Exhibit 10.73
EXHIBIT D
GEISMAR ENVIRONMENTAL ALLOCATION AGREEMENT
THIS GEISMAR ENVIRONMENTAL ALLOCATION AGREEMENT ("Agreement") dated as
of the ____ day of ________, 2002, by and between Xxxxxx Chemicals and Plastics
Operating Limited Partnership, a Delaware limited partnership ("BCP"), BCP
Management, Inc. a Delaware corporation ("BCPM"), and Xxxxxx Chemical, Inc., a
New Jersey corporation ("BCI").
ARTICLE 1
PRELIMINARY STATEMENTS
1.1 BCP, the general partner of which is BCPM, owns that certain real
property located in Ascension Parish, Louisiana and used by BCP in the
past for various manufacturing operations (the "Geismar Property").
1.2 On June 11, 1998, in United States x. Xxxxxx Chemicals and Plastics
Operating Limited Partnership, No. 94-2592-A-M2, the United States
District Court for the Middle District of Louisiana entered a consent
decree (the "Consent Decree") between BCP, the United States and the
State of Louisiana.
1.3 The Consent Decree requires that, among other things, BCP implement
"Interim Measures" and "Supplemental Environmental Projects"at the
Geismar Property.
1.4 In connection with the pending bankruptcy proceedings initiated by BCP,
changes have occurred, and further changes are anticipated, with respect
to BCP's operations at the Geismar Property, including changes affecting
BCP's ability to carry out its obligations under the Consent Decree and
including BCP's effort to sell all or part of the Geismar Property.
1.5 BCP and Xxxxxx, Inc. (now known as BCI), entered into an environmental
indemnity agreement dated as of November 30, 1987 under which each
agreed to certain rights and obligations with respect to one another
concerning environmental conditions relating to the Geismar Property.
1.6 BCI, BCP, and BCPM have reached an understanding to allocate between
themselves responsibility for certain environmental matters concerning
the Geismar Property, including responsibility for implementing certain
work called for under or relating to the Consent Decree and not
implemented as of the date hereof.
1.7 The parties desire to enter into this Agreement, pursuant to the terms
of the Master Asset Conveyance and Facilities Support Agreement between
BCI and BCP dated August __,
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2002 (the "Master Agreement"), in order to set forth their
understanding concerning the allocation of responsibility for such
environmental matters.
NOW THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, BCP and BCI agree as follows:
ARTICLE 2
COVENANTS OF BCI
2.1 Interim Measures. BCI shall, at its sole cost and expense and without
contribution from BCP or BCPM, carry out, to the extent not already
implemented, the work called for in the Interim Measures Section
(Section VII, paragraphs 19-58) of the Consent Decree, provided that as
between BCI, on the one hand, and BCP or BCPM (or any other entity
owning or occupying all or any part of the Geismar Property) on the
other, BCI shall have the authority to plan, negotiate, and implement
any such work, provided further, however, that BCI shall provide BCP
with prior notice of and opportunity to comment on any material plans
being submitted, material meetings or phone calls for negotiations being
conducted, or material work being implemented pursuant to the foregoing
proviso, and BCP shall have the right, but not the obligation, to
participate at its own expense in any such meetings or phone calls. It
is understood that this Agreement does not render BCI a party to the
Consent Decree, but that BCI is obligated under this Agreement with
respect to the Interim Measures as prescribed in the Consent Decree. It
is also understood that BCI's obligations under this Agreement with
respect to the Interim Measures as prescribed in the Consent Decree
shall include the obligations of BCP under Sections I, IV, V, VIII, IX,
X, XIII through XIX, and XXI of the Consent Decree, to the extent such
obligations are applicable to the implementation of the Interim Measures
as prescribed in the Consent Decree. It is further understood that BCI's
obligations under this Agreement with respect to the Interim Measures as
prescribed in the Consent Decree shall not include any environmental
condition caused after the effective date of this Agreement by any
person other than BCI; provided, however, that the migration after the
effective date of this Agreement of contamination released at or from
the Geismar Property prior to the effective date of this Agreement shall
not constitute such an environmental condition, unless such migration is
caused by the acts of any person other than BCI and BCI has exercised
due diligence to prevent such acts.
