UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE MAINE PEOPLE’S ALLIANCE and ) NATURAL RESOURCES DEFENSE ) COUNCIL, INC., ) ) Plaintiffs, ) ) v. ) Case No. 1:00-cv-00069-JAW ) HOLTRACHEM MANUFACTURING ) COMPANY, LLC and ) MALLINCKRODT US LLC, ) ) Defendants. ) ) [PROPOSED] CONSENT DECREE Case 1:00-cv-00069-JAW Document 1114-1 Filed 03/19/21 Page 1 of 94 PageID #: 17501
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
MAINE PEOPLE’S ALLIANCE and ) NATURAL RESOURCES DEFENSE ) COUNCIL, INC., ) ) Plaintiffs, ) ) v. ) Case No. 1:00-cv-00069-JAW ) HOLTRACHEM MANUFACTURING ) COMPANY, LLC and ) MALLINCKRODT US LLC, ) ) Defendants. ) )
[PROPOSED] CONSENT DECREE
Case 1:00-cv-00069-JAW Document 1114-1 Filed 03/19/21 Page 1 of 94 PageID #:17501
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Table of Contents
Table of Contents .......................................................................................................................... i
I. Background ..................................................................................................................... 1
II. Definitions ....................................................................................................................... 5
III. Jurisdiction and Venue ................................................................................................ 17
IV. Parties Bound, Succession, and Assignment ............................................................ 18
V. Findings & Non-Admissions of Liability .................................................................. 19
VI. Commitments by Mallinckrodt .................................................................................. 19
VII. Formation and Purpose of Penobscot Estuary Mercury Remediation Trust and Penobscot Estuary Beneficial Environmental Projects Trust .......................... 36
VIII. Powers and Duties of Trustees ................................................................................... 45
IX. Cooperation and Obligations of the Parties Regarding the Trustees ................... 62
X. Limitations on Liability and Indemnifications ......................................................... 63
XI. Covenants ...................................................................................................................... 67
XII. Additional Agreements Between the Parties ........................................................... 69
XIII. Reservations of Rights ................................................................................................. 77
XIV. Dispute Resolution ....................................................................................................... 77
XV. Notice ............................................................................................................................. 80
XVI. Miscellaneous Provisions ............................................................................................ 82
XVII. Retention of Jurisdiction .............................................................................................. 88
XVIII. Final Judgment .............................................................................................................. 88
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CONSENT DECREE
I. Background
A. In 2000, Plaintiffs Maine People’s Alliance (MPA) and Natural Resources
Defense Council (NRDC), on behalf of their affected members, filed a complaint in this
matter pursuant to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.
§ 6972(a)(1)(B). Plaintiffs’ complaint alleged that Defendants Mallinckrodt US LLC
(Mallinckrodt) and HoltraChem Manufacturing Company, LLC (HoltraChem) caused
mercury discharges into the Penobscot River Estuary from a chlor-alkali plant in
Orrington, Maine, that present or may present an imminent and substantial
endangerment to health and the environment. ECF No. 1.
B. In their complaint, Plaintiffs sought, inter alia: (1) an independent,
comprehensive, scientific study to determine the nature and extent of the endangerment;
(2) an independent, comprehensive study of appropriate, effective, environmentally-
sound means to eliminate the endangerment; and (3) development and implementation
of an appropriate and effective remediation plan based on these studies. Id.
C. The Court held a liability trial in 2002 and subsequently issued a decision
and order that found that mercury in the Penobscot River may present an endangerment
to public health and the environment, held Mallinckrodt jointly and severally liable as a
source of the mercury, and ordered Mallinckrodt to fund an independent study of the
need for, feasibility of, and elements of a remediation plan for the mercury. ECF No. 147
at 22, 29-31.
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D. HoltraChem dissolved as a corporate entity in 2001, and the Court entered
a default judgment holding HoltraChem jointly and severally liable with Mallinckrodt
for funding the independent study. Id. at 4 n.3, 31.
E. In 2006, the United States Court of Appeals for the First Circuit affirmed the
Court’s 2002 decision and subsequent implementing orders. ECF No. 321 at 48 (Me.
People’s All. v. Mallinckrodt, Inc., 471 F.3d 277, 298 (1st Cir. 2006)).
F. The Court-ordered independent scientific study lasted from 2005 to 2013
and proceeded in two phases, ultimately resulting in a Phase I Report, ECF No. 382, an
Update to the Phase I Report, ECF No. 480, and a Phase II Report, ECF Nos. 652-1—
652-65. It was directed by a Study Panel of three scientists: one nominated by Plaintiffs,
one nominated by Mallinckrodt, and a chairperson selected by the other two. ECF Nos.
166, 169.
G. The Phase II Report summarized and synthesized a variety of scientific
studies regarding the fate and transport of mercury in the Penobscot Estuary and the
potential risks to human health and the environment in 23 chapters spanning over 1,800
pages.
H. In 2014, the Court held a trial to hear testimony justifying and critiquing the
Study Panel’s Phase II Report and recommendations. ECF No. 829 at 1. Based on the
evidence presented, the Court issued an Order on Remediation Plan in 2015 that found
that the ongoing mercury contamination continued to create an irreparable injury to the
Estuary and present an endangerment to human health and the environment. Id. at 39,
54. The Court ordered a Phase III Engineering Study and the appointment of an
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independent engineering firm to “develop cost-effective and effective remedies to clean
up the remaining mercury” and “propose potential solutions to mitigate the current harm
to the people, biota, and environment of the Penobscot River estuary.” Id. at 1, 61; see also
ECF No. 836 at 1. The Court also set out at least five factors to be used for evaluating the
engineering firm’s recommendations, including “(1) whether the proposed solution has
been successfully attempted previously or is innovative; (2) the likely cost of the
solutions; (3) the length of time to complete the recommendations; (4) the likely
effectiveness of the solution; and (5) any potential environmental harm that may be
caused by the proposed solution.” ECF No. 829 at 59.
I. To conduct the Phase III Engineering Study, the Court appointed Amec
Foster Wheeler, now known as Wood Environment & Infrastructure Solutions, Inc.
(hereinafter referred to as “Amec” for simplicity and to avoid confusion). Amec was
jointly proposed by the Parties and the Court’s Special Master following a competitive
bidding and interview process. ECF Nos. 836 at 2-3; 845.
J. Amec was charged to develop and evaluate a suite of potential remedies
and recommend to the Court a remedial plan that would be effective and cost-justified,
or explain why, in the firm’s expert judgment, there is no viable remedy. ECF No. 836 at
4-5. The engineering study generated numerous technical reports and memoranda, see
ECF Nos. 903, 944-45, 972-86, and culminated in Amec’s Phase III Engineering Study
Report in 2018, ECF Nos. 972—972-2.
K. In the Phase III Engineering Study Report, Amec presented its
recommendations for a “remedial strategy for the Estuary” based on the evaluation
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criteria established by the Court. ECF No. 972 at ES-2. Amec recommended an initial suite
of remedial actions that would include a combination of capping, dredging, and long-
term monitoring, and a set of adaptive management recommendations that could include
additional dredging or the addition of clean sediment in a strategy called enhanced
monitored natural recovery (EMNR). Id. at ES-3–ES-9. Amec estimated that its proposed
initial remedies would cost about $246 to $333 million and its possible adaptive
management remedies would cost about $15 to $676 million. Id. at ES-10, 8-27–8-28. All
of Amec’s cost estimates included a broad uncertainty range such that the actual costs
might be up to thirty percent lower than the estimates or up to fifty percent higher than
the estimates. Id. at ES-9.
L. The Court’s 2015 Order preserved the Parties’ rights to object to Amec’s
recommendations and anticipated that the Court would resolve any disputes about the
proposal and its implementation. ECF No. 829 at 1-2. From late 2018 through late 2019,
the Parties took discovery from Amec related to Amec’s study, conclusions, and
recommendations. Before such discovery was complete, the Parties sought a stay of the
case to pursue settlement discussions. The Court has not yet made any final
determination regarding the recommendations set forth in Amec’s Phase III Engineering
Study Report.
M. The Parties each believe that it is in their mutual interest to resolve their
differences regarding remediation issues without further adjudication or admissions of
fact or law so as to avoid the delay, costs, and uncertainty of proceeding with litigation,
and move forward cooperatively and productively with remediation actions intended to
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reduce mercury exposures and accelerate the recovery of the Penobscot River estuary. In
doing so, the Parties recognize that the Penobscot Estuary is a complex ecosystem, that
uncertainties remain even after the Court-ordered studies, that technical experts have
varying opinions regarding the remediation options for the Site, and that the remediation
measures set forth in this Consent Decree are intended to accelerate the recovery of the
Site but the benefits of the remediation measures are difficult to predict and measure with
certainty. Due in part to regional background levels of mercury and Site-specific
characteristics, the remediation actions implemented under this Consent Decree will not
necessarily reduce mercury concentrations in all species of concern at the Site, such as
ducks and lobsters, below the State of Maine’s Fish Tissue Action Level for
methylmercury of 200 nanograms per gram.
N. The Parties recognize, and the Court by entering this Consent Decree finds,
that this Decree has been negotiated by the Parties in good faith, that implementation of
the Decree is intended to accelerate the recovery of the Site and will avoid prolonged and
complicated litigation between the Parties, and that the Decree is fair, reasonable, and in
the public interest.
NOW, THEREFORE, it is hereby Ordered, Adjudged, and Decreed:
II. Definitions
1. Whenever terms listed below are used in this Consent Decree, the following
definitions shall apply:
a. “Amec” shall mean the engineering firm that was appointed to carry
out the Court-ordered Phase III Engineering Study, which was known at the time
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as Amec Foster Wheeler Environment & Infrastructure, Inc. and subsequently
became part of Wood Environment & Infrastructure Solutions, Inc.
b. “Beneficial Environmental Projects” shall mean projects undertaken
to provide tangible environmental or public benefits to affected communities or
the environment that are intended to mitigate or offset potential adverse impact(s)
directly or indirectly caused by mercury contamination at the Site. Beneficial
Environmental Projects may include any project that (i) benefits the natural
environment of the Penobscot River estuary; (ii) improves recreational and
aesthetic enjoyment of the Penobscot River estuary; or (iii) reduces human
exposures in Maine to mercury or other neurotoxins.
c. “Beneficial Reuse” shall mean “beneficial use” as defined in Maine’s
and/or as used in Chapter 418 of Maine’s Solid Waste Management Regulations,
Code Me. R. tit. 06-096 Ch. 418.
d. “Beneficiary” or “Beneficiaries” shall mean, with respect to the
Remediation Trust, Mallinckrodt, NRDC, MPA, and their successors, and, with
respect to the Project Trust, Mallinckrodt, NRDC, MPA, their successors, and the
Remediation Trust.
e. “Capping” shall mean the placement of a covering or cap of clean
material over contaminated sediment that is intended to remain in place in order
to create a physical, biological, and/or chemical barrier between contaminated
sediment and the water column.
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f. “Capped Funding” shall mean the maximum amount of funding
that may be provided by Mallinckrodt to the Trusts, which shall be $267 million in
the aggregate. Mallinckrodt will have no obligation to pay more than the
aggregate of the Capped Funding amounts stated in Paragraphs 10 through 15
(Orrington Reach through Trust Administrative Costs) to the Trusts.
g. “CERCLA” shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act, as amended, 42 U.S.C. §§ 9601-9675.
h. “Committed Funding” shall mean those portions of funding for the
remedial activities set forth in Paragraphs 10 through 15 (Orrington Reach through
Trust Administrative Costs) that are required to be paid by Mallinckrodt to the
Trusts.
i. “Contingent Funding” shall mean those portions of funding for the
remedial activities set forth in Paragraphs 10 through 15 (Orrington Reach through
Trust Administrative Costs) that Mallinckrodt shall be required to pay to the
Trusts only if certain contingencies occur or are encountered as set forth in
Paragraphs 10 through 15 (Orrington Reach through Trust Administrative Costs).
j. “Consent Decree” shall mean this Consent Decree and all
appendices attached hereto (listed in Paragraph 68). In the event of a conflict
between the main text of this Consent Decree and any appendix, the main text of
this Consent Decree shall control.
k. “Court” shall mean the United States District Court for the District
of Maine.
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l. “Day” or “Days” shall mean, unless otherwise specified, calendar
days including weekends and holidays. In the event that the date for a required
action falls on a day that is a weekend or federal holiday, the date for the required
action shall be automatically extended to the next day that is not a weekend or
federal holiday.
m. “Defendant” shall mean defendant Mallinckrodt US LLC.
n. “East Channel” shall mean the portion of the Penobscot River along
the entire eastern side of Verona Island from the northernmost tip of Verona Island
to the southernmost tip of Verona Island. It corresponds with the Verona
Northeast and Verona East Reaches as shown in Appendix E.
o. “Effective Date” shall mean the date upon which the approval of this
Consent Decree is recorded on the Court’s docket.
p. “EMNR” or “enhanced monitored natural recovery” shall mean a
remediation strategy involving the addition of clean sediment with the expectation
that tides and currents will naturally disperse the clean sediment and mix it with
contaminated sediments, thereby diluting the concentration of contaminants in
sediments.
q. “Feasible” shall mean capable of being accomplished with
reasonable professional efforts, taking into account scientific, technical, legal,
practicability, and other relevant constraints. With respect to the remedial
activities contemplated by this Consent Decree, determinations of feasibility will
be made by the Trustee of each Trust, subject to the Dispute Resolution provisions
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of this Consent Decree. These determinations may take into account, among other
factors: cost; time to implement; potential benefits and risks; engineering, legal,
and permitting considerations and processes; and input from stakeholders. A
determination of feasibility does not require or imply that a harm or risk is readily
quantifiable or abatable, or that a particular increment of risk reduction or harm
abatement will occur.
r. “HoltraChem” shall mean defendant HoltraChem Manufacturing
Company, LLC and its successors and assigns.
s. “HoltraChem Site” shall mean the location of the former chlor-alkali
facility on the east bank of the Penobscot River in Orrington, Maine, which was
most recently operated by HoltraChem and is undergoing a separate cleanup
being overseen by the Maine Department of Environmental Protection. The plant
operated under several owners from 1967 through 2000, including a corporate
predecessor to Mallinckrodt.
t. “Long-Term Monitoring” shall mean the triennial monitoring
activities required by this Consent Decree that are intended to provide repeated,
readily comparable data over time regarding mercury concentrations in biota,
sediment, and water at the Site. Long-Term Monitoring does not include remedy-
specific monitoring that may be undertaken before, during, or after Work in a
particular Work Category to monitor the effects of that specific Work, which will
be designed, funded, and carried out along with other Work in the particular Work
Category.
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u. “Mallinckrodt” shall mean defendant Mallinckrodt US LLC, its
successors and assigns, and any corporate parent(s) responsible for the liabilities
of Mallinckrodt US LLC. As of the Effective Date, Mallinckrodt is a subsidiary of
United States Surgical Corporation, and an affiliate of Medtronic plc, the ultimate
parent company of both entities.
v. “Mallinckrodt Related Entities” shall mean Mallinckrodt and its
corporate parents, subsidiaries, and affiliates. A Mallinckrodt Related Entity does
not include a captive insurance company or self-insurer.
w. “Mendall Marsh” shall mean the tidal portions of the north and
south branches of the Marsh River and all adjacent intertidal areas in Frankfort
and Prospect, Maine, which generally corresponds to the Mendall Marsh Reach
shown in Appendix E. Mendall Marsh includes, but is not limited to, the intertidal
and subtidal portions of the Howard L. Mendall (Marsh Stream) Wildlife
Management Area.
x. “Mobile Sediment” shall mean any mineral or organic sediment,
including wood waste, that may be mobilized and homogenized by natural
processes in the Penobscot River over timescales relevant to affect the fate and
transport of mercury within the Site. Mobile Sediment includes sediment
described as “mobile” or as components of the “mobile pool” in Chapter 7 of the
Phase II Report, ECF No. 652-43 or in the Phase III Engineering Study Report, ECF
No. 972.
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y. “MPA” shall mean plaintiff Maine People’s Alliance and its
successors and assigns.
z. “Natural Resource Damage Trustees” shall mean the State of Maine
Trustees, including, but not limited to, the Maine Department of Environmental
Protection and Maine Department of Inland Fisheries and Wildlife, and Federal
Trustees, including the Department of Commerce and the Department of the
Interior.
aa. “NRDC” shall mean plaintiff Natural Resources Defense Council
and its successors and assigns.
bb. “Orland River” shall mean the tidal portion of the Orland River, and
adjacent intertidal areas, from the head of tide at the Orland Dam to the junction
of the Orland River and the East Channel at Gross Point. It corresponds with the
Orland River Reach as shown in Appendix E.
cc. “Orrington Reach” shall mean the area defined as the Orrington
Reach in Appendix E.
dd. “Paragraph” or “¶” shall mean a portion of this Consent Decree
identified by an Arabic numeral and/or an upper- or lower-case letter and/or
lower-case Roman numeral. A reference to any Paragraph denoted by an Arabic
numeral or upper-case letter shall include any subparagraphs denoted by lower-
case letters and lower-case Roman numerals, and a reference to any subparagraph
denoted by a lower-case letter shall include any subparagraphs denoted by a
lower-case Roman numeral.
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ee. “Parties” shall mean Plaintiffs MPA and NRDC and Defendant
Mallinckrodt.
ff. “Penobscot Estuary” or “Penobscot River Estuary” shall be
synonymous with the “Site,” as that term is defined herein.
gg. “Phase III Engineering Study” shall mean all the work conducted by,
and reports prepared by, Amec with respect to the Site and in fulfillment of Amec’s
appointment as the Phase III Engineering Firm.
hh. “Plaintiffs” shall mean MPA and NRDC.
ii. “Project Trust” shall mean the Penobscot Estuary Beneficial
Environmental Projects Trust, as established by this Consent Decree and the
Project Trust Agreement, the form of which is attached as Appendix C.
jj. “RCRA” shall mean the Solid Waste Disposal Act, as amended,
42 U.S.C. §§ 6901-6992, also known as the Resource Conservation and Recovery
Act.
kk. “Reach” shall mean a defined portion or component of the Site
subject to the remediation activities set forth in this Consent Decree, which portion
or component may be defined geographically (e.g., East Channel, Mendall Marsh,
Orland River, and Orrington Reach) or based on hydrodynamic, geophysical, or
other scientific bases (e.g., Mobile Sediments and Surface Deposits). The defined
portions and components of the Site included in this definition are as follows: East
Channel, Mendall Marsh, Mobile Sediments, Orland River, Orrington Reach, and
Surface Deposits.
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ll. “Remaining Funding” shall mean Committed Funding for a
particular Work Category that is unused after the completion of the Work in that
Work Category, as further discussed in Paragraph 17 (Remaining Funding).
Remaining Funding does not include any Contingent Funding. Remaining
Funding also does not include Committed Funding set aside for future operation,
monitoring, and/or maintenance of Work in a Work Category until such
Committed Funding is no longer foreseeably needed for such future operation,
monitoring, and/or maintenance.
mm. “Remediation Trust” shall mean the Penobscot Estuary Mercury
Remediation Trust, as established by this Consent Decree and the Remediation
Trust Agreement, the form of which is attached as Appendix B.
nn. “Restoration Projects” shall mean a subcategory of Beneficial
Environmental Projects, the funding or Work with respect to which is used to
satisfy future potential or actual natural resource damage claims with respect to
the Site, whether such potential claims would be against Mallinckrodt or
Mallinckrodt Related Entities, in accordance with separate agreements, if any,
between the Natural Resource Damage Trustees and Mallinckrodt. Restoration
Projects may also be Tidal Marsh Projects but are not required to be Tidal Marsh
Projects.
oo. “Section” shall mean a portion of this Consent Decree identified by
an upper-case Roman numeral.
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pp. “Site” shall mean the Penobscot River Estuary, which generally
includes the tidal portions of the Penobscot River from the location of the former
Veazie Dam to upper Penobscot Bay. Specifically, the Site includes each of the
Study Reaches shown in Appendix E, including any intertidal areas that fringe the
Study Reaches.
qq. “Standard of Care” shall mean the level of care and skill to be
exercised by the Trustees by and through their environmental, engineering and/or
technical consultants and contractors, and other third-party professionals in
completing all Work and Deliverables required by this Consent Decree, as defined
in Paragraph 31(b) (Standard of Care).
rr. “State” shall mean the State of Maine.
ss. “Statement of Work” or “SOW” shall mean the document describing
the Work that must be performed to implement the remediation activities at the
Site required by this Consent Decree, which is attached as Appendix A.
tt. “Study Reach” shall mean each of the portions of the Penobscot
River from the former Veazie Dam to a line between Squaw Point and Perkins
Point at the northern end of Penobscot Bay, as depicted on the map in Figure 1-1
of Amec’s Phase III Engineering Study Report, ECF No. 972-1, which is attached
as Appendix E.
uu. “Surface Deposit” shall mean any subtidal or intertidal region of
Mobile Sediment accumulation, including any comingled materials or debris, that
can be identified by physical, chemical, geophysical, or other scientific methods.
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Surface Deposit generally refers to the types of sediment beds described as a
“surface deposit” in the Phase III Engineering Study but does not necessarily refer
to the same spatial extent as the specific Surface Deposits delineated and identified
in the Phase III Engineering Study, which are depicted on the map attached as
Appendix F.
vv. “Tidal Marsh Projects” shall mean a subcategory of Beneficial
Environmental Projects that are reasonably anticipated to restore, enhance, or
preserve tidal marsh functions and habitat anywhere in the State of Maine. Tidal
Marsh Projects may include Work in areas adjacent to a tidal marsh that benefits
the tidal marsh, such as preservation of upland buffers to allow marsh expansion
with sea level rise or infrastructure modifications that improve or restore tidal
marsh hydrology. Tidal Marsh Projects also include projects intended to provide
benefits to avian species that use Mendall Marsh, including Nelson’s sparrows and
other tidal marsh obligate birds, regardless of whether such projects take place in
Mendall Marsh or elsewhere in Maine. Tidal marshes include all marshes in Maine
subject to periodic tidal fluctuations. Tidal Marsh Projects may also be Restoration
Projects but are not required to be Restoration Projects.
ww. “Trust” or “Trusts” shall mean the Remediation Trust and the
Project Trust, individually or collectively.
xx. “Trust Administrative Account” shall mean the account established
pursuant to Paragraph 24 (Creation of Trust Accounts), including any
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subaccounts, to hold funds to be used by a Trustee to pay Trust Administrative
Costs of the respective Trust.
yy. “Trust Administrative Costs” shall mean, with respect to each Trust,
all costs, obligations, or liabilities incurred in the administration and management
of such Trust, as may be further described in the respective Trust Agreement for
each Trust.
zz. “Trust Agreement” shall mean, with respect to the Remediation
Trust, the document establishing the Remediation Trust and setting forth the
duties and obligations of Mallinckrodt and the Trustee of the Remediation Trust,
in a form substantially similar to the Remediation Trust Agreement that is attached
as Appendix B, and, with respect to the Project Trust, the document establishing
the Project Trust and setting forth the duties and obligations of Mallinckrodt and
the Trustee of the Project Trust, in a form substantially similar to the Project Trust
Agreement that is attached as Appendix C.
aaa. “Trust Parties” shall mean, collectively, the Trusts, the Trustees,
and the Trustees’ member’s shareholders, officers, directors, employees, and
managers; for the avoidance of doubt, “Trust Parties” shall not include
environmental, engineering, or technical consultants and contractors, and other
third-party professionals retained by the Trustees to assist the Trustees in carrying
out their responsibilities under this Consent Decree and the Trust Agreements.
bbb. “Trust Remediation Account” shall mean the account established
pursuant to Paragraph 24 (Creation of Trust Accounts), including any
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subaccounts, to hold funds to be used by the Trustee of such Trust for Work at the
Site.
ccc. “Trustee” or “Trustees” shall mean, individually or collectively, the
trustee of the Remediation Trust and the trustee of the Project Trust, each as
designated in Paragraph 25 (Trustees) of this Consent Decree, or their successors.
ddd. “Waste Material” shall mean (1) any “hazardous substance” under
Section 101(14) of CERCLA, 42 U.S.C. § 9601(14); (2) any pollutant or contaminant
under Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); (3) any “solid waste”
under Section 1004(27) of RCRA, 42 U.S.C.§ 6903(27); and (4) any “hazardous
substance” under the Maine Uncontrolled Hazardous Substance Sites Law, Me.
Rev. Stat. tit. 38, §§ 1361-71.
eee. “Work” shall mean all activities and obligations the performance of
which the Remediation Trust or the Project Trust, and their respective Trustees, is
required to cause under this Consent Decree, including all remediation activities.
fff. “Work Category” or “Work Categories” shall mean, individually or
collectively, the remedial activities described in each of Paragraphs 10 through 14
(Orrington Reach through Long-Term Monitoring) to which funding is specifically
allocated.
III. Jurisdiction and Venue
2. The Court has jurisdiction over the subject matter of this action pursuant to
28 U.S.C. § 1331 and 42 U.S.C. § 6972(a)(1)(B). The Court has personal jurisdiction over
the Parties. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. Solely for the
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purposes of this Consent Decree and the underlying complaint, the Parties waive all
objections and defenses that they may have to jurisdiction of the Court or to venue in this
district for this matter. The Parties shall not challenge the Court’s jurisdiction to enter and
enforce a Consent Decree in this matter or the terms of this Consent Decree.
IV. Parties Bound, Succession, and Assignment
3. This Consent Decree is binding upon Plaintiffs and Mallinckrodt and their
heirs, successors, and assigns. Any change in ownership or corporate or other legal status
of Mallinckrodt including, but not limited to, any transfer of assets or real or personal
property, shall in no way alter Mallinckrodt’s responsibilities under this Consent Decree.
Mallinckrodt shall give notice within seven (7) days to the Plaintiffs and Trustees if there
is a change in its ownership or corporate or other legal status.
4. Mallinckrodt shall provide a copy of this Consent Decree to the Trustees
appointed to perform the Work required by this Consent Decree, including its
appendices, and to each person representing Mallinckrodt with respect to the Site or
the Work. The Trustees shall ensure that they and their environmental, engineering, and
technical consultants and contractors provide written notice of this Consent Decree to all
consultants, contractors, or subcontractors hired to perform any portion of the Work. Any
time a Trust or Trustee enters into a contract to fulfill its duties under this Consent Decree,
such contracts shall be conditioned upon performance of the Work in conformity with
the terms of this Consent Decree. To the extent that Mallinckrodt is required to contract
directly with any person or entity to carry out Work required by this Consent Decree,
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Mallinckrodt shall ensure that its contractors and subcontractors perform the Work in
accordance with the terms of this Consent Decree.
V. Findings & Non-Admissions of Liability
5. Unless specifically stated in this Consent Decree or contained in a separate
order of the Court, nothing contained in this Consent Decree shall be considered an
admission by Mallinckrodt or by Plaintiffs, or a finding by the Court, on any issue of
material fact or law as to any matter that could have been raised regarding the potential
impacts of mercury to the Site and Penobscot River from prior operations at the
HoltraChem Site.
