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Exhibit 10.14
AMENDED AND RESTATED
ASSUMPTION OF LIABILITIES AND INDEMNIFICATION AGREEMENT
RELATING TO THE
▇▇▇▇▇▇▇▇ PVC BUSINESS
This Amended and Restated Assumption of Liabilities and Indemnification
Agreement, dated and effective as of March 1, 1993 as amended and restated on
April 27, 1993, is by and between:
THE GEON COMPANY, a corporation organized and existing under the laws
of the State of Delaware (hereinafter referred to as "Geon"), and
THE ▇.▇.▇▇▇▇▇▇▇▇ COMPANY, a corporation organized and existing under
the laws of the State of New York (The ▇.▇.▇▇▇▇▇▇▇▇ Company and each of its
present and former divisions and each of its subsidiaries, whether owned
directly or indirectly, partially or wholly, are collectively referred to
herein as "▇▇▇▇▇▇▇▇").
For good and valuable consideration to Geon, the receipt of which Geon
hereby acknowledges, Geon does hereby assume and agree to pay, perform and
discharge:
Each and every obligation and liability of ▇▇▇▇▇▇▇▇, and Geon further
agrees to defend and indemnify ▇▇▇▇▇▇▇▇, from every claim, demand,
obligation, liability, cost and expense, whether absolute, accrued or
contingent, whether disclosed or undisclosed, and whether in existence on
or arising after the effective date hereof, of every kind and description,
including without limitation compensatory, punitive and exemplary damages,
and to pay and perform on behalf of ▇▇▇▇▇▇▇▇ all sums and obligations which
▇▇▇▇▇▇▇▇ may become obligated to pay or perform,
Relating to or arising out of the ▇▇▇▇▇▇▇▇ PVC Business (this and other
capitalized terms used herein which are without definition shall have the
meaning given to such term in the Amended and Restated Separation Agreement
dated as of March 1, 1993, between ▇▇▇▇▇▇▇▇ and Geon (the "Separation
Agreement")), and/or
Relating to or arising out of any operations of the ▇▇▇▇▇▇▇▇ PVC
Business heretofore conducted and discontinued by ▇▇▇▇▇▇▇▇ (hereafter
referred to as the "Discontinued Operations", which includes without
limitation any Discontinued Operations conducted at the plants and
facilities listed on Schedule I hereto or pursuant to any agreements
relating to the disposition or closing of any such plants and facilities,
whether or not traditionally considered part of the business conducted by
the ▇▇▇▇▇▇▇▇ ▇▇▇▇ Vinyl Division or any predecessor), and/or
Relating to or arising out of any activity or event in support of the
▇▇▇▇▇▇▇▇ PVC Business, and
Each and every obligation and liability of ▇▇▇▇▇▇▇▇ specifically
described below, whether or not such obligation or liability relates to or
arises out of the ▇▇▇▇▇▇▇▇ PVC Business:
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(a) All obligations and liabilities under all leases, agreements,
purchase orders, sales orders and other arrangements (including express or
implied warranties, claims and other rights) assigned to Geon by ▇▇▇▇▇▇▇▇,
or with respect to which ▇▇▇▇▇▇▇▇ has agreed to give the benefits to Geon,
under the Amended and Restated General Assignment and ▇▇▇▇ of Sale Relating
to the ▇▇▇▇▇▇▇▇ PVC Business, dated as of March 1, 1993 (the "▇▇▇▇ of
Sale");
(b) All obligations and liabilities associated with
(i) All former employees of ▇▇▇▇▇▇▇▇ whose names are listed on
Schedule II hereto (and their beneficiaries and surviving spouses),
regardless of the capacity in which such employees may have been
employed by ▇▇▇▇▇▇▇▇ (referred to collectively as the "▇▇▇▇▇▇▇▇
Inactives"); and
(ii) Those employees of ▇▇▇▇▇▇▇▇ who are or who become
employees of Geon on or before October 1, 1994 (and their beneficiaries
and surviving spouses) (referred to collectively as "▇▇▇▇▇▇▇▇
Actives"), whether or not their names are in Schedule II; and
(iii) All former employees of ▇▇▇▇▇▇▇▇ (other than ▇▇▇▇▇▇▇▇
Inactives) who were at the time of their retirement or termination
employed in connection with the ▇▇▇▇▇▇▇▇ PVC Business (other than at
the Facilities) or in a department from which employees were considered
(as between ▇▇▇▇▇▇▇▇ and Geon) as obligations of Geon in preparing
Schedule II hereto (and their beneficiaries and surviving spouses)
(referred to collectively as the "▇▇▇▇▇▇▇▇ Historical Employees") (the
▇▇▇▇▇▇▇▇ Inactives, plus the ▇▇▇▇▇▇▇▇ Actives, plus the ▇▇▇▇▇▇▇▇
Historical Employees, are for ease of reference hereafter collectively
referred to as "▇▇▇▇▇▇▇▇ Employees"); and
(iv) Including without limitation those obligations and
liabilities which arise under any collective bargaining agreement
covering any ▇▇▇▇▇▇▇▇ Employee or under any pension, post-retirement,
health, accident, disability, compensation, incentive, bonus, deferred
compensation, benefit restoration, defined benefit, defined
contribution, interim or long-term incentive, supplemental executive
retirement, vacation, leave of absence (with or without pay), life or
other insurance, consulting, management continuity, survivor and other
welfare benefit plans or programs, whether or not such plans or
programs have been terminated, and all other employment-related claims
of the ▇▇▇▇▇▇▇▇ Employees, or former employees of the ▇▇▇▇▇▇▇▇ PVC
Business with respect to their employment, including without limitation
all obligations related to contracts or agreements or claims relating
to separation, severance, employment discrimination,
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age discrimination, equal employment opportunity, sexual harassment,
affirmative action, workers' compensation, employee safety and health,
personal injury, sickness or death arising out of or associated with
employment by ▇▇▇▇▇▇▇▇ in any capacity, and collective bargaining and
other aspects of labor-management relations governed by the National
Labor Relations Act, any other Federal, State, local or foreign laws or
