Exhibit 10.11
ENVIRONMENTAL AGREEMENT
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This Environmental Agreement ("AGREEMENT") dated this 1st day of November,
2000, is made between Shell Oil Company, a Delaware corporation ("SELLER"), and
Shell Epoxy Resins, Inc., LLC, a Delaware limited liability company ("SER", and
SER collectively with SELLER, the "Parties").
WHEREAS, the Parties and Resin Acquisition LLC have entered into a Master
Sale Agreement dated July 10, 2000, whereby SER will be recapitalized as
provided therein ("MASTER SALE AGREEMENT").
WHEREAS, it is a condition to Closing under the Master Sale Agreement that
the Parties hereto enter into this Agreement.
NOW, THEREFORE, the Parties hereto agree as follows:
1. Definitions/Procedural Conventions
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(A) Unless the context shall otherwise require, terms used and not defined
herein or in Schedule 1 hereto shall have the meanings set forth in
Schedule A to the Master Sale Agreement, and all rules as to usage and
procedural conventions set forth in Schedule A to the Master Sale
Agreement shall govern this Agreement unless otherwise provided
herein. Articles 4, 5 and 6 (except for Article 6.06
(Successors/Assigns)) of Schedule A to the Master Sale Agreement are
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hereby incorporated by reference herein and shall control as to the
matters set forth therein as if stated in their entirety herein,
subject to the express provisions of this Agreement.
(B) In the event of any inconsistency, this Agreement shall prevail over
the Master Sale Agreement.
2. SELLER's Indemnification Obligation
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2.1 Subject to Sections 2.2 to 2.11, SELLER shall indemnify, defend, save and
hold harmless the SER Indemnified Parties from and against all
Environmental Damages imposed upon or incurred by the SER Indemnified
Parties, resulting from:
(A) an Environmental Claim or Voluntary Remediation Requirement in respect
of any Site Contamination Issues;
(B) an Environmental Claim in respect of any Exposure Issues;
(C) an Environmental Claim or Voluntary Remediation Requirement in respect
of any Disposal Issues; or
(D) an Environmental Claim or Voluntary Remediation Requirement in respect
of any Non-compliance Issues,
in each case, to the extent that such Environmental Condition occurred or
existed prior to the Closing Date.
2.2
(A) SELLER's obligations under
(a) Section 2.1(D) of this Agreement in relation to Non-
compliance Issues, other than with respect to the Listed US
Compliance Issues; and
(b) under Section 2.1(A) of this Agreement in relation to Site
Contamination Issues at the Lakeland Facility, other than
with respect to the Known Lakeland Site Contamination
Issues; and
(B) SPNV's obligations under
(a) Sections 2.1(D) of the Non-US Environmental Agreement in
relation to Non-compliance Issues, other than with respect
to the Listed Non-US Compliance Issues; and
(b) under Section 2.1 (A) of the Non-US Environmental Agreement
in relation to Site Contamination Issues at the Barbastro
Facility,
in the aggregate shall be limited to $10,000,000.
2.3 SER Indemnified Parties shall not be entitled to indemnity under Section
2.1 of this Agreement unless and until the SER Indemnified Parties have
incurred Environmental Damages of $1,000,000 in the aggregate which would
be recoverable under this Agreement and/or under the Non-US Environmental
Agreement but for this Section 2.3 of this Agreement and Section 2.3 of the
Non-US Environmental Agreement (the "DEDUCTIBLE AMOUNT") and the indemnity
in Section 2.1 of this Agreement shall be limited to the excess over the
Deductible Amount, provided that the Deductible Amount shall not apply to
and shall not include the Listed US Compliance Issues, the Listed Non-US
Compliance Issues or the Known Lakeland Site Contamination Issues.
2.4 SER Indemnified Parties shall not be entitled to indemnity under Section
2.1 of this Agreement in relation to a Listed US Compliance Issue unless
and until the SER Indemnified Parties have incurred Environmental Damages
which:-
(A) would be recoverable under this Agreement in relation to Listed US
Compliance Issues but for this Section 2.4 of this Agreement and/or
under the Non-US
Environmental Agreement in relation to Listed Non-US
Compliance Issues but for Section 2.4 of the Non-US Environmental
Agreement; and
(B) were incurred on or before the relevant Listed Items Expiry Date; and
(C) such Environmental Damages in aggregate exceed the Listed Items
Deduction
and the indemnity under Section 2.1 of this Agreement in relation to the
Listed US Compliance Issues and under Section 2.1 of the Non-US
Environmental Agreement in relation to the Listed Non-US Compliance Issues
shall be limited to (i) 100% of such excess up to a maximum of $10,000,000;
and (ii) 80% of any such excess over $10,000,000.
2.5 SELLER shall have no obligation with respect to any Environmental Damages
arising from:-
(A) any Non-compliance Issues (other than the Listed US Compliance Issues)
unless the relevant Environmental Claim or Voluntary Remediation
Requirement has arisen and the relevant Indemnity Claim is asserted in
accordance with this Agreement within three (3) years of the Closing
Date; or
(B) any Site Contamination Issues at the Lakeland Facility other than the
Known Lakeland Site Contamination Issues unless the relevant
Environmental Claim has arisen and the relevant Indemnity Claim is
asserted within five (5) years of the Closing Date.
2.6 Notwithstanding anything herein to the contrary, the SER Indemnified
Parties shall not be entitled to claim or seek indemnity or defense under
this Agreement to the extent that the relevant Environmental Damages result
from or are increased by (and only including the amount of Environmental
Damages which so results or is so increased):
(A) any Change of Use by SER Indemnified Parties at all or a significant
portion of the relevant Real Property after the Closing Date; or
(B) except (i) in relation to the Westhollow Facility; (ii) where due to
the default of the SELLER in performing its obligations under the
Continuing Affiliate Contracts (as defined in the Master Sale
Agreement); or (iii) where due the expiry and non-renewal of any of
the Continuing Affiliate Contracts, other than where the relevant SER
Indemnified Party has not accepted an offer of renewal on commercially
reasonable terms, any closure or temporary (other than for the
purposes of operation or maintenance activities) or permanent
cessation of substantially all of the operations of the Business at
the relevant Real Property after Closing, but only to the extent of
such Environmental Damages resulting from requirements under
Environmental Law which are directly triggered by such closure or
cessation.