6. Mallinckrodt’s performance of Section IV (Parties Bound, Succession, and
Assignment), Paragraphs 3-4, Section V (Findings & Non-Admissions of Liability),
Paragraphs 5-6, Section VI (Commitments by Mallinckrodt), Paragraphs 7-20, Section VII
(Formation and Purpose of Penobscot Estuary Mercury Remediation Trust and Penobscot
Estuary Beneficial Environmental Projects Trust), Paragraphs 21-26, Section VIII (Powers
and Duties of Trustees), Paragraphs 27-40, Section IX (Cooperation and Obligations of
the Parties Regarding the Trustee), Paragraphs 41-42, and Section XI (Covenants),
Paragraphs 46-49, is restitution, remediation, or required to come into compliance with
law.
VI. Commitments by Mallinckrodt
7. Mallinckrodt agrees to create and fund the Trusts up to the Capped
Funding, consistent with the terms of this Consent Decree and the attached Trust
Agreements.
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8. Geographic Scope of Work. Unless otherwise specified in this Consent
Decree or in the attached Statement of Work, the Parties and Court intend that all Work
will take place within the Site, except that facilities to support the Work may be located
in areas outside the Site boundaries, reference locations for monitoring purposes will
include locations outside the Site boundaries, and Beneficial Environmental Projects may
take place outside the Site boundaries.
9. Work and Funding. The Parties agree to the Work and funding
commitments set forth in Paragraphs 10 through 15 (Orrington Reach through Trust
Administrative Costs).
10. Orrington Reach.
a. The remediation Work in the Orrington Reach shall be capping 130
acres of intertidal sediments, primarily on the east side of the Orrington Reach.
Mallinckrodt shall fund a total of $50 million in Committed Funding to the
Remediation Trust’s Trust Remediation Account for this Work. These funds shall
be allocated to any and all Work, including remedy design, permitting,
implementation, remedy-specific monitoring, and maintenance in the Orrington
Reach. If this Work is not Feasible or if any Committed Funding remains after the
completion of the Orrington Reach Work, including after setting aside a
reasonable sum for future cap monitoring and maintenance as needed, such
Remaining Funding will be used as provided in Paragraph 17 (Remaining
Funding).
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b. As a contingent obligation for the Orrington Reach, Mallinckrodt
will pay to the Remediation Trust’s Trust Remediation Account up to an
additional $10 million as Contingent Funding if the cost of capping 130 acres in
the Orrington Reach, including remedy-specific monitoring and maintenance,
exceeds $50 million. If this contingency is triggered, Mallinckrodt’s Capped
Funding amount for the Orrington Reach Work Category, including Committed
and Contingent Funding, shall be the lesser of the actual cost of the Work in the
Orrington Reach or $60 million. If the cost of the Work in the Orrington Reach is
projected to exceed $60 million, then the scope of the Work shall be altered to fit
within the Capped Funding amount, taking into account the availability, if any, of
Remaining Funding from other Work Categories.
11. Mobile Sediments and Surface Deposits.
a. The remediation Work for Mobile Sediments and Surface Deposits
will be removal of a portion of these materials from the Site. Mallinckrodt will
fund a total of $70 million in Committed Funding to the Remediation Trust’s Trust
Remediation Account for this Work consistent with the budgeting and funding
schedules established in Paragraphs 19, 34, and 35. These funds shall be allocated
to any and all Work for Mobile Sediments and Surface Deposits, including
delineation, design, permitting, any approvals needed to perform the Work,
implementation, and remedy-specific monitoring for removal of Mobile
Sediments and/or Surface Deposits. If this Work is not Feasible or if any funds
from this Committed Funding remain after the completion of Work on Mobile
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Sediments and Surface Deposits, such Remaining Funding will be used as
provided in Paragraph 17 (Remaining Funding). Unless the contingency set forth
in Paragraph 11(b) is triggered or there is Remaining Funding from other Work
Categories available to supplement the funding for this Work Category, the
Trustee shall design the Work for this Work Category to fit within the Committed
Funding amount of $70 million. The Work for this Work Category may include
debris removal, dredging, backfilling, creation of access channels, construction of
landside and waterside staging and support facilities, and other reasonable
activities consistent with good engineering practices that are necessary to carry out
the safe and effective removal of Mobile Sediments and/or Surface Deposits.
b. The Parties agree that Beneficial Reuse of any sediment, debris, and
other materials removed from the Site is preferable to landfill disposal and is the
appropriate method for management of materials removed from the Site if such
Beneficial Reuse will be permissible, as determined by the granting of all necessary
permits and approvals for such reuse, and is Feasible. The Trustee shall make all
best efforts to incorporate Beneficial Reuse for all sediment, debris, and other
materials removed from the Site, including reuse in locations outside of Maine. If
after all such efforts, the Trustee determines it is not Feasible to Beneficially Reuse
all or some materials removed from the Site, the Trustee will consult with the
Parties on appropriate next steps for disposal and to discuss reasonable
alternatives. If after such discussions, landfilling the material is necessary, the
Trustee shall make all best efforts to identify the least costly means of disposal. As
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a contingent obligation for Mobile Sediments and Surface Deposits, Mallinckrodt
will pay up to $50 million in Contingent Funding to the Remediation Trust’s Trust
Remediation Account for this Work Category if the Work set forth in Paragraph
11 (Mobile Sediments and Surface Deposits) is deemed Feasible but landfill
disposal is required because it is not Feasible to Beneficially Reuse some or all of
the materials removed from Mobile Sediments and Surface Deposits.
Mallinckrodt’s additional contingent financial liability shall be the actual costs
incurred for waste processing, water treatment, transportation, disposal, and other
costs necessary for landfill disposal, up to a maximum of $50 million in Contingent
Funding.
12. Orland River and East Channel around Verona Island.
a. Mallinckrodt will fund a total of $30 million in Committed Funding
to the Remediation Trust’s Trust Remediation Account for remediation Work in
the Orland River and/or East Channel. These funds shall be allocated for remedy
selection, design, implementation, and remedy-specific monitoring in these
Reaches. If this Work is not Feasible or if any funds from this Committed Funding
remain after the completion of the Work in these Reaches, such Remaining
Funding will be used as provided in Paragraph 17 (Remaining Funding).
b. Remediation Work that may be considered in these Reaches includes
EMNR, capping, and/or dredging. Such remedies may need to be coordinated or
sequenced with other remedies, such as the Mobile Sediment or Surface Deposit
removals. The Trustee shall design any remedies for these Reaches to fit within the
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$30 million budget, however, Remaining Funding from other Work Categories
may be used, if available, to supplement the funding for these Reaches.
13. Beneficial Environmental Projects.
a. Mallinckrodt will fund a total of $20 million in Committed Funding
for Work on Beneficial Environmental Projects. These funds may be, but are not
required to be, used for Beneficial Environmental Projects selected in consultation
with the Natural Resource Damage Trustees. Unless there is Remaining Funding
from other Work Categories available to supplement the Committed Funding for
this Work Category, the Trustees shall recommend and fund Beneficial
Environmental Projects that fit within the $20 million in Committed Funding for
this Work Category.
b. The Committed Funding for this Work Category will be allocated to
the Trust Remediation Account of the Project Trust to fund Beneficial
Environmental Projects, including but not limited to Restoration Projects and Tidal
Marsh Projects. Any funding for this Work Category that is not yet allocated to
Beneficial Environmental Projects by the Project Trust shall be allocated to the
Trust Remediation Account of the Remediation Trust to fund Beneficial
Environmental Projects upon termination of the Project Trust, as provided in
Paragraph 33 (Termination of the Project Trust).
c. Beneficial Environmental Projects may be recommended by the
Beneficiaries or the Trustees. Decisions regarding Beneficial Environmental
Projects, including Restoration Projects, to be undertaken by the Project Trust shall
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be made by following the decision-making procedures set forth in Paragraph 32
(Limit on Decisions Regarding Work by the Project Trust).
14. Long-Term Monitoring.
a. Mallinckrodt shall fund a total of $10 million in Committed Funding
to the Remediation Trust’s Trust Remediation Account to be used for Long-Term
Monitoring of the Site (including any appropriate off-Site reference areas). This
Work shall include Long-Term Monitoring at three-year intervals for a minimum
period of 30 years (through 2050-2051) and a maximum period of 45 years
(through 2065-2066).1
b. As a contingency for Long-Term Monitoring, Mallinckrodt will pay
to the Remediation Trust’s Trust Remediation Account up to $10 million in
Contingent Funding if the actual cost of Long-Term Monitoring exceeds the
Committed Funding amount for this Work Category. If this contingency is
triggered, Mallinckrodt’s Capped Funding amount for Work related to Long-Term
Monitoring, including Committed and Contingent Funding, shall be the lesser of
the actual cost of the Work or $20 million.
1 Long-Term Monitoring shall continue to take place primarily in the Spring,
Summer, and Fall, with additional monitoring of seasonally migratory species during the immediately following Winter. The most recent such Long-Term Monitoring cycle was in 2020-2021. Accordingly, Long-Term Monitoring will take place in 2023-2024, 2026-2027, 2029-2030, 2032-2033, 2035-2036, 2038-2039, 2041-2042, 2044-2045, 2047-2048, and 2050-2051, and Long-Term Monitoring may take place in 2053-2054, 2056-2057, 2059-2060, 2062-2063, and/or 2065-2066.
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c. Beginning in advance of the Long-Term Monitoring cycle scheduled
for 2053-2054, and triennially thereafter until Long-Term Monitoring is complete,
the Beneficiaries and Trustee of the Remediation Trust shall attempt to reach
consensus on whether to continue Long-Term Monitoring and in what form. Any
disputes will be resolved as provided in Section XIV, Paragraphs 56 through 61
(Dispute Resolution). Decisions regarding Long-Term Monitoring during this
period shall be based on factors including, but not limited to: (i) the mercury
concentrations in biota, sediments, and water at the Site; (ii) the trends in such
mercury concentrations or lack thereof; (iii) the current state of science regarding
the risks of mercury; (iv) the status of any institutional controls at the Site,
including fishery closures, and the need for monitoring related to such
institutional controls; (v) input from State and federal regulators or other
stakeholders; and (vi) the amount of Committed or Contingent Funding that
remains for this Work Category and the availability, if any, of Remaining Funding
from other Work Categories. Monitoring shall not continue for more than 30 years
if the funding for this Work Category, including Contingent Funding for this Work
Category and Remaining Funding from other Work Categories, is insufficient. If
any funds from the Committed Funding for this Work Category remain after the
completion of the Long-Term Monitoring, such Remaining Funding will be used
as provided in Paragraph 17 (Remaining Funding).
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15. Trust Administrative Costs.
a. Mallinckrodt will fund a total of $7 million in Committed Funding
to pay the Trust Administrative Costs of the Remediation Trust and the Project
Trust. As a contingency, Mallinckrodt will pay up to $10 million in Contingent
Funding to pay the Trust Administrative Costs of the Remediation Trust and the
Project Trust if the aggregate Trust Administrative Costs for both Trusts exceed
the Committed Funding amount. Mallinckrodt’s Capped Funding for Trust
Administrative Costs shall be the lesser of the actual Trust Administrative Costs
or $17 million.
b. If any funds remain in the Project Trust’s Trust Administrative
Account upon termination of the Project Trust, as determined in accordance with
the Project Trust’s Trust Agreement, such funds will distributed to the
Remediation Trust’s Trust Administrative Account to be used for the Remediation
Trust’s Trust Administrative Costs.
16. Permitting and Regulatory Oversight Costs. Costs and fees incurred by
the Trusts to prepare and submit applications for permits and other regulatory approvals,
and to pay for other regulatory oversight costs, required for Work in any Work Category
shall be paid from a Trust Remediation Account using the funding allocated to that Work
Category.
17. Remaining Funding.
a. Remaining Funding, as defined in Paragraph 1(ll), will be used
preferentially to supplement the funding for Work in other Work Categories
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described in Paragraphs 10 through 13 (Orrington Reach through Beneficial
Environmental Projects) undertaken by the Remediation Trust. Such Remaining
Funding may be used, inter alia, to make up any funding shortfalls for Work in
other Work Categories, to fund additional remedy-specific monitoring or adaptive
management, or to allow the scope of Work in other Work Categories to be
expanded. The Trustee for the Remediation Trust shall determine when Work in
each Work Category is complete and shall recommend any reallocation(s) of
Remaining Funding, in consultation with the Beneficiaries of the Remediation
Trust. Any Remaining Funding will be allocated to and expended by the
Remediation Trust and will not be available to the Project Trust, however, the
Trustees may coordinate Work between the Trusts if appropriate and if such
coordination would not affect the tax treatment of either Trust, and subject to
notice to, comment from, and opportunity for objection by the Beneficiaries.
b. After all Work at the Site is complete, or after sufficient funds are
reserved to ensure the completion of all Work at the Site, any Remaining Funding
will be used for and allocated to Beneficial Environmental Projects undertaken by
the Remediation Trust. Any such Beneficial Environmental Projects will be
proposed by the Beneficiaries or Trustee of the Remediation Trust, subject to the
decision-making procedures set forth in Paragraph 31 (Decisions Regarding Work
and Deliverables).
18. Capped Funding. Mallinckrodt’s financial obligations under this Consent
Decree will not exceed $267 million, including no more than $187 million in Committed
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Funding, and no more than $80 million in Contingent Funding. Upon Mallinckrodt’s
complete funding of the Remediation Trust and the Project Trust as set forth in
Paragraphs 10 through 15 (Orrington Reach through Trust Administrative Costs),
including the distribution of any remaining Project Trust funds into the Remediation
Trust upon termination of the Project Trust, and upon compliance with all other
obligations imposed by this Consent Decree, Mallinckrodt’s liability under this Consent
Decree shall be satisfied.
19. Initial Funding of the Trusts.
a. Within 20 days after execution of the Remediation Trust Agreement,
Mallinckrodt will pay to the Remediation Trust $9.5 million to be allocated as
follows: $9 million to the Trust Remediation Account and $500,000 to the Trust
Administrative Account.
b. Within 20 days after execution of the Project Trust Agreement,
Mallinckrodt will pay to the Project Trust $500,000 to be allocated as follows:
$450,000 to the Trust Remediation Account for Beneficial Environmental Projects
and $50,000 to the Trust Administrative Account, unless another allocation is
agreed upon by the Parties, after consulting with the Project Trust prior to
establishment of the Trusts.
c. On or before December 31, 2021, Mallinckrodt will pay to the Trusts
an additional aggregate amount of $15 million.
d. On or before December 31 in the years 2022 through 2026,
Mallinckrodt will pay to the Trusts an aggregate amount of $25 million each year,
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unless additional funds are needed to satisfy Work and a request for such
additional funds is made pursuant to Paragraph 35 (Financial Forecasts and
Invoices to Mallinckrodt).
e. On or before December 31, 2027, Mallinckrodt will pay to the
Trusts an aggregate amount that will fully satisfy Mallinckrodt’s obligations for
Committed Funding.
f. The Trustees shall provide annual budget forecasts for each Trust to
the Parties as provided in Paragraphs 34 (Decisions Regarding Annual Budgets,
Work Plans, and Cash Flow Projections) and 35 (Financial Forecasts and Invoices
to Mallinckrodt). The Trustee of each Trust shall invoice Mallinckrodt as provided
in Paragraph 35 (Financial Forecasts and Invoices to Mallinckrodt).
20. Financial Assurance.
a. In order to ensure adequate funding of the Trusts, Mallinckrodt shall
secure financial assurance, in the form of a surety bond, initially in the aggregate
amount of $65 million, for the benefit of the Trusts. The surety bond guaranteeing
payment for the Work will be issued by a surety company among those listed as
acceptable sureties on federal bonds as set forth in Circular 570 of the U.S.
Department of the Treasury and will be substantially in the form attached hereto
as Appendix D.
b. The Parties have selected, and the Trustee of the Remediation Trust
and Plaintiffs have found satisfactory, a surety bond as the initial form of financial
assurance. Within 60 days after the Effective Date, Mallinckrodt shall secure all
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executed and/or otherwise finalized mechanisms or other documents consistent
with the approved form of financial assurance and shall submit such mechanisms
and documents to the Trustee of the Remediation Trust and to Plaintiffs as
specified in Paragraph 62 (Notice).
c. If the difference between the aggregate Capped Funding and the
total funding previously paid into both Trusts becomes less than $65 million, then
from that time forward the amount of the surety bond shall be adjusted annually
to be sufficient to ensure payment to the Trusts of the difference between the
aggregate Capped Funding amount and the total funding previously paid into
both Trusts.
d. Adequacy of Financial Assurance. Mallinckrodt and the Trustee of
the Remediation Trust shall diligently monitor the adequacy of the financial
assurance. If Mallinckrodt becomes aware of any information indicating that the
financial assurance provided under Paragraph 20 is inadequate, will be cancelled,
or otherwise no longer satisfies the requirements of Paragraph 20, Mallinckrodt
shall notify Plaintiffs and the Trustees of such information in writing within ten
(10) business days. If the Trustees and/or Plaintiffs determine that the financial
assurance provided under Paragraph 20 is inadequate or otherwise no longer
satisfies the requirements of Paragraph 20, Plaintiffs or the Trustees will notify in
writing Mallinckrodt and the Trustees or Plaintiffs of such determination within
ten (10) business days. Within thirty (30) days after any Party or the Trustees
notifies the other Parties and/or Trustees of such a determination, the Parties and
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the Trustees shall meet and confer to attempt to reach agreement on a revised or
alternative financial assurance mechanism(s). If the Parties and Trustees cannot
reach agreement, they shall follow the Dispute Resolution provisions of this
Consent Decree. If the Parties and Trustees agree on a revised or alternative
financial assurance mechanism(s), Mallinckrodt shall, within thirty (30) days after
such agreement, secure and submit such mechanism(s) and documents to the
Trustees and Plaintiffs as specified in Paragraph 62 (Notice). Mallinckrodt shall
follow the procedures of Paragraph 20(f) (Modification of Financial Assurance) in
seeking approval of, and submitting documentation for, the revised or alternative
financial assurance mechanism.
e. Drawdown. The Trustees shall have authority to require or demand
a drawdown of the financial assurance in the circumstances and up to the amounts
listed in subparagraphs 20(e)(i)-(iv) below.
i. If Mallinckrodt fails to make a required payment to a Trust
within thirty (30) days of an Invoice Due Date, then the Trustee of such
Trust has the authority to require a drawdown of the financial assurance
mechanism(s) in an amount equal to 100% of the unpaid Invoice Amount
for the Trust.
ii. If Mallinckrodt fails to perform any obligation under the
terms of Paragraph 20 (Financial Assurance) and does not cure such failure
within thirty (30) days of the Remediation Trust’s Trustee providing notice
of such failure, then within sixty (60) days after notice of such failure, the
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Parties and the Trustees shall meet and confer to attempt to reach
agreement on the amount to be drawn down from the financial assurance
mechanism(s). If the Parties and Trustees cannot reach agreement, they
shall follow the Dispute Resolution provisions of this Consent Decree.
iii. In the event of a notice of Mallinckrodt or its ultimate
corporate parent (i) discontinuing business, (ii) applying for or consenting
to the appointment of a receiver, a custodian, a trustee, an interim trustee,
or liquidator of all or a substantial part of its assets, (iii) being adjudicated
a debtor or having entered against it an order for relief under Title 11 of the
United States Code, as the same may be amended from time to time, (iv)
filing a voluntary petition in bankruptcy or filing a petition or an answer
seeking reorganization or an arrangement with creditors or seeking to take
advantage of any other law (whether federal or state) relating to relief of
debtors, or admitting (by answer, by default or otherwise) the material
allegations of a petition filed against it in any bankruptcy, reorganization,
insolvency or other proceeding (whether federal or state) relating to relief
of debtors, (v) suffering or permitting to continue unstayed and in effect for
thirty (30) consecutive days any judgment, decree, or order entered by a
court of competent jurisdiction that approves a petition seeking its
reorganization or appoints a receiver, custodian, trustee, interim trustee, or
liquidator of all or a substantial part of its assets, or (vi) taking any action
in order thereby to effect or authorize any of the foregoing, or omitting to
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take any action in order to prevent any of the foregoing, in such event each
Trustee has the authority to require a drawdown of any financial assurance
up to an aggregate amount equal to the sum of all not-yet-invoiced
Committed Funding plus all not-yet-invoiced Contingent Funding for
which the contingency’s triggering condition has been met.
iv. If a Trustee is notified by Mallinckrodt or by the issuer or
guarantor of a financial assurance mechanism that the issuer or guarantor
intends to cancel the mechanism, and if Mallinckrodt fails to provide an
alternative financial assurance mechanism in accordance with this
Paragraph 20 at least thirty (30) days prior to the cancellation date, the
Trustees are authorized to require that the funds guaranteed under such
mechanism must be paid to the Trusts prior to cancellation. The Trustees
shall take any actions necessary to secure such payment before the
mechanism is cancelled.
f. Modification of Financial Assurance. To the extent that
Mallinckrodt, a Plaintiff, or the Trustee of the Remediation Trust desires to change
the amount(s) or mechanism(s) of the financial assurance, including
discontinuance of the surety bond set forth in Paragraph 20, such Party or Trustee
may submit a proposal to the other Parties and Trustee in accordance with
Paragraph 62 (Notice), which must include a description of the proposed changes
to the financial assurance mechanism(s) and/or amount(s) and a justification for
the proposed changes. The Parties and the Trustee of the Remediation Trust shall
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meet and confer to attempt to reach agreement on any such proposal. If the Parties
and Trustee cannot reach agreement, they shall follow the Dispute Resolution
provisions of this Consent Decree. Mallinckrodt may modify the financial
assurance mechanism(s) and amount(s) only in accordance with: (i) the provisions
of this Paragraph 20(f); (ii) the Trustee’s and Plaintiffs’ agreement; or (iii) if there
is a dispute, the agreement or final decision resolving such dispute under
Paragraphs 56 through 61 (Dispute Resolution). Within thirty (30) days after the
agreement of the Trustee and Plaintiffs to, or a decision resolving a dispute relating
to, any requested modifications pursuant to this Paragraph, Mallinckrodt shall
secure all executed and/or otherwise finalized mechanisms or other documents
consistent with the modified amount(s) and/or mechanism(s) of financial
assurance and shall submit such mechanisms and documents to the Trustee and
Plaintiffs as specified in Paragraph 62 (Notice).
g. Release, Cancellation, or Discontinuation of Financial Assurance.
Mallinckrodt may release, cancel, or discontinue any financial assurance provided
under this Paragraph only: (i) with the agreement of Plaintiffs and the Trustees;
(ii) upon the completion of the Work required by this Consent Decree and the
termination of the Trusts; (iii) upon aggregate funding into the Trusts of an
amount equal to the aggregate Capped Funding amount; or (iv) if there is a dispute
regarding the release, cancellation, or discontinuance of any financial assurance,
in accordance with the agreement or final decision resolving such dispute under
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Paragraphs 56 through 61 (Dispute Resolution) if such agreement or final decision
allows for such release, cancellation, or discontinuation of the financial assurance.
h. Mallinckrodt’s obligation to provide financial assurance consistent
with this Paragraph 20 shall not limit Mallinckrodt’s liability under this Consent
Decree to the financial assurance it provides.
VII. Formation and Purpose of Penobscot Estuary Mercury Remediation Trust and Penobscot Estuary Beneficial Environmental Projects Trust
21. Objectives of the Parties. The Parties agree that Mallinckrodt shall create
two separate trusts, the Penobscot Estuary Mercury Remediation Trust (the Remediation
Trust) and the Penobscot Estuary Beneficial Environmental Projects Trust (the Project
Trust). Both Trusts shall be independent entities that, collectively, will hold the
remediation funds and carry out the Work provided for in this Consent Decree. The
Remediation Trust will be managed by a Trustee as set forth in this Consent Decree and
the attached form of the Remediation Trust Agreement. The Project Trust will be
managed by a Trustee as set forth in this Consent Decree and the attached form of the
Project Trust Agreement.
22. Creation and purpose of the Remediation Trust.
a. Not later than ten (10) days after the Effective Date of this Consent
Decree, and simultaneously with receipt of the initial payment to the Trust
Accounts under Paragraph 19 (Initial Funding of the Trusts), the Remediation
Trust shall be established. The Remediation Trust shall be funded as specified in
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Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and
Invoices to Mallinckrodt).
b. As provided in this Consent Decree and in the attached Statement of
Work and form of the Remediation Trust Agreement, the purpose of the
Remediation Trust shall be to hold the remediation funds, other than those held
by the Project Trust, provided by this Consent Decree, and, consistent with its
fiduciary obligations to the Beneficiaries of the Remediation Trust and to the extent
of available funding in the Trust Administrative Account and/or Trust
Remediation Account, carry out administrative functions related to the Trust’s
operations, and develop, oversee, fund, and implement all Work at the Site in the
Work Categories, pay future oversight costs and other costs as provided herein,
and carry out Long-Term Monitoring at the Site. Pursuant to this Consent Decree
and the attached form of the Remediation Trust Agreement, the Remediation
Trust, as appropriate, shall contract with environmental, engineering, and
technical consultants, contractors, and other third-party professionals to assist the
Trustee in carrying out the activities necessary to achieve the purposes of the
Consent Decree, and the Remediation Trust, as appropriate, shall be the entity that
seeks all regulatory permits and approvals for Work required under Work
Categories by this Consent Decree and the attached Statement of Work.
c. The Remediation Trust and its Trustee shall not and are not
authorized to engage in any trade or business with respect to the Trust assets or
any proceeds therefrom except as and to the extent the same is deemed in good
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faith by the Trustee to be reasonably necessary or proper for the conservation or
protection of the Trust assets or the fulfillment of the purposes of the Remediation
Trust.
d. The Remediation Trust is intended to be a qualified settlement fund
(“QSF”), for which no grantor trust election has been made, pursuant to Section
468B of the Internal Revenue Code of 1986, as amended (the “Code”), and related
Treasury Regulations. The Remediation Trust and its Trustee shall not take any
actions that would cause the Remediation Trust to fail to qualify as a QSF or fail
to take any actions necessary to cause the Remediation Trust to qualify as a QSF.
e. The Remediation Trust is intended to be governed by the terms of
this Consent Decree and the attached form of the Remediation Trust Agreement
and shall not be subject to any provision of the Uniform Custodial Trust Act as
adopted by any state, now or in the future.