regulations relating to employment; and
(c) All obligations and liabilities resulting from claims for losses or
for personal injury or property damage, regardless of the theory of
liability upon which such claims are based, including without limitation
strict liability, inherently dangerous product, negligence, failure to
warn, compensatory, punitive and exemplary damages, and to pay on behalf of
▇▇▇▇▇▇▇▇ all sums which ▇▇▇▇▇▇▇▇ should become legally obligated to pay as
damages because of bodily injury, property damage, or injury to the
environment relating to or arising out of the manufacture, sale, purchase,
handling, distribution or use of any product (including without limitation
intermediate products, co-products, by-products, wastes, precursors or raw
materials) currently or formerly manufactured, sold, purchased, handled,
distributed, used or otherwise dealt with, or any service directly or
indirectly provided, by ▇▇▇▇▇▇▇▇ in connection with the ▇▇▇▇▇▇▇▇ PVC
Business or any of the assets or obligations described in any Schedule to
this Agreement (i) whether or not such product or service may also have
been used or otherwise dealt with by ▇▇▇▇▇▇▇▇ in other than the ▇▇▇▇▇▇▇▇
PVC Business, (ii) whether or not ▇▇▇▇▇▇▇▇ manufactured the product or
provided the service or purchased the product or service in a business
other than the ▇▇▇▇▇▇▇▇ PVC Business, (iii) whether or not the product or
service is traditionally considered part of the business conducted by the
▇▇▇▇▇▇▇▇ ▇▇▇▇ Vinyl Division or any predecessor and (iv) whether or not the
assets for the manufacture of the product or the provision of the service
is part of the assets transferred by ▇▇▇▇▇▇▇▇ to Geon pursuant to the
Separation Agreement; and
(d) All obligations and liabilities relating to outstanding bonds,
letters of credit, reimbursement agreements and indemnification and similar
agreements of every kind and description entered into, or hereafter entered
into, by ▇▇▇▇▇▇▇▇ in connection with the ▇▇▇▇▇▇▇▇ PVC Business or for the
benefit of Geon, including, in the case of bonds, without limitation surety
and appeal bonds, performance and return-of-money bonds, bonds entered into
in connection with workers' compensation, unemployment insurance and other
types of social security, and bonds entered into to secure the performance
of tenders, statutory obligations, bids, leases and other similar
obligations, including without limitation the bonds and other obligations
listed on Schedule III hereto or reflected in the Geon Financial Statements;
and
(e) All obligations and liabilities associated with every plant or
facility, whether currently operating (including without limitation those
listed on Schedule IV hereto; provided, however, (i) with respect to the
Shared
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Facilities, except as otherwise provided herein or in any Schedule hereto,
only those obligations and liabilities associated with the assets
transferred to Geon and (ii) with respect to the Facilities (and without
limitation, the obligations and liabilities included in subparagraph (p)
hereof), only those obligations and liabilities arising on or before the
IPO Date regardless whether the claim is first asserted before or after the
IPO Date), whether idle or sold, whether used at any time by ▇▇▇▇▇▇▇▇ in
connection with the ▇▇▇▇▇▇▇▇ PVC Business, and whether or not such plant or
facility may have also been used in a ▇▇▇▇▇▇▇▇ business other than the
▇▇▇▇▇▇▇▇ PVC Business, including without limitation the plants and
facilities listed on Schedule I hereto; and
(f) All obligations and liabilities associated with every contractor
and/or facility used, or alleged to have been used, at any time by ▇▇▇▇▇▇▇▇
for the off-site treatment, storage, disposal, recycling, reuse,
reclamation, handling, and/or transportation of waste generated in
connection with the operations of the ▇▇▇▇▇▇▇▇ PVC Business, including
without limitation those facilities and/or contractors listed on Schedule V
hereto; and
(g) The Environmental liabilities as set forth in Schedule VI; and
(h) All obligations and liabilities of every kind and description
relating to or arising out of any existing joint ventures, subsidiaries or
affiliates that in any way relate to the ▇▇▇▇▇▇▇▇ PVC Business, including
without limitation those listed on Schedule VII hereto; and
(i) All obligations and liabilities of every kind and description
relating to or arising out of the joint ventures, subsidiaries or
affiliates that have been sold, dissolved or otherwise divested that in any
way relate to the ▇▇▇▇▇▇▇▇ PVC Business, including without limitation those
listed on Schedule VIII hereto; and
(j) Except as may specifically be provided to the contrary in the Tax
Allocation Agreement, all obligations and liabilities for Taxes (including
those not yet due and payable) imposed upon or asserted against ▇▇▇▇▇▇▇▇ by
any federal, state, local or foreign government or other taxing authority
in connection with or relating to the assets or operations of the ▇▇▇▇▇▇▇▇
PVC Business and in connection with the transactions contemplated by the
Separation Agreement; and
(k) All obligations and liabilities listed on Schedule IX hereto; to
the extent that ▇▇▇▇▇▇▇▇ may have paid any such obligations or liabilities,
such payment shall be deemed to have been advanced on behalf of Geon, and
promptly following the completion of the Initial Public Offering Geon shall
pay to ▇▇▇▇▇▇▇▇ such sums as ▇▇▇▇▇▇▇▇ may have previously paid or advanced
on behalf of Geon; and
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(l) All past, present and future obligations and liabilities arising
out of or associated with the operation of the Facilities and the assets
