtailments, or employee relocations necessitated by Remediation; and
(g) costs of compliance with institutional or engineering controls, including monitoring, reporting, and maintenance obligations.
"Environmental Permit" shall mean any permit, license, registration, approval, consent, or authorization required under any Environmental Law for the ownership, operation, or use of any Company Real Property or the conduct of the Company's business, including but not limited to:
(i) PA DEP Title V Operating Permit No. TV-0383-0125 (McKeesport Main Plant);
(ii) PA DEP State-Only Operating Permit No. 63-00982 (Charleroi Specialty Coatings Plant);
(iii) WV DEP Registration Permit R13-3201 (Clarksburg Resin Blending Facility);
(iv) NPDES Permit No. PA0025631 (McKeesport Main Plant); and
(v) any permit modification applications pending as of the Closing Date.
"Environmental Survival Period" shall have the meaning set forth in Section 2.3.
"Hazardous Substance" shall mean any substance, material, or waste that is defined, listed, classified, or otherwise regulated as "hazardous," "toxic," a "pollutant," a "contaminant," or words of similar import under any Environmental Law, including without limitation:
(a) petroleum and petroleum products, petroleum-derived substances, crude oil, and any fractions or derivatives thereof;
(b) asbestos-containing materials ("ACM") in any form or condition;
(c) lead-based paint ("LBP");
(d) polychlorinated biphenyls ("PCBs");
(e) volatile organic compounds ("VOCs"), including but not limited to toluene, xylene, methyl ethyl ketone ("MEK"), ethylbenzene, trichloroethylene ("TCE"), and tetrachloroethylene ("PCE");
(f) heavy metals, including but not limited to chromium and lead;
(g) diesel-range organics ("DRO") and gasoline-range organics ("GRO");
(h) radioactive materials; and
(i) any other substance, material, or waste the presence of which requires investigation, notification, or remediation under any Environmental Law.
"Independent Environmental Expert" shall have the meaning set forth in Section 5.2.
"Leased Real Property" shall mean the real property leased by the Company, specifically:
(a) the Clarksburg Resin Blending Facility located at 1875 Route 50 West, Clarksburg, WV 26301, Harrison County, Parcel ID 04-0012-0056-0000 (approximately 5.2 acres), leased from Mountainview Properties LLC pursuant to that certain Commercial Lease Agreement dated January 1, 2015 (providing for a fifteen (15)-year term expiring December 31, 2029); and
(b) the Weirton Warehouse & Distribution Center located at 600 Commerce Way, Weirton, WV 26062, Hancock County, Parcel ID 07-0304-0012-0000 (approximately 3.1 acres), leased from Northern Panhandle Realty Corp. pursuant to that certain Warehouse Lease Agreement dated March 1, 2018 (providing for a ten (10)-year term expiring February 28, 2028).
"Owned Real Property" shall mean the real property owned in fee simple by the Company, specifically:
(a) the McKeesport Main Plant located at 2200 Iron Works Boulevard, McKeesport, PA 15132, Allegheny County, Parcel ID 0383-M-00125-0000-00 (approximately 14.3 acres); and
(b) the Charleroi Specialty Coatings Plant located at 450 Industrial Park Road, Charleroi, PA 15022, Washington County, Parcel ID 120-015-00-03-0018-00 (approximately 8.7 acres).
