1006-00003 · Crestline Packaging Solutions LLC · Transaction Documents/Environmental Provisions

environmental-reps-warranties-buyer-draft.docx DOCUMENT M&A / Corporate

33 / 35 ← → ✕

Contract analysis Extract to table

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLERS

Section 4.18: Environmental Matters

Buyer's Initial Draft

August 12, 2022

Extracted from Draft Stock Purchase Agreement dated August 12, 2022

Transaction: Acquisition of 100% of the outstanding common stock of Allegheny Chemical Coatings, Inc. (the "Company"), a Pennsylvania corporation, by Crestline Packaging Solutions LLC ("Buyer"), a Delaware limited liability company.

Prepared by: Harrison Caldwell, Of Counsel, Environmental & Land Use Practice Group, Calderwood & Harkness LLP

Reviewed by: Beatrice Holloway, Responsible Partner, Mergers & Acquisitions Practice Group, Calderwood & Harkness LLP

Matter No.: 1006-00003

Calderwood & Harkness LLP 1900 Euclid Avenue, Suite 3200 Cleveland, OH 44115

NOTE: This Section 4.18 is intended to be read in conjunction with Article I (Definitions), Article VIII (Indemnification), and the Disclosure Schedules referenced herein. Defined terms used but not defined in this Section 4.18 have the meanings set forth in Article I of the Stock Purchase Agreement. In the event of any conflict between definitions set forth in this Section 4.18 and definitions set forth in Article I, the definitions set forth in this Section 4.18 shall control for purposes of the environmental representations and warranties contained herein.

PRELIMINARY DEFINITIONS APPLICABLE TO SECTION 4.18

For purposes of this Section 4.18, the following terms shall have the meanings ascribed to them below. These definitions supplement, and in certain cases refine, the general definitions set forth in Article I of this Agreement.

"Company" means Allegheny Chemical Coatings, Inc., a Pennsylvania corporation.

"Company Real Property" means all real property owned, leased, operated, or otherwise used or occupied by the Company, including, without limitation, the following:

(i) McKeesport Facility — 2200 Iron Works Boulevard, McKeesport, Pennsylvania 15132 (Allegheny County; Parcel ID 0383-M-00125-0000-00) — owned in fee simple by the Company;

(ii) Charleroi Facility — 450 Industrial Park Road, Charleroi, Pennsylvania 15022 (Washington County; Parcel ID 120-015-00-03-0018-00) — owned in fee simple by the Company;

(iii) Clarksburg Facility — 1875 Route 50 West, Clarksburg, West Virginia 26301 (Harrison County; Parcel ID 04-0012-0056-0000) — leased from Mountainview Properties LLC pursuant to that certain Commercial Lease Agreement dated January 1, 2015, as amended from time to time; and

(iv) Weirton Facility — 600 Commerce Way, Weirton, West Virginia 26062 (Hancock County; Parcel ID 07-0304-0012-0000) — leased from Northern Panhandle Realty Corp. pursuant to that certain Industrial Lease Agreement dated March 1, 2018, as amended from time to time.

"Environmental Laws" means all applicable federal, state, and local laws, statutes, regulations, ordinances, rules, orders, judgments, decrees, permits, licenses, codes, and common law, as in effect on or prior to the Closing Date, relating to: (A) pollution or the protection of the environment, natural resources, or human health and safety (as related to exposure to Hazardous Substances); (B) the management, generation, manufacture, use, treatment, storage, handling, transportation, Release, disposal, or recycling of Hazardous Substances; or (C) exposure to Hazardous Substances, including, but not limited to:

(a) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. §§ 9601 et seq.);

(b) the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. §§ 6901 et seq.);

(d) the Federal Water Pollution Control Act (Clean Water Act), as amended (33 U.S.C. §§ 1251 et seq.);

(e) the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. §§ 2601 et seq.);

(f) the Emergency Planning and Community Right-to-Know Act, as amended ("EPCRA") (42 U.S.C. §§ 11001 et seq.);

(g) the Pennsylvania Land Recycling and Environmental Remediation Standards Act, 35 Pa. Stat. §§ 6026.101–6026.908 ("Act 2");

(h) the Pennsylvania Solid Waste Management Act, 35 Pa. Stat. §§ 6018.101–6018.1003;

(i) the Pennsylvania Clean Streams Law, 35 Pa. Stat. §§ 691.1–691.1001;

(j) the Pennsylvania Air Pollution Control Act, 35 Pa. Stat. §§ 4001–4015;

(k) the West Virginia Groundwater Protection Act, W. Va. Code §§ 22-12-1 et seq.;

(l) the West Virginia Voluntary Remediation and Redevelopment Act, W. Va. Code §§ 22-22-1 et seq.;

(m) applicable provisions of the Occupational Safety and Health Act of 1970, as amended, and the regulations promulgated thereunder, to the extent relating to exposure to Hazardous Substances in the workplace; and

(n) all analogous state, county, and local counterparts, implementing regulations, and amendments to any of the foregoing.

"Environmental Permits" means all permits, licenses, registrations, approvals, authorizations, certificates, consents, variances, exemptions, and interim status designations required under Environmental Laws for the lawful operation of the Company's business and the Company Real Property, including, without limitation, air emission permits, wastewater discharge permits, stormwater discharge permits, hazardous waste generator registrations, storage permits, and any other governmental authorizations relating to environmental compliance.

"Hazardous Substances" means any pollutant, contaminant, waste, chemical, substance, material, constituent, or mixture, in any form (including solid, liquid, gaseous, or semi-solid), that is regulated or restricted under any Environmental Law or that may give rise to liability under any Environmental Law, including, without limitation:

(a) petroleum and petroleum products, including crude oil and any fractions thereof, diesel fuel, gasoline, and heating oil;

(b) asbestos and asbestos-containing materials ("ACM");

(d) polychlorinated biphenyls ("PCBs") and PCB-containing equipment;

(e) volatile organic compounds ("VOCs"), including toluene, xylene, trichloroethylene ("TCE"), and tetrachloroethylene ("PCE");

(f) semi-volatile organic compounds ("SVOCs");

(g) heavy metals, including arsenic, cadmium, chromium, lead, mercury, and nickel;

(h) radioactive materials and naturally occurring radioactive material ("NORM");

(i) per- and polyfluoroalkyl substances ("PFAS"), including perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS");

(j) any substance defined as a "hazardous substance" under CERCLA, a "hazardous waste" under RCRA, a "toxic substance" under TSCA, a "pollutant" or "contaminant" under the Clean Water Act, or a "hazardous air pollutant" under the Clean Air Act; and

(k) any substance defined or designated as hazardous, toxic, radioactive, dangerous, or otherwise regulated under any analogous state or local Environmental Law.

"Release" means any release, spill, emission, leaking, pumping, pouring, injection, deposit, disposal, discharge, dispersal, leaching, dumping, or migration into or through the indoor or outdoor environment, including, without limitation, into or through air (including indoor air and ambient air), soil, subsurface soil, surface water, groundwater, sediment, or any surface or subsurface strata, or into or from any building, structure, or enclosed space, whether sudden or gradual, accidental or intentional, and whether or not such release constitutes a "release" as defined under CERCLA or any analogous state law.

"Environmental Claim" means any claim, action, suit, proceeding, investigation, order, directive, demand, notice of violation, notice of potential liability, notice of potential responsibility, information request (including requests under CERCLA Section 104(e)), complaint, or other communication, whether written or oral, by or from any Governmental Authority, any third party, or any other Person, that arises out of, relates to, or is based upon (A) any actual or alleged violation of any Environmental Law; (B) any actual or alleged Release of any Hazardous Substance; (C) any actual or alleged contamination or environmental condition at, on, under, or emanating from any real property; or (D) any actual or potential liability under any Environmental Law.

"Remedial Action" means any investigation, study, assessment, characterization, testing, sampling, monitoring (including groundwater monitoring), cleanup, removal, response, remediation, containment, abatement, natural resource restoration, corrective action, natural attenuation, institutional control, engineering control, or other action required or undertaken pursuant to any Environmental Law or any order, consent decree, or agreement with any Governmental Authority in connection with any actual or threatened Release of any Hazardous Substance or contamination of the environment.

"Disclosure Schedules" means Schedule 4.18 and its sub-schedules (Schedules 4.18(a) through 4.18(m)), as referenced in each subsection of this Section 4.18, which schedules are to be prepared and delivered by the Sellers as part of the Disclosure Schedules to this Agreement.

SECTION 4.18 — ENVIRONMENTAL MATTERS

The Company and the Sellers, jointly and severally, represent and warrant to the Buyer as of the date hereof and as of the Closing Date, as follows:

Section 4.18(a) — Environmental Permits.

(i) The Company holds all Environmental Permits necessary for the lawful conduct and operation of the Company's business as currently conducted at each Company Real Property, including, without limitation, all permits, licenses, registrations, approvals, authorizations, and certificates required under all applicable Environmental Laws. A complete and accurate list of all such Environmental Permits is set forth on Schedule 4.18(a), which list shall include, for each Environmental Permit, the issuing authority, the permit number, the facility to which it relates, the date of issuance, the expiration date, and any material terms or conditions thereof.

(ii) All Environmental Permits held by the Company are valid, in full force and effect, and are not subject to any pending or threatened revocation, modification, suspension, cancellation, termination, or non-renewal. The Company has not received any written or oral notice from any Governmental Authority that any Environmental Permit is subject to revocation, modification, suspension, cancellation, termination, or non-renewal.

(iii) The Company is in compliance in all respects with all terms, conditions, requirements, and limitations of each Environmental Permit, and no event has occurred or condition exists that, with or without the passage of time or the giving of notice, would constitute a violation of, or a basis for revocation, modification, suspension, or non-renewal of, any Environmental Permit.

(iv) Without limiting the generality of the foregoing, the Environmental Permits to be disclosed on Schedule 4.18(a) shall include, without limitation:

(a) Pennsylvania Department of Environmental Protection ("PA DEP") Title V Operating Permit No. TV-0383-0125, issued to the Company for the McKeesport facility, issued June 1, 2019, with an expiration date of May 31, 2024;

(b) PA DEP State-Only Operating Permit No. 63-00982, issued to the Company for the Charleroi facility;

(c) West Virginia Department of Environmental Protection ("WV DEP") Registration Permit No. R13-3201, issued to the Company for the Clarksburg facility;

(d) National Pollutant Discharge Elimination System ("NPDES") Permit No. PA0025631, issued by PA DEP to the Company for stormwater discharge at the McKeesport facility; and

(e) All Resource Conservation and Recovery Act hazardous waste generator registrations, including EPA Identification Numbers PAD-098-721-445 (McKeesport), PAD-112-583-667 (Charleroi), and WVD-054-319-882 (Clarksburg).

(v) No application for any new Environmental Permit, renewal of any existing Environmental Permit, or material modification, amendment, or revision of any existing Environmental Permit is pending before any Governmental Authority with respect to the Company or any Company Real Property, except as disclosed on Schedule 4.18(a).

(vi) Neither the execution, delivery, or performance of this Agreement nor the consummation of the transactions contemplated hereby, including the acquisition of all of the outstanding common stock of the Company by the Buyer, will result in the revocation, non-renewal, suspension, cancellation, termination, or material modification of any Environmental Permit, or require the transfer, re-issuance, novation, or new application for any Environmental Permit, except as disclosed on Schedule 4.18(a). To the extent that any Environmental Permit requires notification to, or approval by, any Governmental Authority in connection with the transactions contemplated by this Agreement, such notification or approval requirements are identified on Schedule 4.18(a).

Section 4.18(b) — Compliance with Environmental Laws.

(i) The Company is, and during the past five (5) years has been, in compliance in all respects with all applicable Environmental Laws, including, without limitation, all Environmental Laws relating to air emissions, wastewater discharges, stormwater management, hazardous waste management, solid waste management, chemical storage and handling, worker health and safety (as related to exposure to Hazardous Substances), and reporting and notification requirements.

(ii) The Company has not received, during the past five (5) years, any written or oral notice, report, order, directive, citation, demand, or communication from any Governmental Authority or any third party regarding any actual or alleged violation of, or failure to comply with, any Environmental Law, or any actual or potential liability under any Environmental Law, except as disclosed on Schedule 4.18(b).