2.7 Notwithstanding anything herein to the contrary, the SER Indemnified
Parties shall not be entitled to claim or seek indemnity or defense under
this Agreement where the relevant Environmental Claim or Remediation
Activities results from or would not have arisen but
for any below ground investigation of soil or groundwater or other surface
or sub-surface water ("INVESTIGATION") or disclosure ("DISCLOSURE") by SER
Indemnified Parties after the third anniversary of the Closing Date except
for Permitted Investigation and Disclosure. "PERMITTED INVESTIGATION AND
DISCLOSURE" under this Agreement means Investigation and Disclosure which
was:-
(A) required by Environmental Laws to be carried out by the SER
Indemnified Parties;
(B) performed or undertaken in response to any requirements of a
Governmental Entity (as part of an investigation, consultation or
otherwise) pursuant to Environmental Law (including as the result of a
negotiated settlement reached in accordance with this Agreement);
(C) undertaken as part of or in connection with the construction of
foundations for new buildings, plant or machinery or other ground
disturbance reasonably necessary in connection with the normal
operation of the business;
(D) necessary in connection with a Specified Transaction; or
(E) in relation to disclosure, as necessary in relation to the agents,
advisers, underwriters, insurers, bankers or lenders of or to the
relevant SER Indemnified Party or as required by Law,
excluding any such investigation or disclosure carried out with the
intention of making or investigating the possibility of making Indemnity
Claims. SER shall not and shall procure that SER Indemnified Parties shall
not after the third anniversary of the Closing Date carry out or make any
Investigation or Disclosure which is not Permitted Investigation or
Disclosure.
2.8 Notwithstanding anything herein to the contrary:-
(A) SELLER shall have no indemnity obligation hereunder for any
Environmental Damages arising from or associated with any upgrades,
improvements, modifications, additions, changes or other expenditures
related to any of the matters described in Schedule 3; and
(B) SELLER's indemnity obligation hereunder for any Environmental Damages
arising from or associated with the matters described in Schedule 7
shall not include the cost of carrying out Remediation Activities
unless actually required by the relevant Governmental Entity.
2.9 Notwithstanding anything herein to the contrary, the SER Indemnified
Parties shall not be entitled to claim under this Agreement in respect of
the costs of carrying out the ongoing containment and monitoring programs
set out in Schedule 4.
2.10 To the extent that the SER Indemnified Parties make an Indemnity Claim for
Environmental Damages with respect to Voluntary Remedial Actions, SER
agrees that the relevant SER Indemnified Party shall under this Agreement
pay on a pro rata basis and the SER Indemnified Parties shall not be
entitled to claim for 25% of such Environmental Damages.
2.11 Notwithstanding anything herein to the contrary, the SER Indemnified
Parties shall not be entitled to claim or seek indemnity or defense under
this Agreement to the extent that the relevant Environmental Damages relate
to Non-compliance Issues (except for the Listed US Compliance Issues) or to
Site Contamination Issues at the Lakeland Facility (except for the Known
Lakeland Site Contamination Issues) and arise out of or are increased as a
result of:
(A) provisions of any Permit or Environmental Law that are not expressly
required to be complied with on or before Closing, or the expiration,
review, amendment, revision, replacement or renewal of any Permit
after Closing;
(B) Environmental Laws that come into force or become binding after
Closing or existing Environmental Laws that contain compliance
requirements that become enforceable after Closing; or
(C) variations, changes, modifications, additions or amendments after
Closing (whether under laws which are in force before, on or after
Closing) to applicable standards, codes, criteria, guidance, policy or
interpretations in relation to Environmental Laws or Permits,
provided that this Section 2.11 does not apply to the extent the relevant
future Environmental Law or Permit is not more onerous than the
Environmental Law or Permit which it renews or replaces.
3. SER's Indemnification Obligation.
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3.1 Subject to Sections 3.2 below, SER shall indemnify, defend, save and hold
harmless the SELLER Indemnified Parties from and against all Environmental
Damages imposed upon or incurred by the SELLER Indemnified Parties
resulting from any Environmental Condition to the extent such Environmental
Condition occurred or arose on or after the Closing Date, provided however,
that SER shall have no indemnity obligation under this Section 3.1 for
those matters for which SER is entitled to indemnity from SELLER pursuant
to Section 2.1 of this Agreement.
3.2 To the extent that SELLER Indemnified Parties make an Indemnity Claim with
respect to Voluntary Remedial Actions, SELLER agrees that the relevant
SELLER Indemnified Party shall pay and the SELLER Indemnified Parties shall
not be entitled to claim for 25% of such Environmental Damages.
4. Indemnification Procedures and Calculation.
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4.1 Notwithstanding anything to the contrary elsewhere in this Agreement or the
Transaction Documents, the procedures in this Section 4.1 shall apply to
Indemnity Claims which relate to the carrying out of Remediation Activities
by the relevant Indemnified Party.
(A) The relevant SER Indemnified Party or SELLER Indemnified Party shall
provide written notice to SELLER or SER, respectively ("ENVIRONMENTAL
INDEMNIFYING PARTY") (each such notice an "ENVIRONMENTAL CLAIMS
NOTICE") setting forth with reasonable particularity the nature of the
Environmental Condition to be addressed by Remediation Activities
giving rise to the related Indemnity Claim.
(B) If Environmental Indemnifying Party has the right under Section 5 to
take Control of such Remediation Activities, Environmental
Indemnifying Party shall notify Environmental Indemnified Party within
30 days after receipt of the Environmental Claims Notice whether it
wishes to exercise such right (without prejudice to the right of
Environmental Indemnifying Party to assume Control at some later
time).
(C) Where Environmental Indemnified Party has Control of such Remediation
Activities (on the basis that Environmental Indemnifying Party has not
exercised any right which it may have to assume Control), the
provisions of Sub-sections 4.1(C) (i) to (vi) shall apply.
(i) Environmental Indemnified Party shall provide a further notice
(if not already provided as part of the original Environmental
Claims Notice and expressly identified as the Environmental
Claims Response in the Environmental Claims Notice) setting
forth with reasonable particularity the nature of the activities
undertaken or to be undertaken or, as appropriate, legal or
consultative services to be acquired ("ENVIRONMENTAL CLAIMS
RESPONSE") by Environmental Indemnified Party with respect to
the relevant Environmental Condition (to the extent then
determinable), and the estimated cost associated with such
activities (to the extent then estimable).
(ii) Environmental Indemnifying Party shall within 30 days after
receipt of an Environmental Claims Response, notify
Environmental Indemnified Party in writing that Environmental
Indemnifying Party in whole or in part, (i) approves (ii)
objects or (iii) is unable to approve or reject on the basis of
the available information to the Environmental Claims Response
("REPLY NOTICE").