and business conveyed by BFG Intermediates Company Inc. ("BFGI") to
Westlake Monomers Corporation ("Westlake") pursuant to the Master
Conveyance Agreement dated March 1, 1990 (the "Westlake Business") located
in ▇▇▇▇▇▇▇ City, Kentucky, including without limitation, all past, present
and future environmental, health and safety obligations and liabilities
heretofore or hereafter arising out of or associated with the operations of
the Facilities and the Westlake Business now or in the future, and all
Conditions (as that term is defined in Schedule VI hereto) now or in the
future existing in, on, under or above, or migrating from, the land and/or
groundwater of the Facilities or the Westlake Business; it being the
intention of the parties that Geon shall pay and indemnify ▇▇▇▇▇▇▇▇ against
all past, present and future liabilities associated with the conduct of the
▇▇▇▇▇▇▇▇ PVC Business at the Facilities or the Westlake Business or any
Conditions in, on, under or above, or migrating from, the land and
groundwater of the Facilities or the Westlake Business, notwithstanding
that ▇▇▇▇▇▇▇▇ or Westlake hold title thereto; and
(m) All obligations and liabilities of ▇▇▇▇▇▇▇▇ accrued on or before
the IPO Date under the Master Conveyance Agreement and related documents
dated March 1, 1990 among ▇▇▇▇▇▇▇▇, BFGI and Westlake other than the Right
of First Refusal Agreement and the Option Agreement between such parties;
and
(n) All obligations and liabilities of ▇▇▇▇▇▇▇▇ under the Resource
Conservation and Recovery Act ("RCRA") Corrective Action program with
respect to the Shared Facilities at ▇▇▇▇▇▇▇ City, Kentucky, as that program
currently exists or may be amended, modified, or expanded in the future;
and
(o) All obligations and liabilities of ▇▇▇▇▇▇▇▇ under
(i) The RCRA and HSWA post-closure permits, including but not
limited to the closed disposal area across Highway 1523, the closed
wastewater ponds, and the aquifer stripper (including all groundwater
withdrawal ▇▇▇▇▇ and header Systems); and
(ii) The Superfund site at ▇▇▇▇▇▇▇ City, Kentucky; and
(p) All obligations and liabilities of (i) BFGI under a Sale of Gas
Agreement ("Gas Agreement") dated July 1, 1989, as amended, between BFGI
and Air Products and Chemicals, Inc. (" Air Products") and (ii) ▇▇▇▇▇▇▇▇
pursuant to an Indemnification Agreement ("Air Products Indemnification
Agreement") made March 1, 1990 from ▇▇▇▇▇▇▇▇ to Air Products relating to
the Gas Agreement; and
(q) Except in the case of any obligation or liability specifically
assumed hereunder by being listed or described on any Schedule hereto, with
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respect to any obligation or liability that relates to the ▇▇▇▇▇▇▇▇ PVC
Business as well as any business of ▇▇▇▇▇▇▇▇ other than the ▇▇▇▇▇▇▇▇ PVC
Business, the equitable portion of such obligation or liability that
relates to the ▇▇▇▇▇▇▇▇ PVC Business; and
(r) All obligations and liabilities of whatever nature relating to or arising
out of the ▇▇▇▇▇▇▇▇ PVC Business and not described specifically in
paragraphs (a) through (q) above.
Geon does hereby assume and agree to pay, perform and discharge the additional
obligations and liabilities of ▇▇▇▇▇▇▇▇ specifically listed or described on any
of Schedules I through IX hereto or reflected in the Geon Financial Statements,
whether or not such additional obligations and liabilities relate to the
▇▇▇▇▇▇▇▇ PVC Business or traditionally are considered part of the business
conducted by the ▇▇▇▇▇▇▇▇ ▇▇▇▇ Vinyl Division or any predecessor.
PROVIDED THAT the obligations and liabilities assumed hereby are assumed by
Geon only (i) to the extent such obligations and liabilities are not covered
under any insurance policy or policies insuring ▇▇▇▇▇▇▇▇ (whether or not Geon
is also insured thereunder) at any time in effect or (ii) if covered under any
such insurance policy or policies, (A) to the extent such obligations and
liabilities are subject to deductibles to, or self-insured retentions in
respect of, or are beyond the policy limits of, any such insurance policy or
policies, (B) to the extent that, although covered by such a policy or
policies, such obligations and liabilities are not paid or reimbursed by the
insurer, or (C) if such obligations and liabilities are paid or reimbursed by
such insurer, to the extent that such payments or reimbursements are
subsequently rescinded or required to be made to any third party in connection
with such insurance policy for any reason whatsoever, including as a result of
any claim under any indemnification or similar agreement, any drawing under a
letter of credit or any insolvency, bankruptcy, reorganization or similar
status or proceeding affecting such insurer;
PROVIDED FURTHER THAT in the event any insurer under any such insurance policy
or policies insuring ▇▇▇▇▇▇▇▇ denies or refuses to acknowledge coverage with
respect to any such obligation or liability, or refuses to pay or reimburse
▇▇▇▇▇▇▇▇ in respect of any such obligation or liability as to which coverage
exists when due under the terms of such policy or policies, Geon (i) shall pay
and discharge such obligation and liability when due on ▇▇▇▇▇▇▇▇'▇ behalf and
shall be subrogated to ▇▇▇▇▇▇▇▇'▇ rights against its insurers under such
insurance policy or policies in respect of such obligation or liability to the
extent of any payment made or cost incurred in so paying and discharging any
such obligation or liability and (ii) may take such action as it deems
necessary or appropriate to challenge or contest such denial of or refusal to
acknowledge coverage or such refusal to pay or reimburse and to obtain the
benefits of such insurance for ▇▇▇▇▇▇▇▇, including instituting and maintaining