(iii) The Company has timely filed, submitted, and maintained all reports, notifications, submissions, registrations, filings, certifications, manifests, and records required under all applicable Environmental Laws, including, without limitation:

(a) RCRA biennial hazardous waste reports (EPA Form 8700-13A/B) for each facility at which the Company is classified as a large quantity generator or small quantity generator;

(b) Toxic Release Inventory ("TRI") Form R filings under Section 313 of EPCRA, including filings for reporting year 2021 for the McKeesport facility reflecting total toluene releases of approximately 12,400 pounds and total xylene releases of approximately 8,700 pounds;

(c) Tier II Chemical Inventory Reports filed annually with the Allegheny County Local Emergency Planning Committee ("LEPC"), the Washington County LEPC, the Harrison County LEPC, and the Hancock County LEPC, as applicable, and with the applicable State Emergency Response Commissions;

(d) TSCA Chemical Data Reporting submissions, as required;

(e) NPDES Discharge Monitoring Reports ("DMRs") filed with PA DEP for the McKeesport facility;

(f) Title V annual compliance certifications filed with PA DEP for the McKeesport facility; and

(g) all other reports, filings, and submissions required under applicable Environmental Laws.

(iv) The Company has not been classified as a "major source" under Section 112 of the Clean Air Act or any analogous state law, except as disclosed on Schedule 4.18(b). Without limiting the foregoing, the McKeesport facility is classified as a major source for hazardous air pollutants ("HAPs") under the Clean Air Act, with combined HAP emissions of approximately 38.2 tons per year, which exceeds the 25-ton per year threshold for combined HAPs under Section 112(a)(1) of the Clean Air Act. Such major source classification and the associated regulatory requirements are set forth on Schedule 4.18(b).

(v) There are no consent orders, consent decrees, settlement agreements, compliance schedules, or corrective action plans outstanding, pending, or in effect with respect to the Company or any Company Real Property under any Environmental Law. The Company is not operating under any variance, exemption, or temporary authorization from any Governmental Authority with respect to any Environmental Law.

Section 4.18(c) — Contamination and Releases.

(i) There has been no Release of any Hazardous Substance at, on, under, from, or migrating to or from any Company Real Property, whether in soils, groundwater, surface water, sediment, air, or any other environmental medium, in each case in quantities, concentrations, or circumstances that would require investigation, reporting, notification, Remedial Action, or monitoring under any Environmental Law, except as disclosed on Schedule 4.18(c).

(ii) There are no Hazardous Substances present in, on, under, or migrating to or from any Company Real Property in concentrations exceeding applicable cleanup standards, screening levels, action levels, maximum contaminant levels, or other numerical criteria or risk-based standards established under any Environmental Law, including, without limitation, the PA DEP Act 2 Statewide Health Standards, the PA DEP Medium-Specific Concentrations, the WV DEP Voluntary Remediation and Redevelopment Program cleanup standards, and all applicable federal standards, except as disclosed on Schedule 4.18(c).

(iii) No condition exists at, on, under, or emanating from any Company Real Property that has resulted in, or would reasonably be expected to result in or give rise to, any liability, obligation, cost, or expense under any Environmental Law for investigation, Remedial Action, monitoring, natural resource damages, or any other environmental response activity.

(iv) The Company has not caused or permitted the disposal, treatment, storage, or Release of any Hazardous Substance at any location other than the Company Real Property, including any off-site disposal facility, third-party property, or publicly owned treatment works, in a manner that has resulted in, or would reasonably be expected to result in, liability to the Company under any Environmental Law, including, without limitation, liability under CERCLA Sections 107 or 113.

(v) Schedule 4.18(c) shall disclose, without limitation, all known or suspected contamination conditions at any Company Real Property, including:

(a) any residual subsurface contamination (including petroleum hydrocarbons, metals, and VOCs) beneath the former underground storage tank field at the McKeesport facility, including the scope and results of any investigation or remediation conducted in connection with the PA DEP Act 2 filing opened in 1994 and the PA DEP No Further Action ("NFA") letter issued in May 2001 under the Statewide Health Standard for soils;

(b) residual diesel-range organics ("DRO") in soil at the Clarksburg facility, associated with the former 15,000-gallon diesel underground storage tank removed in 2012 by the prior tenant (Valley Freight Lines Inc., now dissolved), as documented by WV DEP (Site ID: WVUST-2012-04887), including a description of the nature and extent of residual contamination, current concentrations relative to applicable WV DEP action levels, and all institutional controls recorded in connection therewith;

(c) any contamination conditions at the Weirton facility associated with the WV Voluntary Remediation and Redevelopment Program ("VRDP") Certificate of Completion issued in September 2015, including a description of the historical contamination, the remediation activities undertaken, the residual contamination (if any) remaining beneath the site cap, and all engineering and institutional controls in place; and

(d) any other known or suspected contamination conditions at any Company Real Property, regardless of whether such conditions have been investigated or are the subject of any pending or completed regulatory action.

(vi) The representations and warranties set forth in this Section 4.18(c) are not limited by or subject to any Knowledge qualifier. The Company and the Sellers represent and warrant absolutely that the conditions described in Sections 4.18(c)(i) through (iv) above are true and correct, regardless of the Sellers' awareness or Knowledge of such conditions, except to the extent that specific representations in this Section 4.18(c) expressly include a Knowledge qualifier.

Section 4.18(d) — Vapor Intrusion.

(i) There is no vapor intrusion or vapor migration of any Hazardous Substance (including, without limitation, TCE, PCE, benzene, toluene, xylene, or any other volatile organic compound) into any building, structure, enclosed space, or other occupied area on any Company Real Property at concentrations that exceed applicable screening levels, action levels, risk-based concentrations, or other regulatory thresholds established under any Environmental Law, including, without limitation, the PA DEP vapor intrusion screening levels and the WV DEP indoor air standards, except as disclosed on Schedule 4.18(d).

(ii) No sub-slab soil gas sampling, indoor air sampling, ambient air sampling, or other vapor intrusion investigation conducted at any Company Real Property has revealed the presence of volatile organic compounds or other Hazardous Substances at concentrations exceeding applicable vapor intrusion screening levels, action levels, or risk-based concentrations established under any Environmental Law, except as disclosed on Schedule 4.18(d).

(iii) No vapor intrusion mitigation system, including, without limitation, sub-slab depressurization systems, vapor barriers, passive or active ventilation systems, or any other engineered controls designed to address vapor intrusion or vapor migration, is currently installed, required, recommended, or under consideration at any Company Real Property.

(iv) The Company has not received any written or oral notice, directive, recommendation, or communication from any Governmental Authority, environmental consultant, or other Person advising the Company that vapor intrusion investigation, monitoring, or mitigation is required or recommended at any Company Real Property.

Section 4.18(e) — Environmental Proceedings and Claims.

(i) There is no Environmental Claim pending or, to the Knowledge of the Sellers, threatened against the Company, any Seller, or any Company Real Property, and no facts, circumstances, or conditions exist that would reasonably be expected to give rise to any Environmental Claim against the Company, any Seller, or any Company Real Property.

(ii) The Company has not received any written notice, demand, information request (including any request under CERCLA Section 104(e) or any analogous state law), notification of potential responsibility ("PRP notice"), complaint, citation, directive, order, or other communication from any Governmental Authority or any other Person relating to any actual or potential liability of the Company under CERCLA, RCRA, or any analogous state or local Environmental Law.

(iii) There are no pending or, to the Knowledge of the Sellers, threatened lawsuits, administrative proceedings, governmental investigations, enforcement actions, citizen suits, or other legal or administrative proceedings relating to environmental matters involving the Company, any Seller (in connection with the Company's business or the Company Real Property), or any Company Real Property.

(iv) No Environmental Claim relating to the Company, any Company Real Property, or the Company's business has been settled, resolved, adjudicated, or otherwise concluded during the past ten (10) years, except as disclosed on Schedule 4.18(e). For each Environmental Claim disclosed on Schedule 4.18(e), the Sellers shall provide:

(a) the date of the claim or proceeding;

(b) the nature and description of the claim, including the applicable Environmental Law(s) and the factual basis for the claim;

(d) a description of the resolution, settlement, or adjudication of the claim;

(e) any fines, penalties, damages, or other monetary amounts paid or payable in connection with the claim;

(f) any corrective actions or remediation undertaken in connection with the claim; and

(g) any ongoing obligations, monitoring requirements, or other continuing liabilities arising from the claim.

(v) Without limiting the foregoing, Schedule 4.18(e) shall disclose the February 3, 2020 epoxy resin hardener release at the McKeesport facility and the resulting PA DEP enforcement action, including the $4,500 civil penalty assessed by PA DEP and all corrective actions undertaken by the Company.

Section 4.18(f) — Underground Storage Tanks.

(i) There are no underground storage tanks ("USTs"), whether active, inactive, temporarily closed, or abandoned, currently located on, in, or under any Company Real Property. No above-ground storage tanks containing petroleum products or other Hazardous Substances are located on any Company Real Property except as disclosed on Schedule 4.18(f).

(ii) All USTs formerly located on any Company Real Property have been properly closed, removed, and decommissioned in accordance with all applicable Environmental Laws, including, without limitation, the applicable provisions of RCRA Subtitle I, the PA DEP Storage Tank and Spill Prevention Act (35 Pa. Stat. §§ 6021.101–6021.2104), and the WV DEP Underground Storage Tank Regulations. All required tank closure assessments, soil sampling, groundwater sampling, and closure reports have been prepared and submitted to, and accepted by, the applicable Governmental Authority.

(iii) Schedule 4.18(f) shall disclose the complete history of all USTs that have been located on any Company Real Property at any time during the Company's period of ownership, lease, or occupancy, or, to the Knowledge of the Sellers, at any time prior thereto, including, without limitation:

(a) McKeesport Facility: Three (3) 10,000-gallon underground storage tanks (formerly used for storage of No. 2 fuel oil and solvent waste) were removed from the McKeesport facility in 1993. In connection with such removal, soil and groundwater contamination was identified, and a PA DEP Act 2 filing was opened in 1994 (PA DEP Facility ID: to be provided by Sellers). Investigation and remediation activities were conducted under the Act 2 Statewide Health Standard, and PA DEP issued a No Further Action ("NFA") letter in May 2001, confirming that soil concentrations met the applicable Statewide Health Standard. The NFA letter, all associated investigation and remediation reports, and all sampling data shall be provided on Schedule 4.18(f).

(b) Clarksburg Facility: One (1) 15,000-gallon diesel underground storage tank was removed from the Clarksburg facility in 2012 by the prior tenant, Valley Freight Lines Inc. (now dissolved). The removal and closure were conducted under the oversight of WV DEP (Site ID: WVUST-2012-04887). WV DEP issued a tank closure letter in March 2013. However, residual diesel-range organics ("DRO") in soil above applicable WV DEP action levels were identified beneath the former UST cavity. Due to residual contamination, institutional controls (land-use restriction) were recorded at the Harrison County Clerk's Office, Deed Book 1245, Page 312, restricting certain subsurface activities in the area of the former UST cavity. The closure letter, all associated investigation reports, sampling data, and a copy of the recorded institutional control instrument shall be provided on Schedule 4.18(f).

(iv) No Release has occurred from any UST located on any Company Real Property that has not been fully investigated and remediated to the satisfaction of the applicable Governmental Authority, with all required closure reports accepted and all required regulatory approvals obtained, except as disclosed on Schedule 4.18(f). To the extent that any UST-related investigation or remediation resulted in residual contamination remaining in place subject to institutional or engineering controls, such residual contamination and controls are fully described on Schedule 4.18(f) and cross-referenced on Schedule 4.18(k).

Section 4.18(g) — Hazardous Substance Use, Storage, and Disposal.

(i) The Company uses, stores, handles, treats, processes, manufactures, transports, and disposes of all Hazardous Substances in compliance with all applicable Environmental Laws, Environmental Permits, and all applicable industry standards and best management practices. The Company has implemented and maintains all required secondary containment, spill prevention, control, and countermeasure plans ("SPCC Plans"), and other spill prevention and response measures for all Hazardous Substances stored, used, or handled on any Company Real Property.

(ii) All hazardous waste generated by the Company at any Company Real Property has been, and continues to be, properly characterized, manifested (on EPA Hazardous Waste Manifest Form 8700-22), transported by properly licensed and permitted hazardous waste transporters, and disposed of or treated at properly permitted hazardous waste treatment, storage, and disposal facilities ("TSDFs") in compliance with all applicable Environmental Laws.

(iii) The Company's RCRA hazardous waste generator status at each Company Real Property is as follows, as disclosed on Schedule 4.18(g):

(a) McKeesport Facility: Large Quantity Generator ("LQG"), EPA Identification No. PAD-098-721-445;

(b) Charleroi Facility: Small Quantity Generator ("SQG"), EPA Identification No. PAD-112-583-667;

(c) Clarksburg Facility: Conditionally Exempt Small Quantity Generator ("CESQG"), EPA Identification No. WVD-054-319-882; and

(d) Weirton Facility: Not a hazardous waste generator (no hazardous waste is generated on-site at this facility).