(iii) If Environmental Indemnifying Party's Reply Notice notifies
Environmental Indemnified Party that it approves of all or part
of the Environmental Claims Response set forth in the related
Environmental Claims Notice, the Environmental Damages (or part
thereof so approved by Environmental Indemnifying Party)
associated with the Environmental Claims Notice shall be
conclusively deemed Environmental Damages for which
Environmental Indemnifying Party has an indemnity obligation.
(iv) Environmental Indemnifying Party shall pay the amount of such
Environmental Damages to Environmental Indemnified Party within
30 days of receiving written confirmation from Environmental
Indemnified Party that the relevant sum has actually been paid
to the relevant third party.
(v) In the event Environmental Indemnifying Party's Reply Notice
objects to or does not accept all or any part of the
Environmental Claims Response set forth in the related
Environmental Claim Notice in accordance with Sub-section
4.1(C)(ii) the, Environmental Indemnifying Party shall notify
Environmental Indemnified Party in writing of its objection or
non-acceptance (and the basis thereof) regarding such
Environmental Claim Response. If Environmental Indemnifying
Party's Reply Notice is a non-acceptance due to insufficient
information, Environmental Indemnifying Party shall in the Reply
Notice identify the further information which it reasonably
requires. If Environmental Indemnifying Party's Reply Notice
relates to an objection to the nature of Environmental
Indemnified Party's proposed Environmental Claims Response,
Environmental Indemnifying Party shall provide with the Reply
Notice an alternative proposal describing in reasonable detail
(so far as it is reasonably able having regard to the
information available to Environmental Indemnifying Party and
the prescribed time limit for the Reply Notice) the proposed
activities or response, including estimated costs associated
therewith.
(vi) If a Reply Notice is served, Environmental Indemnified Party and
Environmental Indemnifying Party shall thereafter negotiate in
good faith in an attempt to reach agreement as to the disputed
or non-accepted Environmental Claims Notice. In the event that
Environmental Indemnified Party and Environmental Indemnifying
Party are unable to resolve the dispute or non-acceptance within
30 days after Environmental Indemnifying Party's receipt of the
Reply Notice, Environmental Indemnifying Party or Environmental
Indemnified Party may provide written notice to the other of its
intent to submit the matter to arbitration pursuant to the terms
set forth in Section 9 of this Agreement.
(D) The Parties acknowledge that it may be necessary for the relevant
Remediation Activities to be assessed, designed and implemented in
separate units or stages, having regard to technical and practical
factors, orders or similar directives by any Governmental Entity and
prevailing regulatory practice. The Parties agree that the procedure
set out in this Section 4.1 shall apply separately to each such unit
or stage and, in the event of any dispute as to the appropriate
division of units or stages, either Party may by written notice submit
such dispute to arbitration pursuant to the terms set forth in Section
9 of this Agreement.
(E) The Parties agree that, where a response or notice is required by a
relevant Governmental Entity within a timetable that is more demanding
than the response
times set out above, the Parties shall use all reasonable efforts to
meet such required timetable.
4.2 Notwithstanding anything to the contrary elsewhere in this Agreement or the
Transaction Documents, the following procedures shall apply to Indemnity
Claims which are not subject to Section 4.1.
(A) Upon notice of an Environmental Claim asserted against, resulting to,
imposed upon or incurred by any Indemnified Party, or upon the
Indemnified Party becoming aware of a matter for which it may be
entitled to indemnification with respect to an Environmental Claim,
the Indemnified Party shall promptly give written notice to the other
Indemnifying Party of the Environmental Claim; provided, however, that
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no failure or delay on the part of the Indemnified Party in notifying
any Indemnifying Party shall relieve the Indemnifying Party from any
liability or obligation hereunder unless (and then solely to the
extent) the Indemnifying Party thereby is prejudiced by the failure or
delay.
(B) Promptly upon receiving a written notice of an indemnified
Environmental Claim, the Indemnifying Party shall undertake the
defense thereof by counsel of its own choosing, which counsel shall be
reasonably satisfactory to the Indemnified Party; provided, that if,
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in the Indemnified Party's and the Indemnifying Party's reasonable
judgment, a conflict of interest may exist between the Indemnified
Party and the Indemnifying Party with respect to such Environmental
Claim, or if the Indemnifying Party does not promptly defend after
notification of such Environmental Claim, such Indemnified Party shall
undertake the defense and to compromise or settle such Environmental
Claim on behalf of and for the account and at the risk of the
Indemnifying Party to the extent that the Indemnifying Party is
determined to be obligated to indemnify the Indemnified Party under
this Agreement with respect to such Environmental Claim. The written
notice of the Environmental Claim by the Indemnified Party shall
contain all material information known to the Indemnified Party with
respect to the Environmental Claim and shall include copies of
materials submitted to the Indemnified Party by the relevant claimant
with respect to the Environmental Claim. So long as the Indemnifying
Party is conducting the defense of a Environmental Claim in accordance
with this Section 4.2, the Indemnified Party may retain separate co-
counsel at its sole cost and expense and participate in the defense of
the Environmental Claim.
(C) If the Indemnifying Party elects to undertake and diligently pursue
the defense of a Environmental Claim hereunder, and acknowledges in
writing its duty to provide full indemnification to the Indemnified
Party regarding such Environmental Claim, the Indemnifying Party shall
control all aspects of the defense and settlement of such
Environmental Claim and may settle, compromise or enter into a
judgment with respect to such Environmental Claim; provided, that the
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Indemnifying Party shall not enter into any such settlement,
compromise or judgment without the prior written consent of the
Indemnified Party (which shall not be unreasonably withheld) if it
would result in the imposition of any non-monetary liability or
obligation on the
Indemnified Party. If the Indemnified Party undertakes the defense of
an Environmental Claim hereunder, it shall not settle, compromise or
enter into any judgment with respect to an Environmental Claim for
which it is seeking or shall seek indemnification hereunder without
the prior written consent of the Indemnifying Party, which shall not
be unreasonably withheld.
(D) The Indemnified Party shall provide the Indemnifying Party with access
to all reasonably requested records and documents of the Indemnified
Party relating to any Environmental Claim, other than documents for
which the Indemnified Party has claimed or shall validly claim a legal
privilege.
(E) Without prejudice to any claim by SELLER under the indemnity in
Section 3.1, the obligations of the Indemnifying Party to indemnify
the Indemnified Party under this Agreement shall not be terminated,
modified or abated if the cause or alleged cause (in whole or in part)
of the Environmental Damages for which a claim is made hereunder is
the sole or concurrent, active or passive, imputed, technical or other
negligence, gross negligence, fault or strict liability of the
Indemnified Party.