suit or other proceedings against such insurer in ▇▇▇▇▇▇▇▇'▇ name; ▇▇▇▇▇▇▇▇
shall cooperate with Geon, at Geon's request and expense, in taking any such
action (or, if Geon may not institute or maintain suit or other proceedings
against such insurer in ▇▇▇▇▇▇▇▇'▇ name, ▇▇▇▇▇▇▇▇ shall, at Geon's request and
expense, institute and maintain any such suit or other
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proceedings), and if ▇▇▇▇▇▇▇▇ recovers any amount from such insurer in respect
of which Geon is subrogated hereunder, ▇▇▇▇▇▇▇▇ shall promptly pay such amount
over to Geon;
PROVIDED FURTHER THAT, to the extent that Geon receives the benefit of
any insurance policy insuring ▇▇▇▇▇▇▇▇ with respect to any Loss (as hereinafter
defined), Geon shall promptly reimburse ▇▇▇▇▇▇▇▇, upon written demand by
▇▇▇▇▇▇▇▇ accompanied by documentation of the circumstances set forth in this
paragraph, for such amount as ▇▇▇▇▇▇▇▇ is required to pay and does pay by way
of retrospective premiums adjustment in respect of such insurance policy on
account of any payment by the insurer thereunder in respect of such Loss;
PROVIDED FURTHER THAT, to the extent that Geon receives the benefit of
any insurance policy insuring ▇▇▇▇▇▇▇▇ with respect to any Loss, if ▇▇▇▇▇▇▇▇
thereafter is required to pay any amount that would have been paid under such
insurance policy but for the exhaustion of the insurance available under the
terms of such insurance policy on account of (among other factors) the payment
by the insurer thereunder to or on behalf of Geon in respect of such Loss, Geon
shall promptly pay to ▇▇▇▇▇▇▇▇, upon written demand by ▇▇▇▇▇▇▇▇ accompanied by
documentation of the circumstances set forth in this paragraph, the full amount
of such payment to or on behalf of Geon in respect of such Loss; and
PROVIDED FURTHER THAT ▇▇▇▇▇▇▇▇ shall make available to Geon to the
extent it can (but without the obligation for ▇▇▇▇▇▇▇▇ to incur any costs or
assume any liabilities) the benefit of any assumption of liability or
indemnification provision in any agreement with third parties with respect to
liabilities assumed by Geon hereby; provided however that, to the extent that
Geon receives the benefit of any such provision, if ▇▇▇▇▇▇▇▇ thereafter is
required to pay any amount that would have been paid under such provision but
for the exhaustion of benefits under such provision on account of (among other
factors) the payment thereunder to or on behalf of Geon, Geon shall promptly
pay to ▇▇▇▇▇▇▇▇, upon written demand by ▇▇▇▇▇▇▇▇ accompanied by documentation
of the circumstances set forth in this paragraph, the full amount of such
payment to or on behalf of Geon; and
PROVIDED FURTHER THAT the obligations and liabilities assumed hereunder
by Geon shall not include any of the following obligations and liabilities, all
of which shall be ▇▇▇▇▇▇▇▇ Retained Liabilities:
(i) Except in the case of any obligation or liability specifically
assumed hereunder and/or by being listed or described on any Schedule
hereto or reflected on the Geon Financial Statements, the equitable portion
of any obligation or liability that relates to any business of ▇▇▇▇▇▇▇▇
other than the ▇▇▇▇▇▇▇▇ PVC Business;
(ii) All obligations and liabilities (A) associated with active
employees of ▇▇▇▇▇▇▇▇ (other than employees whose employment by ▇▇▇▇▇▇▇▇
terminates on, or is terminated prior to, the IPO Date) whose names are
listed on Schedule II hereto but who do not become employees of Geon before
October 1, 1994 and remain active employees of ▇▇▇▇▇▇▇▇, and (B) for
pension benefits associated with ▇▇▇▇▇▇▇▇ Historical Employees;
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(iii) All obligations and liabilities (including those not yet due and
payable) for federal, state and local taxes on, or based on, income or
capital (including without limitation income, profits, franchise, doing
business and gross receipts taxes) occurring prior to the date of this
Agreement but only to the extent reflected in the Tax Allocation Agreement;
and
(iv) Except with respect to the Gas Agreement and the Air Products
Indemnification Agreement, all obligations and liabilities arising out of
the operations of the Facilities after the IPO Date; provided, however, a
claim which is first made after the IPO Date which relates to acts or
omissions occurring on or before the IPO Date, shall be deemed to involve a
claim arising on or before the IPO Date; and
(v) Except with respect to claims (A) relating to the PVC content (or
any raw material, ingredient, precursor of or any chemical breakdown,
decomposition, oxidation or byproducts of the PVC content), or (B)
specifically assumed by Geon in this Agreement or any Schedule attached
hereto, finished products containing PVC manufactured by ▇▇▇▇▇▇▇▇ in a
business unit that has not traditionally been considered part of the
▇▇▇▇▇▇▇▇ ▇▇▇▇ Vinyl Division or ▇▇▇▇▇▇▇▇ PVC Business.
IN FURTHERANCE OF THE PURPOSES OF THIS ASSUMPTION, Geon hereby agrees
to indemnify and hold harmless ▇▇▇▇▇▇▇▇, its successors and assigns (each, an
"Indemnitee") from and against any and all losses, liabilities, claims,
damages, costs and expenses (including reasonable attorneys' fees and any and
all expenses whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever or in invoking or obtaining the benefits of insurance covering
▇▇▇▇▇▇▇▇ against any liabilities and obligations which would otherwise be
assumed by Geon hereunder and any compensatory, punitive or exemplary damages,
and to pay on behalf of ▇▇▇▇▇▇▇▇ all sums which ▇▇▇▇▇▇▇▇ shall become legally
obligated to pay as damages because of bodily injury or property damage
(collectively, "Loss") arising out of or related, or purporting to be related,
in any manner to the obligations and liabilities hereby assumed by Geon.