23. Creation and purpose of the Project Trust.
a. Not later than ten (10) days after the Effective Date of this Consent
Decree, and simultaneously with receipt of the initial payment to the Trust
Accounts under Paragraph 19 (Initial Funding of the Trusts), the Project Trust shall
be established. The Project Trust shall be funded as specified in Paragraphs 19
(Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to
Mallinckrodt).
b. As provided in this Consent Decree and in the attached Statement of
Work and form of the Project Trust Agreement, the purpose of the Project Trust
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shall be to hold remediation funds for Beneficial Environmental Projects as
provided by this Consent Decree, and, to the extent of available funding in the
Trust Administrative Account and/or Trust Remediation Account as appropriate,
carry out administrative functions related to the Trust operations, and oversee,
fund, and implement Beneficial Environmental Projects funded under Paragraph
13 (Beneficial Environmental Projects), including all Restoration Projects, pay costs
as provided herein, and provide funding to the Remediation Trust as provided
herein. The Project Trust, as appropriate, shall contract with environmental,
engineering, and technical consultants, contractors, or other third-party
professionals to assist the Trustee in carrying out the activities necessary to achieve
the purposes of the Consent Decree relating to Beneficial Environmental Projects,
and the Project Trust, as appropriate, shall be an entity that seeks regulatory
permits and approvals for Work required under Beneficial Environmental Projects
by this Consent Decree and the attached Statement of Work except that
Mallinckrodt shall be responsible for any agreement(s) with the Natural Resource
Damage Trustees.
c. The Project Trust and its Trustee shall not and are not authorized to
engage in any trade or business with respect to the Trust assets or any proceeds
therefrom except as and to the extent the same is deemed in good faith by the
Trustee to be reasonably necessary or proper for the conservation or protection of
the Trust assets or the fulfillment of the purposes of the Project Trust.
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d. Upon a determination by the Project Trust’s Trustee, in consultation
with the Beneficiaries, all in accordance with the process set forth in Paragraph 33
(Termination of the Project Trust), that the Site and the Beneficiaries are not
reasonably likely to benefit from funding or implementing a future Restoration
Project and all Work on Restoration Projects previously funded and implemented
by the Project Trust is complete, the Project Trust shall be terminated and any then
remaining Trust assets shall be distributed to the Remediation Trust, all in
accordance with Paragraph 33 (Termination of the Project Trust).
e. The Project Trust is intended to be governed by the terms of this
Consent Decree and the attached form of the Project Trust Agreement and shall
not be subject to any provision of the Uniform Custodial Trust Act as adopted by
any state, now or in the future.
24. Creation of Trust Accounts.
a. The Trustees shall create a Trust Remediation Account for each
Trust. In its discretion, each Trustee may create subaccounts within the Trust
Remediation Account, provided however, that the Trustee of the Remediation
Trust shall at least create a subaccount within the Trust Remediation Account for
each Work Category and shall allocate funding paid to the Remediation Trust’s
Trust Remediation Account between the Work Categories in accordance with the
allocation stated on the invoice to which the funding relates. The purpose of the
Trust Remediation Accounts shall be to provide funding and proceeds for Work
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as selected, approved, and authorized pursuant to the terms of this Consent
Decree, attached Statement of Work, and such Trust’s Trust Agreement.
b. The Trustees shall create a separate Trust Administrative Account
for each Trust to hold the funds provided by Paragraph 15 (Trust Administrative
Costs). The funds in a Trust’s Trust Administrative Account shall be used by the
Trustee to fund such Trust’s Trust Administrative Costs as approved and
authorized pursuant to the terms of this Consent Decree and such Trust’s Trust
Agreement.
c. Assets of each Trust shall be held in trust solely for these purposes
subject to any reallocation in accordance with the terms of this Consent Decree and
such Trust’s Trust Agreement.
d. Pursuant to each Trust’s respective Trust Agreement, each Trustee
shall have the ability to engage an investment manager and to invest and reinvest
the principal and income of such Trust’s assets in investments that are reasonably
calculated to preserve the principal value, taking into account the need for the
safety and liquidity of principal as may be required to fund the Work and costs of
administration of such Trust and as further limited by such Trust’s Trust
Agreement. Any and all earnings, interest, and other investment income realized
on the investment of a Trust’s assets held in a Trust Account shall be retained in
the respective Trust Account and used only for the same purposes as the principal
in that account as provided in such Trust’s Trust Agreement and this Consent
Decree, provided, however, that the Trustee shall first deduct from any income
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realized an amount equal to the estimated taxes owed on such income and costs
associated with investment of such Trust’s assets to which such income relates, all
as in accordance with the Trust’s Trust Agreement, and deposit that sum into the
Trust Administrative Account of such Trust to be used to pay such taxes and costs.
The Trustee of the Trusts shall be solely responsible for the investment of the
Trusts’ assets in accordance with these guidelines. Mallinckrodt shall have no
responsibility for, interest in, or liability whatsoever with respect to investment
decisions or the actions of a Trustee, or any transactions executed by a Trustee,
and such actions, decisions, or transactions shall in no event increase
Mallinckrodt’s financial obligations as set forth in Paragraph 18 (Capped
Funding). Mallinckrodt and Plaintiffs shall have no responsibility for or liability
whatsoever with respect to any investment or tax decisions, actions, transactions,
or inactions of a Trustee.
25. Trustees.
a. The Court hereby approves the selection and appointment of
Greenfield Penobscot Estuary Remediation Trust LLC, not individually, but solely
in its representative capacity as Trustee, to be the Trustee of the Remediation Trust
to administer and manage the Remediation Trust and the Remediation Trust’s
Trust Accounts, to implement the Work at the Site, and to fulfill all other
responsibilities set forth in this Consent Decree, the attached Statement of Work,
and the Remediation Trust Agreement executed by the Parties and Trustee
substantially in the form attached hereto as Appendix B.
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b. The Court hereby approves the selection and appointment of
Greenfield Penobscot Estuary Project Trust LLC, not individually, but solely in its
representative capacity as Trustee, to be the Trustee of the Project Trust to
administer and manage the Project Trust and the Project Trust’s Trust Accounts,
to oversee Work on Beneficial Environmental Projects, and to fulfill all other
responsibilities set forth in this Consent Decree, the attached Statement of Work,
and the Project Trust Agreement executed by the Parties and Trustee substantially
in the form attached hereto as Appendix C.
c. One entity, or affiliated entities, may serve as the Trustee of both
Trusts. If at any point the functions of the Trustee for each Trust are assigned to
separate entities, the Trustees shall enter into such contracts or agreements as are
necessary to coordinate the documentation, activities, and invoices set forth in this
Consent Decree and the Trust Agreements.
d. The Trustees shall be appointed for an initial term of ten (10) years.
The Trustees may resign or be terminated in accordance with the procedures set
forth in the respective Trust’s attached form of the Trust Agreement. Any
successor Trustee of a Trust shall be jointly proposed by the Beneficiaries and
appointed by the Court. If the Beneficiaries cannot agree on a successor Trustee
for a Trust, a successor Trustee shall be appointed by the Court at the conclusion
of the Dispute Resolution procedures of this Consent Decree.
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26. Designation of Beneficiaries; Advisory Committee.
a. The Beneficiaries of each Trust shall be the sole beneficiaries of each
such Trust and such Trust’s Trust Accounts.
b. Each Trustee shall, on behalf of the Trust for which it is appointed,
create an informal Advisory Committee composed of representatives of the
Beneficiaries, including at least one representative for Plaintiffs and one
representative for Mallinckrodt. The role of any such Advisory Committee shall
be to (i) facilitate dialogue between the Trustee and Beneficiaries of such Trust,
(ii) seek to build consensus among the Beneficiaries, (iii) coordinate Work by the
two Trusts, including facilitating dialogue between the Trustees of the Trusts and
seeking to build consensus regarding transfer of the Project Trust’s assets, and
related liabilities, to the Remediation Trust upon termination of the Project Trust,
and (iv) provide informal consultation to the Trust’s Trustee regarding
management of such Trust and execution of the Work required by this Consent
Decree. The Advisory Committees shall not have any formal approval or decision-
making authority. A Trust’s Advisory Committee shall meet at the request of its
Trustee, on a schedule and by means that are mutually agreeable to the
Beneficiaries and Trustee. If requested by the Trustee, each Beneficiary and the
other Trust shall designate one or more representatives to the Advisory
Committee, each of whom may be an employee, attorney, consultant, or Trustee
for the Beneficiary or other Trust. Consistent with Paragraph 48, Plaintiffs and
Mallinckrodt shall not make any claim to the Trusts for, and the Trusts shall not
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pay to any Plaintiff or Mallinckrodt, such Party’s fees or costs for participation in
an Advisory Committee.
VIII. Powers and Duties of Trustees.
27. Each Trust’s Trustee shall manage such Trust to fulfill and carry out such
Trust’s purposes set out in this Consent Decree and in such Trust’s attached form of its
Trust Agreement. The Trustees shall use each Trust Remediation Account and Trust
Administrative Account only for the purposes for each account set out in this Consent
Decree and in the respective Trust’s attached form of its Trust Agreement.
28. Remediation Trust QSF Duties. The Trustee of the Remediation Trust shall
at all times seek to have the Trust and the Trust Accounts treated as a QSF for which no
grantor trust election has been made. For purposes of complying with Section 468B(g)(2)
of the Internal Revenue Code, this Consent Decree shall constitute a consent decree
between the Parties. Approval of the Court shall be sought, and the Court shall retain
continuing jurisdiction over the Trust and the Trust Accounts sufficient to satisfy the
requirements of Treasury Regulation section 1.468B-1. The Trustee will not elect to have
the Trust treated as a grantor trust. The Trust shall be treated as a separate taxable entity.
The Trustee shall cause taxes, if any, imposed on the earnings or holdings in any Trust
Account to be paid out of such earnings or holdings and shall comply with all tax
reporting and withholding requirements imposed on the Trust under applicable tax laws.
The Trustee shall be the “administrator” of the Trust pursuant to Treasury Regulation
section 1.468B2(k)(3).
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29. Project Trust’s Restoration Project Duties. The Parties intend that Work
related to any Restoration Project be performed in a manner consistent with the
conditions and obligations set forth in any applicable separate agreement between
Mallinckrodt and the Natural Resource Damage Trustees to which such Restoration
Project relates.
30. Decision-making Generally. It is the intent of the Parties that the Trustee
of each Trust will carry out such Trust’s Work required by this Consent Decree with
limited need for input or oversight from the Parties. Accordingly, except as otherwise
specifically provided in this Consent Decree, the recommendations of the Trustee
regarding budgeting, financial, and remediation Work issues are presumptively
approved unless a Party, as a Beneficiary of such Trust, objects through the procedures
set forth in this Consent Decree.
31. Decisions Regarding Work and Deliverables.
a. The Trustee of a Trust, assisted by environmental, engineering, and
technical consultants, contractors, and other third-party professionals as needed,
shall ensure the preparation of all appropriate work plans, schedules, design
documents, contracts, permit applications, and other deliverables (collectively, the
“Deliverables”) necessary to carry out the Work of such Trust required by this
Consent Decree and the attached Statement of Work. Each Trustee shall provide
draft and final copies of the Deliverables to the Trust’s Beneficiaries as detailed in
the attached Statement of Work.
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b. Standard of Care. The Deliverables, and all Work at the Site
pursuant to this Consent Decree, shall be completed in a professional manner and
in accordance with the level of care and skill ordinarily exercised by similar
members of the profession performing similar services and practicing under
similar conditions using generally accepted environmental principles and best
professional practices. All services and products provided by a Trustee, or its
contractor or subcontractor, shall be fit for the intended purposes and shall reflect
the best professional knowledge and judgment of the Trustee.
c. The Beneficiaries may provide comments on the draft versions of the
Deliverables to the Trustee, within a timeframe specified by the Trustee that is
appropriate for each particular Deliverable but not less than ten (10) business days.
If a Beneficiary wishes to object to any element of any Deliverable, that Beneficiary
shall initiate the Dispute Resolution process provided by this Consent Decree and,
in doing so, the Beneficiary shall identify with specificity the element(s) of the
Deliverable to which it objects.
d. A Beneficiary’s objection or the pendency of dispute resolution
procedures shall not delay or stay any Work of a Trust unless a delay or stay is
mutually agreed to by the Beneficiaries or ordered by the Court (including by a
Magistrate Judge during Dispute Resolution). In deciding whether a stay is
appropriate, the Beneficiaries shall consider, among other factors, the underlying
remedial purposes of the Consent Decree and whether a stay would result in a
Trust, its Trustee, or any of its contractors or subcontractors being in breach of
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contract and shall seek to avoid any such breaches of contract. A dispute about a
severable element of a Deliverable shall not delay or prevent implementation of
other elements of the Deliverable during the pendency of the dispute. Subject to
the Dispute Resolution provisions of this Consent Decree, the Trustee, after
consultation with the Beneficiaries, shall determine whether elements of a
Deliverable are severable.
e. Except as provided in the Dispute Resolution provisions of this
Consent Decree or in other specific provisions of this Consent Decree, no
additional action or approval by the Court or any Party or Beneficiary is required
for a Trustee to carry out the Work required by this Consent Decree and attached
Statement of Work.
32. Limit on Decisions Regarding Work by the Project Trust.
a. The Trustee of the Project Trust shall recommend Beneficial
Environmental Projects to be funded and implemented by the Project Trust, and
each of the Beneficiaries may propose Beneficial Environmental Projects to the
Trustee. Mallinckrodt shall notify the Trustee and other Beneficiaries if a proposed
project qualifies as a Restoration Project. For projects that qualify as a Restoration
Project, the Trustee shall propose to fund such project in the Project Trust’s budget
and work plans unless such project would violate a provision of this Consent
Decree and subject to any Beneficiary’s right to comment on or object to the project
or its budget or work plans. In determining what projects to recommend and fund
as Beneficial Environmental Projects, the Trustee shall consider, among other
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factors, whether the project was recommended by a Beneficiary, the requirements
of Paragraph 13 (Beneficial Environmental Projects), and the funding schedule
established in Paragraph 32(b).
b. The Trustee of the Project Trust shall make all Feasible efforts to fully
allocate or commit the funding provided in Paragraph 13 for the Beneficial
Environmental Projects Work Category within four (4) years after the Effective
Date, although the Work to implement such projects may continue after that time.
It is the intent of the Parties and the Court that, if Feasible, the funding provided
in Paragraph 13 (Beneficial Environmental Projects) shall be fully committed or
spent within six (6) years after the Effective Date, except for any funds reserved
for operations, maintenance, or monitoring related to a Beneficial Environmental
Project. The time limits in this Paragraph for allocating and spending funding may
be modified or waived by agreement of the Parties or extended as necessary and
appropriate to Feasibly implement the Beneficial Environmental Projects Work
Category, as recommended by the Trustee of the Project Trust subject to comment
or objection by the Parties. The Trustee of the Project Trust shall not delay the
recommendation, selection, funding, and implementation of Beneficial
Environmental Projects on account of Mallinckrodt’s efforts to secure agreements
with the Natural Resource Damage Trustees regarding Restoration Projects if such
delay would jeopardize the Project Trust’s ability to meet the timelines set forth in
this subparagraph.
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c. With respect to Beneficial Environmental Projects that may qualify
as Restoration Projects:
i. Mallinckrodt is solely responsible for coordination and
negotiation with the Natural Resource Damage Trustees regarding
Restoration Projects and for timely obtaining agreements, if any, with the
Natural Resource Damage Trustees regarding Restoration Projects. The
Trustee of the Project Trust shall work in good faith with Mallinckrodt to
successfully implement Restoration Projects and shall supply all
information reasonably requested by Mallinckrodt in negotiating with the
a. For purposes of this Consent Decree, a “Force Majeure-Affected
Entity” may include Mallinckrodt or a Trustee, and shall refer to whichever entity
having obligations under this Consent Decree asserts that a Force Majeure has
occurred. “Force Majeure,” for purposes of this Consent Decree, is defined as any
event arising from causes beyond the control of a Force Majeure-Affected Entity,
of any entity controlled by a Force Majeure-Affected Entity, or of any contractor
hired by a Force Majeure-Affected Entity that delays or prevents the performance
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of any obligation under this Consent Decree despite the Force Majeure-Affected
Entity’s reasonable efforts to fulfill the obligation. The requirement that a Force
Majeure-Affected Entity exercise “reasonable efforts to fulfill the obligation”
includes using reasonable efforts to anticipate any potential Force Majeure and
using reasonable efforts to address the effects of any potential Force Majeure as it
is occurring and following the potential Force Majeure such that the delay and any
adverse effects of the delay are minimized to the greatest extent possible. “Force
Majeure” does not include insufficient funds to complete the Work.
b. If any event occurs or has occurred that may delay the performance
of any obligation under this Consent Decree for which a Force Majeure-Affected
Entity intends or may intend to assert a claim of Force Majeure, the Force Majeure-
Affected Entity shall notify the Parties within three (3) days of when the Force
Majeure-Affected Entity first knew that the event may cause a delay. Within seven
(7) days after providing such notice, the Force Majeure-Affected Entity shall
provide in writing to the Parties an explanation and description of the reasons for
the delay; the anticipated duration of the delay; all actions taken or to be taken to
prevent or minimize the delay; a schedule for implementation of any measures to
be taken to prevent or mitigate the delay or the effect of the delay; the Force
Majeure-Affected Entity’s rationale for attributing such delay to a Force Majeure;
and a statement as to whether, in the opinion of the Force Majeure-Affected Entity,
such event may cause or contribute to an endangerment to public health or
welfare, or the environment. The Force Majeure-Affected Entity shall include with
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any notice all available, non-privileged documentation supporting its claim that
the delay was attributable to a Force Majeure. A Force Majeure-Affected Entity
shall be deemed to know of any circumstances of which the Force Majeure-
Affected Entity, any entity controlled by the Force Majeure-Affected Entity, or the
Force Majeure-Affected Entity’s contractors or subcontractors knew or should
have known. Failure to comply with the above requirements regarding an event
shall preclude a Force Majeure-Affected Entity from asserting any claim of Force
Majeure regarding that event. Any disputes regarding the existence, mitigation, or
resolution of a Force Majeure shall be resolved through the Dispute Resolution
provisions in Paragraphs 56 through 61.
64. Third-Party Rights. This Consent Decree does not create rights or benefits
for, or grant any cause of action to or rights of enforcement by, any third party not named
in this Consent Decree.
65. Joint Authorship. In the event of a dispute under this Consent Decree, the
Parties shall be considered joint authors of this Consent Decree and no provision shall be
interpreted against any Party because of authorship.
66. Successors to NRDC or MPA. In the event that NRDC or MPA disbands or
otherwise ceases operations, it shall assign its rights under this Consent Decree to the
remaining Plaintiff organization. If the remaining Plaintiff organization also disbands or
otherwise ceases operations, it shall assign its rights under this Consent Decree to another
qualified nonprofit organization. A nonprofit organization shall be qualified for
assignment under this Consent Decree if it: (a) is a charitable organization under Section
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501(c)(3) of the Internal Revenue Code, a social welfare organization under Section
501(c)(4) of the Internal Revenue Code, or the substantial equivalent; and (b) has an
established record of working to enhance or preserve public health and the environment.
Any such assignment shall be subject to approval by the Court, and Mallinckrodt shall
have the right to object to any proposed assignment. Any successor organization shall
have the duty to assign its rights under this Consent Decree to another qualified nonprofit
organization in the event that the successor disbands or otherwise ceases operations. In
the event that a successor is not appointed at any given time, the Trustee of the
Remediation Trust shall propose the appointment of a qualified successor subject to
approval by the Court and objection by Mallinckrodt.
67. Modifications.
a. Modifications to Consent Decree. Modifications to this Consent
Decree shall be in writing, signed by authorized representatives of Plaintiffs and
Mallinckrodt, and shall be effective upon approval by the Court.
b. Modifications of Statement of Work and Trust Agreements.
Modifications to the Statement of Work or Trust Agreements shall be in writing,
signed by authorized representatives of Plaintiffs, Mallinckrodt, and the
applicable Trustee(s), and shall be effective immediately upon the Parties’ and
Trustee’s(s’) written agreement without further action by the Court. The Trustees
shall cause any such modified Statement of Work or Trust Agreement to be filed
on the Court’s docket, along with a brief statement identifying any material
modifications.
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c. Disputes Regarding Modifications. Any dispute regarding
modifications to this Consent Decree, the Statement of Work, or a Trust Agreement
shall be resolved through the Dispute Resolution provisions of this Consent
Decree.
68. List of Appendices.
a. “Appendix A” is the Statement of Work.
b. “Appendix B” is the form of the Remediation Trust Agreement.
c. “Appendix C” is the form of the Project Trust Agreement.
d. “Appendix D” is the form of the surety bond for financial assurance.
e. “Appendix E” is the Study Reaches Map, Figure 1-1 from Amec’s
Phase III Engineering Study Report, ECF No. 972-1.
f. “Appendix F” is the Surface Deposits Map, Figure 8-3 from Amec’s
Phase III Engineering Study Report, ECF No. 972-2.
69. Entire Agreement. This Consent Decree and its appendices constitute the
final, complete, and exclusive agreement and understanding among the Parties regarding
the settlement embodied in this Consent Decree. The Parties acknowledge that there are
no representations, agreements, or understandings relating to the settlement other than
those expressly contained in this Consent Decree.
70. Severability. The various terms, provisions and covenants contained in this
Consent Decree shall be deemed separable and severable, and the invalidity or
unenforceability of any of them shall in no manner affect or impair the validity or
enforceability of the remainder of this Consent Decree.
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71. Effective Date. This agreement shall go into effect immediately as of the
date of final entry by the Court.
72. Construction and Choice of Law. This Consent Decree shall be interpreted
and construed under federal law as a settlement under the citizen suit provision of RCRA,
42 U.S.C. § 6972. To the extent that state law is applicable to the interpretation and
construction of this Consent Decree, this Consent Decree shall be interpreted and
construed in accordance with the laws of the State of Maine, without regard to the
conflict-of-laws principles. To the extent reasonably possible, the provisions of this
Consent Decree shall be interpreted in a manner consistent with the Statement of Work
and the Trust Agreements. Where the provisions of this Consent Decree are irreconcilable
with the provisions of the Statement of Work or a Trust Agreement, the provisions of this
Consent Decree shall control.
73. Advice of counsel; Authority to Enter into Agreement; Counterparts.
a. Each Party represents and warrants that this Consent Decree has
been negotiated in good faith and that the Party has sought and obtained any
appropriate legal advice it deems necessary prior to entering into this Consent
Decree.
b. The undersigned representatives for each Party represent and
warrant that they are duly authorized to enter into the terms of this Consent
Decree and to bind such Party legally to this Consent Decree, and that such Party
has the right, power, and authority to enter into this Consent Decree, to become a
Party to this Consent Decree, and to perform its obligations under this Consent
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Decree. This Consent Decree is a legal, valid, and binding obligation of such Party,
enforceable against such Party in accordance with its terms.
c. This Consent Decree may be signed electronically in counterparts
and such counterpart signature pages shall be given full force and effect.
XVII. Retention of Jurisdiction
74. This Court retains jurisdiction over both the subject matter of this Consent
Decree and Mallinckrodt for the duration of the performance of the terms and provisions
of this Consent Decree for the purpose of enabling any of the Parties to apply to the Court
for such further order, direction, or relief as may be necessary or appropriate for the
construction or modification of this Consent Decree, or to effectuate or enforce
compliance with its terms, or to preserve the integrity of the Consent Decree, or to resolve
disputes in accordance with Section XIV, Paragraphs 56 through 61 (Dispute Resolution).
XVIII. Final Judgment
75. Finding of Fairness. After considering the positions of the Parties and all
of the evidence, by entering this Consent Decree the Court finds that this Consent Decree
is fair, reasonable, and in the public interest.
76. Final Judgment. Upon entry of this Consent Decree by the Court, this
Consent Decree shall constitute a final judgment between and among Plaintiffs and
Mallinckrodt pursuant to which Mallinckrodt has, as of the Effective Date, resolved
liability to Plaintiffs within the meaning of 42 U.S.C. § 6972(a)(1)(B). The Court finds that
there is no just reason for delay and therefore enters this judgment as a final judgment
pursuant to Fed. R. Civ. P. 54 and 58.
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SO ORDERED THIS ____ DAY OF ___________, 20____.
___________________________________
United States District Judge
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Signature Page for the Consent Decree in Maine People’s Alliance v. HoltraChem Mfg. Co., LLC, No. 1:00-cv-00069-JAW (D. Me)
FOR MAINE PEOPLE’S ALLIANCE:
Date: March 19, 2021 /s/ Mitchell S. Bernard Mitchell S. Bernard, Esq., pro hac vice
(NY Bar No. 1684307) Jared J. Thompson, Esq., pro hac vice (DC Bar No. 1004120) Natural Resources Defense Council, Inc. 40 West 20th Street New York, NY 10011 Phone: (212) 727‐4469 [email protected][email protected]
Date: March 19, 2021 /s/ Eric J. Uhl Eric J. Uhl, Esq., Bar No. 7244
Richardson, Whitman, Large & Badger 465 Congress Street, P.O. Box 9545 Portland, ME 04112-9545 Phone: (207) 774-7474 [email protected] Attorneys for MPA
Case 1:00-cv-00069-JAW Document 1114-1 Filed 03/19/21 Page 92 of 94 PageID #:17592
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Signature Page for the Consent Decree in Maine People’s Alliance v. HoltraChem Mfg. Co., LLC, No. 1:00-cv-00069-JAW (D. Me)
FOR NATURAL RESOURCES DEFENSE COUNCIL, INC.:
Date: March 19, 2021 /s/ Mitchell S. Bernard Mitchell S. Bernard, Esq., pro hac vice
(NY Bar No. 1684307) Jared J. Thompson, Esq., pro hac vice (DC Bar No. 1004120) Natural Resources Defense Council, Inc. 40 West 20th Street New York, NY 10011 Phone: (212) 727‐4469 [email protected][email protected]
Date: March 19, 2021 /s/ Eric J. Uhl Eric J. Uhl, Esq., Bar No. 7244
Richardson, Whitman, Large & Badger 465 Congress Street, P.O. Box 9545 Portland, ME 04112-9545 Phone: (207) 774-7474 [email protected] Attorneys for NRDC
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Signature Page for the Consent Decree in Maine People’s Alliance v. HoltraChem Mfg. Co., LLC, No. 1:00-cv-00069-JAW (D. Me)
FOR MALLINCKRODT US LLC:
Date: March 19, 2021 /s/ Jeffrey D. Talbert Jeffrey D. Talbert, Esq., Bar No. 4358
Benjamin S. Piper Esq., Bar No. 4720 Preti Flaherty Beliveau & Pachios LLP One City Center, P.O. Box 9546 Portland, Maine 04112-9546 Phone: 207-791-3000 [email protected][email protected] Attorneys for Mallinckrodt US LLC
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APPENDIX A
to the Consent Decree in Maine People’s Alliance v. HoltraChem Mfg. Co., LLC,
No. 1:00-cv-00069-JAW (D. Me)
Statement of Work
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STATEMENT OF WORK
For Remediation Activities
in the Penobscot River Estuary, Maine
to Accompany the Consent Decree in
Maine People’s Alliance v. HoltraChem Manufacturing Co., No. 1:00-cv-00069-JAW, D. Me.