(iv) The Company has not arranged for the disposal or treatment of any Hazardous Substance at any off-site facility that is listed or proposed for listing on the National Priorities List ("NPL") under CERCLA, or on any state superfund list, priority list, or equivalent list maintained by any Governmental Authority. The Company has not received any notification that any TSDF to which the Company has shipped hazardous waste is or may be the subject of any investigation, enforcement action, or Remedial Action under CERCLA or any analogous state law.

(v) All chemicals used, stored, manufactured, processed, or distributed by the Company comply with all applicable requirements of TSCA, including, without limitation, the TSCA Inventory requirements, the TSCA Section 8 reporting and recordkeeping requirements, and the TSCA Section 6 risk management requirements. No TSCA Section 5 premanufacture notice ("PMN") or significant new use notice ("SNUN") is pending or required with respect to any chemical substance used or manufactured by the Company. The Company does not manufacture, process, or import any chemical substance that is subject to a TSCA Section 5(e) consent order or a TSCA Section 6 rule.

(vi) Schedule 4.18(g) shall include a complete inventory of all Hazardous Substances stored on each Company Real Property as of the date hereof, including the type of substance, the quantity, the storage location, the type of containment, and the applicable regulatory classification.

Section 4.18(h) — Spills and Reportable Releases.

(i) There has been no Release of any Hazardous Substance at, on, under, or from any Company Real Property that was required to be reported to any Governmental Authority under any Environmental Law during the past ten (10) years, except as disclosed on Schedule 4.18(h).

(ii) Schedule 4.18(h) shall disclose, without limitation, the following reportable releases:

(a) June 14, 2017 — McKeesport Facility: Approximately fifty (50) gallons of xylene were released from a ruptured transfer hose during a bulk transfer operation. The release was contained within the existing secondary containment system, and no release to the environment (soil, surface water, or groundwater) occurred. The release was reported to PA DEP in accordance with applicable notification requirements. PA DEP issued a No Further Action determination, and no fines, penalties, or corrective actions were imposed.

(b) February 3, 2020 — McKeesport Facility: Approximately one hundred twenty (120) gallons of epoxy resin hardener were released to a warehouse floor drain connected to the municipal sanitary sewer system at the McKeesport facility. The release was reported to PA DEP and the Allegheny County Health Department in accordance with applicable notification requirements. PA DEP conducted an inspection and issued a notice of violation, resulting in the assessment of a civil penalty of Four Thousand Five Hundred Dollars ($4,500) against the Company. Corrective actions were completed by the Company, including sealing the floor drain and installing secondary containment in the affected area. PA DEP confirmed that all corrective actions were satisfactorily completed.

(iii) All Releases disclosed on Schedule 4.18(h) have been fully investigated, remediated, and closed to the satisfaction of the applicable Governmental Authority. No ongoing obligations, monitoring requirements, corrective action plans, or other continuing liabilities exist with respect to any Release disclosed on Schedule 4.18(h), except as otherwise disclosed thereon.

(iv) The Company has maintained complete and accurate records of all Releases and spills of Hazardous Substances at any Company Real Property, including all notifications to Governmental Authorities, inspection reports, corrective action documentation, and correspondence, and such records have been made available to the Buyer.

Section 4.18(i) — Asbestos and Lead-Based Paint.

(i) Except as disclosed on Schedule 4.18(i), no asbestos-containing materials ("ACM") or presumed asbestos-containing materials ("PACM") are present in any building, structure, improvement, fixture, or other component of any Company Real Property, including, without limitation, insulation (pipe, boiler, duct, and equipment insulation), floor tiles, ceiling tiles, roofing materials, gaskets, caulking, joint compounds, fireproofing, or any other building material.

(ii) Except as disclosed on Schedule 4.18(i), no lead-based paint ("LBP") is present in or on any building, structure, improvement, or surface at any Company Real Property, including interior and exterior painted surfaces.

(iii) Schedule 4.18(i) shall disclose the following conditions:

(a) Asbestos — McKeesport Facility: ACM has been identified in pipe insulation in Buildings A and B at the McKeesport facility (estimated quantity of approximately 2,400 linear feet of pipe insulation) and in floor tiles in Building A (estimated quantity of approximately 14,000 square feet of vinyl asbestos floor tile). The Company has implemented a management-in-place program for such ACM pursuant to an Asbestos Operations and Maintenance Plan dated September 2019, which includes periodic inspections, fiber monitoring, labeling, and worker training. If full abatement and removal of all identified ACM were required, the estimated cost of such abatement is between $180,000 and $310,000 (based on estimates provided by the Company's environmental consultant). Copies of all asbestos surveys, inspection reports, the O&M Plan, and fiber monitoring data shall be provided on Schedule 4.18(i).

(b) Lead-Based Paint — McKeesport Facility: LBP has been identified on interior and exterior surfaces of the McKeesport office building (which was constructed in approximately 1955), as documented in a lead-based paint survey conducted in 2019. The Company has implemented a management-in-place program for such LBP, including periodic inspections and maintenance painting. If full abatement of all identified LBP were required, the estimated cost of such abatement is between $45,000 and $85,000. Copies of the LBP survey report and all associated documentation shall be provided on Schedule 4.18(i).

(iv) All ACM and LBP present on any Company Real Property is being managed, maintained, and monitored in accordance with all applicable Environmental Laws, including, without limitation, applicable OSHA regulations (29 C.F.R. §§ 1910.1001 and 1926.1101 for asbestos; 29 C.F.R. § 1926.62 for lead), the National Emission Standards for Hazardous Air Pollutants ("NESHAP") for asbestos (40 C.F.R. Part 61, Subpart M), applicable EPA regulations (40 C.F.R. Part 763, Subpart E), and all applicable state and local laws and regulations. The Company has not received any notice of violation or citation from any Governmental Authority relating to ACM or LBP at any Company Real Property.

(v) The Company has provided or made available to the Buyer complete and accurate copies of all asbestos surveys, bulk sample analyses, air monitoring data, Operations and Maintenance Plans, abatement project records, worker exposure monitoring data, LBP surveys, risk assessments, and all other documentation relating to ACM and LBP at any Company Real Property.

Section 4.18(j) — CERCLA and Superfund Matters.

(i) No Company Real Property is listed or proposed for listing on the National Priorities List ("NPL") under CERCLA (42 U.S.C. § 9605) or on any state superfund list, priority list, or equivalent list maintained by any state or local Governmental Authority, including, without limitation, the Pennsylvania Priority List of Hazardous Sites maintained by PA DEP and the West Virginia Voluntary Remediation and Redevelopment Act Site List maintained by WV DEP.

(ii) The Company has not received any notice of potential responsibility ("PRP notice"), any information request under CERCLA Section 104(e) (42 U.S.C. § 9604(e)), any demand for contribution or cost recovery under CERCLA Section 107 (42 U.S.C. § 9607) or CERCLA Section 113 (42 U.S.C. § 9613), or any similar notice, request, or demand under any analogous state law, with respect to any Company Real Property or any off-site location.

(iii) No Company Real Property is located within one (1) mile of any site that is listed or proposed for listing on the NPL or any state superfund or priority list, except as disclosed on Schedule 4.18(j). Without limiting the foregoing, Schedule 4.18(j) shall disclose that the McKeesport facility (2200 Iron Works Boulevard, McKeesport, PA 15132) is located within approximately 0.5 miles of the former Irwin Iron & Steel Superfund site (EPA ID: PAD000436402), which was listed on the NPL in 1989, for which a Record of Decision ("ROD") was issued in 1996, and at which construction of the selected remedy was completed in 2004. As noted in the Phase I Environmental Site Assessment prepared by TerraVerde Environmental Consulting, LLC for the McKeesport facility, there is no evidence of any hydrological, geological, or contaminant-migration connection between the McKeesport facility and the Irwin Iron & Steel Superfund site; however, the proximity is disclosed for purposes of completeness.

(iv) The Company has not transported, arranged for transport, or arranged for the disposal or treatment of any Hazardous Substance to or at any site that is listed or proposed for listing on the NPL or any state superfund or priority list. The Company has not been identified as a potentially responsible party at any such site.

Section 4.18(k) — Institutional and Engineering Controls.

(i) Except as disclosed on Schedule 4.18(k), no Company Real Property is subject to any institutional controls (including, without limitation, deed restrictions, environmental covenants, activity and use limitations, land-use restrictions, groundwater use restrictions, excavation restrictions, or any other restrictions on the use, development, or occupancy of real property) or engineering controls (including, without limitation, caps, barriers, liners, containment systems, permeable reactive barriers, groundwater monitoring systems, extraction and treatment systems, or other physical measures) imposed, required, recommended, or undertaken under any Environmental Law, any voluntary remediation or cleanup program, any consent order, any settlement agreement, or any agreement with any Governmental Authority.

(ii) Schedule 4.18(k) shall disclose, without limitation:

(a) Clarksburg Facility: Institutional controls in the form of a land-use restriction recorded at the Harrison County Clerk's Office, Deed Book 1245, Page 312, in connection with the WV DEP UST closure for WV DEP Site ID WVUST-2012-04887. Such institutional controls restrict subsurface excavation and groundwater use in the area of the former 15,000-gallon diesel UST cavity due to residual diesel-range organics in soil exceeding applicable WV DEP action levels. The specific terms, conditions, and geographic scope of such institutional controls shall be set forth on Schedule 4.18(k).

(b) Weirton Facility: Engineering controls (including a cap over contaminated soils) and institutional controls (including a deed restriction recorded at the Hancock County Clerk's Office, Deed Book 487, Page 89) in connection with the WV VRDP Certificate of Completion issued in September 2015. The Weirton facility is a former Granite Harbor & Co. parcel that was remediated under the WV VRDP, and the Certificate of Completion was issued subject to the maintenance of the engineering controls (site cap) and compliance with the institutional controls (deed restriction prohibiting residential use and restricting subsurface excavation). The specific terms, conditions, and obligations associated with such controls shall be set forth on Schedule 4.18(k).

(iii) The Company is in full compliance with all requirements, terms, conditions, and obligations of any institutional controls and engineering controls disclosed on Schedule 4.18(k), including, without limitation, all maintenance, monitoring, reporting, and inspection obligations. The Company has not breached, violated, or failed to comply with any such control during the Company's period of ownership, lease, or occupancy of the applicable Company Real Property.

(iv) No event or condition exists that would constitute a violation of, or that would require any modification, amendment, or supplement to, any institutional or engineering control disclosed on Schedule 4.18(k). No Governmental Authority has notified the Company that any modification, amendment, or supplementation of any such control is required or under consideration.

Section 4.18(l) — Environmental Insurance.

(i) Schedule 4.18(l) sets forth a complete and accurate list of all environmental insurance policies (including, without limitation, pollution legal liability ("PLL") policies, remediation cost cap policies, environmental impairment liability policies, contractors pollution liability policies, and any other insurance policies providing coverage for environmental liabilities, remediation costs, or third-party claims arising from pollution conditions) currently maintained by the Company or maintained on behalf of the Company, or previously maintained by or on behalf of the Company and still providing coverage to the Company under any occurrence-based or claims-made policy. For each such policy, Schedule 4.18(l) shall set forth the insurer, the policy number, the policy period, the coverage limits, the deductible or self-insured retention, the named insureds, the covered locations, and a summary of the material terms, conditions, and exclusions.

(ii) All environmental insurance policies listed on Schedule 4.18(l) are valid, in full force and effect, and all premiums due thereunder have been paid in full. No claims are currently pending, and no claims have been made, under any such policy during the term of such policy. No notice of claim, reservation of rights, or denial of coverage has been issued by any insurer under any such policy.

(iii) The Company has not received any notice of cancellation, non-renewal, material modification, or reduction in coverage with respect to any environmental insurance policy listed on Schedule 4.18(l). No event or condition exists that would give the insurer the right to cancel, terminate, or refuse to renew any such policy.

(iv) The Company has not been denied environmental insurance coverage, or had any application for environmental insurance coverage rejected or materially modified by an insurer, during the past five (5) years.

Section 4.18(m) — Environmental Reports and Assessments.