1. If any action is brought or any claim is made against any Indemnitee
and such Indemnitee determines that indemnification with respect to such action
or claim, in whole or in part, may be sought hereunder, such Indemnitee shall,
reasonably promptly following the receipt of notice of such action, and may,
following receipt of information indicating that an action is likely to be
instituted or a claim is likely to be made, notify Geon in writing of such
action or claim, and Geon shall assume the defense of such action or claim,
including the employment of counsel, unless such Indemnitee reasonably
determines that (w) a conflict of interest exists between Geon and such
Indemnitee with respect to the defense of such action or claim, (x) where any
Indemnitee believes a similar claim or action could be brought against it for a
Loss not assumed by Geon, (y) such assumption of defense is objected to by the
insurer under or is prohibited under any applicable insurance policy covering
such Indemnitee or (z) such action or claim relates in part to matters as to
which such Indemnitee is entitled to be indemnified hereunder (without regard
to the existence or non-existence of insurance covering ▇▇▇▇▇▇▇▇ against Loss
arising out of or relating to
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such action or claim) and in part as to matters as to which such Indemnitee is
not entitled to be indemnified hereunder (without regard to the existence or
non-existence of insurance covering ▇▇▇▇▇▇▇▇ against Loss arising out of or
relating to such action or claim) and such Indemnitee desires to assume the
defense of such action or claim. If the Indemnitee fails to give such notice of
an action in a timely manner and Geon is materially prejudiced in its defense
by such failure, Geon's liability in respect of such action shall be reduced to
the extent of such prejudice, provided, however, Geon's liability shall not be
reduced if Geon is not materially prejudiced in its defense of such action by
failure of such notice.
2. If such Indemnitee so determines that the matters specified in
clause (w), (x) or (y) of paragraph 1 above apply or if Geon shall not have
employed counsel and taken charge of the defense of such action at a reasonable
time, except, in the latter circumstance, where such Indemnitee shall have so
determined that the matters specified in clause (z) of paragraph 1 above apply
and therefore proceeds in accordance with paragraph 3 below, such Indemnitee
shall be entitled, upon notice to Geon, to employ its own counsel and retain
control of its own defense, but at the expense of Geon.
3. If such Indemnitee so determines that the matters specified in
clause (z) of paragraph 1 apply to any such action or claim, such Indemnitee
shall be entitled, upon notice to Geon, to undertake, conduct and control,
through counsel of its own choosing, the settlement or defense of such action
or claim, and Geon shall cooperate with such Indemnitee in connection
therewith; provided that such Indemnitee (i) shall permit Geon to participate
in such settlement or defense through counsel chosen by Geon whose fees and
expenses shall be borne by Geon and (ii) shall conduct the settlement or
defense of any such action or claim with due regard for the business interests
and potential related liabilities of Geon. Provided that if such Indemnitee
contests or settles such action or claim in good faith, such Indemnitee shall
be entitled to be paid or reimbursed by Geon for the portion of any loss
resulting from such action or claim and any expenses incurred by such
Indemnitee in defending or settling such action or claim to which the indemnity
under this Assumption applies. The provisions of this Assumption shall survive
and shall be enforceable by ▇▇▇▇▇▇▇▇'▇ successors and assigns. In addition,
actual prior knowledge by any Indemnitee with respect to any matter as to which
indemnification may be sought hereunder shall not constitute a defense to Geon
or otherwise affect such Indemnitee's rights to indemnification pursuant to the
provisions of this Assumption.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS ASSUMPTION OF LIABILITIES
AND INDEMNIFICATION AGREEMENT, this Assumption of liabilities and
Indemnification Agreement is not intended to expand the scope of any
liabilities assumed hereunder or to create any liabilities for Geon that
▇▇▇▇▇▇▇▇ did not previously have, and Geon does not intend hereby to undertake
any liability or obligations of any Person other than ▇▇▇▇▇▇▇▇.
THIS ASSUMPTION OF LIABILITIES AND INDEMNIFICATION AGREEMENT shall be
construed and enforced in accordance with the laws of the State of Ohio
applicable to agreements to be made and performed entirely within such State.
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IN WITNESS WHEREOF, the Patties have caused this Amended and Restated
Assumption of Liabilities and Indemnification Agreement to be executed in their
behalf by their duly authorized officers as of the date and year noted above.
THE GEON COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
Accepted and agreed on the
date set forth above.
THE ▇.▇. ▇▇▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President and General Counsel
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Schedule I Assumption of Liabilities
DISCONTINUED OPERATIONS; PLANTS AND FACILITIES
Note: Foreign locations may have been owned or operated through subsidiaries or
affiliated corporations, and may be included in Schedule VII or Schedule
VIII.
All aspects of the entire contractual relationship between ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
Industries, and between ▇▇▇▇▇▇▇▇ and lenders to ▇▇▇▇▇ Industries,
notwithstanding that substitution of Geon for ▇▇▇▇▇▇▇▇ may have occurred
respecting performance of some or all of such contracts. All aspects of the
business acquired by ▇▇▇▇▇ Industries from ▇▇▇▇▇▇▇▇.