"Pre-Closing Environmental Condition" shall mean any condition existing on, at, under, or migrating from any Company Real Property on or before the Closing Date that constitutes:
(a) a Release of Hazardous Substances at, on, under, or from any Company Real Property;
(b) contamination of soil, groundwater, surface water, sediment, or ambient air (including indoor air and soil gas) by Hazardous Substances at, on, under, or migrating from any Company Real Property;
(c) the presence of asbestos-containing materials, lead-based paint, or underground storage tanks at any Company Real Property;
(d) any violation of or noncompliance with any Environmental Law or Environmental Permit by the Company or any predecessor in interest with respect to the Company Real Property or the operations conducted thereon; or
(e) any other condition or circumstance at, on, under, or migrating from any Company Real Property giving rise to liability under any Environmental Law,
in each case regardless of whether such condition was known or unknown as of the Closing Date and regardless of when such condition is first discovered. Without limiting the generality of the foregoing, "Pre-Closing Environmental Condition" includes each of the following specific conditions identified through the environmental due diligence process:
(i) the residual volatile organic compound contamination and vapor intrusion conditions identified at the McKeesport Main Plant in the Phase II Environmental Site Assessment dated October 10, 2022, including toluene in groundwater at monitoring well MW-3 and trichloroethylene in sub-slab soil gas beneath Building C;
(ii) the staining and potential release conditions identified along the eastern boundary of the McKeesport Main Plant adjacent to the unlined stormwater drainage channel;
(iii) any contamination identified or that may be identified at the Clarksburg Resin Blending Facility, including the results of the Phase II investigation commenced on October 3, 2022 (analytical results pending from Keystone Analytical Laboratories as of the date hereof);
(iv) legacy conditions from the former Keystone Metalworks steel fabrication operations at the McKeesport Main Plant site (operations pre-dating the Company's 1987 incorporation and acquisition of the McKeesport site); and
(v) the residual diesel-range organics at the Clarksburg Resin Blending Facility associated with WV DEP Site ID WVUST-2012-04887 and the prior removal of the 15,000-gallon underground storage tank in 2012.
"Release" shall mean any release, spill, emission, discharge, leaking, pumping, pouring, dumping, emptying, injection, escaping, leaching, migration, or disposing of any Hazardous Substance into the environment (including indoor environments and subsurface environments), whether intentional or unintentional, and whether sudden or gradual.
"Remediation" or "Remedial Action" shall mean any and all investigation, study, assessment, testing, monitoring, containment, removal, cleanup, abatement, mitigation, or remediation activity required under Environmental Law or necessary to address a Pre-Closing Environmental Condition, including without limitation:
(a) installation and operation of groundwater extraction and treatment systems (pump-and-treat);
(b) in-situ chemical oxidation or other in-situ treatment technologies;
(c) installation and operation of sub-slab depressurization systems or other vapor mitigation systems;
(d) soil excavation, removal, transportation, and off-site disposal;
(e) vapor mitigation and indoor air quality monitoring;
(f) asbestos abatement, including removal, encapsulation, and enclosure;
(g) lead-based paint abatement, including removal, stabilization, and encapsulation;
(h) any required institutional or engineering controls, including deed restrictions, activity and use limitations, environmental covenants, and physical barriers or containment systems; and
(i) all associated investigation, sampling, analysis, reporting, regulatory submissions, and oversight activities.
"Remediation Completion" shall mean, with respect to any Pre-Closing Environmental Condition at any Company Real Property, the achievement of both of the following:
(a) receipt of (i) a "No Further Action" letter, closure letter, release of liability, covenant not to sue, or equivalent determination from the applicable governmental authority (the Pennsylvania Department of Environmental Protection ("PA DEP") or the West Virginia Department of Environmental Protection ("WV DEP"), as applicable), confirming that no further investigation or remediation is required with respect to such Pre-Closing Environmental Condition; or (ii) if no governmental determination is required or sought, receipt of written confirmation from a qualified environmental consultant that the applicable cleanup standards have been achieved and no further remediation is warranted; and
(b) the absence of any ongoing monitoring, operation, or maintenance obligations with respect to such Pre-Closing Environmental Condition, other than institutional or engineering controls that are already in place as of the Closing Date (including without limitation the institutional and engineering controls at the Clarksburg and Weirton facilities described in Schedule A).
"Seller Representative" shall mean Walter Kessler, in his capacity as the designated representative of the Sellers for purposes of indemnification claims, escrow matters, and all other actions and decisions contemplated by these Environmental Provisions.
"Sellers" shall mean, collectively, Walter Kessler, Thomas Kessler, The Walter G. Kessler Revocable Trust dated March 15, 2004 (Margaret Kessler, Trustee), and the ACC Employee Stock Ownership Plan, as the holders of 100% of the outstanding common stock of the Company.
