This Assumption Agreement involves
Title: Environmental Remediation and Assumption of Liability Agreement
Governing Law: Indiana Date: 11/2/2006
Industry: Electronic Instr. and Controls Law Firm: Dinsmore Shohl, LLP;Kelly Hart Hallman LLP
Environmental Remediation and Assumption of Liability Agreement
THIS Contract (“Contract”) is made this 31 st day of October, 2006, (the “Effective Date”) by and between the parties identified in Exhibit “A” (hereinafter collectively referred to as “AZZ”) and Marcy R. Wydman, an individual (hereinafter “Wydman”). The foregoing parties to this Contract are sometimes collectively referred to herein as the Parties or singularly as a Party.
WHEREAS, AZZ is interested in having Wydman assume certain potential environmental liabilities with respect to the property purchased by Arbor-Crowley, Inc. from Witt Industries, Inc. located in Muncie, Indiana as more particularly described on Exhibit “B”, attached hereto and made a part hereof (hereinafter referred to as the “Site”); and
WHEREAS, the Site has Pre-existing Pollution Conditions that AZZ requires to be addressed as a condition to purchasing the Site; and
WHEREAS, pursuant to the terms of this Contract, Wydman wishes to assume, and AZZ wishes to transfer and assign to Wydman, Environmental Clean-up Liability (as herein defined) for Pre-existing Pollution Conditions at the Site (as herein defined);
NOW, THEREFORE, the Parties, in consideration of the mutual covenants set forth below, agree as follows:
1. Definitions .
(a) “Change” means a change to the Remedial Plan as provided for under Paragraph 6 hereof.
(b) “Clean-up” means the investigation, study, remediation, removal, transportation, disposal, treatment (including in-situ treatment), management, stabilization, containment or neutralization of Pollutants necessary to achieve Project Completion, including, but not limited to, any monitoring activities that may be required after the completion of such investigation, study, remediation, removal, disposal, treatment, management, stabilization, containment or neutralization.
(c) “Clean-up Costs” means all actual and necessary costs incurred for Clean-up of Pre-Existing Pollution Conditions at, under or migrating from the Site. Clean-up Costs shall include, without limitation, study and investigation costs, planning costs, consultant costs, transportation costs, legal fees, permit fees and costs, filing fees, monitoring costs, Governmental Authority oversight costs and costs to retain any licensed professionals for review and oversight in lieu of or on behalf of the Governmental Authority pursuant to Environmental Law.
(d) “Contemplated Use” means any future use of the Site that is consistent with its prior commercial/industrial use as more particularly described in Exhibit “C”.
(e) “Environmental Laws” means any federal, state, or local laws (including, but not limited to, statutes, rules, regulations, ordinances, guidance documents, and governmental, judicial or administrative orders and directives) that are applicable to Pollution Conditions.
(f) “Environmental Land Use Restriction” means an engineering or institutional control acceptable to applicable Governmental Authorities pursuant to Environmental Laws which, when imposed upon the Site, will allow a level of environmental clean-up consistent with the Contemplated Use of the Site. Environmental Land Use Restrictions may include, but are not limited to, restricting use of the Site to commercial/industrial uses, restricting the use of ground water beneath the Site, and conditionally restricting construction activities at the Site in areas of prior fill placement.
(g) “Environmental Clean-up Liability” means the obligation to perform Clean-up of Pre-existing Pollution Conditions at, under or migrating from the Site as determined by any Governmental Authority under Environmental Laws, including the liability for off-site disposal of Pollutants which are removed and disposed off-Site as part of the Clean-up of Pre-existing Pollution Conditions pursuant to this Contract.
(h) “Excluded Matters” means those items for which Wydman has no responsibility under this Contract as set forth under Paragraph 2(b) hereof.
(i) “Firm” means a qualified environmental firm hired by Wydman and pre-approved by AZZ that has sufficient expertise and experience to accomplish the Clean-up consistent with this Contract and in compliance with Environmental Laws, with the standards of care and diligence normally practiced by nationally recognized firms performing services of a similar nature.