4.3 For purposes of calculating aggregate Environmental Damages under this
Agreement, the amount of Environmental Damages incurred by any
Environmental Indemnified Parties shall be reduced by (a) the net amount of
the sum of (i) any Tax Benefit received by SER Indemnified Parties or
SELLER Indemnified Parties, as applicable, as a result of the Environmental
Condition that gave rise to such Environmental Damages on or prior to the
date that the indemnity payment in respect of such Environmental Damages is
due and payable and (ii ) the present value of any Tax Benefit projected to
be received by SER Indemnified Parties or SELLER Indemnified Parties, as
applicable, (such present value shall be calculated by the applicable SER
Indemnified Parties or SELLER Indemnified Parties (x) using a discount
factor equal to 12% and (y) assuming that the Tax Benefit is received at
such time and to the extent that it is reasonably expected to be received
based on the applicable Person's management projections at the time of
payment of the applicable Environmental Damage), and (b) any amounts
received (after deducting all attorneys' fees, expenses and other costs of
recovery) from any Third Party Insurer or other party liable for such
Environmental Damages, and the SER Indemnified Parties and the SELLER
Indemnified Parties, as applicable shall use reasonable efforts to effect
any such recovery.
4.4 For purposes of this Agreement, the Master Sale Agreement and any other
related document, (i) with respect to any Indemnity Claim in relation to
Site Contamination Issues made prior to the third anniversary of the
Closing Date, any Environmental Condition that is the basis of such claim
shall be presumed to have existed as of the Closing Date unless and until
SELLER establishes that it is more likely than not that the relevant Site
Contamination Issues came into existence or arose after the Closing Date
and (ii) with respect to any Indemnity Claim made after the third
anniversary of the Closing Date in relation to Site Contamination Issues,
no presumption as to the existence or non-existence of the Site
Contamination Issue that is the basis of such Indemnity Claim shall exist
and the determination with respect to the existence of such Site
Contamination Issue shall be based on an objective determination in light
of the evidence presented by the Parties.
5. Control of Remediation Activities
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5.1 Notwithstanding the provisions of Sections 2, 3 and 4 above or any other
provisions of this Agreement or the Transaction Documents, as between SER
and SELLER, SER shall have right to Control Investigation at a Real
Property until (if applicable) SELLER's right to Control such Investigation
has arisen under Section 5.2 or 5.3, provided that:-
(A) SER shall ensure that SELLER is given advance notice of any proposal
to carry out or make Investigation or Disclosure;
(B) SER shall consult in good faith with the SELLER and comply with any
reasonable request of the Seller in relation to the nature, extent or
conduct of such Investigation or Disclosure;
(C) SER take full account of the availability of data and information
provided by SELLER in deciding whether or not the proposed
Investigation or Disclosure is necessary and in determining the scope
of the Investigation or Disclosure;
(D) SER shall consider in good faith any request from SELLER to carry out
or make all or part of such Investigation;
(E) SER shall allow SELLER or its representative to attend such
Investigation when carried out;
(F) SER shall provide SELLER with split samples should it so request;
(G) SER shall provide SELLER with draft and final reports and results as
soon as they come into the possession of the relevant SER Indemnified
Party.
5.2 Notwithstanding the provisions of Sections 2, 3 and 4 above or any other
provisions of this Agreement or the Transaction Documents, as between SER
and SELLER, SELLER shall have the right (but not the obligation) to
exclusively Control Remediation Activities (including, for the avoidance of
doubt, any proposal to carry out any Investigation and Disclosure where it
is known or is reasonably probable that the Remediation Activities involve
Environmental Damages for which SELLER has any indemnity obligation to the
SER Indemnified Parties under this Agreement):
(A) with respect to Site Contamination Issues at the Norco Facility, the
Argo Facility, the Deer Park Facility, and the Westhollow Facility
which is not Whole Complex Contamination;
(B) with respect to the Known Lakeland Site Contamination Issues and/or
any Site Contamination Issues in relation to the Lakeland Facility
which are not Known Lakeland Site Contamination Issues,
provided that SELLER performs such Remediation Activities in accordance
with the Lowest Cost Alternative. In the event that, where SELLER has
Control of such Remediation Activities and fails to so perform such
Remediation Activities in circumstances that threaten to cause material
prejudice to SER, SER shall be entitled to serve a notice of failure on
SELLER. If SELLER then fails to exercise Control in a manner which will
avoid such prejudice (to the extent avoidable) within 60 days of the date
of such notice, SER or the relevant Company, upon written notice to SELLER,
shall have the right to assume Control of such Remediation Activities from
SELLER subject to Section 6.2 of this Agreement and seek reimbursement for
all Environmental Damages incurred in connection with its assumption of
Control in accordance with and to the extent recoverable under this
Agreement.
5.3 Notwithstanding the provisions of Sections 2, 3 and 4 above or any other
provisions of this Agreement or the Transaction Documents, as between SER
and SELLER, SELLER shall have the right to exclusively Control Remediation
Activities relating to Whole Complex Contamination. In the event SELLER
fails to perform such Remediation Activities in accordance with the Lowest
Cost Alternative in circumstances that threaten to cause material prejudice
to SER, SER shall have the right to seek resolution of such failure of
performance in accordance with the Dispute Resolution Procedures set forth
in Section 9, provided that the available remedies under any such Dispute
Resolution Procedures shall not include any award of Control to SER or any
SER Indemnified Party.
5.4 In performing Remediation Activities at any real property, the Party with
Control shall use its reasonable efforts to minimize its interference with
operations at such relevant real property.
6. Procedures for Remediation Activities
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6.1 Where the Indemnified Party has Control of Remediation Activities that are
covered by Indemnifying Party's indemnity obligation in Section 2 and
Indemnifying Party has not exercised its rights (if applicable) to take
Control under Section 5:
(A) Indemnified Party shall:
(i) consult with Indemnifying Party in advance of issuing any
material documents, attending any material meetings or hearings
or taking any material step or action in relation to the
relevant activities;
(ii) provide Indemnifying Party with reasonable notice of and a
reasonable opportunity to attend any meetings or hearings or the
carrying out of any activities with respect to any Remediation
Activities (and provide Indemnifying Party with split samples if
the Indemnifying Party so requires);
(iii) provide to Indemnifying Party any documents, information,
assistance or access which Indemnifying Party may reasonably
request;
(iv) provide Indemnifying Party with (a) copies of all workplans for
and test results, surveys and other data generated by the
investigations performed by the Indemnifying Party or its
consultants promptly upon the availability thereof; (b) final
and any prior drafts of all reports, plans and other documents
filed with any Governmental Entity upon the availability thereof
and in any event prior to any such filing being made; and (c) an
opportunity to meet with the Indemnified Party and its
representatives prior to and following any substantive
communications with Governmental Entities;
(v) where the relevant Environmental Damages are covered by
Indemnifying Party's indemnity obligation in Section 2.1,
provide Indemnifying Party with a reasonable opportunity to
audit costs of such Remediation Activities;
(vi) where the relevant Environmental Damages are covered by
Indemnifying Party's indemnity obligation in Section 2.1,
implement and not exceed the Lowest Cost Alternative; and
(vii) comply with any other reasonable request of Indemnifying Party,
except to the extent that any such request would result in
Remediation Activities exceeding the Lowest Cost Alternative;
provided that, (a) communication by any SER Indemnified Party with
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SELLER shall be made via SER (or such person as SER shall nominate to
SELLER) and communication by any SELLER Indemnified Party with SER
shall be made by SELLER (or such person as SELLER shall nominate to
SER) unless the Parties agree to the contrary in any particular case;
and (b) SER shall procure that each SER Indemnified Party and SELLER
shall procure that each SELLER Indemnified Party shall comply with all
of the provisions of this Section 6.1.