SECTION 2: SPECIAL ENVIRONMENTAL INDEMNIFICATION
Section 2.1 — Indemnification Obligation
Subject to the terms and conditions of these Environmental Provisions, Sellers, jointly and severally, shall indemnify, defend, and hold harmless the Buyer Indemnified Parties from and against any and all Environmental Losses arising out of, relating to, or resulting from any Pre-Closing Environmental Condition at any Company Real Property.
The indemnification obligation set forth in this Section 2.1 constitutes a "fundamental" indemnification obligation of Sellers under the Agreement. The Sellers' indemnification obligation under this Section 2.1 shall NOT be subject to any of the following limitations otherwise applicable to general indemnification claims under the Agreement:
(a) the aggregate indemnification cap set forth in Article X, Section 10.4(a) of the Agreement;
(b) the general representation basket or deductible of Four Hundred Seventy-Five Thousand Dollars ($475,000) set forth in Article X, Section 10.4(b) of the Agreement;
(c) any de minimis threshold for individual claims set forth in Article X of the Agreement; or
(d) any other cap, basket, deductible, threshold, or limitation on indemnification set forth in Article X of the Agreement (other than the survival provisions applicable to the Environmental Survival Period as set forth in Section 2.3 hereof).
The environmental indemnification obligations set forth in this Section 2 are in addition to, and not in limitation of, any other indemnification obligation of Sellers under the Agreement, including without limitation the Sellers' indemnification obligations for breaches of the environmental representations and warranties set forth in Article IV, Section 4.18 of the Agreement. To the extent that any Environmental Loss also constitutes a loss recoverable under the general indemnification provisions of Article X of the Agreement, Buyer shall have the right to pursue recovery under either or both provisions, subject to the anti-duplication provisions of Section 6.2.
Section 2.2 — Uncapped Liability
Sellers' aggregate liability for Environmental Losses under this Section 2 shall be unlimited and uncapped. There shall be no maximum aggregate amount of Environmental Losses for which Sellers may be held liable under these Environmental Provisions.
The uncapped nature of this indemnity obligation reflects the following considerations, which the parties acknowledge:
(a) the identification during the environmental due diligence process of active contamination exceedances at the McKeesport Main Plant, including toluene in groundwater at monitoring well MW-3 at concentrations exceeding the PA Act 2 Statewide Health Standard by forty-two percent (42%) and trichloroethylene in sub-slab soil gas beneath Building C at concentrations exceeding the PA DEP vapor intrusion screening level by one hundred percent (100%);
(b) the incomplete state of environmental due diligence as of the date hereof, specifically the pending Phase II analytical results for the Clarksburg Resin Blending Facility, the absence of which precludes a definitive assessment of the environmental liabilities associated with that facility;
(c) the potential for undiscovered Pre-Closing Environmental Conditions at any of the Company Real Property sites, particularly the McKeesport Main Plant, which has been in continuous industrial use since at least the 1940s and was the site of the former Keystone Metalworks steel fabrication operations prior to the Company's acquisition of the property in 1987; and
(d) the stock-purchase structure of the transaction, which by operation of law causes Buyer to assume all historical liabilities of the Company, including all environmental liabilities arising from the Company's past and present operations, and which distinguishes this transaction from an asset-purchase structure in which Buyer might more effectively limit its assumption of historical liabilities.
Section 2.3 — Survival Period
The environmental indemnification obligations of Sellers under this Section 2 shall survive the Closing for a period of seven (7) years from the Closing Date (the "Environmental Survival Period"). Upon the expiration of the Environmental Survival Period, the Sellers' environmental indemnification obligations under this Section 2 shall terminate and be of no further force or effect, except as provided in this Section 2.3.
Notwithstanding the foregoing, any claim for Environmental Losses that is properly asserted by Buyer (by delivery of written notice to the Seller Representative and the Environmental Escrow Agent in accordance with Section 10.1 of these Environmental Provisions) prior to the expiration of the Environmental Survival Period shall survive until the final resolution of such claim, regardless of whether the Environmental Survival Period has expired subsequent to the assertion of such claim. For the avoidance of doubt, the Sellers' obligation to indemnify Buyer with respect to any timely-asserted claim shall continue until such claim has been fully and finally resolved and all Environmental Losses attributable to such claim have been paid in full, even if such resolution occurs after the expiration of the Environmental Survival Period.