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TABLE OF CONTENTS
I. Introduction ...................................................................................................................... 3
II. Work Design ..................................................................................................................... 6
III. Implementation of Work ............................................................................................... 14
IV. Community Involvement ............................................................................................. 25
V. Recordkeeping and Reporting ..................................................................................... 27
VI. Deliverables .................................................................................................................... 30
VII. Schedules ......................................................................................................................... 39
VIII. Permitting and Regulatory Cooperation .................................................................... 40
IX. Contracting and Insurance ........................................................................................... 41
not individually but solely in its representative capacity as Trustee
AND
MAINE PEOPLE’S ALLIANCE and NATURAL RESOURCES DEFENSE COUNCIL As Beneficiaries
As of ____________________, 2021
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Table of Contents RECITALS ......................................................................................................................................1 ARTICLE I: DEFINITIONS ...........................................................................................................2
1.1 Definitions.........................................................................................................................2 ARTICLE II: THE REMEDIATION TRUST .................................................................................5
2.1 Creation of and Transfer of Assets to the Remediation Trust ..........................................5 2.2 Objective and Purpose ......................................................................................................6 2.3 Holder of Trust Assets ......................................................................................................7 2.4 Management of Trust Assets ............................................................................................7 2.5 Investment and Safekeeping of Trust Assets ....................................................................8 2.6 Accounting ........................................................................................................................9 2.7 Remediation Trust Limitations .......................................................................................10 2.8 Termination .....................................................................................................................10
ARTICLE III: WORK AND DISTRIBUTIONS ..........................................................................10 3.1 Trust Accounts ................................................................................................................10 3.2 Payments by the Remediation Trust ...............................................................................10 3.3 Advisory Committee .......................................................................................................11 3.4 Manner of Payment .........................................................................................................12 3.5 Unclaimed Distributions .................................................................................................12
ARTICLE IV: THE TRUSTEE .....................................................................................................12 4.1 Appointment ...................................................................................................................12 4.2 Generally .........................................................................................................................13 4.3 Powers .............................................................................................................................14 4.4 Other Professionals .........................................................................................................14 4.5 Limitation of the Trustee’s Authority .............................................................................15 4.6 Reliance by the Trust Parties ..........................................................................................16 4.7 Compensation of the Trustee ..........................................................................................16 4.8 Liability of the Trust Parties ...........................................................................................17 4.9 Exculpation .....................................................................................................................17 4.10 Removal, Resignation, and Replacement of the Trustee ................................................18 4.11 Appointment of Successor Trustees ................................................................................19 4.12 No Bond ..........................................................................................................................19 4.13 Trustee Insurance ............................................................................................................19 4.14 Mutual Covenants Not to Sue .........................................................................................19
ARTICLE V: BENEFICIARIES ...................................................................................................19 5.1 Beneficiaries ...................................................................................................................19 5.2 Identification of Beneficiaries’ Representatives .............................................................20 5.3 Transfer of Beneficial Interests .......................................................................................20
ARTICLE VI: REPORTING AND TAXES .................................................................................20 6.1 Reports ............................................................................................................................20
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6.2 Other ...............................................................................................................................21 6.3 Taxes ...............................................................................................................................21
ARTICLE VII: MISCELLANEOUS PROVISIONS ....................................................................22 7.1 Amendments and Waivers ..............................................................................................22 7.2 Ex Parte Communications ...............................................................................................22 7.3 Property Assignment and Preservation ...........................................................................22 7.4 Dispute Resolution ..........................................................................................................23 7.5 Cooperation .....................................................................................................................23 7.6 Situs of the Remediation Trust .......................................................................................23 7.7 Severability .....................................................................................................................23 7.8 Sufficient Notice .............................................................................................................24 7.9 Headings .........................................................................................................................25 7.10 Actions Taken on Other Than Business Day ..................................................................25 7.11 Consistency of Agreements and Construction ................................................................25 7.12 Compliance with Laws ...................................................................................................25 7.13 No Recourse to Plaintiffs ................................................................................................25 7.14 Uniform Custodial Trust Act ..........................................................................................25 7.15 Authority to Enter into Agreement; Counterparts ..........................................................25
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This Penobscot Estuary Mercury Remediation Trust Agreement (the “Agreement”) is made this ___ day of ________________, 2021 (the “Effective Date”) by and among Mallinckrodt US LLC (“Mallinckrodt”), Greenfield Penobscot Estuary Remediation Trust LLC, not individually but solely in its representative capacity as trustee (“Trustee”) of the Penobscot Estuary Mercury Remediation Trust established hereby (the “Remediation Trust” or the “Trust”), Maine People’s Alliance (“MPA”), and Natural Resources Defense Council (“NRDC”).
RECITALS WHEREAS, in 2000, Plaintiffs MPA and NRDC, on behalf of their affected members, filed a complaint pursuant to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B), commencing the action designated Maine People’s Alliance, et al. v. HoltraChem Manufacturing, et al., Case No. 1:00-cv-00069-JAW (D. Me.) (the “Action”). Plaintiffs’ complaint alleged that Defendants Mallinckrodt and HoltraChem Manufacturing Company, LLC (HoltraChem) caused mercury discharges into the Penobscot River Estuary from a chlor-alkali plant in Orrington, Maine, that present or may present an imminent and substantial endangerment to health and the environment; and WHEREAS, a proposed Consent Decree in the Action was lodged with the Court on March 19, 2021, (the “Consent Decree”) among Mallinckrodt, MPA, and NRDC; and WHEREAS, the Consent Decree provides for (1) the establishment of the Remediation Trust and the transfer of funds to the Remediation Trust to be administered by the Trustee pursuant to this Agreement and the Consent Decree and (2) concurrent therewith, the establishment of the Penobscot Estuary Beneficial Environmental Projects Trust (the “Project Trust”) and the transfer of funds to the Project Trust to be administered pursuant to the Project Trust’s trust agreement and the Consent Decree; and WHEREAS, the Beneficiaries (defined below) and Trustee acknowledge and agree that the purpose of the Remediation Trust and the Project Trust is to fulfill Mallinckrodt’s environmental remediation and restoration obligations under the Consent Decree; and WHEREAS, in accordance with Section VII (Formation and Purpose of Penobscot Estuary Mercury Remediation Trust and Penobscot Estuary Beneficial Environmental Projects Trust) of the Consent Decree, Mallinckrodt hereby establishes the Remediation Trust as an independent entity that will hold the remediation funds provided for in the Consent Decree for the purpose of carrying out the Work (defined below) required by the Consent Decree and fulfilling other obligations as set forth in the Consent Decree and this Agreement; and WHEREAS, the Remediation Trust is to be funded in the amounts and manner set forth in the Consent Decree and this Agreement in order to provide funds for the Work and the administrative costs of the Remediation Trust; and
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WHEREAS, upon fully funding the Remediation Trust in accordance with this Agreement and the Consent Decree, including the distribution of any remaining Project Trust assets into the Remediation Trust upon the termination of the Project Trust, and Mallinckrodt’s then compliance with all obligations in this Agreement and the Consent Decree, Mallinckrodt’s obligations under this Agreement and the Consent Decree shall be fully satisfied; and WHEREAS, this Agreement and the Consent Decree govern the Remediation Trust, which is created pursuant to Section 1.468B-1, et seq. of the Treasury Regulations promulgated under section 468B of the Code (Section 468B of the Code and related Treasury Regulations, collectively, the “QSF Provisions”); and WHEREAS, Greenfield Penobscot Estuary Remediation Trust LLC has been selected to be the Trustee of the Remediation Trust and is willing to act as the Trustee in accordance with the requirements of the Consent Decree and this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein and in the Consent Decree, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS 1.1 Definitions All capitalized terms shall have the meaning set forth in the Consent Decree unless otherwise defined in this Section or elsewhere in this Agreement: 1.1.1 “Agreement” has the meaning as given in the preamble. 1.1.2 “Action” has the meaning as given in the Recitals. 1.1.3 “Beneficiary” or “Beneficiaries” means Mallinckrodt, MPA, and NRDC. 1.1.4 “Code” means the Internal Revenue Code of 1986, as amended. 1.1.5 “Consent Decree” has the meaning as given in the Recitals and includes all appendices attached thereto, including but not limited to the Statement of Work. 1.1.6 “Court” means the United States District Court for the District of Maine. 1.1.7 “Day” or “Days” means calendar days including weekends and holidays. In the event that the date for a required action falls on a day that is a weekend or federal holiday, the date for the required action shall be automatically extended to the next day that is not a weekend or federal holiday. 1.1.8 “Effective Date” has the meaning as given in the preamble.
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1.1.9 “Funding” has the meaning given in Section 2.1.2 (Transfer of Funds to the Remediation Trust) hereof. 1.1.10 “IRS” means the Internal Revenue Service. 1.1.11 “Initial Funding” has the meaning given in Section 2.1.2 (Transfer of Funds to the Remediation Trust) hereof. 1.1.12 “Maine Act” means the Maine Uniform Trust Code, 18-B M.R.S.A. §§ 101 et. seq. 1.1.13 “Mallinckrodt” means Mallinckrodt US LLC, its successors and assigns, and any corporate parent(s) responsible for the liabilities of Mallinckrodt US LLC. As of the Effective Date, Mallinckrodt is a subsidiary of United States Surgical Corporation, and an affiliate of Medtronic plc, the ultimate parent company of both entities. 1.1.14 “MPA” means Maine People’s Alliance and its successors and assigns. 1.1.15 “NRDC” means Natural Resources Defense Council and its successors and assigns. 1.1.16 “Parties” means the Plaintiffs, Mallinckrodt, and the Trustee.
1.1.17 “Person” means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, charitable foundation, unincorporated organization, government or any agency or political subdivision thereof, or any other entity.
1.1.18 “Plaintiffs” means MPA and NRDC. 1.1.19 “Project Trust” has the meaning as given in the Recitals. 1.1.20 “Property” means any and all real and personal property, tangible and
intangible property, or intellectual property, and any rights or interest therein, including but not limited to all reports, deliverables, documents, calculations, plans, designs, specifications, drawings, reports, maps, photographs, computer printouts, data, notes, and other documents or information of whatsoever nature or kind (in whatever form, format, or media) arising from the performance of the Work under the Consent Decree and this Agreement.
1.1.21 “QSF Provisions” has the meaning as given in the Recitals. 1.1.22 “Remediation Trust” or “Trust” has the meaning given in the preamble. 1.1.23 “Section” means a portion of this Agreement, the Consent Decree, or the
Statement of Work, in each case as indicated, identified by an Arabic numeral or numerals. A
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reference to any Section denoted by an Arabic numeral or numerals includes any subsections thereof.
1.1.24 “Site” means the Penobscot River Estuary, which generally includes the
tidal portions of the Penobscot River from the location of the former Veazie Dam to upper Penobscot Bay. Specifically, the Site includes each of the Study Reaches shown in Appendix E to the Consent Decree, which is Figure 1-1 of the Phase III Engineering Study Report, ECF No. 972-1, prepared by Amec Foster Wheeler Environment & Infrastructure, Inc. (n/k/a Wood Environment & Infrastructure Solutions, Inc.), including any intertidal areas that fringe the Study Reaches.
1.1.25 “Statement of Work” or “SOW” means the document attached as Appendix
A to the Consent Decree and describing the activities that must be performed to implement the remediation activities at the Site required by the Consent Decree.
1.1.26 “Tax” or “Taxes” means all federal, state, and local taxes that may be
imposed on the Remediation Trust from time to time by any taxing authority. 1.1.27 “Trust Account” has the meaning given in Section 2.1.4 (Creation of the
Trust Accounts) hereof. 1.1.28 “Trust Administrative Account” means the account as described in the
Consent Decree and established pursuant to Paragraph 24 (Creation of Trust Accounts) of the Consent Decree and Section 2.1.4 (Creation of the Trust Accounts) of this Agreement, including any subaccounts, to hold funds to be used for Trust Administrative Costs and to which Funding is specially allocated as described in Paragraph 15 (Trust Administrative Costs) of the Consent Decree.
1.1.29 “Trust Assets” means (a) the Funding to be transferred to the Remediation
Trust pursuant to the Consent Decree and (b) such other assets acquired, earned, or held by the Remediation Trust from time to time pursuant to this Agreement, the Consent Decree, or an order of the Court.
1.1.30 “Trust Administrative Costs” refer to all costs, obligations, or liabilities
associated with administration and management of the Remediation Trust, to be paid from the Administrative Account, including taxes, investment and safekeeping costs, insurance, legal, accounting, bookkeeping, financial affairs, and other costs, fees, and expenses not directly related to the Work;
1.1.31 “Trust Parties” means, collectively, the Remediation Trust, the Trustee, and the Trustee’s member’s shareholders, officers, directors, employees, and managers of the Trustee; for the avoidance of doubt, “Trust Parties” shall not include environmental, engineering, or technical consultants and contractors, and other third-party professionals retained by the Trustee to assist it in carrying out its responsibilities under this Agreement and the Consent Decree.
1.1.32 “Trust Remediation Account” means the account established pursuant to
Paragraph 24 (Creation of Trust Accounts) of the Consent Decree and Section 2.1.4 (Creation of
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the Trust Accounts) of this Agreement, including any subaccounts, to hold funds to satisfy the Trustee’s obligations for specific Work Categories.
1.1.33 “Trustee” means the Person appointed to be the trustee of the Remediation
Trust consistent with the Consent Decree and this Agreement. 1.1.34 “Work Category” or “Work Categories” means, individually or collectively,
the Work described in Paragraphs 10 (Orrington Reach), 11 (Mobile Sediments and Surface Deposits), 12 (Orland River and East Channel around Verona Island), 13 (Beneficial Environmental Projects), and 14 (Long-Term Monitoring) of the Consent Decree to which Funding is specifically allocated.
1.1.35 “Work” means all activities and obligations which the Trust, Trustee, or
Mallinckrodt is required to perform under the Consent Decree.
ARTICLE II THE REMEDIATION TRUST
2.1 Creation of and Transfer of Assets to the Remediation Trust. 2.1.1 Pursuant to the Consent Decree, Mallinckrodt hereby establishes the Remediation Trust under the Maine Act for the benefit of the Beneficiaries, and Mallinckrodt hereby transfers, assigns, and delivers to the Remediation Trust, or to the Trustee, not individually but solely in its representative capacity as Trustee of the Remediation Trust, if the law of Maine prohibits a trust entity from holding such title, for the benefit of the Beneficiaries, the Initial Funding as Trust Assets. The Trustee hereby accepts and agrees to hold the Trust Assets in the Remediation Trust for the benefit of Beneficiaries for the purposes described in Section 2.2 (Objective and Purpose) below, subject to the terms of the Consent Decree, this Agreement, and any applicable orders of the Court.
2.1.2 Transfer of Funding to the Remediation Trust. Within twenty (20) days after the Effective Date, Mallinckrodt shall cause to be transferred to the Remediation Trust cash in the amount of $9.5 million (the “Initial Funding”). Thereafter, in accordance with Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree, Mallinckrodt shall transfer additional funds to the Remediation Trust based on the invoices and five-year budget forecasts prepared by the Trustee at such times and in such amounts as determined in accordance with Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree, subject to the overall Capped Funding for the two Trusts and the Capped Funding for each Work Category and Trust Account set forth in Paragraphs 10 through 15 (Orrington Reach through Trust Administrative Costs) and Paragraph 18 (Capped Funding) of the Consent Decree. Mallinckrodt shall have no funding obligation beyond the Capped Funding amount in the Consent Decree. The Trustee may seek Funding from the financial assurance at such times, in such amounts, and subject to the requirements set forth in Paragraph 20(e) (Financial Assurance: Drawdown) of the Consent
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Decree. The Remediation Trust may also receive Funding from the Project Trust. The Initial Funding and subsequent payments provided for in this Section together constitute the “Funding.”
2.1.3 Trust Invoices. The Trustee shall deliver invoices, with the necessary
documentation, to Mallinckrodt for Funding as required and subject to the limits set forth in this Agreement and Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. The Trustee shall not invoice Mallinckrodt for any Work on Beneficial Environmental Projects until the Remediation Trust’s right, if any, to Committed Funding vests in accordance with Paragraphs 13 and 33 (Beneficial Environmental Projects; Termination of Project Trust) of the Consent Decree.
2.1.4 Creation of the Trust Accounts. Upon receipt of the Initial Funding, the
Trustee shall create two segregated Trust Accounts within the Remediation Trust: the Trust Remediation Account and the Trust Administrative Account. The purpose of the Trust Remediation Account shall be to hold and invest funds and proceeds to fund Work in the Work Categories as selected, approved, and authorized pursuant to the terms of the Consent Decree. Upon receipt of the Initial Funding, the Trustee shall segregate the Trust Remediation Account into separate subaccounts for each Work Category. As the Trustee receives Funding allocable to the Trust Remediation Account, the Trustee will allocate such Funding among the Work Categories’ subaccounts in accordance with the allocation stated on the invoice to which such Funding relates, all as described in Paragraphs 19 (Initial Funding of the Trusts), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. The Trustee may create additional subaccounts within the Trust Remediation Account, and within any Work Category subaccount, dedicated for specific uses as may be deemed necessary in the sole discretion of the Trustee to comply with the terms of and implement the Consent Decree and this Agreement pursuant to Paragraph 24 (Creation of Trust Accounts) in the Consent Decree. The Trust Administrative Account shall be used by the Trustee for Trust Administrative Costs. Funding from the Trust Remediation Account, or its subaccounts, may not be used for any purpose of the Trust Administrative Account, and funding from the Trust Administrative Account, or any subaccounts, may not be used for any purpose of the Trust Remediation Account, except as otherwise provided in this Agreement or in the Consent Decree. The Initial Funding of each of the Trust Accounts shall be as set forth in the Consent Decree. The separate accounts are referred to in this Agreement individually as a “Trust Account” and collectively as the “Trust Accounts.” Subject to Section 2.5 (Investment and Safekeeping of Trust Assets), the income, gains, and losses from any investment of the Trust Assets shall be allocated, paid, and credited to, and/or deducted from, such Trust Account. 2.2 Objective and Purpose. 2.2.1 The exclusive purposes and functions of the Remediation Trust are to hold the Trust Assets, carry out administrative functions related to the Trust Assets, oversee, implement and fund Work at the Site, oversee, implement and fund Beneficial Environmental Projects, pay future oversight costs and other costs as provided herein and in the Consent Decree, and carry out Long-Term Monitoring at the Site. The Remediation Trust shall contract with and retain such environmental, engineering, and technical consultants and contractors and other third-party
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professionals, as the Trustee may deem necessary, to advise and assist the Trustee in carrying out the activities necessary to achieve the purposes of the Consent Decree. The Remediation Trust shall be responsible for securing all regulatory permits and other approvals required to implement the Work required by the Consent Decree. The performance by the Trustee of its duties under this Agreement shall not be considered to be the Trustee’s engaging in a trade or business. 2.2.2 The Remediation Trust is established pursuant to this Agreement and the Consent Decree and approved by the Court for the sole purpose of resolving Plaintiffs’ claims asserting environmental liabilities of Mallinckrodt. Mallinckrodt’s Funding of the Remediation Trust, pursuant to Paragraphs 10 through 15 (Orrington Reach through Trust Administrative Costs) and 18 (Capped Funding) of the Consent Decree and in accordance with Section 2.1.2 (Transfer of Funding to the Remediation Trust) hereof up to the Capped Funding, shall fully satisfy Mallinckrodt’s liabilities with respect to the Action, provided Mallinckrodt is then in compliance with all obligations under the Consent Decree. As provided in the Consent Decree, the Court will retain continuing jurisdiction over the Remediation Trust and the underlying legal action. 2.3 Holder of Trust Assets. The Remediation Trust shall be the exclusive holder of the Trust Assets and Trust Accounts described herein for purposes of 31 U.S.C. § 3713(b). 2.4 Management of Trust Assets. 2.4.1 Consistent with this Agreement and the Consent Decree, the Trustee shall use the Trust Remediation Account to provide funding and proceeds for Work set forth in Paragraphs 10 through 14 (Orrington Reach through Long-Term Monitoring) and Appendix A (Statement of Work) of the Consent Decree as selected, approved, and authorized pursuant to the terms of the Consent Decree and the Statement of Work. Except as otherwise specifically provided herein, the Trustee shall solely fund Work in a specific Work Category with the Trust Assets held in the Trust Account for that Work Category. The Trustee shall use the Trust Administrative Account funds solely to pay Trust Administrative Costs. To the extent the Person then serving as Trustee provides services to the Remediation Trust outside of its capacity as Trustee, costs incurred by the Remediation Trust with respect to such services shall be paid from the Trust Account from which such costs would be paid if the services were performed by a third-party. 2.4.2 As set forth in Paragraph 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections) of the Consent Decree, the Trustee by October 1 of each year, beginning with the first such date after the Effective Date, shall prepare a draft annual budget, work plan, and cash flow projections by quarter for the next calendar year for the Trust Remediation Account and the Trust Administrative Account. Decisions regarding annual budgets, work plans, and cash flow projections will be made in accordance with Paragraph 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections) of the Consent Decree. 2.4.3 Except as otherwise set forth in this Section 2.4.3 and Section 2.5 (Investment and Safekeeping of Trust Assets), the Trust Assets held in a Trust Account shall not be commingled with, distributed to, or used to fund Work under another Trust subaccount. At such time that it is determined by the Trustee, in accordance with Paragraphs 10 through 14 (Orrington Reach through Long-Term Monitoring) of the Consent Decree and after consultation with the
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Beneficiaries, that Work in a Work Category is complete (in accordance with the Statement of Work), or after a sufficient amount of Trust Assets has been set aside for the completion of such Work, the remaining Trust Assets in such Work Category’s subaccount may be transferred to the subaccount of another Work Category, after which such funds shall be deemed a part of the Trust Assets of such transferee subaccount and shall be used to fund Work in such Work Category, all in accordance with Paragraphs 10 through 14 and 17 (Orrington Reach through Long-Term Monitoring; Remaining Funding) of the Consent Decree. No Contingent Funding remaining for any Work Category may be transferred to another Trust Account or subaccount and in no event shall remaining Contingent Funding be used to fund Work in any other Work Category. 2.5 Investment and Safekeeping of Trust Assets. 2.5.1 The Trust Assets shall be held in trust, segregating Trust Administrative Account and Trust Remediation Account funds, with Remediation Account funds further segregated into sub-accounts by Work Category. All interest investment income, and other amounts earned (“Investment Income”) in a Trust Account shall be retained in the respective Trust Account and used only for the same purposes as the principal in that account as provided in this Agreement and the Consent Decree, provided, however, that the Trustee shall first deduct from any Investment Income realized an amount equal to the estimated Taxes owed on such Investment Income and costs associated with investment of the Trust Assets to which such Investment Income relates, all as reasonably determined by the Trustee based on applicable income tax withholding and reporting requirements, and deposit that sum into the Trust Administrative Account. The Trustee shall have no liability for interest or producing income on any moneys received by the Remediation Trust hereunder and held for distribution or payment as provided in this Agreement, except as such interest or amounts shall actually be received by the Remediation Trust. The Trustee shall have the right to administer, or engage an investment manager to administer, investments of any Trust Assets with the purpose of deriving a reasonable income from the Trust Assets pending periodic distributions in accordance with Article III hereof, taking into account the need for the safety and liquidity of principal required by the purposes of the Remediation Trust, and not of speculating or carrying on of any business for profit or derivation of gains therefrom. However, the right and power of the Remediation Trust to invest and reinvest the Trust Assets or any income earned by the Remediation Trust shall be limited to the right and power to invest and reinvest any part of all of such Trust Assets (pending periodic distributions in accordance with Article III hereof) in the following investment vehicles, provided that at least 50% (and, at the Trustee’s discretion, up to 100%) of the Trust Assets in each Trust Account shall, at any given time, be invested in categories (1), (2), and/or (3):
(1) Marketable obligations issued, guaranteed, or secured by the United States of America or an agency thereof (including, without limitation, government-sponsored enterprises such as Federal National Mortgage Association [Fannie Mae] and Federal Home Loan Mortgage Corporation [Freddie Mac]);
(2) Certificates of deposit with a domestic office of any national or state
bank or trust company organized under the laws of the United States of America or any state therein and having capital, surplus, and undivided
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profits of at least $750,000,000, or in such institutions not meeting this specified capital requirement to the extent that such deposits are federally insured;
(3) Deposit accounts and/or money market funds;
(4) No-load mutual funds or exchange traded funds;
(5) A diversified portfolio of equities traded on a recognized national
exchange that meet the standards for publicly listed companies;
(6) A diversified portfolio of bonds. The overall average rating of the portfolio shall have a rating of Double A or better, with no individual bond rated below A, exclusive of any bond insurance; and
(7) Any other investment vehicle approved in writing by the Beneficiaries.
The Trustee shall consult initially and from time to time with the Beneficiaries
regarding the nature and allocation of investments in the Trust Accounts. The Beneficiaries expressly agree that the Trustee shall have satisfied applicable standards and requirements and any duty to diversify by investing the Trust Assets in categories (1), (2), (3), and/or (6) above.
2.5.2 Except as set forth in Section 2.4.3 and this Section 2.5, the Trustee is
expressly prohibited from commingling Trust Accounts, provided that funds in separate Trust Accounts may be commonly managed, may be invested in common instruments, and may be aggregated with other funds for investment purposes so long as they remain accounted for separately. 2.5.3 Nothing in this Section 2.5 shall be construed as authorizing the Trustee to cause the Remediation Trust to carry on any business or to divide the gains therefrom, including without limitation, the business of an investment company or a company “controlled” by an “investment company,” required to register as such under the Investment Company Act of 1940, as amended. The sole purpose of this Section 2.5 is to authorize the investment of the Trust Assets in the Trust Accounts or any portions thereof as may be reasonably prudent pending use of the proceeds for the purposes of the Remediation Trust. 2.5.4 All costs and risk related to the investment of the Trust Assets in accordance with the guidelines set forth in this Section 2.5 shall be borne solely by the Remediation Trust. Mallinckrodt shall have no responsibility for, interest in, or liability whatsoever with respect to investment decisions or the actions of the Trustee, or any transactions executed by the Trustee, which shall in no event increase Mallinckrodt’s financial obligations as set forth in Paragraphs 10 through 15 (Orrington Reach through Trust Administrative Costs) and 18 (Capped Funding) of the Consent Decree. 2.6 Accounting. The Trustee shall maintain proper books, records, and accounts relating to all transactions pertaining to the Remediation Trust, and the assets and liabilities of, and claims
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against or assumed by, the Remediation Trust as may be necessary to enable the Trustee to make a full and proper accounting thereof and to comply with applicable provisions of law and good accounting practices and the obligations set forth in Paragraphs 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. Except as otherwise provided herein or by the Consent Decree, the Trustee shall not be required to file any accounting or seek approval of the Court with respect to the administration of the Remediation Trust, or as a condition for making any payment or distribution out of the Trust Assets. Beneficiaries shall have the right upon 14 days’ prior written notice delivered to the Trustee to inspect such books and records. 2.7 Remediation Trust Limitations. 2.7.1 No Beneficiary, nor any of its components, agencies, officers, directors, agents, employees, affiliates, successors, or assigns, shall be deemed to be an owner, operator, trustee, partner, agent, shareholder, officer, or director of the Remediation Trust. 2.7.2 The Remediation Trust is irrevocable. Mallinckrodt (i) shall not retain any ownership whatsoever with respect to the Trust Assets and shall not retain any residual interest whatsoever with respect to the Trust Assets, including, but not limited to, the funds transferred by Mallinckrodt to fund the Remediation Trust pursuant to the terms of the Consent Decree, except as provided in Sections 2.8 and 3.5 (Termination; Unclaimed Distributions); (ii) shall not have any liabilities or funding obligations with respect to the Remediation Trust (to the Trustees, the Beneficiaries, or otherwise) other than the Funding obligations expressly set forth in the Consent Decree; (iii) shall not have any liability or obligation to pay tax on any income or gains from any investment of the Trust Assets; and (iv) shall not have any rights or role with respect to the management or operation of the Remediation Trust except in its capacity as a Beneficiary and as expressly provided in the Consent Decree and this Agreement. 2.8 Termination. The Trustee shall not unduly prolong the duration of the Remediation Trust and shall at all times endeavor to perform the Work and accordingly effect the distribution of Trust Assets in accordance with the terms hereof, and to terminate the Remediation Trust as soon as practicable so long as consistent with this Agreement and the Consent Decree. If the Consent Decree is not entered by the Court, the Remediation Trust will terminate and all remaining funds will be returned to Mallinckrodt.