2.2 Certain Additional Soil/Groundwater Contamination. To the extent not
addressed pursuant to 2.1, BCI shall, at its sole cost and expense and
without contribution from BCP or BCPM, investigate and remediate any
contamination of soil or groundwater existing on or prior to the date of
this Agreement, at or emanating from any solid waste management unit
("SWMU") identified in Attachment A of the Consent Decree (a particular
SWMU so identified is referred to herein as a "SWMU" followed by the
number or numbers designating it in Attachment A of the Consent Decree),
as required by legal requirements applicable to the SWMUs, including
RCRA; provided that BCI shall have no obligation hereunder to become a
RCRA permit holder (it being understood
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that this shall not relieve BCI of any obligation to obtain such a
permit if BCI operates a RCRA-regulated unit that requires such a
permit), and provided further that as between BCI, on the one hand, and
BCP or BCPM (or any other entity owning or occupying all or any part of
the Geismar Property) on the other, BCI shall have the authority to
plan, negotiate, and implement any such work, provided further,
however, that BCI shall provide BCP with prior notice of and
opportunity to comment on any material plans being submitted, material
meetings or phone calls for negotiations being conducted, or material
work being implemented pursuant to the foregoing proviso, and BCP shall
have the right, but not the obligation, to participate at its own
expense in any such meetings or phone calls.
2.3 In carrying out its obligations pursuant to this Agreement, BCI shall
comply with all applicable provisions of the Environmental Servitude
Agreement which is Exhibit E to the Master Agreement.
ARTICLE 3
COVENANTS OF BCP
3.1 Supplemental Environmental Projects. BCP shall, at its sole cost and
expense and without contribution from BCI, carry out the Supplemental
Environmental Projects ("SEPs") called for in paragraph 71 under the
Consent Decree, including closure in accordance with Louisiana state
laws and regulations and, to the extent applicable, any other legal
requirements, of the underground injection units that constitute SWMUs
21-31; provided that to the extent such closure entails investigation or
remediation of soil or groundwater contamination that is subject to 2.1
or 2.2 above, such investigation or remediation shall be BCI's
responsibility.
3.2 RCRA Closure of Certain SWMUs. BCP shall, at its sole cost and expense
and without contribution from BCI, undertake the closure, in accordance
with the RCRA Part B permit application covering such units and, to the
extent applicable, any other legal requirements, of the following SWMUs:
(1) Sphere Tank (SWMU 1); (2) Bullet Tank (SWMU 2); (3) VCR Day Tank
(SWMU 3); and (4) VCR Unit (SWMU 19), provided that with respect to
SWMUs 1, 3 and 19, BCP shall not be obligated to undertake such closure
to the extent not required under applicable law by reason of a transfer
to a third party; and provided further that to the extent such closure
entails investigation or remediation of soil or groundwater
contamination that is subject to 2.1 or 2.2 above, such investigation or
remediation shall be BCI's responsibility.
3.3 Decommissioning. BCP shall, at its sole cost and expense and without
contribution from BCI, undertake the decommissioning (as defined in
Exhibit C to the Master Agreement) of all SWMUs identified in Attachment
A of the Consent Decree, with the exception of: (1) SWMUs 1-3, 19, and
21-31, which are referenced and addressed in 3.A and 3.B above; (2)
former tank farm spill tank (SWMU 39); (3) Monochem plant pH
equalization sump (SWMU 41); (4) Salvage Yard (SWMU 50); (5) former
Xxxxxx Salt Plant (under
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formaldehyde plant) (SWMU 60 (BCP 54)); (6) methanol tank (SWMU 66);
and (7) various SWMUs associated with the wastewater treatment plant
(including groundwater recharge units) (SWMUs 7-16, 32-38, 47, 56 (BCP
58), 57, and 64 (BCP 65)).