The parties acknowledge and agree that the seven (7)-year Environmental Survival Period set forth in this Section 2.3 is independent of and longer than the general representation survival period set forth in the Agreement (which the parties anticipate will be eighteen (18) to twenty-four (24) months from the Closing Date). The extended Environmental Survival Period is justified by:
(a) the latent nature of environmental contamination, which may not manifest or be discovered for years after a release of Hazardous Substances;
(b) the typical duration of groundwater remediation projects, which commonly require three (3) to seven (7) years for active remediation systems (such as pump-and-treat or in-situ chemical oxidation) to achieve cleanup standards;
(c) the applicable statutes of limitation and statutes of repose for environmental claims under Pennsylvania and West Virginia law, which in many cases extend well beyond the general commercial limitations periods; and
(d) the specific circumstances of the Pre-Closing Environmental Conditions identified at the McKeesport Main Plant, which involve groundwater contamination and vapor intrusion conditions that are expected to require multiple years of active remediation and monitoring before Remediation Completion can be achieved.
Section 2.4 — Exclusion from General Basket/Deductible
Environmental Losses shall not be subject to the general indemnification basket or deductible of Four Hundred Seventy-Five Thousand Dollars ($475,000) set forth in Article X, Section 10.4(b) of the Agreement. Environmental Losses shall not count toward or be aggregated with any other losses for purposes of determining whether such basket or deductible has been satisfied. All Environmental Losses shall be recoverable by Buyer Indemnified Parties from the first dollar of loss, without any requirement that Environmental Losses exceed any threshold amount before indemnification obligations are triggered.
The exclusion of Environmental Losses from the general basket/deductible is appropriate because the environmental conditions identified through the due diligence process represent known, quantifiable liabilities that are distinct from the customary closing-risk items that the general basket/deductible is intended to address. Application of the general deductible to environmental claims would effectively shift Four Hundred Seventy-Five Thousand Dollars ($475,000) of known environmental liability to Buyer without any corresponding adjustment to the Purchase Price, a result that is neither commercially reasonable nor consistent with the parties' intent to allocate Pre-Closing Environmental Conditions to Sellers.
Section 2.5 — Known vs. Unknown Conditions
The environmental indemnification obligations of Sellers under this Section 2 cover both (a) known Pre-Closing Environmental Conditions, including those identified in the Phase I and Phase II Environmental Site Assessments conducted by TerraVerde Environmental Consulting LLC and described in Schedule A hereto, and (b) unknown Pre-Closing Environmental Conditions, including conditions that are not disclosed, not identified, or not yet discovered as of the Closing Date.
Sellers expressly and irrevocably waive any defense to indemnification based on Buyer's knowledge (whether actual, constructive, or imputed) of Pre-Closing Environmental Conditions as of the Closing Date or at any time prior to the Closing Date. This waiver constitutes an express anti-sandbagging provision applicable to environmental matters. Sellers acknowledge and agree that Buyer's awareness of specific Pre-Closing Environmental Conditions—whether arising from the Phase I ESAs, Phase II ESAs, TerraVerde's preliminary remediation cost estimate, Calderwood & Harkness's environmental diligence memoranda, or any other source—shall not diminish, limit, or otherwise affect Sellers' indemnification obligations under this Section 2.
For the further avoidance of doubt, Buyer's decision to proceed with the Closing notwithstanding its knowledge of any Pre-Closing Environmental Conditions shall not constitute, and shall not be deemed or construed as, a waiver, release, or assumption of risk by Buyer with respect to any Environmental Losses arising from such conditions. Buyer is relying on the contractual protections set forth in these Environmental Provisions, and not on the current condition of the Company Real Property, in determining to proceed with the transactions contemplated by the Agreement.
Section 2.6 — Sellers' Right to Participate in Remediation
Sellers shall have the right, but not the obligation, to participate in the oversight of any Remediation of Pre-Closing Environmental Conditions conducted by or on behalf of Buyer or the Company, subject to the following terms and conditions:
(a) Buyer's Sole Control. Buyer shall retain sole and exclusive control over and decision-making authority with respect to all Remediation activities, including without limitation the selection of remedial technologies, the sequencing and scheduling of Remediation activities, the submission of reports and plans to governmental authorities, and all communications with PA DEP, WV DEP, and any other governmental authority. Sellers' participation rights under this Section 2.6 shall not confer upon Sellers any right to direct, approve, veto, or otherwise control any aspect of the Remediation process.