ARTICLE III WORK AND DISTRIBUTIONS
3.1 Trust Accounts. The Trustee shall establish, maintain, and hold Trust Accounts consistent with the Consent Decree and Section 2.1 (Creation of and Transfer of Assets to the Project Trust) of this Agreement to administer the Trust Assets and distributions therefrom. 3.2 Payments by the Remediation Trust. 3.2.1 On or before October 1 of each calendar year, the Trustee shall provide the Beneficiaries, to the extent required in the Consent Decree, with balance statements, proposed
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budgets, work plans, and forecasts as described in Section 2.4.2 of this Agreement and Paragraphs 19 (Initial Funding of the Trusts), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. Except as otherwise provided in Section 3.2.2 (Emergency Funding) below, the Trustee shall not pay any expense that has not been provided for in a budget, revised budget or revised line item of a budget that the Beneficiaries have not objected to pursuant to the terms of this Agreement and the Consent Decree. Nevertheless, the Trustee may incur or pay ongoing or recurring expenses included in the prior year’s budget that occur between the time a proposed annual budget is submitted and the time allowed for the Beneficiaries to object and initiate the dispute resolution process. 3.2.2 Emergency Funding. In the event of an emergency at the Site arising from the Work performed or funded by the Remediation Trust that, as may be deemed in the Trustee’s sole discretion, requires immediate remedial action to occur within a timeframe that does not permit sufficient time to amend the annual budget, the Trustee may utilize funding, of not more than $250,000, from the Trust Remediation Account to undertake and fund actions necessary to respond to the emergency. Nothing in this paragraph shall preclude the payment or reimbursement of such emergency funding through the annual budget or budget revision process; provided, however, that use of emergency funding under this paragraph shall in no event increase Mallinckrodt’s financial obligations as set forth in Paragraph 18 (Capped Funding) of the Consent Decree. 3.2.3 Expenses of the Remediation Trust. The expenses of the Remediation Trust relating to Work in a Work Category shall be paid solely from the Trust Assets held in the Trust subaccount for such Work Category. The Remediation Trust’s Trust Administrative Costs shall be paid solely from the Trust Assets held in the Trust Administrative Account. 3.2.4 Pre-Court Endorsement Date Funding. Mallinckrodt will transfer the Funding to the Remediation Trust to fund the Trustee’s Work and its other obligations pending approval of the Consent Decree by the Court. Where the Trustee and the Beneficiaries agree that the Trustee accrued fees and expenses prior to the Court’s endorsement of the Consent Decree in furtherance of activities that would constitute Work in a Work Category under the Consent Decree, those fees and expenses shall be paid from the Trust Assets held in the Trust subaccount for the applicable Work Category and Trust Administrative Costs from the Trust Administrative Account. After the effective date of the Consent Decree (or earlier if requested by the Beneficiaries), the Trustee will submit detailed invoices reflecting its fees and expenses for comment and objection by the Beneficiaries. The Trustee shall be entitled to remuneration from the Remediation Trust Administrative Account for its reasonable fees and expenses incurred prior to the Effective Date in connection with the Consent Decree, this Agreement, and planning and creation of the Remediation Trust (the “Pre-Effective Date Fees”), which remuneration shall not exceed $38,000. Within 45 days after the Effective Date of the Remediation Trust, the Remediation Trustee will submit detailed invoices reflecting its Pre-Effective Date Fees for remuneration from the Trust Administrative Account for comment and non-objection by the Beneficiaries. 3.3 Advisory Committee. The Trustee shall create an informal Advisory Committee composed of representatives of the Beneficiaries, including at least one representative for Plaintiffs and one
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representative for Mallinckrodt. The role of any such Advisory Committee shall be to (i) facilitate dialogue between the Trustee and Beneficiaries, (ii) seek to build consensus among the Beneficiaries, (iii) coordinate Work by the Remediation Trust and Project Trust, and (iv) provide informal consultation to the Trustee regarding management of the Remediation Trust and execution of the Work required by the Consent Decree. The Advisory Committee shall not have any formal approval or decision-making authority. The Advisory Committee shall meet at the request of the Trustee, on a schedule and by means that are mutually agreeable to the Beneficiaries and Trustee. Each Beneficiary shall designate one or more representatives to the Advisory Committee, each of whom may be an employee, attorney, or consultant for the Beneficiary. 3.4 Manner of Payment. Cash payments made by the Remediation Trust pursuant to the Consent Decree and this Agreement shall be in United States dollars by checks drawn on a domestic bank whose deposits are federally insured as selected by the Trustee, or by wire transfer from such a domestic bank, at the option of the Trustee. When selecting or changing the domestic bank to be used for these purposes, the Trustee shall give the Beneficiaries notice and an opportunity to comment or object. 3.5 Unclaimed Distributions. In the event that any Contingent Funding remains in the Remediation Trust after it has been determined by the Court, in such manner as is required by the Consent Decree, that the Remediation Trust has completed all Work set forth under the Consent Decree to which use such Contingent Funding is restricted and after Remaining Funding has been used as provided in Paragraph 17 (Remaining Funding), any remaining Contingent Funding shall be transferred to Mallinckrodt within 30 days of termination of the Remediation Trust.
ARTICLE IV THE TRUSTEE
4.1 Appointment. 4.1.1 Trustee. Greenfield Penobscot Estuary Remediation Trust LLC is hereby appointed subject to approval by the Court to serve as the Trustee to administer the Remediation Trust and the Trust Accounts and perform the Work set forth in the Consent Decree and this Agreement, and the Trustee hereby accepts such appointment and agrees to serve in such representative capacity, effective upon the Effective Date. Subject to the provisions in Section 4.10 (Removal, Resignation, and Replacement of the Trustee) herein, the term of the Trustee shall be for ten (10) years at which time the Trustee may resign, be reappointed by the Beneficiaries, or be terminated. Any successor Trustee shall be jointly proposed by the Beneficiaries and appointed by the Court in accordance with Section 4.11 (Appointment of Successor Trustees) of this Agreement. 4.1.2 Consultants, Contractors, and Third-Party Professionals. The Remediation Trust is authorized to contract with any environmental, engineering, or technical consultants and contractors, and other third-party professionals to carry out the Work at the Site and otherwise fulfill the purposes of the Remediation Trust and its obligations under the Consent Decree. Such consultants, contractors, and third-party professionals shall be recommended by the Trustee and shall contract with the Remediation Trust, and the Beneficiaries shall have reasonable opportunity to comment on or object to these recommendations in accordance with Paragraphs 31 and 38
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(Decisions Regarding Work and Deliverables; Selection and Hiring of Contractors) of the Consent Decree, prior to finalizing any such contracts. The legal relationship of each consultant, contractor, and third-party professional to the Remediation Trust and Trustee is that of an independent contractor professional, not that of an entity employed by the Remediation Trust or the Trustee (and in no event shall be deemed a Trust Party).
4.1.3 Third-Party Insurance. Each consultant, contractor, and third-party professional engaged by the Remediation Trust in accordance with this Section to carry out the Work shall be required to obtain, at its own expense (except with respect to any project-specific insurance procured in accordance with this Section), as appropriate (based on, among other things, the contemplated scope of services to be provided by such professional), general, environmental, professional, and/or other liability insurance in the range of $1,000,000 to $25,000,000 as agreed to by the Remediation Trust after consultation with the Beneficiaries and an opportunity for the Beneficiaries to comment on or object to any proposed insurance coverage(s). Upon the recommendation of the Trustee, and to the extent project-specific insurance is necessary, the Remediation Trust may reimburse or pay for project-specific insurance for a consultant, contractor, or third-party professional, subject to an opportunity for the Beneficiaries to comment or object. To the fullest extent permitted by applicable law, (i) insurance policies obtained in accordance with this Section shall (A) be maintained for a period of two years following completion of the applicable Work, (B) name the Trust Parties, and the Beneficiaries of the Remediation Trust as additional insureds, (C) be issued by an insurer rated A-VII or higher in Best’s Insurance Manual or equivalent and that is qualified to do business in the jurisdiction where the Site is located, and (D) provide that the Remediation Trust be given prior written notice of the termination or expiration of such policy or any material changes in coverage or terms under the policy, (ii) all such policies shall be primary to any insurance maintained by the Remediation Trust and shall state the same with respect to liabilities that the Trust Parties and the Beneficiaries may incur that are attributable to the Site, and (iii) professionals insured in accordance with this Section shall waive, and require their insurers to waive, all rights of subrogation against the Remediation Trust, Trustee, Trust Parties, and the Beneficiaries. The insurance policies shall cover, among other things, negligence committed by the consultant, contractor, or third-party professional in carrying out the Work at the Site. In addition, unless waived by the Remediation Trust in its sole discretion, each subcontractor retained by a professional engaged by the Remediation Trust in accordance with this Section to carry out a portion of the Work shall obtain and maintain insurance of similar types in amounts that accord with the professional’s usual practice for such Work when performed by subcontractors, naming the Remediation Trust, Trustee, and the Beneficiaries of the Remediation Trust as additional insureds to the fullest extent permitted by applicable law.
4.2 Generally. The Trustee’s powers are exercisable solely in a fiduciary capacity and solely for the benefit of the Beneficiaries consistent with, and in furtherance of, the purposes of the Remediation Trust and the Consent Decree. The Trustee shall have the authority to bind the Remediation Trust and any successor Trustee, or successor or assign to the Remediation Trust, but shall for all purposes hereunder be acting in its representative capacity as Trustee and not individually. Notwithstanding anything to the contrary contained herein, the Trustee shall not be required to take action or omit to take action if, after the advice of counsel, the Trustee believes in good faith such action or omission is not consistent with the Trustee’s fiduciary duties. The Trustee shall not be deemed to have breached its fiduciary duties in connection with any act or omission
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that is consistent with written direction from the Court. The Trustee shall have no obligation to perform any activities for which the relevant Trust Account lacks sufficient funds. 4.3 Powers. In connection with the administration of the Remediation Trust and except as otherwise set forth in this Agreement or the Consent Decree, the Trustee is authorized to perform any and all acts necessary to accomplish the purposes of the Remediation Trust. Except as provided in the Consent Decree and Section 4.5 (Limitations on the Trustee’s Authority) below, the powers of the Trustee shall include, without limitation, each of the following: (i) to receive, manage, invest, reinvest, supervise, vote, and protect the Trust Assets, withdraw, make distributions, and pay Taxes (if applicable or required) and other obligations owed by the Remediation Trust or the Trust Accounts from funds held by the Trustee, the Remediation Trust, and/or the Trust Accounts in accordance with the Consent Decree, and withhold and pay to the appropriate taxing authority any withholding taxes on distributions from the Remediation Trust, if applicable; (ii) to engage employees and professional Persons to assist the Remediation Trust and/or the Trustee with respect to the responsibilities described herein; (iii) to make distributions of the Trust Assets from the Trust Accounts for the purposes contemplated in this Agreement and the Consent Decree; (iv) to hold Property in the name of the Trustee in its capacity as such; (v) to establish and maintain a public-facing website and to engage in other Community Involvement activities in accordance with section IV (Community Involvement) of the Statement of Work appended to the Consent Decree; (vi) to purchase any insurance policies required, or as the Trustee may determine prudent, to protect the Remediation Trust, the Trust Assets, or the Trustee from any and all claims that might be asserted against each relating to the Remediation Trust; (vii) to file quarterly documents in Court on behalf of the Trustee and the Remediation Trust in accordance with the Consent Decree; (viii) to file all necessary state and federal filings and to provide information as required by law, this Agreement, or the Consent Decree; (ix) to determine the Work to be funded and implemented by the Remediation Trust as Beneficial Environmental Projects pursuant to Paragraph 13 (Beneficial Environmental Projects) of the Consent Decree, all as in accordance with the requirements set forth in the Consent Decree and subject to the limitations set forth in Section 4.5.2 (Coordination with Project Trust) below; (x) to engage in all communications, take all actions, and execute all agreements, instruments, and other documents necessary to draw down a Financial Assurance to the extent authorized in Paragraph 20(e) (Financial Assurances, Drawdown) of the Consent Decree; and (xi) to effect all actions, including defending or resolving claims asserted against the Remediation Trust and/or Trustee, in its capacity as such and subject to Section 4.9 (Exculpation), and execute all agreements, instruments, and other documents necessary to implement this Agreement, including to exercise such other powers as may be vested in or assumed by the Remediation Trust and/or the Trustee pursuant to this Agreement and any order of the Court, or as may be necessary and proper to carry out the provisions of this Agreement and the Consent Decree. No Person dealing with the Remediation Trust shall be obligated to inquire into the authority of the Trustee in connection with the protection, conservation, or disposition of Trust Assets; provided, however, that the foregoing does not limit the Trustee’s obligations to provide information under Paragraph 4 of the Consent Decree. The Trustee is authorized to execute and deliver all documents on behalf of the Remediation Trust to accomplish the purposes of this Agreement and the Consent Decree. 4.4 Other Professionals. The Trustee is authorized to retain on behalf of the Remediation Trust and pay such other professionals as the Trustee (in accordance with a budget approved pursuant to
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Section 3.2 above) may deem necessary or appropriate to assist the Trustee in carrying out its powers and duties under this Agreement and the Consent Decree, including, without limitation: (i) legal counsel to the Remediation Trust and/or the Trustee, in its capacity as such and subject to Section 4.9 (Exculpation); (ii) one or more public accounting firms to perform such bookkeeping functions, reviews, and/or audits of the financial books and records of the Remediation Trust as may be appropriate in the Trustee’s reasonable discretion and to prepare and file any tax returns or informational returns for the Remediation Trust or the Trust Accounts as may be required; and (iii) investment advisors, custodians, security personnel, surveyors, contractors, clerks, and other third parties. The Trustee may pay all such Persons compensation for services rendered and expenses incurred in accordance with budgets approved as provided in Section 3.2 and from the appropriate Trust Account consistent with Sections 2.1.4 and 2.4.1 herein (Creation of the Trust Accounts; Management of Trust Assets). Fees due to an investment advisor that are expressed as a percentage of assets under management or return on investment need not be included in a budget. Beneficiaries shall be given notice and the ability to object to the use or retention of other professionals. 4.5 Limitation of the Trustee’s Authority.
4.5.1 General Limit. The Remediation Trust and the Trustee shall not engage in any trade or business with respect to the Trust Assets or any proceeds therefrom except as and to the extent the same is deemed in good faith by the Trustee to be reasonably necessary or proper for the conservation or protection of the Trust Assets or the fulfillment of the purposes of the Remediation Trust. The Remediation Trust and the Trustee shall not take any actions that would cause the Remediation Trust to fail to qualify as a qualified settlement fund under the QSF Provisions.
4.5.2 Coordination with Project Trust. The Trustee shall coordinate with the
trustee of the Project Trust with respect to Work, Invoice Amounts, and financial statements, all in accordance with Paragraphs 19 (Initial Funding of the Trusts), 20 (Financial Assurance), 25 (Trustees), 33 (Termination of the Project Trust), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. Upon receiving a proposed timeline for termination of Project Trust, the Trustee shall work in good faith with the trustee of the Project Trust to facilitate transfer of the Project Trust’s assets and liabilities to the Remediation Trust in accordance with Paragraphs 13 (Beneficial Environmental Projects) and 33 (Termination of the Project Trust) of the Consent Decree. The Trustee shall accept and receive into the Remediation Trust’s Trust Accounts all assets and liabilities of the Project Trust, including continuation of Work on Beneficial Environmental Projects then outstanding, unless the Trustee reasonably determines that receipt thereof would violate the Trustee’s fiduciary duties to the Remediation Trust or another obligation of the Trustee created in this Agreement or the Consent Decree, which determination shall be made and delivered to the proper Persons in accordance with Paragraph 33 (Termination of the Project Trust) of the Consent Decree. The Trustee shall not cause the Remediation Trust to accept any distribution from the Project Trust to the extent it would cause the Remediation Trust to fail to qualify as a qualified settlement fund under the QSF Provisions.
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4.6 Reliance by the Trust Parties. Except as may otherwise be provided herein: (i) the Trust Parties may rely, and shall be protected in acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other paper or document believed by them to be genuine and to have been signed or presented by the proper entity(ies) or representative(s) pursuant to the Consent Decree; (ii) the Trust Parties may retain and reasonably rely upon legal counsel, financial or accounting advisors, technical consultants and contractors, and other professionals and experts as appropriate, within the approved budget allowances for such expenses, and shall not be personally liable for any action taken or not taken in accordance with the advice thereof unless the Court, by a final order, finds that they were grossly negligent or committed fraud or willful misconduct; and (iii) Persons dealing with the Trust Parties shall look only to the applicable insurance policies maintained by one or more professionals retained hereunder in the first instance, then to the applicable insurance policies maintained by the Trustee, and, finally, in the event and to the extent insurance available under this Section is insufficient, to the funds in the Trust Administrative Account to satisfy any liability incurred by the Trust Parties to such Person in carrying out the terms of this Agreement or any order of the Court, and the Trust Parties shall have no personal obligations to satisfy any such liability other than as provided in Section 4.9 (Exculpation). 4.7 Compensation of the Trustee. 4.7.1 The Remediation Trust shall pay its own reasonable and necessary costs and expenses and shall reimburse the Trustee for the actual reasonable out-of-pocket fees, costs, and expenses to the extent incurred by the Trustee in connection with the Trustee’s duties hereunder, including, without limitation, necessary travel, lodging, office rent (to be paid directly by the Remediation Trust), professional fees, postage, photocopying, telephone, and facsimile charges, all in accordance with an annual budget or fee schedule approved as provided in Section 3.2 and upon receipt of periodic billings. Any Trust Parties who perform services for the Remediation Trust shall be entitled to receive reasonable compensation for services rendered on behalf of the Remediation Trust in accordance with an annual budget or fee schedule, subject to review and comment by the Beneficiaries and the dispute resolution terms of this Agreement and the Consent Decree. The Trustee’s fee rates for its services as the Trustee shall be provided to the Beneficiaries for comment and objection prior to the Effective Date and prior to the Trustee applying any adjusted fee schedule. 4.7.2 The Trust Assets shall be subject to the claims of the Trustee, and the Trustee shall be entitled to reimburse itself, for services performed as Trustee, out of any available cash in the Trust Administrative Account or, for services performed in furtherance of the Work for any Work Category at the Site, in accordance with the provisions of Section 2.4.1, out of available funds in the Trust Remediation Account, and the Remediation Trust shall be obligated to pay for actual out-of-pocket expenses and for actual hours worked. 4.7.3 All compensation and other amounts payable to the Trustee shall be paid from the Trust Assets.
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4.8 Liability of the Trust Parties. 4.8.1 The Beneficiaries acknowledge that the Trust Parties did not create, cause, or contribute to the circumstances that give rise to the need to perform Work, including existing conditions or existing contamination at the Site. Therefore, nothing in the Consent Decree, Statement of Work, or this Agreement shall require the Trust Parties to take or assume any liability pursuant to CERCLA, RCRA, the Maine Uncontrolled Hazardous Substance Sites Law, or any other statute, regulation, or other applicable requirements associated with Work due to existing contamination or conditions.
4.8.2 In no event shall any Trust Parties be held liable to any third parties for any
liability, action, or inaction of any other party, including Mallinckrodt or any other Trust Party. The liability of the Trust Parties shall be limited as provided in the Consent Decree and this Agreement, and the Trust Parties shall, further, be indemnified and exculpated in accordance with Section 4.9 of this Agreement. The Trustee shall not be deemed in breach of its duties or responsibilities on account of the insufficiency of funds in the Remediation Trust. 4.8.3 No provision of this Agreement or the Consent Decree shall require the Trustee to expend or risk its own personal funds or otherwise incur any personal financial liability in the performance of any of its duties or the exercise of any of its authorities as Trustee hereunder, except as provided in Section 4.13 (Trustee Insurance) and except on account of the Trustee’s gross negligence, fraud, or willful misconduct as provided in Section 4.9. 4.8.4 To the fullest extent permitted by applicable law, except as required or authorized by the Consent Decree, the Trust Parties shall not be deemed an owner or operator of the Site or an owner, operator, generator, arranger, or transporter of hazardous waste at the Site under CERCLA, RCRA, the Maine Uncontrolled Hazardous Substance Sites Law, or similar laws on account of the Trust Parties’ performance of Work other than as provided in Section 4.9. The Trust Parties shall not be liable for any injury or damages to Persons or property resulting from acts or omissions of any Person in implementing the requirements of the Consent Decree or this Agreement other than as provided in Section 4.9. 4.9 Exculpation.
4.9.1 Except as otherwise provided in the Consent Decree or this Agreement, to the fullest extent permitted by applicable law, the Trust Parties are exculpated by all Persons of and from any and all claims, causes of action, and other assertions of liability arising out of the discharge of the powers and duties conferred upon the Remediation Trust and/or Trustee by the Consent Decree or this Agreement. No Person will be allowed to pursue any claims or causes of action against any Trust Party for any claim against Mallinckrodt, for making payments in accordance with the Consent Decree or this Agreement, or for implementing the provisions of the Consent Decree or this Agreement. Notwithstanding anything in this Section 4.9 or elsewhere in this Agreement to the contrary, nothing in this Agreement shall be construed to exculpate the Trust Parties from any liability resulting from any act or omission constituting gross negligence, fraud, or willful misconduct of such Trust Party. In the event of any claim or cause of action by a third party, including but not limited to a governmental entity, against the Remediation Trust, or the
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Trustee or a Trust Party with respect to the Remediation Trust, there shall be (i) an irrebuttable presumption that specific actions taken or not taken by the Remediation Trust, Trustee, or a Trust Party with the approval of the Court, expressed in any decision, order, decree, or dispute resolution related to the Action, do not constitute gross negligence, fraud, or willful misconduct, and (ii) a presumption that actions taken or not taken by the Remediation Trust, Trustee, or a Trust Party to implement the Consent Decree and this Agreement that meet the Standard of Care required by Paragraph 31(b) (Standard of Care) of the Consent Decree do not constitute gross negligence, fraud, or willful misconduct.
4.9.2 In the event of any claim or cause of action by a third party, including but
not limited to a governmental entity, against a Trust Party, the Remediation Trust shall indemnify, defend, and hold harmless (without the Trust Parties having to first pay from their personal funds) the Trust Parties from and against any and all claims, causes of action, liabilities, obligations, losses, costs, judgments, damages, or expenses (including attorneys’ fees) and any other assertion of liability arising out of or in relation to the discharge of the Trustee’s powers and duties, provided that such indemnification, and any related recovery, shall be satisfied first, by the responding insurance coverage maintained by one or more professionals retained hereunder, second, by the responding insurance coverage maintained by the Trustee, and, third, by funds already in the Trust Administrative Account. The Remediation Trust shall not indemnify Trust Parties for acts or omissions that the Court, by a final order, finds constituted gross negligence, fraud, or willful misconduct.
4.10 Removal, Resignation, and Replacement of the Trustee. 4.10.1 Removal. During the term of the Trustee’s initial appointment or during any subsequent appointment or reappointment, the Trustee may be removed by (1) the entry of an order by the Court finding that the Trustee breached its fiduciary duty or committed gross negligence, fraud, or willful misconduct; (2) the entry of an order by the Court finding that (i) the Trustee in any material respect exacerbated hazardous conditions at the Site, (ii) is seriously or repeatedly deficient or late in performance of its duties or responsibilities under this Agreement, or (iii) has violated the provisions of this Agreement or the Consent Decree; (3) the Court approving an amendment to the Consent Decree by and among the Beneficiaries pursuant to which the Beneficiaries unanimously consent to removing the Trustee and proposing another Person as successor Trustee; or (4) the Court’s approval of a petition entered by a Beneficiary to have the Trustee removed and proposing another Person as successor Trustee.
4.10.2 Resignation. The Trustee may resign by giving not less than 90 days prior written notice thereof to the Court and the Beneficiaries.
4.10.3 Replacement. The Trustee may be replaced upon completion of any ten-year term.
4.10.4 Surviving Provisions. The provisions of this Section 4.10 and of Sections 4.6 (Reliance by Trust Parties), 4.8 (Liability of the Trust Parties), 4.9 (Exculpation), 4.11 (Appointment of Successor Trustees), 4.14 (Mutual Covenants Not to Sue), and 7.3 (Property
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Assignment and Preservation) shall survive the removal, replacement, and/or resignation of the Trustee. 4.11 Appointment of Successor Trustees. Any successor Trustee shall be proposed by the Beneficiaries and appointed by the Court. Any successor Trustee appointed hereunder shall execute an instrument accepting such appointment hereunder and shall file such acceptance with the Remediation Trust records. Thereupon, such successor Trustee shall, without any further act, become vested with all the estates, properties, rights, powers, trusts, and duties of its predecessor Trustee in the Remediation Trust with like effect as if originally named herein; provided, however, that a removed or resigning Trustee shall, nevertheless, when requested in writing by the successor Trustee, execute and deliver an instrument or instruments conveying and transferring to such successor Trustee under the Remediation Trust all the estates, properties, rights, powers, and trusts of such predecessor Trustee. 4.12 No Bond. Notwithstanding any state law to the contrary, the Trustee, including any successor Trustee, shall be exempt from giving any bond or other security. 4.13 Trustee Insurance. As required by Paragraph 45 (Insurance Policies) of the Consent Decree, at all times that a Person is acting as the Trustee of the Remediation Trust, the Trustee shall obtain and continue to hold appropriate insurance as agreed to by the Remediation Trust after consultation with the Beneficiaries regarding the type(s) and amount of insurance to be obtained. To the extent the Person then serving as Trustee provides services to the Remediation Trust outside of its capacity as Trustee, the Person shall be treated as a consultant, contractor, and third-party professional to the Remediation Trust to the extent of such services and shall be required to obtain and fund insurance with respect to such services in accordance with Section 4.1.3 (Third-Party Insurance) as if the services were performed by a third-party. Mallinckrodt, MPA, and NRDC shall receive insured protection on all such insurance policies obtained by the Trustee. 4.14 Mutual Covenants Not to Sue. Except as specifically provided herein and without limiting the Beneficiaries’ or the Trustee’s, if applicable, right to seek to enforce the terms of the Consent Decree and this Agreement and to seek dispute resolution as provided in the Consent Decree, upon the earlier of the Effective Date or the date on which the Remediation Trust receives funds pursuant to Section 2.1.2 (Transfer of Funding to the Remediation Trust), the Beneficiaries covenant not to sue or assert any claims or causes of action against any of the Trust Parties with respect to the matters addressed herein, except to the extent such claim or causes of action are attributable to a Trust Party’s fraud or willful misconduct as determined by the Court, and the Trust Parties covenant not to sue or assert any claims or causes of action against any Beneficiary.