6.2 Each Party shall comply with reasonable requests of the other Party for
arrangements to maintain confidentiality or privilege under this Agreement.
6.3 Where SELLER as Environmental Indemnifying Party has control of Whole
Complex Contamination, SELLER shall consult with SER as reasonably
appropriate and, upon request and as far as reasonably appropriate, shall
provide SER with all material, relevant documents, summaries of all
material meetings or hearings, and reasonable opportunity, upon reasonable
notice, to confer on the planning and conduct of material, relevant
Remediation Activities.
6.4 Each Party (the "HOST PARTY") agrees to provide the other Party (the
"VISITING PARTY") and its representatives, agents and contractors access
from time to time to any of the real property which the Host Party owns or
occupies and/or any of the facilities, structures, plants or equipment at
such real property in order to permit the Visiting Party to undertake and
complete Remediation Activities in relation to which the Visiting Party has
Control under Section 5; provided, however, that
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(A) in the event that the Host Party does not have the right to grant such
access without the consent or approval of some other person, the Host
Party's obligation shall be subject to such approval or consent, which
the Host Party shall use its reasonable efforts to procure;
(B) the Visiting Party shall provide the Host Party with reasonable notice
prior to entering or allowing any of its agents, representatives,
employees, consultants or contractors to enter the relevant real
property. In addition, the Parties shall cooperate in good faith with
the completion of the Remediation Activities for which access by the
Visiting Party is required, including but not limited to the execution
of such documents, notices, consents and recordations as may be
necessary.
7. Standard of Remediation Activities
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7.1 Any claim for indemnification under this Agreement by an Environmental
Indemnified Party for Remediation Activities that such Environmental
Indemnified Party Controls shall, to the extent such Remediation Activities
are Controlled by Environmental Indemnified Party, be limited to the Lowest
Cost Alternative. The Lowest Cost Alternative shall be:
(A)
(i) where there is an Environmental Claim, the minimum necessary to
comply with any settlement or agreement with the relevant
Governmental Entity or Third Party (if applicable) reached in
accordance with this Agreement; or
(ii) where there is an Environmental Claim, the minimum necessary to
comply with Environmental Laws as enforced in relation to the
relevant Environmental Condition, where no such settlement or
agreement is reached; or
(iii) where there is a Voluntary Remediation Requirement, the minimum
necessary to comply with Environmental Laws as they would be
very likely to be enforced, if the Governmental Entity having
jurisdiction over the relevant real property were aware of the
nature and extent of the relevant Environmental Condition; and
(B) so far as within the control of the Party which has Control, be
consistent with the operations conducted at the relevant Real
Property; and
(C) achieved for the lowest financial cost as compared with other
potential Remediation Activities.
Taking no action shall constitute an acceptable Lowest Cost Alternative if,
after investigation, taking no action is determined to be consistent with
or otherwise satisfy the applicable conditions for the Lowest Cost
Alternative as set forth above.
7.2 The Parties agree that, where SELLER has Control of Remediation Activities
and the extent and timescale of any outstanding works are well defined,
SELLER shall be entitled to require SER to enter into good faith
negotiations to determine the amount of any such payment as would be
reasonable to settle SELLER's liability to SER under this Agreement in
respect of the relevant matter. The Parties further agree that, where SER
has Control of Remediation Activities and the extent and timescale of any
outstanding works are well defined, SER shall be entitled to require SELLER
to enter into good faith negotiations to determine the amount of any such
payment as would be reasonable to settle SER's liability to SELLER under
this Agreement in respect of the relevant matter.
8. Access to Records; Furnishing Information
-----------------------------------------
Section 8.06 and 8.19 of the Master Sale Agreement shall apply.
9. Dispute Resolution.
------------------
9.1 In the event of any Controversy between the Parties arising out of this
Agreement, the Parties shall use good faith efforts, for a period of 60
days following notice by a Party to the other Party that a Controversy
exists, to resolve the Controversy through settlement and compromise. In
the event such a Controversy cannot be resolved by or through settlement
and compromise during the period specified above, either Party may require
that the Controversy be finally resolved under the provisions set forth in
Article 3 of Schedule A to the Master Sale Agreement except as otherwise
set forth below. Pending the completion of any arbitration proceedings,
payments not in dispute shall continue to be made, and obligations not in
dispute performed, and in rendering any award the arbitrators shall make
appropriate adjustments for any such payments as may be consistent with the
award.
9.2 Notwithstanding anything else in this Agreement or in the Master Sale
Agreement (including the Schedules attached thereto), the place of
arbitration for any dispute, controversy or claim arising out of or
relating to this Agreement shall be Vancouver, British Columbia (or, if the
Parties so agree in a particular case, in a location reasonably proximate
to the location of the relevant Real Property) and governed by the laws of
New York.
9.3 Notwithstanding anything else in this Agreement or in the Master Sale
Agreement (including the Schedules attached thereto), the arbitrator shall
have a minimum of 10 years cumulative experience of work with respect to
the relevant matters which are the subject of the arbitration and shall
make its decision solely on the basis of the information provided to it by
the Parties and shall not be entitled to require further technical
information and advice from any source (unless otherwise agreed between the
Parties). The cost of the arbitration shall be borne in accordance with
Section 3.01(d) of Schedule A to the Master Sale Agreement.