(j) “Governmental Authority” means any federal, state, provincial, or local governmental regulatory or administrative agency, including, but not limited to, the Indiana Department of Environmental Management (“IDEM”), commission, department, board, or other governmental subdivision, court, tribunal, arbitral body or other governmental authority or other subdivision, department or branch of any of the foregoing.
(k) “New Pollution Conditions” means Pollution Conditions on, under or migrating from the Site which commence on or after the Effective Date hereof, unless arising out of a Pre-existing Pollution Condition.
(l) “Off-site Locations” means the real property which is not a part of the Site that Wydman or the Firm requires access to in order to complete its obligations hereunder.
(m) “Pollutants” means any solid, liquid, or gaseous contaminant or waste, including soot, acids, alkalis, or toxic chemicals, medical waste and waste material, and/or by-products or progeny thereof. Pollutants include, but are not limited to, all of the following: hazardous wastes or constituents (as defined in Section 1004 of RCRA); hazardous substances (as defined in CERCLA); oil or petroleum products; and polychlorinated biphenyls (“PCBs”).
(n) “Pollution Conditions” means the actual or threatened discharge, dispersal, release, migration or escape of any Pollutants into, under or upon land, the atmosphere, or any watercourse or body of water, including groundwater, provided such conditions are not naturally present in the environment in the amounts or concentrations discovered. Pollution Conditions shall not include any release that results solely in the exposure of individuals to Pollutants in the workplace with respect to which those individuals may assert a claim under the “Occupational Safety and Health Act of 1970.”
(o) “Pre-existing Pollution Condition” means Pollution Conditions at the Site caused by operations or conditions existing prior to the Effective Date hereof, including without limitation, the effects of continuing Pollution Conditions that exist as of the Effective Date hereof.
(p) “Project Completion” means completing the work necessary to obtain a determination from any Governmental Authority with jurisdiction that no further action is required regarding the Pre-Existing Pollution Conditions at the Site and securing a Certificate of Completion, or its equivalent from IDEM and a Covenant Not to Sue from the State of Indiana regarding the Site. Wydman shall use “best efforts” to achieve Project Completion within three years from the Effective Date hereof, and will achieve Project Completion by the fifth anniversary of the Effective Date hereof..
(q) “Remedial Plan” means the remedial action plan identified in Exhibit “D” which describes the Clean-up to be undertaken at the Site.
(r) “Site” refers to the property specifically defined in Exhibit “B”, attached hereto and made a part hereof.
2. Transfer and Assignment of Liability .
(a) AZZ hereby transfers and assigns to Wydman, which transfer and assignment Wydman hereby accepts subject to the terms and conditions of this Contract, any and all Environmental Clean-up Liability with respect to Pre-existing Pollution Conditions. The foregoing transfer, assignment and obligation to hold harmless shall not apply to Excluded Matters as set forth below.
(b) The following matters are Excluded Matters hereunder, liability for which is not assumed by Wydman and which is retained by AZZ:
(i) any past costs incurred by AZZ or its agents prior to the Effective Date hereof;
(ii) Pollution Conditions determined not to be Wydman’s obligation pursuant to Paragraphs 7 or 8 hereof; and
(iii) liability to the extent arising from intentional, willful or deliberate noncompliance by AZZ or any operator at the Site (other than Wydman) with any statute, regulation, ordinance, administrative complaint, notice of violation, notice letter, executive order or instruction of any Governmental Authority after the Effective Date hereof.
(c) To the extent a Governmental Authority determines that Wydman has responsibility for an Excluded Matter, this shall be treated as a Change and resolved pursuant to the requirements of Paragraph 6 hereof.