Abadan, Iran Administrative Offices:
Altamire, Mexico -----------------------
Auckland, New Zealand Atlanta, Georgia
Barry, Wales, United Kingdom Boston, Massachusetts
▇▇▇▇▇▇▇ City, Kentucky++ Carson, California
Convent, Louisiana Chicago, Illinois
El Tablaso, Venezuela Cleveland, Ohio (▇▇▇▇▇▇▇ Avenue)
▇▇▇▇▇, Illinois++ Cleveland, Ohio (Euclid Avenue)
Ireland Englewood Cliffs, New Jersey
Long Beach, California Houston, Texas (Milan)
Madras, India Houston, Texas (NASA One)
Metterdam, India Los Angeles, California
Mexico City, Mexico ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ Tehran, Iran
Ocumare, Venezuela Waterloo, Ontario, Canada
Plaquemine, Louisiana
▇▇▇▇▇▇▇, Philippines
San Paulo, Brazil
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
Valencia, Venezuela
++ Shared Facility - Except as may be reflected otherwise in the Assumption of
liabilities and Indemnification Agreement or any Schedule thereto, only with
respect to the property transferred or relating to the ▇▇▇▇▇▇▇▇ PVC Business
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Assumption of Liabilities
Schedule II
▇▇▇▇▇▇▇▇ Inactives
[Separate Computer Printout]
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Assumption of Liabilities
SCHEDULE III
Bonds and Other Obligations
Balance as of
March 1, 1993
Long Term Debt (Domestic)
IDRB - Salem, NJ 1980 10.75% $ 2,200,000
▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇) 6.0% 11,730,000
IDRB - Gulf Coast (▇▇▇▇▇▇▇ 79) 6.75% 499,625
Lincoln & Southern Railroad 3.0% 991,107
-----------
Subtotal - Domestic Debt $15,420,732
Long Term Debt (Foreign)
Province of Quebec Int. Free Loan 1,416,240
-----------
Subtotal - Foreign Debt $ 1,416,240
-----------
Total - Domestic & Foreign Debt $16,836,972
Capital Leases
Independence Building 8.875% 4,224,560
IDRB - Ohio Air, 1975 825% 485,000
IDRB - Lorain, OH 1973 5.8% 1,000,000
▇▇▇▇ - ▇▇▇▇▇ "▇", ▇▇ ▇▇▇▇ 8.25% 900,000
▇▇▇▇ - ▇▇▇▇▇ "▇", ▇▇ ▇▇▇▇ 8.25% 220,000
-----------
Total Capital Leases $ 6,829,560
-----------
Total $23,666,532
===========
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Assumption of Liabilities
Schedule IV
Current Plants and Facilities
Principal Nature
Location of Property
-------- ----------------
Independence, Ohio+ Administrative
Headquarters
Altona, Victoria, Australia x Manufacturing
Avon Lake, Ohio++ Manufacturing; Research
and Development
▇▇▇▇▇▇▇ City, Kentucky * Manufacturing
Deer Park, Texas x Manufacturing
▇▇▇▇▇, Illinois++ Manufacturing
Houston, Texas+ Administrative
▇▇▇▇▇▇▇, Texas x Manufacturing
Long Beach, California Manufacturing
Louisville, Kentucky++ Manufacturing
Melbourne, Victoria, Australia x Administrative
Mentone, Victoria, Australia x Manufacturing
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ x Manufacturing
Pedricktown, New Jersey++ Manufacturing
Plaquemine, Louisiana Manufacturing
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, Canada x Manufacturing
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ x Manufacturing
Terre Haute, Indiana Manufacturing
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ x Administrative
+ Leased
x Owned or leased by subsidiaries
++ Shared Facility - Except as may be reflected otherwise in the
Assumption of liabilities and Indemnification Agreement or any Schedule
thereto, only with respect to the property transferred or relating to the
▇▇▇▇▇▇▇▇ PVC Business
* Including all liabilities of the ▇▇▇▇▇▇▇▇ PVC Business related to (i) the
Facilities prior to the IPO Date, and (ii) the Westlake Business, even though
such assets are not conveyed to Geon pursuant to the ▇▇▇▇ of Sale.
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Assumption of Liabilities
SCHEDULE V
OFF-SITE WASTE CONTRACTORS AND FACILITIES
Brio Refining
Chem Dyne
Industrial Solvents
▇▇▇▇▇▇ Landfill
▇▇▇'▇ ▇▇▇▇
Silresim
Spaadra Landfill
Turtle Bayou
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16
Assumption of Liabilities
Schedule VI
Environmental Liabilities
I. General Principles
A. "Environmental liabilities" shall mean a) fines and penalties b)
administrative or judicial orders c) judgments d) other legal
obligations to conduct "response" activities as that term is defined
at 42 USC Sec. 9601(25) and e) claims for contribution to or
participation in response activities conducted by others f) claims for
natural resource damages, imposed under or arising out of any federal,
state, local or foreign provisions that have been enacted, adopted or
promulgated regulating the discharge of materials into the
environment, including but not limited to the Clean Air Act, the
Federal Water Pollution Control Act, the Resource Conservation and
Recovery Act, the Comprehensive Environmental Response and Liability
Act, the Safe Drinking Water Act, the Emergency Planning and Community
Right to Know Act, the Oil Pollution Act of 1990, the Pollution
Prevention Act of 1990, and the Toxic Substances Control Act all as
may be amended, regardless of whether such Environmental Liabilities
occur on or arise from the use of property currently or formerly owned
or operated by the Parties or on property owned by third parties.
B. With regard to the property belonging to each party at the conclusion
of the transaction contemplated hereby, each party shall be
responsible for Conditions on its own property, except as specified in
Section II hereof.
C. For purposes of this Schedule the term "Conditions" shall mean the
presence of any substance or contamination contained on, released to,
or placed on or in the property.
D. The following guidelines shall apply to any joint onsite Environmental
Liabilities at Shared Facilities:
1. The parties will seek to avoid governmental involvement in
any onsite response actions to the extent possible.
2. The parties will consult with each other in order to determine the
timing and scope of any response actions.