10. Exclusive Remedy
----------------
10.1 Subject to Section 10.2 and 10.3, the limited rights provided to the
Parties pursuant to this Agreement shall be SELLER's and SER's and the
relevant Company's exclusive remedies against each other for any
Environmental Conditions regardless of who caused such Environmental
Conditions or when such Environmental Conditions occurred. To the fullest
extent allowed by Applicable Law, each of SELLER and SER (each on behalf of
itself and any SELLER Indemnified Parties or SER Indemnified Parties
("RELEVANT PARTIES"), as applicable) and each Company hereby WAIVES AND
RELEASES (regardless of the negligence or fault, sole or otherwise, of the
Person being released) any and all other rights and remedies (whether
existing or future, and of whatsoever nature) such Party (or any Relevant
Parties) may have at law or in equity against SER or SELLER (or any
Relevant Parties), as the case may be, with respect to any Environmental
Conditions.
10.2 Subject to Section 10.3, Section 10.1 is without prejudice to the express
provisions of such agreements as , in the case of the Continuing Affiliate
Contracts, may have been or, in the case of other agreements, may at some
future time be entered into between any SELLER Indemnified Parties and SER
Indemnified Parties to the extent that they address or are applicable to
Environmental Conditions, provided that the provisions of such agreements
as identified in Schedule 6 shall be deemed not to apply as between SELLER
and SER Indemnified Parties, to the extent expressly disapplied in Schedule
6.
10.3 Other than (a) the provisions of any Continuing Affiliate Contract deemed
suspended pursuant to Schedule 5 and (b) in relation to sub-clause 10.3(A)
only, the provisions of any lease agreement between SELLER or its
Affiliates, as the lessor, and SER or its Affiliates, as the lessee,
obligating the lessee to conduct environmental cleanup efforts at the
termination of any such lease, in relation to any provision in any
Continuing Affiliate Contract under which the Relevant Party would have an
obligation or liability to the other party to such Continuing Affiliate
Contract in respect of Environmental Damages ("RELEVANT PROVISION"), the
Parties agree that:
(A) to the extent such Environmental Damages are recoverable by either
(i) any SER Indemnified Party under the indemnity in Section 2 of this
Agreement or (ii) any SELLER Indemnified Party under the indemnity in
Section 3 of this Agreement, the SER Indemnified Party's or the SELLER
Indemnified Party's claim for such Environmental Damages (as the case
may be) shall be made under the relevant indemnity provisions in this
Agreement in accordance with this Agreement (and such Relevant
Provisions shall be deemed to exclude the recovery of such
Environmental Damages );
(B) any Relevant Provision shall be without prejudice to the rights of
the relevant SER Indemnified Party or the relevant SELLER Indemnified
Party (as the case may be) to claim such Environmental Damages under
the indemnity in either Section 2 or Section 3 of this Agreement (as
applicable) in accordance with this Agreement.
For the avoidance of doubt, with respect to Environmental Conditions
existing as of Closing, in the event of any conflict between any provision
of this Agreement and any Continuing Affiliate Contracts, the provisions of
this Agreement shall govern.
11. Successors/Assigns
------------------
11.1 Subject to Section 11.2, notwithstanding anything to the contrary in the
Master Sale Agreement, no party to this Agreement may transfer or assign,
directly or indirectly, by operation of law or otherwise, any of its rights
or obligations under this Agreement without the prior written consent of
the other parties thereto and any purported transfer or assignment that
does not comply with this Section 11.1 shall be null and void ab initio,
provided that SER (and at and after Closing, any of the Companies) may
--------
assign its rights or obligations under this Agreement (i) after Closing, to
one or more of its Affiliates or in connection with a sale or
recapitalisation of the Business or any Company or (ii) to any lender (or
agent thereof) for security purposes or pursuant to the assignment thereof
by any such lender or agent in connection with the exercise by any such
lender or agent of all of its rights and remedies as secured creditor with
respect thereto.
11.2 It is a condition of any assignment under Section 11.1 that (i) the
relevant transferee or assignee shall assume all of SER's liabilities under
Section 3.1; and (ii) such transferee or assignee shall be at least as
creditworthy as SER immediately prior to the relevant sale of the Business.
11.3 Notwithstanding anything stated above, upon the sale of a single facility
or parcel of Real Property or any one or more facilities or parcels of Real
Property which does not amount to a sale of the Business as referred to in
Section 11.1 and which complies with Section 11.2, the indemnity with
respect thereto shall not pass to the relevant purchaser or transferee or
assignee, but will remain in full force and effect with respect to SER.
For the avoidance of doubt, SER Indemnified Parties shall not have any
right to claim under this Agreement in respect of liabilities they might
incur under any indemnity or other contractual protection given to such
purchaser or transferee or assignee.
11.4 Each party to this Agreement agrees to cause its successors and permitted
assigns (other than a permitted assignment made only for security purposes)
to agree in writing to be bound by the terms of this Agreement, provided,
--------
that nothing contained herein shall relieve any party from its obligations
under this Agreement.
12. Limitation on Remedies
----------------------
Notwithstanding anything to the contrary in this Agreement, under no
circumstances may a Party recover exemplary, treble, punitive, special,
indirect, consequential, remote or speculative damages, lost profits or internal
costs under this Agreement, provided, however, if any Indemnified Party is held
-------- -------
liable to a Third Party for any of such damages and the Indemnifying Party is
obligated to indemnify the Indemnified Party for the matter that gave rise to
such damages pursuant to this Agreement, then the Indemnifying Party shall be
liable for and obligated to reimburse the Indemnified Party for such damages.
13. Non-admissions
--------------
The Parties agree and acknowledge that the inclusion or description of any
matter or issue in this Agreement and/or the provisions of this Agreement in
relation to such matter or issue shall not constitute any admission to any Third
Party or Governmental Entity that such matter or issue may exist, or is known to
exist or is or may constitute a liability.
14. Relevant Environmental Permits
------------------------------
SELLER undertakes to use its reasonable efforts to procure the transfer to SER
of any Relevant Environmental Permit to SER or such person as SER shall direct.
IN WITNESS WHEREOF, this Agreement has been executed by duly authorized
representatives of each of the Parties as of the date first above written.
SHELL OIL COMPANY
By: /s/ X.X. Xxxxxx
------------------------------
Name: X.X. Xxxxxx
----------------------------
Title: Attorney-In-Fact
---------------------------
SHELL EPOXY RESINS, LLC.
By: /s/ X.X. Xxxxxx
------------------------------
Name: X.X. Xxxxxx
----------------------------
Title: Attorney-In-Fact
---------------------------
SCHEDULE 1
DEFINITIONS
In this Agreement:
"ARGO FACILITY" means the facility of the Business located at Argo, Illinois.
"CHANGE OF USE" means any alteration of Real Property or facilities on such Real
Property which materially changes the Business from the Resins/Derivatives
Field.
"CONTROL" means control and conduct in relation to an Environmental Claim
and/or Remediation Activities.