ARTICLE V BENEFICIARIES
5.1 Beneficiaries. Beneficial interests in the Remediation Trust shall be held by each of the Beneficiaries.
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5.2 Identification of Beneficiaries’ Representatives. 5.2.1 In order to determine the actual names and addresses of the authorized representatives of a Beneficiary, the Trust and the Trustee shall be entitled to rely conclusively on the name and contact information of the authorized representative for such Beneficiary listed in Section 7.8 (Sufficient Notice) of this Agreement, who may from time to time provide additional or replacement names and contact information of authorized representatives, or listed in any written notice provided to the Trustee in the future by an authorized representative of such Beneficiary. 5.2.2 The Trustee shall send copies of all reports, budgets, forecasts, and other documents that the Trustee is required to submit to a Beneficiary under the Consent Decree or this Agreement, and related implementation documents by electronic mail (unless otherwise requested) to the Person(s) listed in Section 7.8 (Sufficient Notice) to this Agreement as applicable. The Trustee shall send all reports that the Trustee is required to submit to the Court under the Consent Decree or this Agreement in accordance with applicable Court procedures. 5.3 Transfer of Beneficial Interests. The interests of the Beneficiaries of the Remediation Trust, which are reflected only on the records of the Remediation Trust maintained by the Remediation Trust, are not negotiable and may be transferred only after written notice to the Remediation Trust, by order of the Court, or by operation of law. The Remediation Trust shall not be required to record any transfer in favor of any transferee where, in the sole discretion of the Remediation Trust, such transfer is or might be construed to be ambiguous or to create uncertainty as to the holder of the interest in the Remediation Trust. Until a transfer is in fact recorded on the books and records maintained by the Remediation Trust for the purpose of identifying Beneficiaries, the Remediation Trust, whether or not in receipt of documents of transfer or other document relating to the transfer, may nevertheless send communications to Beneficiaries, as though it has no notice of any such transfer, and in so doing the Remediation Trust and Trustee shall be fully protected and incur no liability to any purported transferee or any other Person. The Trustee and Remediation Trust shall not unreasonably withhold transfer of beneficial interests to a successor of a Beneficiary recognized by the Court consistent with Paragraphs 3 and 66 (Succession and Assignment; Successors to NRDC or MPA) of the Consent Decree.
ARTICLE VI REPORTING AND TAXES
6.1 Reports. Within ninety (90) days after the end of each calendar quarter (which shall end on March 31, June 30, September 30, and December 31), beginning with the quarter ending after assets are first received by the Remediation Trust and ending as soon as practicable upon termination of the Remediation Trust, the Trustee shall submit to the Beneficiaries, and file with the Court, a written report as set forth in Paragraph 37 (Quarterly Reporting Requirements) of the Consent Decree; provided, however, that the Trustee may withhold confidential business information and protected personal information, if any, from such submittals and filings. The Remediation Trust shall promptly submit additional reports to the Beneficiaries whenever, as determined by outside counsel, accountants, or other professional advisors, an adverse material event or change occurs that affects the Remediation Trust. The Remediation Trust shall also
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provide the reports or information required by Section 3.2 (Payments by the Remediation Trust) of this Agreement. 6.2 Other. The Remediation Trust shall also file (or cause to be filed) any other statements, returns, or disclosures relating to the Remediation Trust that are required by any applicable governmental unit. 6.3 Taxes. 6.3.1 The Remediation Trust is intended to be a qualified settlement fund, for which no grantor trust election has been made, pursuant to the QSF Provisions and, to the extent provided by law, this Agreement shall be governed and construed in all respects consistent with such intent. The Remediation Trust and the Trustee shall not take any actions, or fail to take any actions, that would cause the Remediation Trust to fail to be treated as a “qualified settlement fund.” The Trustee shall use its best efforts, including but not limited to submitting an application to the IRS to obtain a Private Letter Ruling from the IRS, to clarify an uncertain application of federal Tax law to the Remediation Trust. If applicable, the Trustee and Mallinckrodt shall fully cooperate in filing a relation-back election under Treasury Regulation Section 1.468B-1(j)(2), to treat the Remediation Trust as coming into existence as a qualified settlement fund as of the earliest date possible. Any contingent right of Mallinckrodt to distribution of Contingent Funding from the Remediation Trust pursuant to Section 3.5 (Unclaimed Distributions) above is solely available upon approval by the Court and, in the event of such distribution, Mallinckrodt shall comply with the provisions of Treasury Regulation Section 1.468B-3(f) and include in income amounts so received to the extent required by the tax benefit rule, as provided in Section 111(a) of the Code. 6.3.2 For all federal income tax purposes, the Trustee and Mallinckrodt shall treat the transfer of the Trust Assets to the Remediation Trust as a transfer to a qualified settlement fund pursuant to section 468B of the Code and the QSF Provisions. The Trustee shall at all times seek to have the Remediation Trust treated as a “qualified settlement fund” as that term is defined in the QSF Provisions. The Court shall retain continuing jurisdiction over the Remediation Trust and Trust Accounts sufficient to satisfy the requirements of the QSF Provisions. The Trustee shall cause Taxes, if any, imposed on the earnings of the Remediation Trust to be paid out of such earnings and shall comply with all tax reporting and withholding requirements imposed on the Remediation Trust under applicable tax laws.
6.3.3 The Trustee shall be the “administrator,” within the meaning of Treasury Regulation Section 1.468B-2(k)(3), of the Remediation Trust. Subject to definitive guidance from the IRS or a judicial decision to the contrary, the Trustee shall be responsible for timely filing all required Tax Returns, ensuring compliance with the income tax withholding and reporting requirements, and paying applicable Taxes, if any, with respect to the Remediation Trust in a manner consistent with the QSF Provisions. All such Taxes shall be paid from the Trust Administrative Account. Mallinckrodt shall provide to the Trustee and the IRS the statement described in Treasury Regulation 1.468B-3(e)(2) no later than February 15th of the year following each calendar year in which Mallinckrodt makes a transfer to the Remediation Trust.
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ARTICLE VII MISCELLANEOUS PROVISIONS
7.1 Amendments and Waivers. Any provision of this Agreement may be amended or waived by mutual written consent of the Parties; provided, however, that, unless ordered by the Court, no change shall be made to this Agreement that would violate the Consent Decree, alter the provisions of Section 6.3 (Taxes) hereof or adversely affect the federal income tax status of the Remediation Trust as a “qualified settlement fund” (in accordance with Section 6.3 (Taxes) hereof), or, unless agreed to in writing by the Trustee, the rights or obligations of, or the liability protections or immunities accorded to, the Trustee. Technical amendments to this Agreement may be made as necessary to clarify this Agreement to enable the Trustee to effectuate the terms of this Agreement, or perform its intended duties in a manner consistent with the Consent Decree with the mutual consent of the Parties. 7.2 Ex Parte Communications. From the Effective Date until the termination of the Remediation Trust, no Trustee shall make or knowingly cause to be made to a Beneficiary, and no Beneficiary shall make or knowingly cause to be made to a Trustee, any material oral or written communication relevant to the Consent Decree or the Work that was not made contemporaneously to the other Beneficiaries. If such a communication is received by the Trustee or a Beneficiary, such receiving party shall cause such communication to be served on all other Beneficiaries as soon as reasonably practical. The prohibition in this Section 7.2 shall not apply to communications regarding non-substantive administrative issues. 7.3 Property Assignment and Preservation. The Remediation Trust is the sole and exclusive owner of all Property now or hereinafter held in the name of the Trustee, in its capacity as Trustee, and all underlying rights therein without any further obligations to Trustee. If any such Property, or any portion thereof, is deemed not to be owned by the Remediation Trust, the Trustee hereby irrevocably conveys, transfers, and assigns to the Remediation Trust all right, title, and interest in and to such Property, including the right to receive all past, present, and future proceeds and damages therefrom. The Trustee shall, at any time during and after the Trustee’s term under this Agreement, make such applications, sign such papers, take all rightful oaths, and perform all acts as may be requested from time to time by a successor Trustee or ordered by the Court (following dispute resolution provided for in this Agreement and the Consent Decree) with respect to the Property, at the Remediation Trust’s expense. The Trustee shall also execute assignments to the Remediation Trust (or its successor Trustee, not individually but in its capacity as successor Trustee) and give the Remediation Trust and its successor Trustee all reasonable assistance (including the giving of testimony) to obtain, protect, enforce, or defend the Property for the Remediation Trust’s benefit. A Person serving as Trustee shall cooperate and assist in the transition of the Remediation Trust administration to a successor Trustee, including after such Person is no longer the Trustee, as reasonably requested by the successor Trustee or the Beneficiaries. The Trustee appoints the Remediation Trust and any duly-appointed successor Trustee as the Trustee’s co-agents and grants each a power of attorney for the limited purpose of executing all such documents and to do all other lawful acts that the Remediation Trust, under the administration of a successor Trustee, is entitled to require the Trustee to do pursuant to this Section. The Trustee shall preserve all Property that in any way relates to the Site in accordance with the Statement of Work section V. Upon a Person’s termination as Trustee for any reason or by resignation, the
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Trustee shall promptly deliver to the Remediation Trust (or its successor Trustee) all Remediation Trust records, Trust Property in the Trustee’s possession or under Trustee’s control, and documents that in whole or in part contain material information regarding the Remediation Trust. The Trustee may keep copies of such Remediation Trust records as then agreed to by the successor Trustee or ordered by the Court following dispute resolution. The Trustee, or any successor Trustee, shall notify the Beneficiaries and provide the Beneficiaries an opportunity to object prior to utilizing or relying upon any Property to carry out the Trustee’s duties under this Agreement if such utilization or reliance could be inconsistent with the Property assignment in this Section. 7.4 Dispute Resolution. The Trustee and the Beneficiaries hereby acknowledge and agree that in the event of any dispute with respect to the Remediation Trust or the terms of this Agreement, the Trustee and Beneficiaries shall follow and be bound by the dispute resolution provisions set forth in Section XIV (Dispute Resolution) in the Consent Decree. 7.5 Cooperation. 7.5.1 Mallinckrodt represents that it has provided, or has provided access to, all information required by Paragraph 41 of the Consent Decree, and otherwise has complied, and will continue to comply, post-Effective Date, with the provisions of Section IX (Cooperation and Obligations of the Parties Regarding the Trustees) of the Consent Decree. 7.5.2 The Remediation Trust and Trustee shall take such actions and execute such documents as are reasonably requested by Mallinckrodt with respect to effectuating the Consent Decree and the transactions contemplated thereby, provided that such actions are not inconsistent with this Agreement or the Consent Decree. 7.5.3 To the fullest extent possible, the Trustee, Trust Parties, and the Beneficiaries agree and covenant to fully cooperate to efficiently and effectively carry out the intent of the Consent Decree and this Agreement and to take reasonable steps to protect the Remediation Trust, Trustee and Trust Parties from third-party liability arising from the Remediation Trust’s, Trustee’s, and Trust Parties’ responsibilities and obligations under the Consent Decree and this Agreement, including but not limited to liability under CERCLA, RCRA and the state counterparts to those statutes, but nothing in this paragraph requires the Beneficiaries to expend funds, to accept liability or responsibility, or to indemnify or hold harmless the Remediation Trust, Trustee, and Trust Parties except to the extent such is required elsewhere in the Consent Decree or this Agreement. 7.6 Situs of the Remediation Trust. The situs of the Remediation Trust herein established is Maine, and, except to the extent federal law is applicable, the rights, duties, and obligations arising under this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Maine, including the Maine Act, without giving effect to the principles of conflict of law thereof. 7.7 Severability. If any provision of this Agreement or application thereof to any Person or circumstance shall be finally determined by the Court to be invalid or unenforceable to any extent, the remainder of this Agreement, or the application of such provision to Persons or circumstances
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other than those as to which it is held invalid or unenforceable, shall not be affected hereby, and such provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 7.8 Sufficient Notice. For any notice or other communication that is to be given or is allowed under this Agreement, such notice or other communication shall be written, shall be conveyed electronically by email, and shall be provided at the same time to the designated representatives of all of the Parties. The Parties shall give notice if their designated representatives change or have a change in contact information. As of the Effective Date, the designated representatives are:
For Plaintiffs:
Mitchell Bernard, NRDC, 40 West 20th Street, New York, NY 10011; (212) 727‐4469; [email protected]; and Jared Thompson, NRDC, 1152 15th Street NW, Suite 300, Washington, DC 20005; (202) 513-6249; [email protected].
For Mallinckrodt:
Patricia Hitt Duft, Mallinckrodt US LLC, 710 Medtronic Parkway, LC 300, Minneapolis, MN 55432; (314) 753-0413; [email protected]; Lisa Palin, Mallinckrodt US LLC, c/o Medtronic plc, 15 Hampshire Street, Mansfield, MA 02048; (508) 452-4272; [email protected]; and Jeffrey Talbert, Preti Flaherty, One City Center, Portland, ME 04112; (207) 791-3000; [email protected]. For Trustee:
Cynthia Brooks, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 11 Flagg Street, Unit 1, Cambridge, MA 02138; (617) 448-9762; [email protected]; Lauri Gorton, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 2116 East Estes Street, Milwaukee, WI 53207; (414) 732-4514; [email protected]; Craig Kaufman, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 1506 D Street, SE, Washington, DC 20003; (215) 837-3702; [email protected]; and Jennifer Roberts, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., PO Box 1189, Helena, MT 59624; (406) 457-2142; [email protected].
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7.9 Headings. The section and paragraph headings contained in this Agreement are solely for convenience of reference and shall not affect the meaning or interpretation of this Agreement or any term or provision hereof. 7.10 Actions Taken on Other Than Business Day. If any payment or act under the Consent Decree or this Agreement is required to be made or performed on a date that is not a business day, then the making of such payment or the performance of such act may be completed on the next succeeding business day, but shall be deemed to have been completed as of the required date. For the purposes of this Agreement, a business day shall be any of the days Monday through Friday excluding recognized federal holidays. 7.11 Consistency of Agreements and Construction. To the extent reasonably possible, the provisions of this Agreement shall be interpreted in a manner consistent with the Consent Decree. Where the provisions of this Agreement are irreconcilable with the provisions of the Consent Decree, the provisions of the Consent Decree shall prevail, with the exception of Section IV (The Trustee), Section 1.1.16 (definition of “Parties”), Section 1.1.30 (definition of “Trust Administrative Costs”), and Section 7.5 (“Cooperation”), in which case this Agreement controls. 7.12 Compliance with Laws. Any and all distributions of Trust Assets shall be in compliance with applicable laws, including, but not limited to, applicable federal and state securities laws. 7.13 No Recourse to Plaintiffs. In no event shall the Plaintiffs have any responsibility for paying any expenses, fees, liabilities, or other obligations of the Remediation Trust, and in no event shall the Remediation Trust or the Trustee, or any of their agents, representatives, or professionals, have recourse to the Plaintiffs therefor. 7.14 Uniform Custodial Trust Act. The Agreement shall not be subject to any provision of the Uniform Custodial Trust Act as adopted by any state, now or in the future. 7.15 Authority to Enter into Agreement; Counterparts. The undersigned representatives for each Party represent and warrant that they are duly authorized to enter into the terms of this Agreement and to bind such Party legally to this Agreement, and that such Party has the right, power, and authority to enter into this Agreement, to become a Party to this Agreement, and to perform its obligations under this Agreement. This Agreement may be signed electronically in counterparts and such counterpart signature pages shall be given full force and effect. IN WITNESS WHEREOF, THE UNDERSIGNED PARTIES ENTER INTO THIS PENOBSCOT ESTUARY MERCURY REMEDIATION TRUST AGREEMENT.
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Signature Page for Penobscot Estuary Mercury Remediation Trust Agreement
FOR MALLINCKRODT US LLC:
__________ ___________________________________
Date Name: Title:
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Signature Page for Penobscot Estuary Mercury Remediation Trust Agreement
FOR MAINE PEOPLE’S ALLIANCE:
__________ ___________________________________
Date Name: Jesse Graham Title: Co-Director
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Signature Page for Penobscot Estuary Mercury Remediation Trust Agreement
FOR NATURAL RESOURCES DEFENSE COUNCIL, INC.:
__________ ___________________________________
Date Name: Mitchell S. Bernard Title: President and Chief Counsel
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Signature Page for Penobscot Estuary Mercury Remediation Trust Agreement
FOR GREENFIELD PENOBSCOT ESTUARY REMEDIATION TRUST LLC, not individually but solely in its representative capacity as trustee of the Penobscot Estuary Mercury Remediation Trust:
By: Greenfield Environmental Trust Group, Inc., Member
__________ ___________________________________
Date By: Cynthia Brooks, President
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APPENDIX C
to the Consent Decree in Maine People’s Alliance v. HoltraChem Mfg. Co., LLC,
No. 1:00-cv-00069-JAW (D. Me)
Form of Project Trust Agreement
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not individually but solely in its representative capacity as Trustee
AND
MAINE PEOPLE’S ALLIANCE, NATURAL RESOURCES DEFENSE COUNCIL, and PENOBSCOT ESTUARY MERCURY REMEDIATION TRUST
As Beneficiaries
As of ____________________, 2021
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Table of Contents RECITALS ......................................................................................................................................1 ARTICLE I: DEFINITIONS ...........................................................................................................2
1.1 Definitions.........................................................................................................................2 ARTICLE II: THE PROJECT TRUST............................................................................................5
2.1 Creation of and Transfer of Assets to the Project Trust ....................................................5 2.2 Objective and Purpose ......................................................................................................6 2.3 Holder of Trust Assets ......................................................................................................6 2.4 Management of Trust Assets ............................................................................................7 2.5 Investment and Safekeeping of Trust Assets ....................................................................7 2.6 Accounting ........................................................................................................................9 2.7 Project Trust Limitations ..................................................................................................9 2.8 Termination .....................................................................................................................10
ARTICLE III: WORK AND DISTRIBUTIONS ..........................................................................10 3.1 Trust Accounts ................................................................................................................10 3.2 Payments by the Project Trust ........................................................................................10 3.3 Advisory Committee .......................................................................................................11 3.4 Manner of Payment .........................................................................................................11 3.5 Unclaimed Distributions .................................................................................................11
ARTICLE IV: THE TRUSTEE .....................................................................................................12 4.1 Appointment ...................................................................................................................12 4.2 Generally .........................................................................................................................13 4.3 Powers .............................................................................................................................13 4.4 Other Professionals .........................................................................................................14 4.5 Limitation of the Trustee’s Authority .............................................................................14 4.6 Reliance by the Trust Parties ..........................................................................................15 4.7 Compensation of the Trustee ..........................................................................................16 4.8 Liability of the Trust Parties ...........................................................................................16 4.9 Exculpation .....................................................................................................................17 4.10 Removal, Resignation, and Replacement of the Trustee ................................................18 4.11 Appointment of Successor Trustees ................................................................................18 4.12 No Bond ..........................................................................................................................18 4.13 Trustee Insurance ............................................................................................................19 4.14 Mutual Covenants Not to Sue .........................................................................................19
ARTICLE V: BENEFICIARIES ...................................................................................................19 5.1 Beneficiaries ...................................................................................................................19 5.2 Identification of Beneficiaries .........................................................................................19 5.3 Transfer of Beneficial Interests .......................................................................................20
ARTICLE VI: REPORTING AND TAXES .................................................................................20 6.1 Reports ............................................................................................................................20
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6.2 Other ...............................................................................................................................20 6.3 Taxes ...............................................................................................................................20
ARTICLE VII: MISCELLANEOUS PROVISIONS ....................................................................21 7.1 Amendments and Waivers ..............................................................................................21 7.2 Ex Parte Communications ...............................................................................................21 7.3 Property Assignment and Preservation ...........................................................................21 7.4 Dispute Resolution ..........................................................................................................22 7.5 Cooperation .....................................................................................................................22 7.6 Situs of the Project Trust.................................................................................................22 7.7 Severability .....................................................................................................................22 7.8 Sufficient Notice .............................................................................................................23 7.9 Headings .........................................................................................................................24 7.10 Actions Taken on Other Than Business Day ..................................................................24 7.11 Consistency of Agreements and Construction ................................................................24 7.12 Compliance with Laws ...................................................................................................24 7.13 No Recourse to Plaintiffs ................................................................................................24 7.14 Uniform Custodial Trust Act ..........................................................................................24 7.15 Authority to Enter into Agreement; Counterparts ..........................................................25
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This Penobscot Estuary Beneficial Environmental Projects Trust Agreement (the “Agreement”) is made this ___ day of ________________, 2021 (the “Effective Date”) by and among Mallinckrodt US LLC (“Mallinckrodt”), Greenfield Penobscot Estuary Project Trust LLC, not individually but solely in its representative capacity as trustee (“Trustee”) of the Penobscot Estuary Beneficial Environmental Projects Trust established hereby (the “Project Trust”), Maine People’s Alliance (“MPA”), Natural Resources Defense Council (“NRDC”), and the Penobscot Estuary Mercury Remediation Trust (the “Remediation Trust”).
RECITALS WHEREAS, in 2000, Plaintiffs MPA and NRDC, on behalf of their affected members, filed a complaint pursuant to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1)(B), commencing the action designated Maine People’s Alliance, et al. v. HoltraChem Manufacturing, et al., Case No. 1:00-cv-00069-JAW (D. Me.) (the “Action”). Plaintiffs’ complaint alleged that Defendants Mallinckrodt and HoltraChem Manufacturing Company, LLC (“HoltraChem”) caused mercury discharges into the Penobscot River Estuary from a chlor-alkali plant in Orrington, Maine, that present or may present an imminent and substantial endangerment to health and the environment; and WHEREAS, a proposed Consent Decree in the Action was lodged with the Court on March 19, 2021, (the “Consent Decree”) among Mallinckrodt, MPA, and NRDC; and WHEREAS, the Consent Decree provides for (1) the establishment of the Project Trust and the transfer of funds to the Project Trust to be administered by the Trustee pursuant to this Agreement and the Consent Decree and (2) concurrent therewith, the establishment of the Remediation Trust and the transfer of funds to the Remediation Trust to be administered pursuant to the Remediation Trust’s trust agreement and the Consent Decree; and WHEREAS, the Beneficiaries (defined below) and Trustee acknowledge and agree that the purpose of the Project Trust and the Remediation Trust is to fulfill Mallinckrodt’s environmental remediation and restoration obligations under the Consent Decree; and WHEREAS, in accordance with Section VII (Formation and Purpose of Penobscot Estuary Mercury Remediation Trust and Penobscot Estuary Beneficial Environmental Projects Trust) of the Consent Decree, Mallinckrodt hereby establishes the Project Trust as an environmental remediation trust that will hold the remediation funds provided for in the Consent Decree for the purpose managing and/or funding Beneficial Environmental Projects and resolving, satisfying, mitigating or addressing potential natural resource liability with respect to the Site imposed by federal, state, or local environmental law as set forth in the Consent Decree and this Agreement; and
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WHEREAS, the Project Trust is to be funded in the amounts and manner set forth in the Consent Decree and this Agreement in order to provide funds for the Work and the administrative costs of the Project Trust; and WHEREAS, this Agreement and the Consent Decree govern the Project Trust, which is created as an environmental remediation trust as described in U.S. Treasury Regulation Section 301.7701-4(e) with Mallinckrodt treated as its owner for federal tax purposes; and WHEREAS, Greenfield Penobscot Estuary Project Trust LLC has been selected to be the Trustee of the Project Trust and is willing to act as the Trustee in accordance with the requirements of the Consent Decree and this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein and in the Consent Decree, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS 1.1 Definitions All capitalized terms shall have the meaning set forth in the Consent Decree unless otherwise defined in this Section or elsewhere in this Agreement: 1.1.1 “Agreement” has the meaning given in the preamble. 1.1.2 “Action” has the meaning given in the preamble. 1.1.3 “Beneficial Environmental Projects” has the meaning given in the Consent Decree. 1.1.4 “Beneficiary” or “Beneficiaries,” for purposes of the Project Trust, means Mallinckrodt, MPA, NRDC, and the Remediation Trust. 1.1.5 “Code” means the Internal Revenue Code of 1986, as amended. 1.1.6 “Consent Decree” has the meaning as given in the Recitals and includes all appendices attached thereto, including but not limited to the Statement of Work. 1.1.7 “Court” means the United States District Court for the District of Maine. 1.1.8 “Day” or “Days” means calendar days including weekends and holidays. In the event that the date for a required action falls on a day that is a weekend or federal holiday, the date for the required action shall be automatically extended to the next day that is not a weekend or federal holiday. 1.1.9 “Effective Date” has the meaning given in the preamble.
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1.1.10 “Funding” has the meaning given in Section 2.1.2 (Transfer of Funds to the Project Trust) hereof. 1.1.11 “IRS” means the Internal Revenue Service. 1.1.12 “Initial Funding” has the meaning given in Section 2.1.2 (Transfer of Funds to the Project Trust) hereof. 1.1.13 “Maine Act” means the Maine Uniform Trust Code, 18-B M.R.S.A. §§101 et. seq. 1.1.14 “Mallinckrodt” means defendant Mallinckrodt US LLC, its successors and assigns, and any corporate parent(s) responsible for the liabilities of Mallinckrodt US LLC. As of the Effective Date, Mallinckrodt is a subsidiary of United States Surgical Corporation, and an affiliate of Medtronic plc, the ultimate parent company of both entities. 1.1.15 “Natural Resource Damage Trustees” has the meaning given in the Consent Decree. 1.1.16 “MPA” means plaintiff Maine People’s Alliance and its successors and assigns. 1.1.17 “NRDC” means plaintiff Natural Resources Defense Council and its successors and assigns.
1.1.18 “Parties” means the Plaintiffs, Mallinckrodt, and the Trustee. 1.1.19 “Person” means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, charitable foundation, unincorporated organization, government or any agency or political subdivision thereof, or any other entity.