(b) Designation of Consultant. Sellers may, at Sellers' sole cost and expense, designate one (1) environmental consultant (who shall be a qualified professional with relevant experience and who shall be reasonably acceptable to Buyer) to observe and review Remediation plans, work plans, progress reports, sampling data, and related documents. Such consultant shall execute a confidentiality agreement in form and substance reasonably satisfactory to Buyer prior to receiving access to any Remediation-related information.
(c) Non-Interference. Sellers' participation shall not delay, interfere with, impede, or otherwise adversely affect the progress, schedule, or conduct of any Remediation activities. If Buyer determines in good faith that Sellers' participation or the activities of Sellers' designated consultant are causing or are reasonably likely to cause delay, interference, or disruption, Buyer shall provide written notice to Seller Representative, and Sellers shall promptly cure such interference. If the interference continues after notice, Buyer may suspend Sellers' participation rights until the interference is resolved.
(d) Access to Information. Buyer shall provide Sellers with reasonable access to Remediation reports, sampling data, laboratory analytical results, regulatory correspondence, and other documents related to Remediation activities, in each case within a reasonable time after such documents become available. Buyer shall provide such access by delivering copies (which may be electronic copies) to the Seller Representative or Sellers' designated consultant.
Buyer shall select the environmental consultant or consultants to perform the Remediation (which may be TerraVerde Environmental Consulting LLC or any other qualified environmental consulting firm), and Buyer's selection of such consultant or consultants shall not be subject to Sellers' approval, consent, or objection.
Buyer shall use commercially reasonable efforts to conduct Remediation in a cost-effective manner, consistent with applicable Environmental Law and regulatory requirements. However, Buyer shall not be required to select the lowest-cost remedial alternative if, in Buyer's reasonable judgment (informed by the recommendations of Buyer's environmental consultant), a more protective remedial alternative is warranted by site-specific conditions, regulatory preferences or requirements, risk considerations, or operational constraints. For the avoidance of doubt, the selection of a remedial alternative that achieves the applicable PA Act 2 or WV DEP cleanup standards in a manner that Buyer determines is appropriate for the continued use of the Company Real Property shall be deemed commercially reasonable, regardless of whether a less costly alternative might theoretically achieve the same numerical cleanup standards.
SECTION 3: ENVIRONMENTAL ESCROW
Section 3.1 — Establishment of Environmental Escrow Account
At the Closing, Four Million Dollars ($4,000,000) of the Purchase Price (the "Environmental Escrow Amount") shall be withheld from the amounts otherwise payable to Sellers and shall be deposited into the Environmental Escrow Account with the Environmental Escrow Agent. The Environmental Escrow Amount represents a holdback from the aggregate Ninety-Four Million Five Hundred Thousand Dollar ($94,500,000) Purchase Price, and the Sellers' share of the Purchase Price payable at Closing shall be correspondingly reduced by the Environmental Escrow Amount. The allocation of the Environmental Escrow Amount among the Sellers shall be in proportion to each Seller's pro rata ownership interest in the Company.
The Environmental Escrow Account shall be maintained as a segregated, interest-bearing account, invested in accordance with the investment guidelines set forth in the Environmental Escrow Agreement (which shall provide for investment in short-term United States Treasury obligations, money market funds invested primarily in such obligations, or certificates of deposit at the Environmental Escrow Agent's institution, as the parties may agree). Interest and other investment earnings accruing on the Environmental Escrow Account shall be allocated as follows:
(a) To the extent Escrow Funds are ultimately released to Sellers in accordance with the milestone-based release schedule set forth in Section 4.1 or otherwise, any interest and earnings accrued on the released amount shall be released to Sellers together with such principal amount.
(b) To the extent Escrow Funds are distributed to Buyer in satisfaction of Environmental Losses in accordance with Section 3.3, any interest and earnings accrued on the distributed amount shall be distributed to Buyer together with such principal amount.