"DEDUCTIBLE AMOUNT" has the meaning given in Section 2.3.
"DEER PARK FACILITY" means the facility of the Business located at Deer Park,
Texas.
"DISCLOSURE" has the meaning given in Section 2.7.
"Disposal Issues" means the transportation, treatment, storage, handling or
disposal, or the arrangement for transportation, treatment, storage, handling or
disposal of Hazardous Substances generated by (i) the operations of any Company
or the Business; (ii) the operations of any facilities, equipment, or real or
personal property currently owned, operated or leased by the Business, the
Companies or the SELLER in connection with the Business or the Companies; (iii)
any Former Site; (iv) any Pre-close Toll Manufacture; or (v) in relation only to
the indemnity obligation of SER under Section 3.1 of this Agreement, any Future
Cause.
"DISPUTE RESOLUTION PROCEDURES" means the procedures set forth in Section 9 of
this Agreement.
"ENVIRONMENT" means all air, surface water, groundwater, or
land, including land surface or sub-surface, including all fish, wildlife,
biota, flora or fauna and related natural resources.
"ENVIRONMENTAL CLAIM" means any and all pending and/or threatened in writing
administrative or judicial actions, suits, orders (including orders on consent
reached in accordance with this Agreement if post-Closing), claims, liens,
notices of violations, investigations, complaints or proceedings whether
criminal or civil, pursuant to or relating to any Environmental Law by any
person (i) including, but not limited to, any Governmental Entity, private
person and citizen's group; (ii) excluding any of the above by an SER
Indemnified Party or SELLER Indemnified Party; and (iii) excluding any of the
above resulting from any Remediation Activities associated with or arising from
any Voluntary Remedial Action.
"ENVIRONMENTAL CLAIMS NOTICE" has the meaning given in Section 4.1(A) of this
Agreement.
"ENVIRONMENTAL CLAIMS RESPONSE" has the meaning given in Section
4.1(C)(i) of this Agreement.
"ENVIRONMENTAL CONDITIONS" means any (i) Site Contamination Issues; (ii)
Exposure Issues; (iii) Non-compliance Issues; or (iv) Disposal Issues.
"ENVIRONMENTAL DAMAGES" shall mean damages, liabilities, costs and expenses,
including, without limitation, interest, penalties and reasonable attorneys' and
consultants' fees, medical monitoring, disbursements and expenses, liability for
the loss in value of Third Party property and costs and expenses of Remediation
Activities incurred after the Closing Date.
"ENVIRONMENTAL INDEMNIFIED PARTY" has the meaning given in Sub-section 4.1(A) of
this Agreement.
"ENVIRONMENTAL INDEMNIFYING PARTY" has the meaning given in Sub-section 4.1(A)
of this Agreement.
"ENVIRONMENTAL LAWS" means any and all applicable federal, state, provincial or
local and foreign public, civil and criminal laws, statutes, ordinances, orders,
codes, statutory guidance, rules, regulations, judgments, decrees, injunctions
or agreements with any Governmental Entity which are in force from time to time
before or after the date of this Agreement (subject to Section 2.1l), relating
to (i) the protection of human health and worker health and safety; (ii) the
protection of the Environment; (iii) governing the handling, use, generation,
treatment, storage, transportation, disposal, manufacture, distribution,
formulation, packaging, labelling or Release of Hazardous Substances to the
extent the same relate to
protection of human health and the Environment; or (iv) the existence, cleanup
and/or remedy of contamination on property. Environmental Laws also include
civil or common law doctrines (including negligence, nuisance, trespass,
personal injury and property damage) to the extent that claims under such
doctrines arise out of the presence, Release or exposure to a Hazardous
Substance. Environmental Laws include laws relating to product safety, but no
other product liability issues.
"ENVIRONMENTAL PERMIT" means any federal, state, local, provincial, regional or
foreign permit, license, approval, consent, authorization, permission or
planning or zoning condition required by any Governmental Entity under or in
connection with any Environmental Law and includes any and all orders, consent
orders, binding agreements or promises of compliance issued or entered into by
or with any Governmental Entity under or in relation to any applicable
Environmental Law (entered into in accordance with this Agreement, if after
Closing).
"EXPOSURE ISSUES" means exposure or injury to persons (including death) or to
Third Party property or other interests of such persons caused by, related to,
arising from, or in connection with the generation, handling, use, treatment,
storage, transportation, disposal, discharge, presence, Release, threatened
Release or emission of any Hazardous Substances at, on, underlying, or migrating
from (i) any of the Real Property; (ii) any Former Site; (iii) any Pre-close
Toll Manufacture; (iv) any off-site facility used by the Companies or the
Business or any Former Business (but only to the extent that the Hazardous
Substances were sent or arranged to be sent to the off-site facility by the
Companies or the Business or any Former Business); or (v) in relation only to
the indemnity obligation of SER under Section 3.1 of this Agreement, any Future
Cause.
"FORMER BUSINESS" means any predecessors of and any entities previously owned by
the Companies, the Business or the SELLER in connection with the Business or the
Companies.
"FORMER SITE" means any real property, including the facilities, structures and
equipment thereon, formerly owned, operated or leased by the Business, the
Companies or the SELLER in connection with the Business or the Companies or any
Former Business.
"FUTURE CAUSE" means (i) any real property (other than the Real Property or
Former Site), including the facilities, structures and equipment thereon, which,
subsequent to the Closing Date first comes to be, or may be deemed to be owned,
operated or leased by the Business, the Companies or SER in connection with the
Business or the Companies or any Future Business; (ii) any entities which,
subsequent to the Closing Date, first come to be owned by the Companies, the
Business or SER in connection with the Business or the Companies or any
successor thereof ("Future Business"); or (iii) any toll manufacturing business
used by the Business, the Companies, SER or any Future Business in connection
with the operations of the Business or the Companies or any Future Business
after the Closing Date (but only to the extent that the Hazardous Substance
managed by the toll manufacturing facilities was as a result of such
operations).
"HAZARDOUS SUBSTANCES" means any hazardous or toxic substances, pollutants,
contaminants, raw materials, industrial materials, finished products,
intermediate products, co-products, chemicals or chemical substances, wastes or
other material or article (including, in the United States, but not limited to
those substances, materials, and wastes listed in the United States Department
of Transportation Hazardous Materials Table (49 C.F.R. (S)172.101) or by the
United States Environmental Protection Agency as hazardous substances (40 C.F.R.