(i) The Company has delivered to the Buyer, or made available to the Buyer in the virtual data room established for this transaction, complete and accurate copies of all environmental reports, assessments, studies, audits, surveys, investigations, sampling data, analytical results, correspondence with Governmental Authorities, and other documents and records in the Company's possession, custody, or control (or in the possession, custody, or control of any Seller) relating to:

(a) the environmental condition of any Company Real Property, including soil, groundwater, surface water, sediment, air, and building conditions;

(b) the Company's compliance with Environmental Laws;

(c) the presence or suspected presence of any Hazardous Substance at, on, under, or migrating to or from any Company Real Property; and

(d) any Environmental Claim, investigation, enforcement action, or Remedial Action involving the Company or any Company Real Property.

(ii) The reports and documents described in Section 4.18(m)(i) include, without limitation, all Phase I Environmental Site Assessments (whether conducted in accordance with ASTM E1527-13 or E1527-21 or any prior version thereof), all Phase II Environmental Site Assessments, all remediation investigation reports, all remedial action plans, all closure reports, all NFA letters, all regulatory correspondence (including all correspondence with PA DEP, WV DEP, EPA, the Allegheny County Health Department, and any other Governmental Authority), all sampling data (including soil, groundwater, indoor air, soil gas, and building materials sampling data), all asbestos surveys and management plans, all LBP surveys, all SPCC Plans, and all other environmental reports and assessments prepared by or on behalf of the Company. A complete list of such reports and documents is set forth on Schedule 4.18(m).

(iii) There are no material environmental reports, assessments, studies, audits, surveys, investigations, sampling data, or other documents or records relating to any Company Real Property or the Company's environmental compliance that are in the possession, custody, or control of the Company or any Seller and that have not been delivered to or made available to the Buyer.

(iv) The information contained in the reports and documents delivered or made available to the Buyer pursuant to this Section 4.18(m) is true and correct in all material respects as of the date of such reports and documents. Neither the Company nor any Seller has any reason to believe that any such report or document contains any material misstatement or omission.

Section 4.18(n) — No PCBs.

(i) No polychlorinated biphenyls ("PCBs") are present in any form at any Company Real Property, including, without limitation, in any electrical equipment (including transformers, capacitors, voltage regulators, switches, circuit breakers, reclosers, and light ballasts), building materials (including caulking, glazing, and paint), hydraulic fluids, heat transfer fluids, lubricants, or any other media, equipment, or materials.

(ii) No PCB-containing equipment or PCB-contaminated equipment (as such terms are defined in 40 C.F.R. § 761.3) has been used, stored, maintained, serviced, disposed of, or located at any Company Real Property during the Company's period of ownership, lease, or occupancy. To the Knowledge of the Sellers, no PCB-containing equipment or PCB-contaminated equipment was used, stored, or disposed of at any Company Real Property prior to the Company's period of ownership, lease, or occupancy.

(iii) No PCB remediation waste (as defined in 40 C.F.R. § 761.3) is present at, or has been disposed of at, any Company Real Property.

Section 4.18(o) — Compliance with Lease Environmental Provisions.

(i) With respect to each Company Real Property that is leased by the Company (as tenant), the Company is in full compliance with all environmental obligations, covenants, representations, warranties, and provisions contained in the applicable lease agreement, including, without limitation, all obligations relating to the use, storage, handling, and disposal of Hazardous Substances; maintenance of Environmental Permits; compliance with Environmental Laws; notification of Releases; remediation of contamination; and indemnification for environmental liabilities.

(ii) The Company has not caused any contamination, Release, or environmental condition at any leased Company Real Property that would trigger a remediation obligation, indemnification obligation, or default under the applicable lease agreement.

(iii) Without limiting the generality of the foregoing:

(a) Clarksburg Facility (Mountainview Properties LLC Lease): The Clarksburg facility is leased from Mountainview Properties LLC pursuant to a triple-net lease that imposes on the Company (as tenant) the obligation to remediate any contamination caused by the Company during the term of the lease. The Company represents and warrants that it has not caused any Release of Hazardous Substances at the Clarksburg facility that has not been fully investigated and remediated in accordance with applicable Environmental Laws and the terms of the lease. The pre-existing contamination (residual DRO in soil associated with the former 15,000-gallon diesel UST removed in 2012 by the prior tenant, Valley Freight Lines Inc.) is not the responsibility of the Company under the terms of the lease, and the Company has not exacerbated or contributed to such pre-existing contamination.

(b) Weirton Facility (Northern Panhandle Realty Corp. Lease): The Weirton facility is leased from Northern Panhandle Realty Corp. pursuant to a double-net lease that requires the Company (as tenant) to comply with all applicable laws, including Environmental Laws. The Company represents and warrants that it is in compliance with all applicable Environmental Laws at the Weirton facility, including all obligations relating to the WV VRDP engineering controls (site cap) and institutional controls (deed restriction) in place at the facility. The Company has not breached, damaged, compromised, or otherwise interfered with the integrity of the site cap or violated any terms of the deed restriction. The lease does not expressly allocate environmental remediation responsibilities beyond general compliance with law; however, the Company's compliance with the VRDP controls is a condition of the Company's continued lawful occupancy of the site.

(iv) The Company has not received any written or oral notice, demand, or claim from any landlord, lessor, or property owner alleging that the Company has violated any environmental provision of any lease or has caused any environmental contamination at any leased Company Real Property.

DISCLOSURE SCHEDULES CROSS-REFERENCE TABLE

The following table identifies each Disclosure Schedule referenced in Section 4.18, together with a description of the subject matter to be disclosed on each such Schedule. All Schedules are to be prepared and delivered by the Sellers concurrently with, or prior to, the execution and delivery of this Agreement.

Note: Disclosure Schedules are to be prepared and delivered by the Sellers concurrently with execution of this Agreement. The Buyer reserves the right to supplement its diligence requests and to request additional information, documentation, and disclosures based on the Sellers' initial Schedule deliveries. The Buyer's review of the Disclosure Schedules shall not limit, waive, or otherwise affect the Sellers' representations and warranties set forth in this Section 4.18 or the Buyer's rights under Article VIII (Indemnification).

DRAFTING NOTES AND COMMENTARY

INTERNAL CALDERWOOD & HARKNESS LLP ANNOTATIONS PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT TO BE REMOVED BEFORE DELIVERY TO OPPOSING COUNSEL

Drafting Note 1 (HC/BH) — Knowledge Qualifier on Contamination Representations:

Section 4.18(c) (Contamination and Releases) is intentionally drafted without a Knowledge qualifier. This is the Buyer's opening position and reflects the principle that contamination is a factual condition — it either exists or it does not, irrespective of the Sellers' subjective awareness. The Sellers will almost certainly push back and seek to add "to the Knowledge of the Sellers" language to Sections 4.18(c)(i) through (iv). The Buyer's position should resist this qualification on the following grounds: (a) contamination conditions exist as a matter of physical fact regardless of whether the Sellers are aware of them; (b) the Sellers have had the opportunity to conduct Phase I and Phase II Environmental Site Assessments and should bear the risk of undiscovered contamination; and (c) the Buyer is paying fair market value for a clean property and should not bear the risk of pre-existing contamination that was not disclosed. Fallback position: If necessary to reach agreement, the Buyer may accept a Knowledge qualifier only with respect to off-site conditions (i.e., contamination migrating from other properties onto Company Real Property), but should resist any Knowledge qualifier with respect to on-site conditions at Company Real Property. Any agreed Knowledge qualifier should be subject to a broad constructive knowledge standard (i.e., what would be known after reasonable inquiry and investigation).

Drafting Note 2 (HC) — Standalone Vapor Intrusion Representation:

Section 4.18(d) (Vapor Intrusion) has been drafted as a standalone representation, carved out from the general contamination representation in Section 4.18(c). This separation is deliberate and strategically important. Based on the Buyer's Phase II Environmental Site Assessment findings, vapor intrusion at McKeesport Building C is a significant known issue: indoor air sampling detected trichloroethylene ("TCE") at a concentration of 42 µg/m³, which is double the PA DEP vapor intrusion screening level of 21 µg/m³ for TCE. By including a separate, standalone vapor intrusion representation, we ensure that: (a) the Sellers cannot argue that vapor intrusion conditions are not covered by the general contamination provisions in Section 4.18(c); (b) the Sellers are required to make specific disclosures regarding vapor intrusion conditions on a dedicated Schedule 4.18(d); and (c) any breach of the vapor intrusion representation is independently actionable under Article VIII. In negotiations, the Sellers may argue that vapor intrusion is subsumed within the general contamination rep and does not warrant separate treatment. We should resist this position.

Drafting Note 3 (HC/BH) — Ten-Year Lookback Period for Environmental Proceedings:

Section 4.18(e) (Environmental Proceedings) includes a ten (10)-year lookback period for settled or resolved Environmental Claims. This lookback period is specifically designed to capture the February 3, 2020 epoxy resin hardener release at the McKeesport facility and the resulting $4,500 PA DEP fine, which occurred approximately two and a half years ago. The Sellers may seek to shorten the lookback period to three (3) or five (5) years, which is more typical in middle-market transactions. However, we recommend holding at ten (10) years for the following reasons: (a) the McKeesport facility has a long operational history involving significant quantities of hazardous chemicals, and a shorter lookback could exclude relevant historical events; (b) CERCLA has no statute of limitations for cost recovery actions under Section 107, and environmental liabilities can emerge long after the events giving rise to them; and (c) the Buyer needs a comprehensive picture of the Company's environmental compliance history to properly assess risk. If the Sellers push strongly, a fallback to seven (7) years would still capture the 2020 incident, but we should not go below that.

Drafting Note 4 (HC) — CERCLA/Superfund Proximity Disclosure:

Section 4.18(j) (CERCLA and Superfund Matters) includes a one (1)-mile radius proximity disclosure requirement. This provision is included specifically because the McKeesport facility is located within approximately 0.5 miles of the former Irwin Iron & Steel Superfund site (NPL-listed 1989; ROD issued 1996; construction completed 2004). The Phase I ESA prepared by TerraVerde Environmental Consulting, LLC concluded that there is no evidence of any hydrological, geological, or contaminant-migration connection between the McKeesport facility and the Irwin Iron & Steel site. However, the proximity representation serves two important functions: (a) it ensures full disclosure of the nearby NPL site in the Disclosure Schedules, providing a complete record; and (b) it provides an indemnification hook under Article VIII if a connection between the two sites is later established (e.g., through newly discovered groundwater migration pathways). The Sellers may argue that this provision is overreaching, particularly given TerraVerde's no-connection finding. We should be prepared to discuss but should not concede the one-mile radius without a compelling basis.

Drafting Note 5 (BH) — Fundamental Representation Classification:

The environmental representations and warranties set forth in this Section 4.18 are structured as "Fundamental Representations" for purposes of the indemnification provisions in Article VIII (see separate draft of Environmental Indemnification and Escrow Provisions, draft circulated August 10, 2022). Under the current draft of Article VIII, Fundamental Representations have the following enhanced protections: (a) they survive the Closing indefinitely (or, alternatively, for a period of six (6) years, compared to the eighteen (18)-month survival period for general representations); (b) they are not subject to the general indemnification basket/deductible of $475,000; and (c) they are not subject to the general indemnification cap of $7,200,000 (instead, the cap for Fundamental Representations is the full purchase price). The Sellers are expected to push back vigorously on the Fundamental Representation classification for environmental reps. Their likely position will be that only title, authority, and capitalization reps warrant Fundamental Rep treatment, and that environmental reps should be subject to the general survival period, basket, and cap. Our position is that environmental liabilities at a chemical coatings manufacturer represent the single most significant area of post-closing risk, and the Buyer should not agree to limit its indemnification rights for environmental matters to the general basket and cap. Fallback: If necessary, we could agree to a separate environmental-specific basket (e.g., $150,000) and a separate environmental-specific cap (e.g., $12,000,000), with an extended survival period of at least six (6) years, but we should not allow the environmental reps to fall within the general basket/cap/survival framework.