3. Contract Consideration .
Wydman is entering into this Contract in connection with the sale by Witt Industries, Inc. (a corporation wholly-owned by Wydman) of certain assets to Arbor Crowley, Inc. (one of the entities identified in Exhibit “A” and comprising AZZ). Wydman’s entry into this Contract is a condition precedent to the purchase of such assets by Arbor Crowley, Inc., forms part of the consideration to Arbor Crowley, Inc. for such purchase and serves as a material inducement to Arbor Crowley, Inc. to purchase such assets. In the absence of Wydman’s entering into and performing this Contract, Arbor Crowley, Inc. would not purchase such assets.
4. Wydman’s Obligations .
(a) To assume the sole responsibility for, and cause the Firm to complete performance of, the Clean-up, including, but not limited to: investigation and studies; regulatory agency negotiations, notifications, filings, reports and interactions; engineering design and permitting; remedial actions and remedial operations, operations and maintenance (“O&M”); monitoring activities necessary to achieve Project Completion; and to secure a Certificate of Completion, or its equivalent from IDEM and a Covenant Not to Sue from the State of Indiana regarding the Site;
(b) To warrant and agree that the Clean-up shall satisfy all the requirements of Governmental Authorities and shall: (a) be free from fault and defects, latent or otherwise; (b) be free of liens, security interests and encumbrances caused or created by Wydman or any agents or subcontractors (including the Firm) working for or on behalf of Wydman; and (c) comply with, and be completed by means and methods complying with, Environmental Laws;
(c) To coordinate and cooperate fully with AZZ in the planning and execution of the Clean-up to avoid and minimize interference with operations, (AZZ understands that a reasonable level of interference may be inherent in the Clean-up);
(d) To provide AZZ with copies of reports submitted to and received from Governmental Authorities with respect to the work at the Site;
(e) To ensure the reporting, or proper notification, to Governmental Authorities upon the discovery of Pollution Conditions requiring such report/notification under Environmental Law, in accordance with the terms set forth in this Contract;
(f) To identify, obtain and execute all necessary authorizations, approvals, permits, permit modifications or amendments, and manifests necessary for the Clean-up; and
(g) To cooperate with AZZ in assessing the terms of this Contract so as to maximize potential benefits that AZZ could realize pursuant to the applicable provisions of the Internal Revenue Code (26 U.S.C. §§ 1 et seq .). To the extent that an alteration to the terms or provisions of the Contract could maximize any tax benefit to AZZ, Wydman will agree to make such alterations so long as such alterations do not increase her obligations under this Contract.
5. AZZ’s Obligations .
(a) To cooperate with Wydman in the planning and execution of the Clean-up, so that Wydman may comply with her obligations hereunder;
(b) To provide Wydman and the Firm with reasonable access to the Site to the extent required by Wydman and the Firm to conduct the Clean-up;
(c) To allow Wydman and the Firm to utilize the existing utilities at the Site at Wydman’s expense; Wydman shall be solely responsible for the cost of any extensions of the utilities, additional or modified permits, and other utility related capital improvements needed by Wydman and the Firm to conduct the Clean-up;
(d) To allow Wydman and the Firm to obtain permits (or to amend AZZ’s existing permits) as necessary to implement the Clean-up;
(e) To ensure that AZZ and all holders or users of easements, licenses, leaseholds or other rights or interests in the Site (“Interest Holders”) consent and subordinate to appropriate Environmental Land Use Restrictions or other reasonable restrictions or controls consistent with the Contemplated Use; and
(f) To provide Wydman all information in their possession concerning Pollution Conditions and other conditions at the Site including the identity and location of utilities.