3. In the case of Pedricktown, Avon Lake Technical Center, Louisville
and ▇▇▇▇▇▇▇ City, Geon shall have the right to make the final
decision on the timing and scope of how to address joint
Environmental Liabilities; at ▇▇▇▇▇ and Avon Lake General Chemical,
▇▇▇▇▇▇▇▇ shall have such right.
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4. Each party will provide reasonable access to its property to the
other party for purposes of addressing joint Environmental
Liabilities.
5. To the extent that addressing a separate onsite Environmental
Liability might impact the operations or obligations of the other
party, the parties shall consult and attempt to reach agreement as
to the appropriate course of action.
II. Onsite Environmental Liabilities arising out of Conditions that existed
prior to March 1, 1993 at Shared Facilities
▇. ▇▇▇▇▇
All known and unknown Environmental Liabilities arising out of
Conditions that existed on or before March 1, 1993, resulting
from the onsite landfills or ponds, or any groundwater contamination
shall be shared fifty percent (50%) ▇▇▇▇▇▇▇▇ and fifty percent (50%)
Geon.
▇. ▇▇▇▇▇▇▇ City
Geon assumes all known and unknown Environmental Liabilities arising
out of (i) Conditions that existed on or before the IPO Date
including those existing on Geon's property, those existing on
Westlake Monomer Corporation's property, those existing on ▇▇▇▇▇▇▇▇'▇
property (except for non-groundwater contamination caused clearly and
solely by the Carbopol plant and not covered by the existing RCRA
Corrective Action program), (ii) those conditions that existed prior
to, on or after the IPO Date arising out of or associated with the
Environmental Liabilities retained by ▇▇▇▇▇▇▇▇ or of BFGI under the
Master Conveyance Agreement dated March 1, 1990 among ▇▇▇▇▇▇▇▇, BFGI
and Westlake; and (iii) ▇▇▇▇▇▇▇▇'▇ obligation under the RCRA
Corrective Action program, as that program may be amended, modified or
expanded in the future.
C. Pedricktown
Specific onsite Environmental Liabilities, known or unknown, arising
out of Conditions which existed on or before March 1, 1993 shall be
shared as follows:
1. Closure of the final effluent pond--25% ▇▇▇▇▇▇▇▇ and 75% Geon
2. Closure of the stormwater pond--10% ▇▇▇▇▇▇▇▇ and 90% Geon
3. Except as provided in Paragraph II.C. 1. and 2. above and the
following sentence, all ECRA investigation, procedural, and
remediation costs shall be paid for 100% by Geon and shall be
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commenced after the initial public offering and completed in a
timely manner. Soil remediation, if any, on ▇▇▇▇▇▇▇▇'▇
property caused by the operations conducted by the Specialty
Polymers and Chemicals Division of ▇▇▇▇▇▇▇▇ shall be performed and
paid for by ▇▇▇▇▇▇▇▇. All groundwater remediation, regardless of
source, shall be paid for one hundred percent (100%) by Geon.
D. Louisville
Specific onsite Environmental Liabilities arising out of Conditions
that existed on or before March 1, 1993 shall be shared as follows:
1. The costs for any groundwater remediation (except for the
creosote area and any contamination from it) shall be shared fifty
percent (50%) ▇▇▇▇▇▇▇▇ and fifty percent (50%) Geon until
chloroform under or released from ▇▇▇▇▇▇▇▇'▇ property has been
remediated to agreed concentrations. If the parties cannot agree
on the appropriate level of concentration, the question may be
submitted to binding dispute resolution in accordance with
provisions of the Plant Services Agreement. Thereafter, all costs
shall be borne by Geon. Geon shall perform all activities
associated with groundwater remediation.
2. Any additional costs associated with the closure of the mineral
spirits tank (other than groundwater) will be shared fifty
percent (50%) ▇▇▇▇▇▇▇▇ and fifty percent (50%) Geon.
3. Geon shall have one hundred percent (100%) of any liability
associated with the "creosote area" or any contamination from it,
both surface and groundwater.
E. Avon Lake
Specific onsite Environmental Liabilities arising out of Conditions
that existed on or before March 1, 1993 shall be shared as follows:
If there is a groundwater study, and if the groundwater is found to be
contaminated, and any contamination requiring remediation can be
determined to have been caused by one party, that party shall have one
hundred percent (100%) of the responsibility for any remediation. If
both parties caused any contamination requiring remediation, they will
share the costs for remediation of the groundwater fifty percent (50%)
▇▇▇▇▇▇▇▇ and fifty percent (50%) Geon. Contamination caused by one
party but not at a level requiring remediation shall not cause that
party to contribute to the cost of groundwater remediation.
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III. Offsite Environmental Liabilities
A. For known and unknown offsite Environmental Liabilities arising out of
Conditions that were caused by Geon's past or future operation of
facilities now owned or operated and/or formerly operated
exclusively by it (or the ▇▇▇▇▇▇▇▇ PVC Business) Geon shall be 100%
responsible. Currently identified sites in this category include:
Brio Refining
Chem Dyne
Industrial Solvents
▇▇▇▇▇▇ Landfill
▇▇▇'▇ Lake
Silresim
Spaadra Landfill
Turtle Bayou
B. For known and unknown offsite Environmental Liabilities arising out of
Conditions that existed on or before March 1, 1993 due to the
operation of Shared Facilities, the initial apportionment of
liability shall be thirty percent (30%) ▇▇▇▇▇▇▇▇'▇ and seventy percent
(70%) Geon's (subject to adjustment as set out in IV.B. below).