Drafting Note 6 (HC) — Absence of Materiality Qualifiers:

The environmental representations throughout Section 4.18 are drafted broadly and without materiality qualifiers. Specifically, there are no "material," "in all material respects," or "Material Adverse Effect" qualifiers in the contamination, release, UST, ACM/LBP, CERCLA, or institutional controls representations. This is the Buyer's opening position and reflects the view that: (a) environmental contamination is binary — it either exists above regulatory thresholds or it does not, and the concept of "materiality" is not well-suited to contamination conditions; (b) the Buyer is entitled to full disclosure of all environmental conditions, not just "material" ones; and (c) Material Adverse Effect qualifiers would ef

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLERS
Section 4.18: Environmental Matters
Buyer's Initial Draft
August 12, 2022
Extracted from Draft Stock Purchase Agreement dated August 12, 2022
Transaction: Acquisition of 100% of the outstanding common stock of Allegheny Chemical Coatings, Inc. (the "Company"), a Pennsylvania corporation, by Crestline Packaging Solutions LLC ("Buyer"), a Delaware limited liability company.
Prepared by: Harrison Caldwell, Of Counsel, Environmental & Land Use Practice Group, Calderwood & Harkness LLP
Reviewed by: Beatrice Holloway, Responsible Partner, Mergers & Acquisitions Practice Group, Calderwood & Harkness LLP
Matter No.: 1006-00003
Calderwood & Harkness LLP 1900 Euclid Avenue, Suite 3200 Cleveland, OH 44115
NOTE: This Section 4.18 is intended to be read in conjunction with Article I (Definitions), Article VIII (Indemnification), and the Disclosure Schedules referenced herein. Defined terms used but not defined in this Section 4.18 have the meanings set forth in Article I of the Stock Purchase Agreement. In the event of any conflict between definitions set forth in this Section 4.18 and definitions set forth in Article I, the definitions set forth in this Section 4.18 shall control for purposes of the environmental representations and warranties contained herein.
PRELIMINARY DEFINITIONS APPLICABLE TO SECTION 4.18
For purposes of this Section 4.18, the following terms shall have the meanings ascribed to them below. These definitions supplement, and in certain cases refine, the general definitions set forth in Article I of this Agreement.
"Company" means Allegheny Chemical Coatings, Inc., a Pennsylvania corporation.
"Company Real Property" means all real property owned, leased, operated, or otherwise used or occupied by the Company, including, without limitation, the following:
(i) McKeesport Facility — 2200 Iron Works Boulevard, McKeesport, Pennsylvania 15132 (Allegheny County; Parcel ID 0383-M-00125-0000-00) — owned in fee simple by the Company;
(ii) Charleroi Facility — 450 Industrial Park Road, Charleroi, Pennsylvania 15022 (Washington County; Parcel ID 120-015-00-03-0018-00) — owned in fee simple by the Company;
(iii) Clarksburg Facility — 1875 Route 50 West, Clarksburg, West Virginia 26301 (Harrison County; Parcel ID 04-0012-0056-0000) — leased from Mountainview Properties LLC pursuant to that certain Commercial Lease Agreement dated January 1, 2015, as amended from time to time; and
(iv) Weirton Facility — 600 Commerce Way, Weirton, West Virginia 26062 (Hancock County; Parcel ID 07-0304-0012-0000) — leased from Northern Panhandle Realty Corp. pursuant to that certain Industrial Lease Agreement dated March 1, 2018, as amended from time to time.
"Environmental Laws" means all applicable federal, state, and local laws, statutes, regulations, ordinances, rules, orders, judgments, decrees, permits, licenses, codes, and common law, as in effect on or prior to the Closing Date, relating to: (A) pollution or the protection of the environment, natural resources, or human health and safety (as related to exposure to Hazardous Substances); (B) the management, generation, manufacture, use, treatment, storage, handling, transportation, Release, disposal, or recycling of Hazardous Substances; or (C) exposure to Hazardous Substances, including, but not limited to:
(a) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. §§ 9601 et seq.);
(b) the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. §§ 6901 et seq.);
(c) the Clean Air Act, as amended (42 U.S.C. §§ 7401 et seq.);
(d) the Federal Water Pollution Control Act (Clean Water Act), as amended (33 U.S.C. §§ 1251 et seq.);
(e) the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. §§ 2601 et seq.);
(f) the Emergency Planning and Community Right-to-Know Act, as amended ("EPCRA") (42 U.S.C. §§ 11001 et seq.);
(g) the Pennsylvania Land Recycling and Environmental Remediation Standards Act, 35 Pa. Stat. §§ 6026.101–6026.908 ("Act 2");
(h) the Pennsylvania Solid Waste Management Act, 35 Pa. Stat. §§ 6018.101–6018.1003;
(i) the Pennsylvania Clean Streams Law, 35 Pa. Stat. §§ 691.1–691.1001;
(j) the Pennsylvania Air Pollution Control Act, 35 Pa. Stat. §§ 4001–4015;
(k) the West Virginia Groundwater Protection Act, W. Va. Code §§ 22-12-1 et seq.;
(l) the West Virginia Voluntary Remediation and Redevelopment Act, W. Va. Code §§ 22-22-1 et seq.;
(m) applicable provisions of the Occupational Safety and Health Act of 1970, as amended, and the regulations promulgated thereunder, to the extent relating to exposure to Hazardous Substances in the workplace; and
(n) all analogous state, county, and local counterparts, implementing regulations, and amendments to any of the foregoing.
"Environmental Permits" means all permits, licenses, registrations, approvals, authorizations, certificates, consents, variances, exemptions, and interim status designations required under Environmental Laws for the lawful operation of the Company's business and the Company Real Property, including, without limitation, air emission permits, wastewater discharge permits, stormwater discharge permits, hazardous waste generator registrations, storage permits, and any other governmental authorizations relating to environmental compliance.
"Hazardous Substances" means any pollutant, contaminant, waste, chemical, substance, material, constituent, or mixture, in any form (including solid, liquid, gaseous, or semi-solid), that is regulated or restricted under any Environmental Law or that may give rise to liability under any Environmental Law, including, without limitation:
(a) petroleum and petroleum products, including crude oil and any fractions thereof, diesel fuel, gasoline, and heating oil;
(b) asbestos and asbestos-containing materials ("ACM");
(c) lead-based paint ("LBP") and other lead-containing materials;
(d) polychlorinated biphenyls ("PCBs") and PCB-containing equipment;
(e) volatile organic compounds ("VOCs"), including toluene, xylene, trichloroethylene ("TCE"), and tetrachloroethylene ("PCE");
(f) semi-volatile organic compounds ("SVOCs");
(g) heavy metals, including arsenic, cadmium, chromium, lead, mercury, and nickel;
(h) radioactive materials and naturally occurring radioactive material ("NORM");
(i) per- and polyfluoroalkyl substances ("PFAS"), including perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid ("PFOS");
(j) any substance defined as a "hazardous substance" under CERCLA, a "hazardous waste" under RCRA, a "toxic substance" under TSCA, a "pollutant" or "contaminant" under the Clean Water Act, or a "hazardous air pollutant" under the Clean Air Act; and
(k) any substance defined or designated as hazardous, toxic, radioactive, dangerous, or otherwise regulated under any analogous state or local Environmental Law.
"Release" means any release, spill, emission, leaking, pumping, pouring, injection, deposit, disposal, discharge, dispersal, leaching, dumping, or migration into or through the indoor or outdoor environment, including, without limitation, into or through air (including indoor air and ambient air), soil, subsurface soil, surface water, groundwater, sediment, or any surface or subsurface strata, or into or from any building, structure, or enclosed space, whether sudden or gradual, accidental or intentional, and whether or not such release constitutes a "release" as defined under CERCLA or any analogous state law.
"Environmental Claim" means any claim, action, suit, proceeding, investigation, order, directive, demand, notice of violation, notice of potential liability, notice of potential responsibility, information request (including requests under CERCLA Section 104(e)), complaint, or other communication, whether written or oral, by or from any Governmental Authority, any third party, or any other Person, that arises out of, relates to, or is based upon (A) any actual or alleged violation of any Environmental Law; (B) any actual or alleged Release of any Hazardous Substance; (C) any actual or alleged contamination or environmental condition at, on, under, or emanating from any real property; or (D) any actual or potential liability under any Environmental Law.
"Remedial Action" means any investigation, study, assessment, characterization, testing, sampling, monitoring (including groundwater monitoring), cleanup, removal, response, remediation, containment, abatement, natural resource restoration, corrective action, natural attenuation, institutional control, engineering control, or other action required or undertaken pursuant to any Environmental Law or any order, consent decree, or agreement with any Governmental Authority in connection with any actual or threatened Release of any Hazardous Substance or contamination of the environment.
"Disclosure Schedules" means Schedule 4.18 and its sub-schedules (Schedules 4.18(a) through 4.18(m)), as referenced in each subsection of this Section 4.18, which schedules are to be prepared and delivered by the Sellers as part of the Disclosure Schedules to this Agreement.
SECTION 4.18 — ENVIRONMENTAL MATTERS
The Company and the Sellers, jointly and severally, represent and warrant to the Buyer as of the date hereof and as of the Closing Date, as follows:
Section 4.18(a) — Environmental Permits.
(i) The Company holds all Environmental Permits necessary for the lawful conduct and operation of the Company's business as currently conducted at each Company Real Property, including, without limitation, all permits, licenses, registrations, approvals, authorizations, and certificates required under all applicable Environmental Laws. A complete and accurate list of all such Environmental Permits is set forth on Schedule 4.18(a), which list shall include, for each Environmental Permit, the issuing authority, the permit number, the facility to which it relates, the date of issuance, the expiration date, and any material terms or conditions thereof.
(ii) All Environmental Permits held by the Company are valid, in full force and effect, and are not subject to any pending or threatened revocation, modification, suspension, cancellation, termination, or non-renewal. The Company has not received any written or oral notice from any Governmental Authority that any Environmental Permit is subject to revocation, modification, suspension, cancellation, termination, or non-renewal.
(iii) The Company is in compliance in all respects with all terms, conditions, requirements, and limitations of each Environmental Permit, and no event has occurred or condition exists that, with or without the passage of time or the giving of notice, would constitute a violation of, or a basis for revocation, modification, suspension, or non-renewal of, any Environmental Permit.
(iv) Without limiting the generality of the foregoing, the Environmental Permits to be disclosed on Schedule 4.18(a) shall include, without limitation:
(a) Pennsylvania Department of Environmental Protection ("PA DEP") Title V Operating Permit No. TV-0383-0125, issued to the Company for the McKeesport facility, issued June 1, 2019, with an expiration date of May 31, 2024;
(b) PA DEP State-Only Operating Permit No. 63-00982, issued to the Company for the Charleroi facility;
(c) West Virginia Department of Environmental Protection ("WV DEP") Registration Permit No. R13-3201, issued to the Company for the Clarksburg facility;
(d) National Pollutant Discharge Elimination System ("NPDES") Permit No. PA0025631, issued by PA DEP to the Company for stormwater discharge at the McKeesport facility; and
(e) All Resource Conservation and Recovery Act hazardous waste generator registrations, including EPA Identification Numbers PAD-098-721-445 (McKeesport), PAD-112-583-667 (Charleroi), and WVD-054-319-882 (Clarksburg).
(v) No application for any new Environmental Permit, renewal of any existing Environmental Permit, or material modification, amendment, or revision of any existing Environmental Permit is pending before any Governmental Authority with respect to the Company or any Company Real Property, except as disclosed on Schedule 4.18(a).
(vi) Neither the execution, delivery, or performance of this Agreement nor the consummation of the transactions contemplated hereby, including the acquisition of all of the outstanding common stock of the Company by the Buyer, will result in the revocation, non-renewal, suspension, cancellation, termination, or material modification of any Environmental Permit, or require the transfer, re-issuance, novation, or new application for any Environmental Permit, except as disclosed on Schedule 4.18(a). To the extent that any Environmental Permit requires notification to, or approval by, any Governmental Authority in connection with the transactions contemplated by this Agreement, such notification or approval requirements are identified on Schedule 4.18(a).
Section 4.18(b) — Compliance with Environmental Laws.
(i) The Company is, and during the past five (5) years has been, in compliance in all respects with all applicable Environmental Laws, including, without limitation, all Environmental Laws relating to air emissions, wastewater discharges, stormwater management, hazardous waste management, solid waste management, chemical storage and handling, worker health and safety (as related to exposure to Hazardous Substances), and reporting and notification requirements.
(ii) The Company has not received, during the past five (5) years, any written or oral notice, report, order, directive, citation, demand, or communication from any Governmental Authority or any third party regarding any actual or alleged violation of, or failure to comply with, any Environmental Law, or any actual or potential liability under any Environmental Law, except as disclosed on Schedule 4.18(b).
(iii) The Company has timely filed, submitted, and maintained all reports, notifications, submissions, registrations, filings, certifications, manifests, and records required under all applicable Environmental Laws, including, without limitation:
(a) RCRA biennial hazardous waste reports (EPA Form 8700-13A/B) for each facility at which the Company is classified as a large quantity generator or small quantity generator;
(b) Toxic Release Inventory ("TRI") Form R filings under Section 313 of EPCRA, including filings for reporting year 2021 for the McKeesport facility reflecting total toluene releases of approximately 12,400 pounds and total xylene releases of approximately 8,700 pounds;