The Environmental Escrow Account shall be governed by the Environmental Escrow Agreement, a separate agreement to be entered into among Buyer, Seller Representative, and the Environmental Escrow Agent at or prior to Closing. The parties shall negotiate the Environmental Escrow Agreement in good faith and shall use commercially reasonable efforts to finalize such agreement prior to the Closing Date. The Environmental Escrow Agreement shall be consistent with these Environmental Provisions and, in the event of any conflict between the Environmental Escrow Agreement and these Environmental Provisions, these Environmental Provisions shall control.
Section 3.2 — Purpose of Environmental Escrow
The Environmental Escrow Amount shall serve as a dedicated source of recovery—but not the exclusive source of recovery—for Environmental Losses incurred by Buyer Indemnified Parties arising out of, relating to, or resulting from Pre-Closing Environmental Conditions. The establishment of the Environmental Escrow Account and the deposit of the Environmental Escrow Amount are intended to provide Buyer with an efficient and readily accessible mechanism for recovering Environmental Losses, without the delay and expense of pursuing claims directly against Sellers.
Notwithstanding the foregoing, Buyer expressly retains the right to pursue Environmental Losses against Sellers directly under the indemnification provisions of Section 2 of these Environmental Provisions, including without limitation Environmental Losses in excess of the then-remaining balance of the Environmental Escrow Account. The Sellers' indemnification obligations under Section 2 are independent of, and are not limited by, the Environmental Escrow Amount. The Environmental Escrow Account is a security mechanism designed to facilitate the efficient resolution of environmental claims; it is not a limitation on Sellers' liability, and the existence of the escrow shall not be construed as establishing a cap, ceiling, or maximum amount of Sellers' environmental indemnification obligations.
Section 3.3 — Claims Against Environmental Escrow
To make a claim for Environmental Losses against the Environmental Escrow Account, Buyer shall deliver a written claim notice (an "Environmental Escrow Claim Notice") to the Seller Representative and the Environmental Escrow Agent simultaneously in accordance with the notice provisions of Section 10.1. Each Environmental Escrow Claim Notice shall specify the following information:
(a) the Pre-Closing Environmental Condition giving rise to the claim, with reference to the applicable item(s) on Schedule A, if applicable;
(b) the Company Real Property affected by such Pre-Closing Environmental Condition;
(c) a reasonable description of the Environmental Losses incurred or expected to be incurred, including the nature and basis of such losses;
(d) the amount of Environmental Losses claimed (which may be an estimated amount if the precise amount is not yet determinable, in which case Buyer shall so state and shall update the claim when the amount becomes determinable); and
(e) supporting documentation reasonably available to Buyer at the time of the claim, including without limitation invoices from environmental consultants and contractors, laboratory analytical reports, consultant reports and memoranda, and regulatory correspondence (including any orders, directives, notices of violation, or other communications from PA DEP, WV DEP, or other governmental authorities).
Within thirty (30) calendar days following receipt of an Environmental Escrow Claim Notice, the Seller Representative shall have the right to object to the claim (in whole or in part) by delivering a written objection notice (an "Escrow Claim Objection") to Buyer and the Environmental Escrow Agent. The Escrow Claim Objection shall specify in reasonable detail the grounds for the objection, including the amount disputed and the factual or legal basis for the dispute. If the Seller Representative objects to only a portion of the claimed amount, the Escrow Claim Objection shall specify the undisputed portion, if any.
If the Seller Representative does not deliver a timely Escrow Claim Objection within the thirty (30)-day objection period, the Seller Representative shall be deemed to have accepted the Environmental Escrow Claim Notice in its entirety, and the Environmental Escrow Agent shall release the full claimed amount to Buyer within ten (10) business days following the expiration of the objection period.
If the Seller Representative delivers a timely Escrow Claim Objection, the following procedures shall apply:
(a) To the extent any portion of the claimed amount is undisputed, the Environmental Escrow Agent shall release the undisputed portion to Buyer within ten (10) business days following receipt of the Escrow Claim Objection.