Notwithstanding the foregoing, liability for the following identified
sites shall be shared in the proportions shown:
Kin Buc (40% Geon/60% ▇▇▇▇▇▇▇▇)
▇▇▇▇▇ flats (70% Geon/30% ▇▇▇▇▇▇▇▇)
Mobile Tank Service (30% Geon/70% ▇▇▇▇▇▇▇▇)
▇'▇▇▇▇▇ Site (75% Geon/25% ▇▇▇▇▇▇▇▇)
C. For known and unknown offsite Environmental Liabilities arising out of
Conditions that existed on or before March 1, 1993 due to the
operation of one or more facilities owned or operated by
▇▇▇▇▇▇▇▇ and one or more facilities owned or operated by Geon (or the
▇▇▇▇▇▇▇▇ PVC Business), the nodule apportionment of liability shall be
fifty percent (50%) Geon's and fifty percent (50%) ▇▇▇▇▇▇▇▇'▇ (subject
to adjustment as set out in IV.B. below).
D. For known and unknown offsite Environmental Liabilities (other than
those covered by Paragraph III.B. and C. above) arising out of
contractual arrangements or other business dealings entered into by or
on behalf of and for the benefit of the ▇▇▇▇▇▇▇▇ PVC Business or Geon
prior to or after March 1, 1993, or assigned to Geon in this
agreement, Geon shall have one hundred percent (100%) of such
liability.
IV. Response to Claims Concerning Environmental Liabilities
A. If either ▇▇▇▇▇ receives an Environmental Liability claim, including
but not limited to governmental information requests, notices of
potential
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responsibility under CERCLA or any state counterparts, governmental
orders or suits, third-party demands or suits or any other claim,
demand or action involving an Environmental Liability covered by
Section III (hereafter "Claims") and such claim involves or may
involve the other party, the following procedures shall be followed:
1. The recipient party shall notify and provide a copy of the
Claim to the other party within a reasonable time of receipt or
knowledge of such Claim and the non-recipient party shall
immediately assume responsibility for its portion of such Claim as
if it had received the Claim itself
2. if the Claim involves shared responsibility between ▇▇▇▇▇▇▇▇ and
Geon, the parties shall enter into discussions to facilitate a
response to such Claim.
3. In general, each party is responsible for representing itself as
to its portion of any Claim.
4. Notwithstanding Paragraph IV.A.3. above, if the Claim is one
requiring greater involvement of one or both parties than merely
preparing a response to third-party correspondence, the parties
will endeavor to work cooperatively to determine a strategy for
addressing such Claim; such strategy might include hiring common
outside counsel or consultants, having one party act on the other
party's behalf as to one or more aspects of the Claim, sharing
information, or formulating a joint negotiating strategy.
5. To the extent one party is authorized by the other to act on its
behalf, the party authorizing such action shall indemnify and hold
the other party harmless for the implementation of such actions.
B. In the case of an Environmental Liability arising out of Paragraphs
III.B. and C. above, the nodule percentage of each party's liability
may be adjusted based on records or other information concerning the
amount or kind of materials or hazardous substances disposed at that
site. The parties may agree upon an interim adjusted allocation that
will not be final or binding on either party if dispute resolution
will be invoked. if no final agreement is reached, the allocation
shall be submitted to binding dispute resolution in accordance with
the provisions of the Plant Services Agreement. The burden shall be
on the party seeking the adjustment to demonstrate the appropriate
amount of any adjustment and the arbitrator shall resolve any dispute
by adopting the allocation that is most reasonable in view of the
nodule percentages and the burden on the party seeking change.
Credit shall be given for any interim payments made by either party in
calculating the final allocated amount.
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Assumption of Liabilities
Schedule VII
Existing Joint Ventures, Subsidiaries and Affiliates
Lincoln & Southern Railroad Company
Geon Canada Inc.
BFGoodrich Australia Limited
BFGoodrich Chemical Limited
HydroGeon (formerly HydroGoodrich)
▇▇▇▇▇▇▇ Chemicals Corp.
The Geon Technology Company
Resintech, S.A.
BFGoodrich Chemical de Venezuela CA
150730 Canada Inc.
▇▇▇▇▇▇▇▇ Engineering Vinyls Limited
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Assumption of Liabilities
Schedule VIII
Corporations, Joint Ventures and Affiliates that
▇▇▇▇▇▇▇▇ has Sold, Dissolved or Otherwise Divested, wholly or partly
ABADAN Petrochemical Company Limited
BFG Intermediates Company Inc. (formerly Convent Chemical Corporation)
▇.▇.▇▇▇▇▇▇▇▇ Canada Limited
▇.▇.▇▇▇▇▇▇▇▇ Canada Inc.
138711 Canada Inc.
▇.▇.▇▇▇▇▇▇▇▇ Chemical (N.Z.) Limited
▇.▇.▇▇▇▇▇▇▇▇ Ireland Limited
▇.▇.▇▇▇▇▇▇▇▇ Quimica De Costa Rica
BFGoodrich Precision Plastics Pty Ltd.
BFGoodrich Trading Pty. Limited
British Geon, Ltd
Chemicals and Plastics India Limited
The Japanese Geon Co., LTD
Phillipine Vinyl Consortium, Inc.
Policyd, SA (formerly Geon de Mexico SA)
Plasticos Petroquimica, CA
Quimica Organica de Mexico, SA
S/A Geon Do Brasil
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Assumption of Liabilities
Schedule IX
-----------
Specific Obligations to be Assumed by Geon
1. New York Stock Exchange Listing Fee - estimated to be $112,125
2. Engraving expenses for Geon stock certificates
3. All fees and expenses including but not limited to: counsel fees (both bank
and Geon); commitment fees; structuring fees; syndication fees; termination
fees; agency fees, administration and audit fees; investor fees; facility
fees; and market fees in connection with any interim or permanent financing
facility, including with a group of banks with Citicorp USA Inc. or its
affiliate as agent.
4. All fees, costs and expenses in connection with the qualification of Geon to
do business in various states, including the fees and expenses of agents for
the service of process.
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