1.1.20 “Plaintiffs” means MPA and NRDC. 1.1.21 “Project Trust” has the meaning given in the preamble. 1.1.22 “Property” means any and all real and personal property, tangible and
intangible property, intellectual property and any rights or interest therein, including but not limited to all reports, deliverables, documents, calculations, plans, designs, specifications, drawings, reports, maps, photographs, computer printouts, data, notes, and other documents or information of whatsoever nature or kind (in whatever form, format, or media) arising from the performance of the Work under the Consent Decree and this Agreement.
1.1.23 “Remediation Trust” has the meaning given in the preamble.
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1.1.24 “Restoration Projects” has the meaning given in the Consent Decree. 1.1.25 “Section” means a portion of this Agreement, the Consent Decree, or the
Statement of Work, in each case as indicated, identified by an Arabic numeral or numerals. A reference to any Section denoted by an Arabic numeral or numerals includes any subsections thereof.
1.1.26 “Site” has the meaning given in the Consent Decree. 1.1.27 “Statement of Work” or “SOW” means the document attached as Appendix
A to the Consent Decree and describing the activities that must be performed to implement the remediation activities at the Site required by the Consent Decree.
1.1.28 “Tax” or “Taxes” means all federal, state, and local taxes that may be
imposed on the Project Trust from time to time by any taxing authority. 1.1.29 “Tidal Marsh Projects” has the meaning given in the Consent Decree. 1.1.30 “Trust Account” has the meaning given in Section 2.1.4 (Creation of the
Trust Accounts) hereof. 1.1.31 “Trust Administrative Account” means the account as described in the
Consent Decree and established pursuant to Paragraph 24 (Creation of Trust Accounts) of the Consent Decree and Section 2.1.4 (Creation of the Trust Accounts) of this Agreement, including any subaccounts, to hold funds to be used by the Trustee for administration of the Trust and to which Funding is specially allocated as described in Paragraph 15 (Trust Administrative Costs) of the Consent Decree.
1.1.32 “Trust Assets” means (a) the Funding to be transferred to the Project Trust
pursuant to the Consent Decree and (b) such other assets acquired, earned, or held by the Project Trust from time to time pursuant to this Agreement, the Consent Decree, or an order of the Court.
1.1.33 “Trust Administrative Costs” refer to all costs, obligations, or liabilities
associated with administration and management of the Project Trust, to be paid from the Trust Administrative Account, including taxes, investment and safekeeping costs, insurance, legal, accounting, bookkeeping, financial affairs, and other costs, fees, and expenses not directly related to the Work.
1.1.34 “Trust Parties” means, collectively, the Project Trust, the Trustee, and the
Trustee’s member’s shareholders, officers, directors, employees, and managers of the Trustee; for the avoidance of doubt, “Trust Parties” shall not include environmental, engineering, or technical consultants and contractors, and other third-party professionals retained by the Trustee to assist it in carrying out its responsibilities under this Agreement and the Consent Decree.
1.1.35 “Trust Remediation Account” means the account established pursuant to
Paragraph 24 (Creation of Trust Accounts) of the Consent Decree and Section 2.1.4 (Creation of
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the Trust Accounts) of this Agreement, including any subaccounts, to hold funds to satisfy the Trustee’s obligations for Work on specific Beneficial Environmental Projects at the Site.
1.1.36 “Trustee” means the Person appointed to be the trustee of the Project Trust
consistent with the Consent Decree and this Agreement. 1.1.37 “Work” means all activities and obligations which the Trust, Trustee, or
Mallinckrodt is required to perform under the Consent Decree.
ARTICLE II THE PROJECT TRUST
2.1 Creation of and Transfer of Assets to the Project Trust. 2.1.1 Pursuant to the Consent Decree, Mallinckrodt hereby establishes the Project Trust under the Maine Act for the benefit of the Beneficiaries, and Mallinckrodt hereby transfers, assigns, and delivers to the Project Trust, or to the Trustee, not individually but solely in its representative capacity as Trustee of the Project Trust, if the law of Maine prohibits a trust entity from holding such title, for the benefit of the Beneficiaries, the Initial Funding as Trust Assets. The Trustee hereby accepts and agrees to hold the Trust Assets in the Project Trust for the benefit of Beneficiaries for the purposes described in Section 2.2 (Objective and Purpose) below, subject to the terms of the Consent Decree, this Agreement, and any applicable orders of the Court.
2.1.2 Transfer of Funding to the Project Trust. Within twenty (20) days after the Effective Date, Mallinckrodt shall cause to be transferred to the Project Trust cash in the amount of $500,000 (the “Initial Funding”). Thereafter, in accordance with Paragraphs 19 and 35 (Initial Funding of the Trusts; Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree, Mallinckrodt shall transfer additional funds to the Project Trust based on the invoices and five-year budget forecasts prepared by the Trustee at such times and in such amounts as determined in accordance with Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree, subject to the overall Capped Funding for the Project Trust set forth in Paragraphs 13 and 15 (Beneficial Environmental Projects; Trust Administrative Costs) of the Consent Decree. The Trustee may seek Funding from one or more Financial Assurances at such times, in such amounts, and subject to the requirements set forth in Paragraph 20(e) (Financial Assurance: Drawdown) of the Consent Decree. The Initial Funding and subsequent payments provided for in this Section together constitute the “Funding.”
2.1.3 Trust Invoices. The Trustee shall deliver invoices, with the necessary
documentation, to Mallinckrodt for Funding as required and subject to the limits set forth in this Agreement and Paragraphs 19 (Initial Funding of the Trusts) and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree.
2.1.4 Creation of the Trust Accounts. Upon receipt of the Initial Funding, the
Trustee shall create two segregated trust accounts within the Project Trust: the Trust Remediation Account and the Trust Administrative Account. The purpose of the Trust Remediation Account shall be to hold and invest funds and proceeds to fund Beneficial Environmental Projects as
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selected, approved, and authorized pursuant to the terms of the Consent Decree and this Agreement. In its discretion, the Trustee may create subaccounts within the Trust Remediation Account, dedicated for specific projects or uses as may be deemed necessary in the sole discretion of the Trustee to comply with the terms of and implement the Consent Decree and this Agreement pursuant to Paragraph 24 (Creation of Trust Accounts) in the Consent Decree. The Trust Administrative Account shall be used by the Trustee for Trust Administrative Costs. Funding from the Trust Remediation Account, or its subaccounts, may not be used for any purpose of the Trust Administrative Account, and funding from the Trust Administrative Account, or any subaccounts, may not be used for any purpose of the Trust Remediation Account, except as otherwise provided in this Agreement or in the Consent Decree. The Initial Funding of each of the Trust Accounts shall be as set forth in the Consent Decree. The separate accounts are referred to in this Agreement individually as a “Trust Account” and collectively as the “Trust Accounts.” Subject to Section 2.5 (Investment and Safekeeping of Trust Assets), the income, gains, and losses from any investment of the Trust Assets of a Trust Account shall be allocated, paid, and credited to, and/or deducted from, such Trust Account. 2.2 Objective and Purpose. 2.2.1 The purposes and functions of the Project Trust are to hold the Trust Assets, carry out administrative functions related to the Trust Assets, and oversee, implement, and fund Work at the Site through Beneficial Environmental Projects. Beneficial Environmental Projects may include, but are not limited to, Restoration Projects and/or Tidal Marsh Projects, subject to the requirements of the Consent Decree. The Project Trust may contract with and retain such environmental, engineering, and technical consultants and contractors and other third-party professionals, as the Trustee may deem necessary, to advise and assist the Trustee in carrying out the activities necessary to achieve the purposes of the Consent Decree. The Project Trust shall be responsible for ensuring that all regulatory permits and other approvals are secured for Work on Beneficial Environmental Projects required by the Consent Decree. The performance by the Trustee of its duties under this Agreement shall not be considered to be the Trustee’s engaging in a trade or business. Upon a determination by the Trustee that the Site and Beneficiaries are not likely to benefit from funding or implementing a future Restoration Project and all Work on Restoration Projects previously funded and implemented by the Project Trust are complete, the Trustee shall seek to terminate the Project Trust and distribute all remaining Trust Assets to the Remediation Trust, all as in accordance with and pursuant to the provisions of Section 2.8 (Termination) of this Agreement and Paragraph 33 (Termination of the Project Trust) in the Consent Decree. 2.2.2 The Project Trust is established pursuant to this Agreement and the Consent Decree and approved by the Court for the purpose of resolving Plaintiffs’ claims asserting environmental liabilities of Mallinckrodt and in order to resolve, satisfy, mitigate, address, or prevent the potential liability of a Trust or Beneficiary imposed by federal, state, or local environmental laws. As provided in the Consent Decree, the Court will retain continuing jurisdiction over the Project Trust and the underlying legal action. 2.3 Holder of Trust Assets. The Project Trust shall be the exclusive holder of the Trust Assets and Trust Accounts described herein for purposes of 31 U.S.C. § 3713(b).
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2.4 Management of Trust Assets. 2.4.1 Consistent with this Agreement and the Consent Decree, the Trustee shall use the Trust Assets for Work set forth in Paragraph 13 (Beneficial Environmental Projects) of the Consent Decree in accordance with the provisions of this Agreement and Paragraphs 23 (Creation and Purpose of the Project Trust), 29 (Project Trust’s Restoration Project Duties), and 32 (Limit on Decisions Regarding Work by the Project Trust) and Appendix A (Statement of Work) of the Consent Decree as selected, approved, and authorized pursuant to the terms of the Consent Decree and the Statement of Work. Except as otherwise specifically provided herein, to the extent the Trustee creates separate Trust Accounts or subaccounts for specific projects, the Trustee shall solely fund Work for specific projects with the Trust Assets held in such Trust Account or subaccount. The Trustee shall use the Trust Administrative Account funds solely to pay Trust Administrative Costs. To the extent the Person then serving as Trustee provides services to the Project Trust outside of its capacity as Trustee, costs incurred by the Project Trust with respect to such services shall be paid from the Trust Account from which such costs would be paid if the services were performed by a third-party. 2.4.2 As set forth in Paragraph 34 (Decisions Regarding Annual Budges, Work Plans, and Cash Flow Projections) of the Consent Decree, by October 1 of each year, beginning with the first such date after the Effective Date, the Trustee shall prepare a draft annual budget, work plan, and cash flow projections by quarter for the next calendar year for the Project Trust and each Trust Account. Decisions regarding annual budget, work plan, and cash flow projections will be made in accordance with Paragraph 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections) of the Consent Decree. 2.4.3 Except as otherwise set forth in this Section 2.4.3 and Section 2.5 (Investment and Safekeeping of Trust Assets), the Trust Assets held in a Trust Account or subaccount shall not be commingled with, distributed to, or used to fund Work or Trust Administrative Costs under another Trust Account or subaccount. At such time that it is determined by the Trustee, in accordance with Paragraphs 31 and 32 (Decisions Regarding Work and Deliverables; Limit on Decisions Regarding Work by the Project Trust) of the Consent Decree, and after consultation with the Beneficiaries, that Work to be performed through a particular project’s subaccount in the Trust Remediation Account is complete (in accordance with the Statement of Work), or after a sufficient amount of Trust Assets has been set aside for the completion of such Work, the remaining Trust Assets in such subaccount may, in the Trustee’s discretion, be transferred to another Trust subaccount, after which such funds shall be deemed a part of the Trust Assets of such transferee subaccount and shall be used for its designated purposes. 2.5 Investment and Safekeeping of Trust Assets. 2.5.1 The Trust Assets shall be held in trust, segregating Trust Administrative Account and Trust Remediation Account funds. All interest investment income, and other amounts earned (“Investment Income”) in a Trust Account shall be retained in the respective Trust Account and used only for the same purposes as the principal in that account as provided in this Agreement and the Consent Decree, provided, however, that the Trustee shall first deduct from any Investment
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Income realized an amount equal to the estimated Taxes owed on such Investment Income and costs associated with investment of the Trust Assets to which such Investment Income relates, all as reasonably determined by the Trustee based on applicable income tax withholding and reporting requirements, and deposit that sum into the Trust Administrative Account. The Trustee shall have no liability for interest or producing income on any moneys received by the Project Trust hereunder and held for distribution or payment as provided in this Agreement, except as such interest or amounts shall actually be received by the Project Trust. The Trustee shall have the right to administer, or engage an investment manager to administer, investments of any Trust Assets with the purpose of deriving a reasonable income from the Trust Assets pending periodic distributions in accordance with Article III hereof, taking into account the need for the safety and liquidity of principal required by the purposes of the Project Trust, and not of speculating or carrying on of any business for profit or derivation of gains therefrom. However, the right and power of the Project Trust to invest and reinvest the Trust Assets or any income earned by the Project Trust shall be limited to the right and power to invest and reinvest any part of all of such Trust Assets (pending periodic distributions in accordance with Article III hereof) in the following investment vehicles, provided that at least 50% (and, at the Trustee’s discretion, up to 100%) of the Trust Assets in each Trust Account shall, at any given time, be invested in categories (1), (2), and/or (3):
(1) Marketable obligations issued, guaranteed, or secured by the United States of America or an agency thereof (including, without limitation, government-sponsored enterprises such as Federal National Mortgage Association [Fannie Mae] and Federal Home Loan Mortgage Corporation [Freddie Mac]);
(2) Certificates of deposit with a domestic office of any national or state
bank or trust company organized under the laws of the United States of America or any state therein and having capital, surplus, and undivided profits of at least $750,000,000 or in such institutions not meeting this specified capital requirement to the extent that such deposits are federally insured;
(3) Deposit accounts and/or money market funds;
(4) No-load mutual funds or exchange traded funds;
(5) A diversified portfolio of equities traded on a recognized national
exchange that meet the standards for publicly listed companies;
(6) A diversified portfolio of bonds. The overall average rating of the portfolio shall have a rating of Double A or better, with no individual bond rated below A, exclusive of any bond insurance; and
(7) Any other investment vehicle approved in writing by the Beneficiaries.
The Trustee shall consult initially and from time to time with the Beneficiaries
regarding the nature and allocation of investments in the Trust Accounts. The Beneficiaries
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expressly agree that the Trustee shall have satisfied applicable standards and requirements and any duty to diversify by investing the Trust Assets in categories (1), (2), (3), and/or (6) above.
2.5.2 Except as set forth in Section 2.4.3 and this Section 2.5, the Trustee is
expressly prohibited from commingling Trust Accounts, provided that funds in separate Trust Accounts may be commonly managed, may be invested in common instruments, and may be aggregated with other funds for investment purposes so long as they remain accounted for separately. 2.5.3 Nothing in this Section 2.5 shall be construed as authorizing the Trustee to cause the Project Trust to carry on any business or to divide the gains therefrom, including without limitation, the business of an investment company or a company “controlled” by an “investment company,” required to register as such under the Investment Company Act of 1940, as amended. The sole purpose of this Section 2.5 is to authorize the investment of the Trust Assets in the Trust Accounts or any portions thereof as may be reasonably prudent pending use of the proceeds for the purposes of the Project Trust. 2.5.4 All costs and risk related to the investment of the Trust Assets in accordance with the guidelines set forth in this Section 2.5 shall be borne solely by the Project Trust. Mallinckrodt shall have no responsibility for, interest in, or liability whatsoever with respect to investment decisions or the actions of the Trustee, or any transactions executed by the Trustee, which shall in no event increase Mallinckrodt’s financial obligations as set forth in Paragraphs 13 (Beneficial Environmental Projects) and 18 (Capped Funding) of the Consent Decree. 2.6 Accounting. The Trustee shall maintain proper books, records, and accounts relating to all transactions pertaining to the Project Trust, and the assets and liabilities of, and claims against or assumed by, the Project Trust in such detail and for such period of time as may be necessary to enable the Trustee to make a full and proper accounting thereof and to comply with applicable provisions of law and good accounting practices and the obligations set forth in Paragraphs 32 (Limit on Decisions Regarding Work by the Project Trust), 33 (Termination of the Project Trust), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. Except as otherwise provided herein or by the Consent Decree, the Trustee shall not be required to file any accounting or seek approval of the Court with respect to the administration of the Project Trust, or as a condition for making any payment or distribution out of the Trust Assets. Beneficiaries shall have the right upon 14 days’ prior written notice delivered to the Trustee to inspect such books and records. 2.7 Project Trust Limitations. The Project Trust is established as an environmental remediation trust as described in Treasury Regulation Section 301.7701-4(e) with Mallinckrodt treated as the owner of the Trust Assets for federal tax purposes. No other Party or Beneficiary, nor any of their respective components, agencies, officers, directors, agents, employees, affiliates, successors, or assigns, shall be deemed to be an owner, operator, trustee, partner, agent, shareholder, officer, or director of the Project Trust.
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2.8 Termination. 2.8.1 The Trustee shall not unduly prolong the duration of the Project Trust and shall at all times endeavor to perform the Work and accordingly effect the distribution of Trust Assets in accordance with the terms hereof, and to terminate the Project Trust as soon as practicable consistent with this Agreement and the Consent Decree.
2.8.2 The Trustee shall take actions necessary to terminate the Project Trust, in accordance with the terms of and procedures in Paragraph 33 (Termination of the Project Trust) of the Consent Decree, in any year that it is determined that the Site and Beneficiaries are not reasonably likely to benefit from funding or implementing a future Restoration Project and all Work on Restoration Projects previously funded and implemented under the Project Trust are complete. If the Consent Decree is not entered by the Court, the Project Trust will terminate and all remaining funds will be returned to Mallinckrodt US LLC.
ARTICLE III WORK AND DISTRIBUTIONS
3.1 Trust Accounts. The Trustee shall establish, maintain, and hold Trust Accounts consistent with the Consent Decree and Section 2.1 (Creation of and Transfer of Assets to the Project Trust) of this Agreement to administer the Trust Assets and distributions therefrom. 3.2 Payments by the Project Trust. 3.2.1 On or before October 1 of each calendar year, the Trustee shall provide the Beneficiaries, to the extent required in the Consent Decree, with balance statements, proposed budgets, work plans, and forecasts as described in Section 2.4.2 of this Agreement and Paragraphs 19 (Initial Funding of the Trusts), 32 (Limit on Decisions Regarding Work by the Project Trust), 33 (Termination of Project Trust), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt), of the Consent Decree. Except as set forth in Section 3.2.2 (Emergency Funding) below, the Trustee shall not pay any expense that has not been provided for in a budget, revised budget, or revised line item of a budget that the Beneficiaries have not objected to pursuant to the terms of this Agreement and the Consent Decree. Nevertheless, the Trustee may incur or pay ongoing or recurring expenses included in the prior year’s budget that occur between the time a proposed annual budget is submitted and the time allowed for the Beneficiaries to object and initiate the dispute resolution process. 3.2.2 Emergency Funding. In the event of an emergency at the Site arising from the Work performed or funded by the Project Trust that, as may be deemed in the Trustee’s sole discretion, requires immediate remedial action to occur within a timeframe that does not permit sufficient time to amend the annual budget, the Trustee may utilize funding, of not more than $250,000, from the Trust Remediation Account to undertake and fund actions necessary to respond to the emergency. Nothing in this paragraph shall preclude the payment or reimbursement of such emergency funding through the annual budget or budget revision process; provided, however, that use of emergency funding under this paragraph shall in no event increase Mallinckrodt’s financial
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obligations as set forth in Paragraphs 13 and 18 (Beneficial Environmental Projects; Capped Funding) of the Consent Decree.
3.2.3 Expenses of the Project Trust. The expenses of the Project Trust relating to Work for Beneficial Environmental Projects shall be paid solely from the Trust Assets held in the Trust subaccount for such project. The Project Trust’s Trust Administrative Costs shall be paid solely from the Trust Assets held in the Trust Administrative Account. 3.2.4 Pre-Court Endorsement Date Funding. Mallinckrodt will transfer the Funding to the Project Trust to fund the Trustee’s Work and its other obligations pending approval of the Consent Decree by the Court. Where the Trustee and the Beneficiaries agree that the Trustee accrued fees and expenses after the Effective Date and prior to the Court’s endorsement of the Consent Decree in furtherance of activities that would constitute Work on Beneficial Environmental Projects under the Consent Decree, those fees and expenses shall be paid from the Trust Assets held in the Trust Remediation Account and Administrative Costs from the Trust Administrative Account. After the effective date of the Consent Decree (or earlier if requested by the Beneficiaries), the Trustee will submit detailed invoices reflecting its fees and expenses for comment and objection by the Beneficiaries. 3.3 Advisory Committee. The Trustee shall create an informal Advisory Committee composed of representatives of the Beneficiaries, including at least one representative for Plaintiffs and one representative for Mallinckrodt. The role of any such Advisory Committee shall be to (i) facilitate dialogue between the Trustee and Beneficiaries, (ii) seek to build consensus among the Beneficiaries, (iii) coordinate Work by the Project Trust and Remediation Trust, and (iv) provide informal consultation to the Trustee regarding management of the Project Trust and execution of the Work required by the Consent Decree. The Advisory Committee shall not have any formal approval or decision-making authority. The Advisory Committee shall meet at the request of the Trustee, on a schedule and by means that are mutually agreeable to the Beneficiaries and Trustee. Each Beneficiary shall designate one or more representatives to the Advisory Committee, each of whom may be an employee, attorney, or consultant for the Beneficiary. 3.4 Manner of Payment. Cash payments made by the Project Trust pursuant to the Consent Decree and this Agreement shall be in United States dollars by checks drawn on a domestic bank whose deposits are federally insured selected by the Trustee, or by wire transfer from such a domestic bank, at the option of the Trustee. When selecting or changing the domestic bank to be used for these purposes, the Trustee shall give the Beneficiaries notice and an opportunity to comment or object. 3.5 Unclaimed Distributions. In the event that any Trust Assets remain in the Project Trust at its termination, all such Trust Assets shall be transferred to the Remediation Trust within 30 days of termination of the Project Trust, as directed by the trustee of the Remediation Trust and in accordance with Paragraphs 13 (Beneficial Environmental Projects), 15 (Trust Administrative Costs), and 33 (Termination of Project Trust) of the Consent Decree. Remaining Trust Assets in the Trust Remediation Account shall be transferred to the Remediation Trust’s Trust Remediation Account to be used for Beneficial Environmental Projects, and remaining Trust Assets in the Trust
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Administrative Account shall be transferred to the Remediation Trust’s Trust Administrative Account.
ARTICLE IV THE TRUSTEE
4.1 Appointment. 4.1.1 Greenfield Penobscot Estuary Project Trust LLC is hereby appointed, subject to approval by the Court, to serve as the Trustee to administer the Project Trust and the Trust Accounts and perform the Work set forth in the Consent Decree and this Agreement, and the Trustee hereby accepts such appointment and agrees to serve in such representative capacity, effective upon the Effective Date. Subject to the provisions in Section 4.10 (Removal, Resignation, and Replacement of the Trustee) herein, the term of the Trustee shall be for ten (10) years at which time the Trustee may resign, be reappointed by the Beneficiaries, or be terminated. Any successor Trustee shall be jointly proposed by the Beneficiaries and appointed by the Court in accordance with Section 4.11 (Appointment of Successor Trustees) of this Agreement. 4.1.2 Consultants, Contractors, and Third-Party Professionals. The Project Trust is authorized to contract with any environmental, engineering, or technical consultants and contractors, and other third-party professionals to carry out the Work at the Site and otherwise fulfill the purposes of the Project Trust and its obligations under the Consent Decree. Such consultants, contractors, and third-party professionals shall be recommended by the Trustee and shall contract with the Project Trust, and the Beneficiaries shall have reasonable opportunity to comment on or object to these recommendations in accordance with Paragraphs 31 (Decisions Regarding Work and Deliverables), 32 (Limit on Decisions Regarding Work by the Project Trust), and 38 (Selection and Hiring of Contractors) of the Consent Decree, prior to finalizing any such contracts. The legal relationship of each consultant, contractor, or third-party professional to the Project Trust and Trustee is that of an independent contractor professional, not that of an entity employed by the Project Trust or the Trustee (and in no event shall be deemed a Trust Party). 4.1.3 Third-Party Insurance. Each consultant, contractor, and third-party professional engaged by the Project Trust in accordance with this Section to carry out the Work shall be required to obtain, at its own expense (except with respect to any project-specific insurance procured in accordance with this Section), as appropriate (based on, among other things, the contemplated scope of services to be provided by such professional), general, environmental, professional, and/or other liability insurance in the range of $1,000,000 to $25,000,000 as agreed to by the Project Trust after consultation with the Beneficiaries and an opportunity for the Beneficiaries to comment on or object to any proposed insurance coverage(s). Upon the recommendation of the Trustee, the Project Trust may reimburse or pay for project-specific insurance for a consultant, contractor, or third-party professional, subject to an opportunity for the Beneficiaries to comment on or object. To the fullest extent permitted by applicable law: (i) insurance policies obtained in accordance with this Section shall (A) be maintained for a period of two years following completion of the applicable Work, (B) name the Trust Parties, and the Beneficiaries of the Project Trust as additional insureds, (C) be issued by an insurer rated A-VII or higher in Best’s Insurance Manual or equivalent and that is qualified to do business in the
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jurisdiction where the Site is located, and (D) provide that the Project Trust be given prior written notice of the termination or expiration of such policy or any material changes in coverage or terms under the policy; (ii) all such policies shall be primary to any insurance maintained by the Project Trust and shall state the same with respect to liabilities that the Trust Parties and the Beneficiaries may incur that are attributable to the Site; and (iii) professionals insured in accordance with this Section shall waive, and require their insurers to waive, all rights of subrogation against the Project Trust, Trustee, Trust Parties, and the Beneficiaries. The insurance policies shall cover, among other things, negligence committed by the consultant, contractor, or third-party professional in carrying out the Work at the Site. In addition, unless waived by the Project Trust in its sole discretion, each subcontractor retained by a professional engaged by the Project Trust in accordance with this Section to carry out a portion of the Work shall obtain and maintain insurance of similar types in amounts that accord with the professional’s usual practice for such Work when performed by subcontractors, naming the Project Trust, Trustee, and the Beneficiaries of the Project Trust as additional insureds to the fullest extent permitted by applicable law. 4.2 Generally. The Trustee’s powers are exercisable solely in a fiduciary capacity and solely for the benefit of the Beneficiaries consistent with, and in furtherance of, the purposes of the Project Trust and the Consent Decree. The Trustee shall have the authority to bind the Project Trust and any successor Trustee, or successor or assign to the Project Trust, but shall for all purposes hereunder be acting in its representative capacity as Trustee and not individually. Notwithstanding anything to the contrary contained herein, the Trustee shall not be required to take action or omit to take action if, after the advice of counsel, the Trustee believes in good faith such action or omission is not consistent with the Trustee’s fiduciary duties. The Trustee shall not be deemed to have breached its fiduciary duties in connection with any act or omission that is consistent with written direction from the Court. The Trustee shall have no obligation to perform any activities for which the relevant Trust Account lacks sufficient funds. 4.3 Powers. In connection with the administration of the Project Trust, except as otherwise set forth in this Agreement or the Consent Decree, the Trustee is authorized to perform any and all acts necessary to accomplish the purposes of the Project Trust. Except as provided in the Consent Decree and Section 4.5 (Limitations on the Trustee’s Authority) below, the powers of the Trustee shall, without any further Court approval or order, include, without limitation, each of the following: (i) to receive, manage, invest, reinvest, supervise, vote, and protect the Trust Assets, withdraw, make distributions, and pay Taxes, if applicable or required, and other obligations owed by the Project Trust or the Trust Accounts from funds held by the Trustee, the Project Trust, and/or the Trust Accounts in accordance with the Consent Decree, and withhold and pay to the appropriate taxing authority any withholding taxes on distributions from the Project Trust, if applicable; (ii) to engage employees and professional Persons to assist the Project Trust and/or the Trustee with respect to the responsibilities described herein; (iii) to make distributions of the Trust Assets from the Trust Accounts for the purposes contemplated in this Agreement and the Consent Decree; (iv) to hold Property in the name of the Trustee in its capacity as such; (v) to establish and maintain a public-facing website and to engage in other Community Involvement activities in accordance with section IV (Community Involvement) of the Statement of Work appended to the Consent Decree; (vi) to purchase any insurance policies required, or as the Trustee may determine prudent, to protect the Project Trust, the Trust Assets, or the Trustee from any and all claims that might be asserted against each relating to the Project Trust; (vii) to file quarterly documents in Court on
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behalf of the Trustee and the Project Trust in accordance with the Consent Decree; (viii) to file all necessary state and federal filings and to provide information as required by law, this Agreement, or the Consent Decree; (ix) to determine the projects to be funded and implemented by the Project Trust as Beneficial Environmental Projects pursuant to Paragraph 13 (Beneficial Environmental Projects) of the Consent Decree, all as in accordance with the requirements set forth in the Consent Decree and subject to the limitations set forth in Sections 4.5.2 (Duties with Respect to Restoration Projects), 4.5.3 (Decisions to Fund or Implement Beneficial Environmental Projects), and 4.5.4 (Coordination with Remediation Trust) below; (x) to engage in all communications, take all actions, and execute all agreements, instruments, and other documents necessary to draw down a Financial Assurance to the extent authorized in Paragraph 20(e) (Financial Assurance: Drawdown) of the Consent Decree; and (xi) to effect all actions, including defending or resolving claims asserted against the Project Trust and/or Trustee, in its capacity as such and subject to Section 4.9 (Exculpation), and execute all agreements, instruments, and other documents necessary to implement this Agreement, including to exercise such other powers as may be vested in or assumed by the Project Trust and/or the Trustee pursuant to this Agreement and any order of the Court or as may be necessary and proper to carry out the provisions of this Agreement and the Consent Decree. No Person dealing with the Project Trust shall be obligated to inquire into the authority of the Trustee in connection with the protection, conservation, or disposition of Trust Assets; provided, however, that the foregoing does not limit Trustee’s obligations to provide information under Paragraph 4 of the Consent Decree. The Trustee is authorized to execute and deliver all documents on behalf of the Project Trust to accomplish the purposes of this Agreement and the Consent Decree. 4.4 Other Professionals. The Trustee is authorized to retain on behalf of the Project Trust and pay such other professionals as the Trustee (in accordance with a budget approved pursuant to Section 3.2 above) may deem necessary or appropriate to assist the Trustee in carrying out its power and duties under this Agreement and the Consent Decree, including, without limitation: (i) legal counsel to the Project Trust and/or the Trustee, in its capacity as such and subject to Section 4.9 (Exculpation); (ii) one or more public accounting firms to perform such bookkeeping functions, review and/or audits of the financial books and records of the Project Trust as may be appropriate in the Trustee’s reasonable discretion and to prepare and file any tax returns or informational returns for the Project Trust or the Trust Accounts as may be required; and (iii) investment advisors, custodians, security personnel, surveyors, contractors, clerks, and other third parties. The Trustee may pay all such Persons compensation for services rendered and expenses incurred in accordance with budgets approved as provided in Section 3.2 and from the appropriate Trust Account consistent with Sections 2.1.4 and 2.4.1 herein (Creation of the Trust Accounts; Management of Trust Assets). Fees due to an investment advisor that are expressed as a percentage of assets under management or return on investment need not be included in a budget, provided that the Beneficiaries are given notice of, and an opportunity to comment on and object to, the investment advisor and the stated percentage. 4.5 Limitation of the Trustee’s Authority.