ARTICLE 4
TERM AND ENFORCEMENT
4.1 Term. This Agreement and the obligations hereby created shall become
effective and commence upon the later to occur of (a) closing under the
Master Agreement, and (b) approval by the Bankruptcy Court of the
Settlement Agreement attached as Exhibit G to the Master Agreement, and
extend until BCI has completed the performance of the last of its
obligations hereunder.
4.2 Forum for Enforcement. Upon this Agreement becoming effective, the
parties hereto and the parties identified in Section 5.9, below, may
enforce the terms of this Agreement, as follows: prior to the effective
date of the plans of reorganization or liquidation of BCP and BCPM, in
the bankruptcy court in which BCP's and BCPM's bankruptcy petitions have
been filed; otherwise, the enforcement of this Agreement shall be in the
United States District Court for the Middle District of Louisiana. After
the effective date of the plans of reorganization or liquidation, BCP,
BCPM and BCI agree not to contest the jurisdiction of the United States
District Court for the Middle District of Louisiana to enforce the terms
of this Agreement.
ARTICLE 5
MISCELLANEOUS
5.1 Definitions. Capitalized terms not otherwise defined herein shall have
the meaning given in the Master Agreement.
5.2 Interpretation. The parties agree that each party and its attorneys have
reviewed and revised this Agreement and that the normal rule of
construction, to the effect that any ambiguities are resolved against
the drafting party, will not be employed in the interpretation of this
Agreement.
5.3 Applicable Law. This Agreement will be governed by, construed under, and
enforced in accordance with the laws of the State of Louisiana,
excluding the conflicts-of-law provisions hereof.
5.4 Section Headings. Section and other headings contained in this Agreement
are for reference purposes only and will not in any way affect the
meaning or interpretation of this Agreement.
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5.5 Notice. Except as otherwise agreed to in writing by the parties, any
notice or other communication permitted or required to be given or made
by any Party to the other Party hereunder must be in writing and may be
given by hand delivery, overnight express mail, telecopy transmission
(with written confirmation of delivery), or certified or registered U.S.
mail (with postage paid and return receipt requested). Notices will be
deemed given, in the case of (i) by hand delivery or telecopy
transmission, upon receipt, (ii) overnight or express mail, on the next
business day after timely delivery to a recognized overnight delivery
service, and (iii) U.S. mail, upon the third business day after deposit
with the U.S. postal service. For purposes of notice, the addresses and
telecopy numbers of the parties will, until changed by delivery of a
notice hereunder, be set forth below:
If to Xxxxxx Chemical, Inc.:
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: General Counsel
Telecopy: 000-000-0000
If to Xxxxxx Chemicals and Plastics Operating Limited Partnership
C/o BCP Management, Inc.
Vorys, Xxxxx, Xxxxxxx and Xxxxx, LLP
00 Xxxx Xxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000)000-0000
With a copy to:
Xxxxx & Xxxxxxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Mr. X. X. Xxxxxxx
Telecopy: (000)000-0000
If to: BCP Management, Inc.
Vorys, Xxxxx, Xxxxxxx and Xxxxx, LLP
00 Xxxx Xxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy: (000)000-0000
5.6 Severability. If any provision of this Agreement is held to be illegal,
invalid, or unenforceable under present or future applicable law, or by
any court, agency or other governmental authority, such provision will
be fully severable and this Agreement will be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised
a part hereof, and the remaining provisions of this Agreement will
remain in full force and effect and will not be affect by the illegal,
invalid, or unenforceable
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provisionor by its severance form this Agreement. Furthermore, in lieu
of each such illegal, invalid, or unenforceable provision there will
be added automatically as part of this Agreement a provision as
similar in terms to such severed provision as may be possible, such
that this Agreement, with such added provision, will be legal, valid,
and enforceable in accordance with applicable law.
5.7 Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be deemed to be an original.