(c) Tier II Chemical Inventory Reports filed annually with the Allegheny County Local Emergency Planning Committee ("LEPC"), the Washington County LEPC, the Harrison County LEPC, and the Hancock County LEPC, as applicable, and with the applicable State Emergency Response Commissions;
(d) TSCA Chemical Data Reporting submissions, as required;
(e) NPDES Discharge Monitoring Reports ("DMRs") filed with PA DEP for the McKeesport facility;
(f) Title V annual compliance certifications filed with PA DEP for the McKeesport facility; and
(g) all other reports, filings, and submissions required under applicable Environmental Laws.
(iv) The Company has not been classified as a "major source" under Section 112 of the Clean Air Act or any analogous state law, except as disclosed on Schedule 4.18(b). Without limiting the foregoing, the McKeesport facility is classified as a major source for hazardous air pollutants ("HAPs") under the Clean Air Act, with combined HAP emissions of approximately 38.2 tons per year, which exceeds the 25-ton per year threshold for combined HAPs under Section 112(a)(1) of the Clean Air Act. Such major source classification and the associated regulatory requirements are set forth on Schedule 4.18(b).
(v) There are no consent orders, consent decrees, settlement agreements, compliance schedules, or corrective action plans outstanding, pending, or in effect with respect to the Company or any Company Real Property under any Environmental Law. The Company is not operating under any variance, exemption, or temporary authorization from any Governmental Authority with respect to any Environmental Law.
Section 4.18(c) — Contamination and Releases.
(i) There has been no Release of any Hazardous Substance at, on, under, from, or migrating to or from any Company Real Property, whether in soils, groundwater, surface water, sediment, air, or any other environmental medium, in each case in quantities, concentrations, or circumstances that would require investigation, reporting, notification, Remedial Action, or monitoring under any Environmental Law, except as disclosed on Schedule 4.18(c).
(ii) There are no Hazardous Substances present in, on, under, or migrating to or from any Company Real Property in concentrations exceeding applicable cleanup standards, screening levels, action levels, maximum contaminant levels, or other numerical criteria or risk-based standards established under any Environmental Law, including, without limitation, the PA DEP Act 2 Statewide Health Standards, the PA DEP Medium-Specific Concentrations, the WV DEP Voluntary Remediation and Redevelopment Program cleanup standards, and all applicable federal standards, except as disclosed on Schedule 4.18(c).
(iii) No condition exists at, on, under, or emanating from any Company Real Property that has resulted in, or would reasonably be expected to result in or give rise to, any liability, obligation, cost, or expense under any Environmental Law for investigation, Remedial Action, monitoring, natural resource damages, or any other environmental response activity.
(iv) The Company has not caused or permitted the disposal, treatment, storage, or Release of any Hazardous Substance at any location other than the Company Real Property, including any off-site disposal facility, third-party property, or publicly owned treatment works, in a manner that has resulted in, or would reasonably be expected to result in, liability to the Company under any Environmental Law, including, without limitation, liability under CERCLA Sections 107 or 113.
(v) Schedule 4.18(c) shall disclose, without limitation, all known or suspected contamination conditions at any Company Real Property, including:
(a) any residual subsurface contamination (including petroleum hydrocarbons, metals, and VOCs) beneath the former underground storage tank field at the McKeesport facility, including the scope and results of any investigation or remediation conducted in connection with the PA DEP Act 2 filing opened in 1994 and the PA DEP No Further Action ("NFA") letter issued in May 2001 under the Statewide Health Standard for soils;
(b) residual diesel-range organics ("DRO") in soil at the Clarksburg facility, associated with the former 15,000-gallon diesel underground storage tank removed in 2012 by the prior tenant (Valley Freight Lines Inc., now dissolved), as documented by WV DEP (Site ID: WVUST-2012-04887), including a description of the nature and extent of residual contamination, current concentrations relative to applicable WV DEP action levels, and all institutional controls recorded in connection therewith;
(c) any contamination conditions at the Weirton facility associated with the WV Voluntary Remediation and Redevelopment Program ("VRDP") Certificate of Completion issued in September 2015, including a description of the historical contamination, the remediation activities undertaken, the residual contamination (if any) remaining beneath the site cap, and all engineering and institutional controls in place; and
(d) any other known or suspected contamination conditions at any Company Real Property, regardless of whether such conditions have been investigated or are the subject of any pending or completed regulatory action.
(vi) The representations and warranties set forth in this Section 4.18(c) are not limited by or subject to any Knowledge qualifier. The Company and the Sellers represent and warrant absolutely that the conditions described in Sections 4.18(c)(i) through (iv) above are true and correct, regardless of the Sellers' awareness or Knowledge of such conditions, except to the extent that specific representations in this Section 4.18(c) expressly include a Knowledge qualifier.
Section 4.18(d) — Vapor Intrusion.
(i) There is no vapor intrusion or vapor migration of any Hazardous Substance (including, without limitation, TCE, PCE, benzene, toluene, xylene, or any other volatile organic compound) into any building, structure, enclosed space, or other occupied area on any Company Real Property at concentrations that exceed applicable screening levels, action levels, risk-based concentrations, or other regulatory thresholds established under any Environmental Law, including, without limitation, the PA DEP vapor intrusion screening levels and the WV DEP indoor air standards, except as disclosed on Schedule 4.18(d).
(ii) No sub-slab soil gas sampling, indoor air sampling, ambient air sampling, or other vapor intrusion investigation conducted at any Company Real Property has revealed the presence of volatile organic compounds or other Hazardous Substances at concentrations exceeding applicable vapor intrusion screening levels, action levels, or risk-based concentrations established under any Environmental Law, except as disclosed on Schedule 4.18(d).
(iii) No vapor intrusion mitigation system, including, without limitation, sub-slab depressurization systems, vapor barriers, passive or active ventilation systems, or any other engineered controls designed to address vapor intrusion or vapor migration, is currently installed, required, recommended, or under consideration at any Company Real Property.
(iv) The Company has not received any written or oral notice, directive, recommendation, or communication from any Governmental Authority, environmental consultant, or other Person advising the Company that vapor intrusion investigation, monitoring, or mitigation is required or recommended at any Company Real Property.
Section 4.18(e) — Environmental Proceedings and Claims.
(i) There is no Environmental Claim pending or, to the Knowledge of the Sellers, threatened against the Company, any Seller, or any Company Real Property, and no facts, circumstances, or conditions exist that would reasonably be expected to give rise to any Environmental Claim against the Company, any Seller, or any Company Real Property.
(ii) The Company has not received any written notice, demand, information request (including any request under CERCLA Section 104(e) or any analogous state law), notification of potential responsibility ("PRP notice"), complaint, citation, directive, order, or other communication from any Governmental Authority or any other Person relating to any actual or potential liability of the Company under CERCLA, RCRA, or any analogous state or local Environmental Law.
(iii) There are no pending or, to the Knowledge of the Sellers, threatened lawsuits, administrative proceedings, governmental investigations, enforcement actions, citizen suits, or other legal or administrative proceedings relating to environmental matters involving the Company, any Seller (in connection with the Company's business or the Company Real Property), or any Company Real Property.
(iv) No Environmental Claim relating to the Company, any Company Real Property, or the Company's business has been settled, resolved, adjudicated, or otherwise concluded during the past ten (10) years, except as disclosed on Schedule 4.18(e). For each Environmental Claim disclosed on Schedule 4.18(e), the Sellers shall provide:
(a) the date of the claim or proceeding;
(b) the nature and description of the claim, including the applicable Environmental Law(s) and the factual basis for the claim;
(c) the identity of the claimant or Governmental Authority;
(d) a description of the resolution, settlement, or adjudication of the claim;
(e) any fines, penalties, damages, or other monetary amounts paid or payable in connection with the claim;
(f) any corrective actions or remediation undertaken in connection with the claim; and
(g) any ongoing obligations, monitoring requirements, or other continuing liabilities arising from the claim.
(v) Without limiting the foregoing, Schedule 4.18(e) shall disclose the February 3, 2020 epoxy resin hardener release at the McKeesport facility and the resulting PA DEP enforcement action, including the $4,500 civil penalty assessed by PA DEP and all corrective actions undertaken by the Company.
Section 4.18(f) — Underground Storage Tanks.
(i) There are no underground storage tanks ("USTs"), whether active, inactive, temporarily closed, or abandoned, currently located on, in, or under any Company Real Property. No above-ground storage tanks containing petroleum products or other Hazardous Substances are located on any Company Real Property except as disclosed on Schedule 4.18(f).
(ii) All USTs formerly located on any Company Real Property have been properly closed, removed, and decommissioned in accordance with all applicable Environmental Laws, including, without limitation, the applicable provisions of RCRA Subtitle I, the PA DEP Storage Tank and Spill Prevention Act (35 Pa. Stat. §§ 6021.101–6021.2104), and the WV DEP Underground Storage Tank Regulations. All required tank closure assessments, soil sampling, groundwater sampling, and closure reports have been prepared and submitted to, and accepted by, the applicable Governmental Authority.
(iii) Schedule 4.18(f) shall disclose the complete history of all USTs that have been located on any Company Real Property at any time during the Company's period of ownership, lease, or occupancy, or, to the Knowledge of the Sellers, at any time prior thereto, including, without limitation:
(a) McKeesport Facility: Three (3) 10,000-gallon underground storage tanks (formerly used for storage of No. 2 fuel oil and solvent waste) were removed from the McKeesport facility in 1993. In connection with such removal, soil and groundwater contamination was identified, and a PA DEP Act 2 filing was opened in 1994 (PA DEP Facility ID: to be provided by Sellers). Investigation and remediation activities were conducted under the Act 2 Statewide Health Standard, and PA DEP issued a No Further Action ("NFA") letter in May 2001, confirming that soil concentrations met the applicable Statewide Health Standard. The NFA letter, all associated investigation and remediation reports, and all sampling data shall be provided on Schedule 4.18(f).
(b) Clarksburg Facility: One (1) 15,000-gallon diesel underground storage tank was removed from the Clarksburg facility in 2012 by the prior tenant, Valley Freight Lines Inc. (now dissolved). The removal and closure were conducted under the oversight of WV DEP (Site ID: WVUST-2012-04887). WV DEP issued a tank closure letter in March 2013. However, residual diesel-range organics ("DRO") in soil above applicable WV DEP action levels were identified beneath the former UST cavity. Due to residual contamination, institutional controls (land-use restriction) were recorded at the Harrison County Clerk's Office, Deed Book 1245, Page 312, restricting certain subsurface activities in the area of the former UST cavity. The closure letter, all associated investigation reports, sampling data, and a copy of the recorded institutional control instrument shall be provided on Schedule 4.18(f).
(iv) No Release has occurred from any UST located on any Company Real Property that has not been fully investigated and remediated to the satisfaction of the applicable Governmental Authority, with all required closure reports accepted and all required regulatory approvals obtained, except as disclosed on Schedule 4.18(f). To the extent that any UST-related investigation or remediation resulted in residual contamination remaining in place subject to institutional or engineering controls, such residual contamination and controls are fully described on Schedule 4.18(f) and cross-referenced on Schedule 4.18(k).
Section 4.18(g) — Hazardous Substance Use, Storage, and Disposal.
(i) The Company uses, stores, handles, treats, processes, manufactures, transports, and disposes of all Hazardous Substances in compliance with all applicable Environmental Laws, Environmental Permits, and all applicable industry standards and best management practices. The Company has implemented and maintains all required secondary containment, spill prevention, control, and countermeasure plans ("SPCC Plans"), and other spill prevention and response measures for all Hazardous Substances stored, used, or handled on any Company Real Property.
(ii) All hazardous waste generated by the Company at any Company Real Property has been, and continues to be, properly characterized, manifested (on EPA Hazardous Waste Manifest Form 8700-22), transported by properly licensed and permitted hazardous waste transporters, and disposed of or treated at properly permitted hazardous waste treatment, storage, and disposal facilities ("TSDFs") in compliance with all applicable Environmental Laws.
(iii) The Company's RCRA hazardous waste generator status at each Company Real Property is as follows, as disclosed on Schedule 4.18(g):
(a) McKeesport Facility: Large Quantity Generator ("LQG"), EPA Identification No. PAD-098-721-445;
(b) Charleroi Facility: Small Quantity Generator ("SQG"), EPA Identification No. PAD-112-583-667;
(c) Clarksburg Facility: Conditionally Exempt Small Quantity Generator ("CESQG"), EPA Identification No. WVD-054-319-882; and
(d) Weirton Facility: Not a hazardous waste generator (no hazardous waste is generated on-site at this facility).