(S)302) that are regulated under any applicable Environmental Laws including
without limitation, any material, waste or substance that is (i) petroleum,
petroleum hydrocarbons, petroleum products or petroleum by-products (including
crude oil or any component thereof); (ii) asbestos, or asbestos containing
materials; (iii) polychlorinated biphenyls; or (iv) defined as a "hazardous" or
"dangerous" "material, " "substance" or "waste" under applicable local, state or
federal Environmental Laws in the United States.
"HOST PARTY" has the meaning given in Section 6.4 of this Agreement.
"INDEMNIFIED PARTY" means whichever of SER or the SELLER is the claimant under
the relevant Indemnity Claim.
"INDEMNIFYING PARTY" means whichever of SER or the SELLER is not the Indemnified
Party in relation to the relevant Indemnity Claim.
"INDEMNITY CLAIM" means an indemnity claim by a Party under this Agreement.
"INVESTIGATION" has the meaning given in Section 2.7 of this Agreement.
"LAKELAND FACILITY" means the facility of the Business located at Lakeland,
Florida.
"LISTED ITEMS DEDUCTION" means (i) $6,394,000; plus (ii) the Listed Items
Underspend.
"LISTED ITEMS EXPIRY DATE" means, in relation to a Listed US Compliance Issue,
the date specified in Schedule 5 in relation to that issue.
"LISTED ITEMS UNDERSPEND" means the amount (if any) by which the aggregate
expenditure by SELLER Indemnified Parties between 1st January, 2000 and 31st
December, 2000 in relation to the Listed US Compliance Issues and the Listed
Non-US Compliance Issues is less than $6,669,000.
"LISTED NON-US COMPLIANCE ISSUES" means the matters set forth in Schedule 4 of
the Non-US Environmental Agreement.
"LISTED US COMPLIANCE ISSUES" means the matters set forth in Schedule 5.
"LOWEST COST ALTERNATIVE" has the meaning given in Section 7.1 of this
Agreement.
"KNOWN LAKELAND SITE CONTAMINATION ISSUES" means the Site Contamination Issues
set forth in Schedule 2.
"NON-COMPLIANCE ISSUES" means (i) non-conformance with any deadlines or
requirements which are required to be complied with on or before the Closing
Date under any Environmental Law in effect or in force as of the Closing Date,
which is not related to or arising in connection with Site Contamination Issues,
Exposure Issues or Disposal Issues; and (ii) the Listed US Compliance Issues.
"NON-US ENVIRONMENTAL AGREEMENT" means the Environmental Agreement dated the
same as this Agreement and made between Shell Petroleum N.V., a company
organized under the laws of the Netherlands (1) and Shell Epoxy Resins LLC, a
Delaware limited liability company (2).
"NORCO FACILITY" means the facility of the Business located at Norco, Louisiana.
"PERMITTED INVESTIGATION AND DISCLOSURE" has the meaning given in Section 2.7.
"PRE-CLOSE TOLL MANUFACTURE" means any toll manufacturing facilities used by the
Companies, the Business or the SELLER in connection with the facilities and
operations of the Companies or the Business or Former Business (but only to the
extent that the Hazardous Substance managed by the toll manufacturing facilities
was as a result of such facilities and operations).
"RELEASE" means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing of Hazardous
Substances into the Environment.
"RELEVANT ENVIRONMENTAL PERMITS" means any permits which (i) relate to
Environmental Conditions; (ii) are held by SELLER as at Closing; (iii) are
required under applicable law to be held by SER or SER Indemnified Parties after
Closing.
"RELEVANT PROVISIONS" has the meaning given in Section 10.3 of this Agreement.
"Remediation Activities" means the investigation and remediation of an
Environmental Condition, including but not limited to soil and groundwater
sampling, activities associated with the construction, operation, maintenance or
monitoring of remediation or treatment equipment and systems, the investigation,
excavation, restoration, remediation, clean-up and/or treatment of contaminated
soil, groundwater and free product, measures to contain, monitor or limit
contamination and/or other works in relation to any Environmental Condition.
"REPLY NOTICE" has the meaning given in Sub-section 4.1 (C)(ii).
"SELLER INDEMNIFIED PARTIES" means SELLER, its Affiliates, and their respective
directors, stockholders, officers, partners, employees, agents, consultants,
attorneys, representatives, successors, permitted transferees and permitted
assignees.
"SER INDEMNIFIED PARTIES" means SER, its Affiliates, and their respective
directors, stockholders, officers, partners, employees, agents, consultants,
attorneys, representatives, successors, permitted transferees and permitted
assignees.
"SITE CONTAMINATION ISSUES" means environmental pollution, contamination,
degradation, damages, exposure or injury to Third Party property or the
Environment caused by, relating to, arising from, or in connection with the
generation, handling, use, treatment, storage, transportation, disposal,
discharge, presence, Release, threatened Release or emission of any Hazardous
Substances at, on, underlying or migrating to (in the case of such migration, to
the extent from real property which is not owned or occupied by any Third Party)
or from (i) any of the Real Property (ii) any Former Sites or (iii) any
Pre-close Toll Manufacture; or (iv) in relation only to the indemnity obligation
of the SER under Section 3.1 of this Agreement, any Future Cause.
"SPECIFIED TRANSACTION" means (i) a recapitalisation or financing in relation to
the Companies or the Business; or (ii) a public offer, sale, merger or change of
control in relation to the Business or the Companies.
"VISITING PARTY" has the meaning given in Section 6.4 of this Agreement.
"VOLUNTARY REMEDIAL ACTION" means and a "VOLUNTARY REMEDIATION REQUIREMENT"
shall be deemed to have arisen where any Remediation Activities are performed or
undertaken in connection with Site Contamination Issues, Disposal Issues or Non-
compliance Issues (i) which are to address contamination in excess of applicable
cleanup standards or criteria under applicable Environmental Law; (ii) which are
not required by any Governmental Entity or under any Environmental Law and for
which no violation, penalty or sanction will be incurred, assessed or imposed as
a result of a party's failure to perform such activities or to report the
presence or Release of Hazardous Substances; (iii) in relation to which no
Environmental Claim has been made and (iv) in relation to which it is very
likely that there would be an Environmental Claim if the relevant Governmental
Entity were aware of the nature and extent of the relevant Site Contamination
Issues, Disposal Issues or Non-compliance Issues.
"WESTHOLLOW FACILITY" means the facility of the Business located at Houston,
Texas.
"WHOLE COMPLEX CONTAMINATION" means Site Contamination Issues at the complex
that includes the Deer Park Facility, the Westhollow Facility, the Norco
Facility or the Argo Facility and that is not specific to any of the Real
Property or the activities being conducted thereon and that is being managed,
stabilized or remediated across all or part of the larger complex of which such
Real Property forms part.