5.8 No Joint Venture. This Agreement will not create or be deemed to create
any partnership, joint venture, or joint enterprise between BCP and BCI,
and to the extent such a relationship may be deemed to have been
created, BCP and BCI hereby expressly disdain such relationship. The
only relationship created under this Agreement will be that of grantor
and grantee with respect to the Servitudes established hereunder.
5.9 Enforcement. The United States Environmental Protection Agency and the
Louisiana Department of Environmental Quality shall be entitled to
enforce the obligations of BCI under sections 2.1 and 2.2, and of BCP
under 3.1, 3.2 and 3.3, and in accordance with the terms of this
Agreement.
5.10 Assignment. This Agreement will be binding upon and will inure to the
benefit of the respective Parties hereto, such parties' successors and
permitted assigns.
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement as
of the date written below.
Signed by Xxxxxx Chemicals and Plastics Operating Limited Partnership
in Geismar, Louisiana, on ________________, 2002.
WITNESSES AS TO BCP XXXXXX CHEMICALS AND
PLASTICS OPERATING LIMITED
PARTNERSHIP
By BCP Management, Inc., General Partner
_______________________________ By: _______________________________
Name: _____________________________
_______________________________ Title: ______________________________
ACKNOWLEDGMENT
STATE OF LOUISIANA
PARISH OF ASCENSION
On this ____th day of __________, 2002, before me, the undersigned, a
Notary Public for the aforesaid Parish, personally appeared
_____________________ the ________________ of BCP Management, Inc., in its
capacity as general partner of Xxxxxx Chemicals and Plastics Operating Limited
Partnership, a Delaware limited partnership, known to me to be the person whose
name is subscribed to the within instrument, and that he executed the foregoing
instrument in his authorized capacity as such ______________________ and he is
known to me (or proved to me on the basis of satisfactory evidence) to be the
person who executed the same and acknowledged to me that he executed the same in
his authorized capacity.
WITNESS my hand and official seal.
----------------------------------
Notary Public
My Commission Expires: ____________
[Notarial Seal]
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement as
of the date written below.
Signed by BCP Management, Inc. in Columbus, Ohio, on ________________,
2002.
WITNESSES AS TO BCPM BCP MANAGEMENT, INC.
-------------------------------
By: _______________________________
Name: _____________________________
_______________________________ Title: ______________________________
ACKNOWLEDGMENT
XXXXX XX XXXX
XXXXXX XX XXXXXXXX
Xx this ____th day of __________, 2002, before me, the undersigned, a
Notary Public for the aforesaid County, personally appeared
________________________ of BCP Management, Inc., a Delaware corporation, known
to me to be the person whose name is subscribed to the within instrument, and
that he executed the foregoing instrument in his authorized capacity as such
__________________________ (title) and he is known to me (or proved to me on the
basis of satisfactory evidence) to be the person who executed the same and
acknowledged to me that he executed the same in his authorized capacity.
WITNESS my hand and official seal.
----------------------------------
Notary Public
My Commission Expires: _____________
[Notarial Seal]
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement as
of the date written below.
Signed by Xxxxxx Chemical, Inc. in Columbus, Ohio, on ________________,
2002.
WITNESSES AS TO BCI XXXXXX CHEMICAL, INC.
-------------------------------
By: ______________________________
Name: ____________________________
_______________________________ Title: ___________________________
ACKNOWLEDGMENT
XXXXX XX XXXX
XXXXXX XX XXXXXXXX
Xx this ____th day of __________, 2002, before me, the undersigned, a
Notary Public for the aforesaid County, personally appeared
________________________ of Xxxxxx Chemical, Inc., a New Jersey corporation,
known to me to be the person whose name is subscribed to the within instrument,
and that he executed the foregoing instrument in his authorized capacity as such
__________________________ (title) and he is known to me (or proved to me on the
basis of satisfactory evidence) to be the person who executed the same and
acknowledged to me that he executed the same in his authorized capacity.
WITNESS my hand and official seal.
----------------------------------
Notary Public
My Commission Expires: _____________
[Notarial Seal]
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