(iv) The Company has not arranged for the disposal or treatment of any Hazardous Substance at any off-site facility that is listed or proposed for listing on the National Priorities List ("NPL") under CERCLA, or on any state superfund list, priority list, or equivalent list maintained by any Governmental Authority. The Company has not received any notification that any TSDF to which the Company has shipped hazardous waste is or may be the subject of any investigation, enforcement action, or Remedial Action under CERCLA or any analogous state law.
(v) All chemicals used, stored, manufactured, processed, or distributed by the Company comply with all applicable requirements of TSCA, including, without limitation, the TSCA Inventory requirements, the TSCA Section 8 reporting and recordkeeping requirements, and the TSCA Section 6 risk management requirements. No TSCA Section 5 premanufacture notice ("PMN") or significant new use notice ("SNUN") is pending or required with respect to any chemical substance used or manufactured by the Company. The Company does not manufacture, process, or import any chemical substance that is subject to a TSCA Section 5(e) consent order or a TSCA Section 6 rule.
(vi) Schedule 4.18(g) shall include a complete inventory of all Hazardous Substances stored on each Company Real Property as of the date hereof, including the type of substance, the quantity, the storage location, the type of containment, and the applicable regulatory classification.
Section 4.18(h) — Spills and Reportable Releases.
(i) There has been no Release of any Hazardous Substance at, on, under, or from any Company Real Property that was required to be reported to any Governmental Authority under any Environmental Law during the past ten (10) years, except as disclosed on Schedule 4.18(h).
(ii) Schedule 4.18(h) shall disclose, without limitation, the following reportable releases:
(a) June 14, 2017 — McKeesport Facility: Approximately fifty (50) gallons of xylene were released from a ruptured transfer hose during a bulk transfer operation. The release was contained within the existing secondary containment system, and no release to the environment (soil, surface water, or groundwater) occurred. The release was reported to PA DEP in accordance with applicable notification requirements. PA DEP issued a No Further Action determination, and no fines, penalties, or corrective actions were imposed.
(b) February 3, 2020 — McKeesport Facility: Approximately one hundred twenty (120) gallons of epoxy resin hardener were released to a warehouse floor drain connected to the municipal sanitary sewer system at the McKeesport facility. The release was reported to PA DEP and the Allegheny County Health Department in accordance with applicable notification requirements. PA DEP conducted an inspection and issued a notice of violation, resulting in the assessment of a civil penalty of Four Thousand Five Hundred Dollars ($4,500) against the Company. Corrective actions were completed by the Company, including sealing the floor drain and installing secondary containment in the affected area. PA DEP confirmed that all corrective actions were satisfactorily completed.
(iii) All Releases disclosed on Schedule 4.18(h) have been fully investigated, remediated, and closed to the satisfaction of the applicable Governmental Authority. No ongoing obligations, monitoring requirements, corrective action plans, or other continuing liabilities exist with respect to any Release disclosed on Schedule 4.18(h), except as otherwise disclosed thereon.
(iv) The Company has maintained complete and accurate records of all Releases and spills of Hazardous Substances at any Company Real Property, including all notifications to Governmental Authorities, inspection reports, corrective action documentation, and correspondence, and such records have been made available to the Buyer.
Section 4.18(i) — Asbestos and Lead-Based Paint.
(i) Except as disclosed on Schedule 4.18(i), no asbestos-containing materials ("ACM") or presumed asbestos-containing materials ("PACM") are present in any building, structure, improvement, fixture, or other component of any Company Real Property, including, without limitation, insulation (pipe, boiler, duct, and equipment insulation), floor tiles, ceiling tiles, roofing materials, gaskets, caulking, joint compounds, fireproofing, or any other building material.
(ii) Except as disclosed on Schedule 4.18(i), no lead-based paint ("LBP") is present in or on any building, structure, improvement, or surface at any Company Real Property, including interior and exterior painted surfaces.
(iii) Schedule 4.18(i) shall disclose the following conditions:
(a) Asbestos — McKeesport Facility: ACM has been identified in pipe insulation in Buildings A and B at the McKeesport facility (estimated quantity of approximately 2,400 linear feet of pipe insulation) and in floor tiles in Building A (estimated quantity of approximately 14,000 square feet of vinyl asbestos floor tile). The Company has implemented a management-in-place program for such ACM pursuant to an Asbestos Operations and Maintenance Plan dated September 2019, which includes periodic inspections, fiber monitoring, labeling, and worker training. If full abatement and removal of all identified ACM were required, the estimated cost of such abatement is between $180,000 and $310,000 (based on estimates provided by the Company's environmental consultant). Copies of all asbestos surveys, inspection reports, the O&M Plan, and fiber monitoring data shall be provided on Schedule 4.18(i).
(b) Lead-Based Paint — McKeesport Facility: LBP has been identified on interior and exterior surfaces of the McKeesport office building (which was constructed in approximately 1955), as documented in a lead-based paint survey conducted in 2019. The Company has implemented a management-in-place program for such LBP, including periodic inspections and maintenance painting. If full abatement of all identified LBP were required, the estimated cost of such abatement is between $45,000 and $85,000. Copies of the LBP survey report and all associated documentation shall be provided on Schedule 4.18(i).
(iv) All ACM and LBP present on any Company Real Property is being managed, maintained, and monitored in accordance with all applicable Environmental Laws, including, without limitation, applicable OSHA regulations (29 C.F.R. §§ 1910.1001 and 1926.1101 for asbestos; 29 C.F.R. § 1926.62 for lead), the National Emission Standards for Hazardous Air Pollutants ("NESHAP") for asbestos (40 C.F.R. Part 61, Subpart M), applicable EPA regulations (40 C.F.R. Part 763, Subpart E), and all applicable state and local laws and regulations. The Company has not received any notice of violation or citation from any Governmental Authority relating to ACM or LBP at any Company Real Property.
(v) The Company has provided or made available to the Buyer complete and accurate copies of all asbestos surveys, bulk sample analyses, air monitoring data, Operations and Maintenance Plans, abatement project records, worker exposure monitoring data, LBP surveys, risk assessments, and all other documentation relating to ACM and LBP at any Company Real Property.
Section 4.18(j) — CERCLA and Superfund Matters.
(i) No Company Real Property is listed or proposed for listing on the National Priorities List ("NPL") under CERCLA (42 U.S.C. § 9605) or on any state superfund list, priority list, or equivalent list maintained by any state or local Governmental Authority, including, without limitation, the Pennsylvania Priority List of Hazardous Sites maintained by PA DEP and the West Virginia Voluntary Remediation and Redevelopment Act Site List maintained by WV DEP.
(ii) The Company has not received any notice of potential responsibility ("PRP notice"), any information request under CERCLA Section 104(e) (42 U.S.C. § 9604(e)), any demand for contribution or cost recovery under CERCLA Section 107 (42 U.S.C. § 9607) or CERCLA Section 113 (42 U.S.C. § 9613), or any similar notice, request, or demand under any analogous state law, with respect to any Company Real Property or any off-site location.
(iii) No Company Real Property is located within one (1) mile of any site that is listed or proposed for listing on the NPL or any state superfund or priority list, except as disclosed on Schedule 4.18(j). Without limiting the foregoing, Schedule 4.18(j) shall disclose that the McKeesport facility (2200 Iron Works Boulevard, McKeesport, PA 15132) is located within approximately 0.5 miles of the former Irwin Iron & Steel Superfund site (EPA ID: PAD000436402), which was listed on the NPL in 1989, for which a Record of Decision ("ROD") was issued in 1996, and at which construction of the selected remedy was completed in 2004. As noted in the Phase I Environmental Site Assessment prepared by TerraVerde Environmental Consulting, LLC for the McKeesport facility, there is no evidence of any hydrological, geological, or contaminant-migration connection between the McKeesport facility and the Irwin Iron & Steel Superfund site; however, the proximity is disclosed for purposes of completeness.
(iv) The Company has not transported, arranged for transport, or arranged for the disposal or treatment of any Hazardous Substance to or at any site that is listed or proposed for listing on the NPL or any state superfund or priority list. The Company has not been identified as a potentially responsible party at any such site.
Section 4.18(k) — Institutional and Engineering Controls.
(i) Except as disclosed on Schedule 4.18(k), no Company Real Property is subject to any institutional controls (including, without limitation, deed restrictions, environmental covenants, activity and use limitations, land-use restrictions, groundwater use restrictions, excavation restrictions, or any other restrictions on the use, development, or occupancy of real property) or engineering controls (including, without limitation, caps, barriers, liners, containment systems, permeable reactive barriers, groundwater monitoring systems, extraction and treatment systems, or other physical measures) imposed, required, recommended, or undertaken under any Environmental Law, any voluntary remediation or cleanup program, any consent order, any settlement agreement, or any agreement with any Governmental Authority.
(ii) Schedule 4.18(k) shall disclose, without limitation:
(a) Clarksburg Facility: Institutional controls in the form of a land-use restriction recorded at the Harrison County Clerk's Office, Deed Book 1245, Page 312, in connection with the WV DEP UST closure for WV DEP Site ID WVUST-2012-04887. Such institutional controls restrict subsurface excavation and groundwater use in the area of the former 15,000-gallon diesel UST cavity due to residual diesel-range organics in soil exceeding applicable WV DEP action levels. The specific terms, conditions, and geographic scope of such institutional controls shall be set forth on Schedule 4.18(k).
(b) Weirton Facility: Engineering controls (including a cap over contaminated soils) and institutional controls (including a deed restriction recorded at the Hancock County Clerk's Office, Deed Book 487, Page 89) in connection with the WV VRDP Certificate of Completion issued in September 2015. The Weirton facility is a former Granite Harbor & Co. parcel that was remediated under the WV VRDP, and the Certificate of Completion was issued subject to the maintenance of the engineering controls (site cap) and compliance with the institutional controls (deed restriction prohibiting residential use and restricting subsurface excavation). The specific terms, conditions, and obligations associated with such controls shall be set forth on Schedule 4.18(k).
(iii) The Company is in full compliance with all requirements, terms, conditions, and obligations of any institutional controls and engineering controls disclosed on Schedule 4.18(k), including, without limitation, all maintenance, monitoring, reporting, and inspection obligations. The Company has not breached, violated, or failed to comply with any such control during the Company's period of ownership, lease, or occupancy of the applicable Company Real Property.
(iv) No event or condition exists that would constitute a violation of, or that would require any modification, amendment, or supplement to, any institutional or engineering control disclosed on Schedule 4.18(k). No Governmental Authority has notified the Company that any modification, amendment, or supplementation of any such control is required or under consideration.
Section 4.18(l) — Environmental Insurance.
(i) Schedule 4.18(l) sets forth a complete and accurate list of all environmental insurance policies (including, without limitation, pollution legal liability ("PLL") policies, remediation cost cap policies, environmental impairment liability policies, contractors pollution liability policies, and any other insurance policies providing coverage for environmental liabilities, remediation costs, or third-party claims arising from pollution conditions) currently maintained by the Company or maintained on behalf of the Company, or previously maintained by or on behalf of the Company and still providing coverage to the Company under any occurrence-based or claims-made policy. For each such policy, Schedule 4.18(l) shall set forth the insurer, the policy number, the policy period, the coverage limits, the deductible or self-insured retention, the named insureds, the covered locations, and a summary of the material terms, conditions, and exclusions.
(ii) All environmental insurance policies listed on Schedule 4.18(l) are valid, in full force and effect, and all premiums due thereunder have been paid in full. No claims are currently pending, and no claims have been made, under any such policy during the term of such policy. No notice of claim, reservation of rights, or denial of coverage has been issued by any insurer under any such policy.
(iii) The Company has not received any notice of cancellation, non-renewal, material modification, or reduction in coverage with respect to any environmental insurance policy listed on Schedule 4.18(l). No event or condition exists that would give the insurer the right to cancel, terminate, or refuse to renew any such policy.
(iv) The Company has not been denied environmental insurance coverage, or had any application for environmental insurance coverage rejected or materially modified by an insurer, during the past five (5) years.
Section 4.18(m) — Environmental Reports and Assessments.
(i) The Company has delivered to the Buyer, or made available to the Buyer in the virtual data room established for this transaction, complete and accurate copies of all environmental reports, assessments, studies, audits, surveys, investigations, sampling data, analytical results, correspondence with Governmental Authorities, and other documents and records in the Company's possession, custody, or control (or in the possession, custody, or control of any Seller) relating to:
(a) the environmental condition of any Company Real Property, including soil, groundwater, surface water, sediment, air, and building conditions;