6. Remedial Action Plan; Changes .
(a) The Clean-up of the Pre-existing Pollution Conditions is based upon the Contemplated Use as of the Effective Date hereof. To the extent that AZZ changes the Contemplated Use or the physical configuration of the Site and such change has a direct impact on the cost of, or the need for, Clean-up of the Pre-existing Pollution Conditions or on Wydman’s legal obligations, this shall constitute a Change subject to Paragraph 6(b) below;
(b) In the event of a Change, the following procedures of this Section 6(b) shall apply. Wydman and AZZ will discuss the Change and agree on the scope of, schedule, and
cost for the implementation of the Change. To the extent that Wydman and AZZ agree on the scope of, implementation schedule and cost for the Change, Wydman shall continue to be fully responsible for the Clean-up of the Pre-existing Pollution Conditions. In the event that Wydman and AZZ cannot agree, Wydman shall prepare a detailed report documenting the effect the Change has on the Clean-up of the Pre-existing Pollution Conditions, including a cost estimate of the direct impact the Change has on the cost of the Clean-up. AZZ may accept Wydman’s report, in which event AZZ shall pay to Wydman the estimated increase in cost the Change has on the cost of the Clean-up of Pre-existing Pollution Conditions. In the event AZZ does not accept Wydman’s report, AZZ may (i) propose and negotiate an alternate cost with Wydman, or (ii) submit the issue to technical arbitration as provided under Paragraph 8 hereof.
(c) If the performance of all or any part of the Clean-up is suspended or delayed by an act of AZZ or its agents or by its failure to act, any increase or decrease in cost of performance of this Contract necessarily directly caused by such suspension or delay shall be treated as a Change pursuant to Paragraph 6(b) above.
7. Determination of New Pollution Conditions .
(a) In the event a Pollution Condition is discovered at the Site which was not previously identified as a Pre-existing Pollution Condition, the Party discovering such Pollution Condition shall notify the other Party, and the Parties shall determine (i) the nature and extent of the Pollution Condition, (ii) the need for Clean-up, if any, and (iii) if Clean-up is needed, the source or likely source of the Pollution Condition. Wydman or the Firm shall also document its determination of whether the Pollution Condition existed prior to the Effective Date hereof and furnish such documentation to AZZ.
(b) If Wydman and AZZ determine that the Pollution Condition represents a Pre-existing Pollution Condition, Wydman shall be fully responsible for the Clean-up of such Pollution Condition.
(c) If Wydman and AZZ determine that the Pollution Condition occurred after the Effective Date hereof, Wydman or the Firm shall document its findings and provide supporting data in a report that it will submit to AZZ.
(d) If AZZ agrees with Wydman’s or the Firm’s determination that the Pollution Condition is a New Pollution Condition, at AZZ’s request, Wydman or the Firm will submit a proposal to AZZ for Clean-up of the Pollution Condition and AZZ may negotiate with Wydman a Change pursuant to Section 6(b) hereof, in which event Wydman shall assume full responsibility and liability for the Clean-up of such New Pollution Condition under the same terms and conditions contained herein for the Clean-up of Pre-existing Pollution Conditions.
(e) If AZZ does not accept Wydman’s or the Firm’s determination that the Pollution Condition is a New Pollution Condition, the matter shall be submitted to technical arbitration as provided under Paragraph 8(a) below.
(f) To the extent that a Pollution Condition is determined to be a New Pollution Condition and Wydman has not assumed the responsibility and liability for its Clean-up, AZZ shall take all steps reasonably necessary to assure that such New Pollution Condition does not interfere with Wydman’s ability to achieve Project Completion hereunder.
(g) In the event a Governmental Authority requires response with respect to a Pollution Condition (i) which has not previously been identified as a Pre-existing Pollution Condition and (ii) with respect to which a determination, as set forth above, as to whether it is a Pre-existing Pollution Condition has not been made prior to the required response, Wydman or the Firm shall provide such response pending such determination. In the event such Pollution Condition is determined pursuant to this Paragraph 7 to be a New Pollution Condition, AZZ shall compensate Wydman for all of her reasonable costs of such response, which shall be pre-approved by AZZ.
(h) In consideration of the covenants and undertakings of Wydman hereunder, AZZ hereby agrees, and shall provide that a subsequent owner of the Site shall also agree, to assign and transfer to Wydman all of its rights under Environmental Laws to seek recovery