(b) The disputed portion of the claimed amount shall remain in the Environmental Escrow Account pending resolution of the dispute in accordance with the dispute resolution provisions of Section 5 of these Environmental Provisions. Upon resolution of the dispute, the Environmental Escrow Agent shall disburse the disputed amount in accordance with the resolution (whether by agreement of the parties, determination of the Independent Environmental Expert, or final adjudication).
Section 3.4 — Multiple Claims; Priority
Buyer may submit multiple Environmental Escrow Claim Notices, and there shall be no limitation on the number of claims that Buyer may assert against the Environmental Escrow Account during the Environmental Escrow Period. Claims against the Environmental Escrow Account shall be satisfied on a first-in, first-out basis, in the order in which the applicable Environmental Escrow Claim Notices are delivered to the Environmental Escrow Agent.
If the aggregate amount of pending Environmental Escrow Claims (including both undisputed claims pending disbursement and disputed claims pending resolution) exceeds the remaining balance of the Environmental Escrow Account, the Environmental Escrow Agent shall satisfy claims in the order received, to the extent of available funds. Buyer's recourse for any excess—that is, Environmental Losses in excess of the remaining balance of the Environmental Escrow Account—shall be directly against Sellers under the indemnification provisions of Section 2 of these Environmental Provisions, without limitation and without regard to the Environmental Escrow Amount or the balance remaining in the Environmental Escrow Account.
SECTION 4: ESCROW RELEASE MECHANICS
Section 4.1 — Milestone-Based Release Schedule
The Environmental Escrow Amount shall be released to Sellers in installments upon the achievement of specified remediation milestones, as set forth below. Each milestone release shall be contingent upon Buyer's written certification of milestone achievement, delivered to the Seller Representative and the Environmental Escrow Agent in accordance with Section 4.2, and upon the satisfaction of the conditions to release set forth in Section 4.2.
Milestone 1 — McKeesport Groundwater Remediation Commencement. Upon Buyer's written confirmation that (i) an approved remedial action plan for the groundwater contamination at the McKeesport Main Plant (including, at a minimum, the toluene exceedance identified at monitoring well MW-3) has been prepared, submitted to the Pennsylvania Department of Environmental Protection, and accepted by PA DEP (or PA DEP has confirmed that no objection to the plan has been raised within the applicable review period), and (ii) remedial construction activities pursuant to such approved remedial action plan have commenced at the McKeesport Main Plant—release of Five Hundred Thousand Dollars ($500,000) to Sellers; provided, however, that no pending, unresolved Environmental Escrow Claims exist against such amount as of the date of the proposed release.
Milestone 2 — McKeesport Vapor Intrusion Mitigation Completion. Upon Buyer's written confirmation that (i) a sub-slab depressurization system or equivalent vapor mitigation system has been installed and is in verified operation at McKeesport Main Plant Building C, and (ii) post-mitigation indoor air sampling conducted in accordance with PA DEP guidance has confirmed that trichloroethylene (TCE) concentrations in indoor air within Building C are below the PA DEP vapor intrusion screening level of 21 µg/m³ (based on a minimum of two consecutive quarterly sampling events demonstrating compliance)—release of Five Hundred Thousand Dollars ($500,000) to Sellers; provided, however, that no pending, unresolved Environmental Escrow Claims exist against such amount as of the date of the proposed release.
Milestone 3 — Clarksburg Facility Resolution. Upon Buyer's written confirmation that (i) the Phase II analytical results from Keystone Analytical Laboratories for the Clarksburg Resin Blending Facility have been received and reviewed by Calderwood & Harkness LLP and TerraVerde Environmental Consulting LLC, and (ii) either:
(A) a determination has been made, based on such analytical results and any additional investigation deemed necessary, that no Remediation is required at the Clarksburg Resin Blending Facility (i.e., all analytical results are below applicable WV DEP cleanup standards and no further action is warranted); or
(B) any Remediation required at the Clarksburg Resin Blending Facility has been completed and a closure determination, No Further Action letter, or equivalent determination has been received from WV DEP confirming that no further Remediation is required;
—release of Seven Hundred Fifty Thousand Dollars ($750,000) to Sellers; provided, however, that no pending, unresolved Environmental Escrow Claims exist against such amount as of the date of the proposed release.