(b) the Company's compliance with Environmental Laws;
(c) the presence or suspected presence of any Hazardous Substance at, on, under, or migrating to or from any Company Real Property; and
(d) any Environmental Claim, investigation, enforcement action, or Remedial Action involving the Company or any Company Real Property.
(ii) The reports and documents described in Section 4.18(m)(i) include, without limitation, all Phase I Environmental Site Assessments (whether conducted in accordance with ASTM E1527-13 or E1527-21 or any prior version thereof), all Phase II Environmental Site Assessments, all remediation investigation reports, all remedial action plans, all closure reports, all NFA letters, all regulatory correspondence (including all correspondence with PA DEP, WV DEP, EPA, the Allegheny County Health Department, and any other Governmental Authority), all sampling data (including soil, groundwater, indoor air, soil gas, and building materials sampling data), all asbestos surveys and management plans, all LBP surveys, all SPCC Plans, and all other environmental reports and assessments prepared by or on behalf of the Company. A complete list of such reports and documents is set forth on Schedule 4.18(m).
(iii) There are no material environmental reports, assessments, studies, audits, surveys, investigations, sampling data, or other documents or records relating to any Company Real Property or the Company's environmental compliance that are in the possession, custody, or control of the Company or any Seller and that have not been delivered to or made available to the Buyer.
(iv) The information contained in the reports and documents delivered or made available to the Buyer pursuant to this Section 4.18(m) is true and correct in all material respects as of the date of such reports and documents. Neither the Company nor any Seller has any reason to believe that any such report or document contains any material misstatement or omission.
Section 4.18(n) — No PCBs.
(i) No polychlorinated biphenyls ("PCBs") are present in any form at any Company Real Property, including, without limitation, in any electrical equipment (including transformers, capacitors, voltage regulators, switches, circuit breakers, reclosers, and light ballasts), building materials (including caulking, glazing, and paint), hydraulic fluids, heat transfer fluids, lubricants, or any other media, equipment, or materials.
(ii) No PCB-containing equipment or PCB-contaminated equipment (as such terms are defined in 40 C.F.R. § 761.3) has been used, stored, maintained, serviced, disposed of, or located at any Company Real Property during the Company's period of ownership, lease, or occupancy. To the Knowledge of the Sellers, no PCB-containing equipment or PCB-contaminated equipment was used, stored, or disposed of at any Company Real Property prior to the Company's period of ownership, lease, or occupancy.
(iii) No PCB remediation waste (as defined in 40 C.F.R. § 761.3) is present at, or has been disposed of at, any Company Real Property.
Section 4.18(o) — Compliance with Lease Environmental Provisions.
(i) With respect to each Company Real Property that is leased by the Company (as tenant), the Company is in full compliance with all environmental obligations, covenants, representations, warranties, and provisions contained in the applicable lease agreement, including, without limitation, all obligations relating to the use, storage, handling, and disposal of Hazardous Substances; maintenance of Environmental Permits; compliance with Environmental Laws; notification of Releases; remediation of contamination; and indemnification for environmental liabilities.
(ii) The Company has not caused any contamination, Release, or environmental condition at any leased Company Real Property that would trigger a remediation obligation, indemnification obligation, or default under the applicable lease agreement.
(iii) Without limiting the generality of the foregoing:
(a) Clarksburg Facility (Mountainview Properties LLC Lease): The Clarksburg facility is leased from Mountainview Properties LLC pursuant to a triple-net lease that imposes on the Company (as tenant) the obligation to remediate any contamination caused by the Company during the term of the lease. The Company represents and warrants that it has not caused any Release of Hazardous Substances at the Clarksburg facility that has not been fully investigated and remediated in accordance with applicable Environmental Laws and the terms of the lease. The pre-existing contamination (residual DRO in soil associated with the former 15,000-gallon diesel UST removed in 2012 by the prior tenant, Valley Freight Lines Inc.) is not the responsibility of the Company under the terms of the lease, and the Company has not exacerbated or contributed to such pre-existing contamination.
(b) Weirton Facility (Northern Panhandle Realty Corp. Lease): The Weirton facility is leased from Northern Panhandle Realty Corp. pursuant to a double-net lease that requires the Company (as tenant) to comply with all applicable laws, including Environmental Laws. The Company represents and warrants that it is in compliance with all applicable Environmental Laws at the Weirton facility, including all obligations relating to the WV VRDP engineering controls (site cap) and institutional controls (deed restriction) in place at the facility. The Company has not breached, damaged, compromised, or otherwise interfered with the integrity of the site cap or violated any terms of the deed restriction. The lease does not expressly allocate environmental remediation responsibilities beyond general compliance with law; however, the Company's compliance with the VRDP controls is a condition of the Company's continued lawful occupancy of the site.
(iv) The Company has not received any written or oral notice, demand, or claim from any landlord, lessor, or property owner alleging that the Company has violated any environmental provision of any lease or has caused any environmental contamination at any leased Company Real Property.
DISCLOSURE SCHEDULES CROSS-REFERENCE TABLE
The following table identifies each Disclosure Schedule referenced in Section 4.18, together with a description of the subject matter to be disclosed on each such Schedule. All Schedules are to be prepared and delivered by the Sellers concurrently with, or prior to, the execution and delivery of this Agreement.
Note: Disclosure Schedules are to be prepared and delivered by the Sellers concurrently with execution of this Agreement. The Buyer reserves the right to supplement its diligence requests and to request additional information, documentation, and disclosures based on the Sellers' initial Schedule deliveries. The Buyer's review of the Disclosure Schedules shall not limit, waive, or otherwise affect the Sellers' representations and warranties set forth in this Section 4.18 or the Buyer's rights under Article VIII (Indemnification).
DRAFTING NOTES AND COMMENTARY
INTERNAL CALDERWOOD & HARKNESS LLP ANNOTATIONS PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT TO BE REMOVED BEFORE DELIVERY TO OPPOSING COUNSEL
Drafting Note 1 (HC/BH) — Knowledge Qualifier on Contamination Representations:
Section 4.18(c) (Contamination and Releases) is intentionally drafted without a Knowledge qualifier. This is the Buyer's opening position and reflects the principle that contamination is a factual condition — it either exists or it does not, irrespective of the Sellers' subjective awareness. The Sellers will almost certainly push back and seek to add "to the Knowledge of the Sellers" language to Sections 4.18(c)(i) through (iv). The Buyer's position should resist this qualification on the following grounds: (a) contamination conditions exist as a matter of physical fact regardless of whether the Sellers are aware of them; (b) the Sellers have had the opportunity to conduct Phase I and Phase II Environmental Site Assessments and should bear the risk of undiscovered contamination; and (c) the Buyer is paying fair market value for a clean property and should not bear the risk of pre-existing contamination that was not disclosed. Fallback position: If necessary to reach agreement, the Buyer may accept a Knowledge qualifier only with respect to off-site conditions (i.e., contamination migrating from other properties onto Company Real Property), but should resist any Knowledge qualifier with respect to on-site conditions at Company Real Property. Any agreed Knowledge qualifier should be subject to a broad constructive knowledge standard (i.e., what would be known after reasonable inquiry and investigation).
Drafting Note 2 (HC) — Standalone Vapor Intrusion Representation:
Section 4.18(d) (Vapor Intrusion) has been drafted as a standalone representation, carved out from the general contamination representation in Section 4.18(c). This separation is deliberate and strategically important. Based on the Buyer's Phase II Environmental Site Assessment findings, vapor intrusion at McKeesport Building C is a significant known issue: indoor air sampling detected trichloroethylene ("TCE") at a concentration of 42 µg/m³, which is double the PA DEP vapor intrusion screening level of 21 µg/m³ for TCE. By including a separate, standalone vapor intrusion representation, we ensure that: (a) the Sellers cannot argue that vapor intrusion conditions are not covered by the general contamination provisions in Section 4.18(c); (b) the Sellers are required to make specific disclosures regarding vapor intrusion conditions on a dedicated Schedule 4.18(d); and (c) any breach of the vapor intrusion representation is independently actionable under Article VIII. In negotiations, the Sellers may argue that vapor intrusion is subsumed within the general contamination rep and does not warrant separate treatment. We should resist this position.
Drafting Note 3 (HC/BH) — Ten-Year Lookback Period for Environmental Proceedings:
Section 4.18(e) (Environmental Proceedings) includes a ten (10)-year lookback period for settled or resolved Environmental Claims. This lookback period is specifically designed to capture the February 3, 2020 epoxy resin hardener release at the McKeesport facility and the resulting $4,500 PA DEP fine, which occurred approximately two and a half years ago. The Sellers may seek to shorten the lookback period to three (3) or five (5) years, which is more typical in middle-market transactions. However, we recommend holding at ten (10) years for the following reasons: (a) the McKeesport facility has a long operational history involving significant quantities of hazardous chemicals, and a shorter lookback could exclude relevant historical events; (b) CERCLA has no statute of limitations for cost recovery actions under Section 107, and environmental liabilities can emerge long after the events giving rise to them; and (c) the Buyer needs a comprehensive picture of the Company's environmental compliance history to properly assess risk. If the Sellers push strongly, a fallback to seven (7) years would still capture the 2020 incident, but we should not go below that.
Drafting Note 4 (HC) — CERCLA/Superfund Proximity Disclosure:
Section 4.18(j) (CERCLA and Superfund Matters) includes a one (1)-mile radius proximity disclosure requirement. This provision is included specifically because the McKeesport facility is located within approximately 0.5 miles of the former Irwin Iron & Steel Superfund site (NPL-listed 1989; ROD issued 1996; construction completed 2004). The Phase I ESA prepared by TerraVerde Environmental Consulting, LLC concluded that there is no evidence of any hydrological, geological, or contaminant-migration connection between the McKeesport facility and the Irwin Iron & Steel site. However, the proximity representation serves two important functions: (a) it ensures full disclosure of the nearby NPL site in the Disclosure Schedules, providing a complete record; and (b) it provides an indemnification hook under Article VIII if a connection between the two sites is later established (e.g., through newly discovered groundwater migration pathways). The Sellers may argue that this provision is overreaching, particularly given TerraVerde's no-connection finding. We should be prepared to discuss but should not concede the one-mile radius without a compelling basis.
Drafting Note 5 (BH) — Fundamental Representation Classification:
The environmental representations and warranties set forth in this Section 4.18 are structured as "Fundamental Representations" for purposes of the indemnification provisions in Article VIII (see separate draft of Environmental Indemnification and Escrow Provisions, draft circulated August 10, 2022). Under the current draft of Article VIII, Fundamental Representations have the following enhanced protections: (a) they survive the Closing indefinitely (or, alternatively, for a period of six (6) years, compared to the eighteen (18)-month survival period for general representations); (b) they are not subject to the general indemnification basket/deductible of $475,000; and (c) they are not subject to the general indemnification cap of $7,200,000 (instead, the cap for Fundamental Representations is the full purchase price). The Sellers are expected to push back vigorously on the Fundamental Representation classification for environmental reps. Their likely position will be that only title, authority, and capitalization reps warrant Fundamental Rep treatment, and that environmental reps should be subject to the general survival period, basket, and cap. Our position is that environmental liabilities at a chemical coatings manufacturer represent the single most significant area of post-closing risk, and the Buyer should not agree to limit its indemnification rights for environmental matters to the general basket and cap. Fallback: If necessary, we could agree to a separate environmental-specific basket (e.g., $150,000) and a separate environmental-specific cap (e.g., $12,000,000), with an extended survival period of at least six (6) years, but we should not allow the environmental reps to fall within the general basket/cap/survival framework.
Drafting Note 6 (HC) — Absence of Materiality Qualifiers:
The environmental representations throughout Section 4.18 are drafted broadly and without materiality qualifiers. Specifically, there are no "material," "in all material respects," or "Material Adverse Effect" qualifiers in the contamination, release, UST, ACM/LBP, CERCLA, or institutional controls representations. This is the Buyer's opening position and reflects the view that: (a) environmental contamination is binary — it either exists above regulatory thresholds or it does not, and the concept of "materiality" is not well-suited to contamination conditions; (b) the Buyer is entitled to full disclosure of all environmental conditions, not just "material" ones; and (c) Material Adverse Effect qualifiers would ef

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLERS

PRELIMINARY DEFINITIONS APPLICABLE TO SECTION 4.18

DISCLOSURE SCHEDULES CROSS-REFERENCE TABLE

DRAFTING NOTES AND COMMENTARY

Record

Parties

Dates

Amounts