4.5.1 General Limit. The Project Trust and the Trustee shall not engage in any trade or business with respect to the Trust Assets or any proceeds therefrom except as and to the extent the same is deemed in good faith by the Trustee to be reasonably necessary or proper for
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the conservation or protection of the Trust Assets or the fulfillment of the purposes of the Project Trust.
4.5.2 Duties with Respect to Restoration Projects. In accordance with Paragraph
29 (Project Trust’s Restoration Project Duties) of the Consent Decree, the Trustee shall at all times carry out Work on any Restoration Project in a manner consistent with the conditions and obligations set forth in any applicable separate agreement between Mallinckrodt and the Natural Resource Damage Trustees to which such Restoration Project relates provided that such Work is Feasible.
4.5.3 Decisions to Fund or Implement Beneficial Environmental Projects. The
Trustee acknowledges and agrees to follow the project selection process and criteria set forth in the Consent Decree in Paragraphs 13 and 32 (Beneficial Environmental Projects; Limit on Decisions Regarding Work by the Project Trust). To the extent no Restoration Projects are foreseeable, the Trustee shall consider beginning the process outlined in Paragraph 33 (Termination of the Project Trust) as required by the Consent Decree and this Agreement.
4.5.4 Coordination with Remediation Trust. The Trustee shall coordinate with the
trustee of the Remediation Trust with respect to Work, Invoice Amounts, and financial statements, all in accordance with Paragraphs 19 (Initial Funding of the Trusts), 20 (Financial Assurance), 25 (Trustees), 33 (Termination of the Project Trust), 34 (Decisions Regarding Annual Budgets, Work Plans, and Cash Flow Projections), and 35 (Financial Forecasts and Invoices to Mallinckrodt) of the Consent Decree. Upon beginning the Project Trust termination process as set forth in Section 2.8 (Termination) above and Paragraph 33 (Termination of the Project Trust) of the Consent Decree, the Trustee shall work in good faith with the trustee of the Remediation Trust to facilitate the transfer of the Trust’s Assets and liabilities to the Remediation Trust in accordance with Paragraphs 13 (Beneficial Environmental Projects) and 33 (Termination of the Project Trust) of the Consent Decree. The Trustee shall take such actions with respect to the Trust Assets, and liabilities, as reasonably requested by the trustee of the Remediation Trust, unless the Trustee reasonably determines that such actions would violate the Trustee’s fiduciary duties to the Project Trust or another obligation of the Trustee created in this Agreement or the Consent Decree, which determination shall be made and delivered to the proper Persons in accordance with Paragraphs 56 through 61 (Dispute Resolution) of the Consent Decree. 4.6 Reliance by the Trust Parties. Except as may otherwise be provided herein: (i) the Trust Parties may rely, and shall be protected in acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, or other paper or document believed by them to be genuine and to have been signed or presented by the proper entity(ies) or representative(s) pursuant to the Consent Decree; (ii) the Trust Parties may retain and reasonably rely upon legal counsel, financial or accounting advisors, technical consultants and contractors, and other professionals and experts as appropriate, within the approved budget allowances for such expenses, and shall not be personally liable for any action taken or not taken in accordance with the advice thereof unless the Court, by a final order, finds that they were grossly negligent or committed fraud or willful misconduct; and (iii) persons dealing with the Trust Parties shall look only to the applicable insurance policies maintained by one or more professionals retained hereunder in the first instance, then to the applicable insurance policies maintained by the Trustee,
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and, finally, in the event and to the extent insurance available under this Section is insufficient, to the funds in the Trust Administrative Account to satisfy any liability incurred by the Trust Parties to such person in carrying out the terms of this Agreement or any order of the Court, and the Trust Parties shall have no personal obligations to satisfy any such liability other than as provided in Section 4.9 (Exculpation). 4.7 Compensation of the Trustee. 4.7.1 The Project Trust shall pay its own reasonable and necessary costs and expenses and shall reimburse the Trustee for the actual reasonable out-of-pocket fees, costs, and expenses to the extent incurred by the Trustee in connection with the Trustee’s duties hereunder, including, without limitation, necessary travel, lodging, office rent (to be paid directly by the Project Trust), professional fees, postage, photocopying, telephone, and facsimile charges upon receipt of periodic billings, all in accordance with an annual budget or fee schedule approved by the Beneficiaries. Any Trust Parties who perform services for the Project Trust shall be entitled to receive reasonable compensation for services rendered on behalf of the Project Trust in accordance with an annual budget or fee schedule, subject to review and comment by the Beneficiaries and the dispute resolution terms of this Agreement and the Consent Decree. The Trustee’s fee rates for its services as the Trustee shall be provided to the Beneficiaries for comment and objection prior to the Effective Date and prior to the Trustee applying any adjusted fee schedule. 4.7.2 The Trust Assets shall be subject to the claims of the Trustee, and the Trustee shall be entitled to reimburse itself out of any available cash in the Trust Administrative Account, or for services performed in furtherance of the Work on a Beneficial Environmental Project, in accordance with the provisions of Section 2.4.1, out of available funds in the Trust Remediation Account, and the Project Trust shall be obligated to pay for actual out-of-pocket expenses and for actual hours worked. 4.7.3 All compensation and other amounts payable to the Trustee shall be paid from the Trust Assets. 4.8 Liability of the Trust Parties. 4.8.1 The Beneficiaries acknowledge that the Trust Parties did not create, cause, or contribute to the circumstances that give rise to the need to perform Work, including existing conditions or existing contamination at the Site. Therefore, nothing in the Consent Decree, Statement of Work, or this Agreement shall require the Trust Parties to take or assume any liability pursuant to CERCLA, RCRA, the Maine Uncontrolled Hazardous Substance Sites Law, or any other statute, regulation, or other applicable requirements associated with Work due to existing contamination or conditions. 4.8.2 In no event shall any Trust Parties be held liable to any third parties for any liability, action, or inaction of any other party, including Mallinckrodt or any other Trust Party. The liability of the Trust Parties shall be limited as provided in the Consent Decree and this Agreement, and the Trust Parties shall, further, be indemnified and exculpated in accordance with
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Section 4.9 of this Agreement. The Trustee shall not be deemed in breach of its duties or responsibilities on account of the insufficiency of funds in the Project Trust. 4.8.3 No provision of this Agreement or the Consent Decree shall require the Trustee to expend or risk its own personal funds or otherwise incur any personal financial liability in the performance of any of its duties or the exercise of any of its authorities as Trustee hereunder, except as provided in Section 4.13 (Trustee Insurance) and except on account of the Trustee’s gross negligence, fraud, or willful misconduct as provided in Section 4.9 (Exculpation). 4.8.4 To the fullest extent permitted by applicable law, except as required or authorized by the Consent Decree, the Trust Parties shall not be deemed an owner or operator of the Site or an owner, operator, generator, arranger, or transporter of hazardous waste at the Site under CERCLA, RCRA, the Maine Uncontrolled Hazardous Substance Sites Law, or similar laws on account of the Trust Parties’ performance of Work other than as provided in Section 4.9. The Trust Parties shall not be liable for any injury or damages to Persons or property resulting from acts or omissions of any Person in implementing the requirements of the Consent Decree or this Agreement other than as provided in Section 4.9. 4.9 Exculpation.
4.9.1 Except as otherwise provided in the Consent Decree or this Agreement, to the fullest extent permitted by applicable law, the Trust Parties are exculpated by all Persons of and from any and all claims, causes of action, and other assertions of liability arising out of the discharge of the powers and duties conferred upon the Project Trust and/or Trustee by the Consent Decree or this Agreement. No Person will be allowed to pursue any claims or causes of action against any Trust Party for any claim against Mallinckrodt, for making payments in accordance with the Consent Decree or this Agreement, or for implementing the provisions of the Consent Decree or this Agreement. Notwithstanding anything in this Section 4.9 or elsewhere in this Agreement to the contrary, nothing in this Agreement shall be construed to exculpate the Trust Parties from any liability resulting from any act or omission constituting gross negligence, fraud, or willful misconduct of such Trust Party. In the event of any claim or cause of action by a third party, including but not limited to a governmental entity, against the Project Trust, or the Trustee or a Trust Party with respect to the Project Trust, there shall be (i) an irrebuttable presumption that specific actions taken or not taken by the Project Trust, Trustee, or a Trust Party with the approval of the Court, expressed in any decision, order, decree, or dispute resolution related to the Action, do not constitute gross negligence, fraud, or willful misconduct, and (ii) a presumption that actions taken or not taken by the Project Trust, Trustee, or a Trust Party to implement the Consent Decree and this Agreement that meet the Standard of Care required by Paragraph 31(b) (Standard of Care) of the Consent Decree do not constitute gross negligence, fraud, or willful misconduct.
4.9.2 In the event of any claim or cause of action by a third party, including but
not limited to a governmental entity, against a Trust Party, the Project Trust shall indemnify, defend, and hold harmless (without the Trust Parties having to first pay from their personal funds) the Trust Parties from and against any and all claims, causes of action, liabilities, obligations, losses, costs, judgments, damages, or expenses (including attorneys’ fees) and any other assertion of liability arising out of or in relation to the discharge of the Trustee’s powers and duties, provided
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that such indemnification, and any related recovery, shall be satisfied first, by the responding insurance coverage maintained by one or more professionals retained hereunder, second, by the responding insurance coverage maintained by the Trustee, and, third, by funds already in the Trust Administrative Account. The Project Trust shall not indemnify Trust Parties for acts or omissions that the Court, by a final order, finds constituted gross negligence, fraud, or willful misconduct. 4.10 Removal, Resignation and Replacement of the Trustee. 4.10.1 Removal. During the term of the Trustee’s initial appointment or during any subsequent appointment or reappointment, the Trustee may be removed by (1) the entry of an order by the Court finding that the Trustee breached its fiduciary duty or committed gross negligence, fraud, or willful misconduct; (2) the entry of an order by the Court finding that (i) the Trustee in any material respect exacerbated hazardous conditions at the Site, (ii) is seriously or repeatedly deficient or late in performance of its duties or responsibilities under this Agreement, or (iii) has violated the provisions of this Agreement or the Consent Decree; (3) the Court approving an amendment to the Consent Decree by and among the Beneficiaries pursuant to which the Beneficiaries unanimously consent to removing the Trustee and proposing another Person as successor Trustee; or (4) the Court’s approval of a petition entered by a Beneficiary to have the Trustee removed and proposing another Person as successor Trustee.
4.10.2 Resignation. The Trustee may resign by giving not less than 90 days prior written notice thereof to the Court and the Beneficiaries.
4.10.3 Replacement. The Trustee may be replaced upon completion of any ten-year term.
4.10.4 Surviving Provisions. The provisions of this Section 4.10 and of Sections 4.6 (Reliance by the Trust Parties), 4.8 (Liability of the Trust Parties), 4.9 (Exculpation), 4.11 (Appointment of Successor Trustees), 4.14 (Mutual Covenants Not to Sue), and 7.3 (Property Assignment and Preservation) shall survive the removal, replacement, and/or resignation of the Trustee. 4.11 Appointment of Successor Trustees. Any successor Trustee shall be proposed by the Beneficiaries and appointed by the Court. Any successor Trustee appointed hereunder shall execute an instrument accepting such appointment hereunder and shall file such acceptance with the Project Trust records. Thereupon, such successor Trustee shall, without any further act, become vested with all the estates, properties, rights, powers, trusts, and duties of its predecessor in the Project Trust with like effect as if originally named herein; provided, however, that a removed or resigning Trustee shall, nevertheless, when requested in writing by the successor Trustee, execute and deliver an instrument or instruments conveying and transferring to such successor Trustee under the Project Trust all the estates, properties, rights, powers, and trusts of such predecessor Trustee. 4.12 No Bond. Notwithstanding any state law to the contrary, the Trustee, including any successor Trustee, shall be exempt from giving any bond or other security.
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4.13 Trustee Insurance. As required by Paragraph 45 (Insurance Policies) of the Consent Decree, at all times that a Person is acting as the Trustee of the Project Trust, the Trustee shall obtain and continue to hold appropriate insurance as agreed to by the Project Trust after consultation with the Beneficiaries regarding the type(s) and amount of insurance to be obtained. To the extent the Person then serving as Trustee provides services to the Project Trust outside of its capacity as Trustee, the Person shall be treated as a consultant, contractor, and third-party professional to the Project Trust to the extent of such services and shall be required to obtain and fund insurance with respect to such services in accordance with Section 4.1.3 (Third-Party Insurance) as if the services were performed by a third-party. Mallinckrodt, MPA, and NRDC shall receive insured protection on all such insurance policies obtained by the Trustee. 4.14 Mutual Covenants Not to Sue. Except as specifically provided herein and without limiting the Beneficiaries’ or the Trustee’s, if applicable, right to seek to enforce the terms of the Consent Decree and this Agreement and to seek dispute resolution as provided in the Consent Decree, upon the earlier of the Effective Date or the date on which the Project Trust receives funds pursuant to Section 2.1.2 (Transfer of Funding to the Project Trust), the Beneficiaries covenant not to sue or assert any claims or causes of action against any of the Trust Parties with respect to the matters addressed herein, except to the extent such claim or causes of action are attributable to a Trust Party’s fraud or willful misconduct as determined by the Court, and the Trust Parties covenant not to sue or assert any claims or causes of action against any Beneficiary.
ARTICLE V BENEFICIARIES
5.1 Beneficiaries. Beneficial interests in the Project Trust shall be held by each of the Beneficiaries. 5.2 Identification of Beneficiaries. 5.2.1 In order to determine the actual names and addresses of the authorized representatives of a Beneficiary, the Project Trust and the Trustee shall be entitled to rely conclusively on the name and contact information of the authorized representative for such Beneficiary listed in Section 7.8 (Sufficient Notice) of this Agreement, who may from time to time provide additional or replacement names and contact information of authorized representatives, or listed in any written notice provided to the Trustee in the future by an authorized representative of such Beneficiary. 5.2.2 The Trustee shall send copies of all reports, budgets, forecasts, and other documents that the Trustee is required to submit to a Beneficiary under the Consent Decree or this Agreement, and related implementation documents by electronic mail (unless otherwise requested) to the Person(s) listed in Section 7.8 (Sufficient Notice) to this Agreement as applicable. The Trustee shall send all reports that the Trustee is required to submit to the Court under the Consent Decree or this Agreement in accordance with applicable Court procedures. 5.3 Transfer of Beneficial Interests. The interest of the Beneficiaries of the Project Trust, which are reflected only on the records of the Project Trust maintained by the Project Trust, are not
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negotiable and may be transferred only after written notice to the Project Trust, by order of the Court, or by operation of law. The Project Trust shall not be required to record any transfer in favor of any transferee where, in the sole discretion of the Project Trust, such transfer is or might be construed to be ambiguous or to create uncertainty as to the holder of the interest in the Project Trust. Until a transfer is in fact recorded on the books and records maintained by the Project Trust for the purpose of identifying Beneficiaries, the Project Trust, whether or not in receipt of documents of transfer or other document relating to the transfer, may nevertheless send communications to Beneficiaries, as though it has no notice of any such transfer, and in so doing the Project Trust and Trustee shall be fully protected and incur no liability to any purported transferee or any other Person. The Trustee and Project Trust shall not unreasonably withhold transfer of beneficial interests to a successor of a Beneficiary recognized by the Court consistent with Paragraphs 3 and 66 (Succession and Assignment; Successors to NRDC or MPA) of the Consent Decree.
ARTICLE VI REPORTING AND TAXES
6.1 Reports. Within ninety (90) days after the end of each calendar quarter (which shall end on March 31, June 30, September 30, and December 31), beginning with the quarter ended after assets are first received by the Project Trust and ending as soon as practicable upon termination of the Project Trust, the Trustee shall submit to the Beneficiaries a written report as set forth in Paragraph 37 (Quarterly Reporting Requirements) of the Consent Decree; provided, however, that the Trustee may withhold confidential business information and protected personal information, if any, from such submittals and filings. The Project Trust shall promptly submit additional reports to the Beneficiaries whenever, as determined by outside counsel, accountants, or other professional advisors, an adverse material event or change occurs that affects the Project Trust. The Project Trust shall also provide the reports or information required by Section 3.2 (Payments by the Project Trust) of this Agreement. 6.2 Other. The Project Trust shall also file (or cause to be filed) any other statements, returns, or disclosures relating to the Project Trust that are required by any applicable governmental unit. 6.3 Taxes. The Project Trust is intended to be created and treated as an environmental remediation trust as described in Treasury Regulation Section 301.7701-4(e) and a “grantor trust” within the meaning of Sections 671 through 679 of the Code for all federal income tax purposes, with Mallinckrodt treated as the owner of the Project Trust and Trust Assets for federal tax purposes. The Trustee will file any returns or reports required by Treasury Regulation Section 1.671-4 and similar state and local laws, in order to enable Mallinckrodt to calculate its share of the Project Trust’s Tax obligations and attributes. The foregoing treatment shall also apply, to the extent permitted by law, for state and local tax purposes. All Taxes of any kind that may be assessed or levied against or in respect of the Project Trust shall be paid from the earnings and interest on Trust Assets, whether directly to the taxing authority or indirectly through Mallinckrodt.
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ARTICLE VII MISCELLANEOUS PROVISIONS
7.1 Amendments and Waivers. Any provision of this Agreement may be amended or waived by mutual written consent of the Parties; provided, however, that unless ordered by the Court no change shall be made to this Agreement that would violate the Consent Decree or, unless agreed to in writing by the Trustee, the rights or obligations of, or the liability protections or immunities accorded to, the Trustee. Technical amendments to this Agreement may be made as necessary to clarify this Agreement to enable the Trustee to effectuate the terms of this Agreement, or perform its intended duties in a manner consistent with the Consent Decree with the mutual consent of the Parties. 7.2 Ex Parte Communications. From the Effective Date until the termination of the Project Trust, no Trustee shall make or knowingly cause to be made to a Beneficiary, and no Beneficiary shall make or knowingly cause to be made to a Trustee, any material oral or written communication relevant to the Consent Decree or the Work that was not made contemporaneously to the other Beneficiaries. If such communication is received by the Trustee or a Beneficiary, such receiving party shall cause such communication to be served on all other Beneficiaries as soon as reasonably practical. The prohibition in this Section 7.2 shall not apply to communications regarding non-substantive administrative issues. 7.3 Property Assignment and Preservation. The Project Trust is the sole and exclusive owner of all Property now or hereinafter held in the name of the Trustee, in its capacity as Trustee, and all underlying rights therein without any further obligations to Trustee. If any such Property, or any portion thereof, is deemed not to be owned by the Project Trust, the Trustee hereby irrevocably conveys, transfers and assigns to the Project Trust all right, title and interest in and to such Property, including the right to receive all past, present and future proceeds and damages therefrom. Trustee shall, at any time during and after the Trustee’s term under this Agreement, make such applications, sign such papers, take all rightful oaths, and perform all acts as may be requested from time to time by the Court or a successor Trustee or ordered by the Court (following dispute resolution provided for in this Agreement and the Consent Decree) with respect to the Property, at the Project Trust’s expense. The Trustee shall also execute assignments to the Project Trust (or its successor Trustee, not individually but in its capacity as successor Trustee) and give the Project Trust and its successor Trustee all reasonable assistance (including the giving of testimony) to obtain, protect, enforce or defend the Property for the Project Trust’s benefit. A Person serving as Trustee shall cooperate and assist in the transition of the Project Trust administration to a successor Trustee, including after such Person is no longer the Trustee, as reasonably requested by the successor Trustee or the Beneficiaries. The Trustee appoints the Project Trust and any duly-appointed successor Trustee as the Trustee’s co-agents and grants each a power of attorney for the limited purpose of executing all such documents and to do all other lawful acts that the Project Trust, under the administration of a successor Trustee, is entitled to require Trustee to do pursuant to this Section 7.3. The Trustee shall preserve all Property that in any way relates to the Site in accordance with the Statement of Work section V. Upon a Person’s termination as Trustee for any reason or by resignation, the Trustee shall promptly deliver to the Project Trust (or its successor Trustee) all Project Trust records, Trust Property in the Trustee’s possession or under Trustee’s control, and documents that in whole or in part contain material
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information regarding the Project Trust. The Trustee may keep copies of such Project Trust records as then agreed to by the successor Trustee or ordered by the Court following dispute resolution. The Trustee, or any successor Trustee, shall notify the Beneficiaries and provide the Beneficiaries an opportunity to object prior to utilizing or relying upon any Property to carry out the Trustee’s duties under this Agreement if such utilization or reliance could be inconsistent with the Property assignment in this Section. 7.4 Dispute Resolution. Each of the Trustee and the Beneficiaries hereby acknowledge and agree that in the event of any dispute with respect to the Project Trust or the terms of this Agreement, the Trustee and Beneficiaries shall follow and be bound by the dispute resolution provisions set forth in Section XIV (Dispute Resolution) in the Consent Decree. 7.5 Cooperation. 7.5.1 Mallinckrodt represents that it has provided, or has provided access to, all information required by Paragraph 41 of the Consent Decree, and otherwise has complied, and will continue to comply, post-Effective Date, with the provisions of Section IX (Cooperation and Obligations of the Parties Regarding the Trustees) of the Consent Decree. 7.5.2 The Project Trust and Trustee shall take such actions and execute such documents as are reasonably requested by Mallinckrodt with respect to effectuating the Consent Decree and the transactions contemplated thereby, provided that such actions are not inconsistent with this Agreement or the Consent Decree.
7.5.3 To the fullest extent possible, the Trustee, the Trust Parties, and the Beneficiaries agree and covenant to fully cooperate to efficiently and effectively carry out the intent of the Consent Decree and this Agreement and to take reasonable steps to protect the Project Trust, Trustee and Trust Parties from third-party liability arising from the Project Trust’s, Trustee’s, and Trust Parties’ responsibilities and obligations under the Consent Decree and this Agreement, including but not limited to liability under CERCLA, RCRA and the state counterparts to those statutes, but nothing in this paragraph requires the Beneficiaries to expend funds, to accept liability or responsibility, or to indemnify or hold harmless the Project Trust, Trustee, and Trust Parties except to the extent such is required elsewhere in the Consent Decree or this Agreement. 7.6 Situs of the Project Trust. The situs of the Project Trust herein established is Maine, and, except to the extent federal law is applicable, the rights, duties, and obligations arising under this Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Maine, including the Maine Act, without giving effect to the principles of conflict of law thereof. 7.7 Severability. If any provision of this Agreement or application thereof to any Person or circumstance shall be finally determined by the Court to be invalid or unenforceable to any extent, the remainder of this Agreement, or the application of such provision to Persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected hereby, and such provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
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7.8 Sufficient Notice. For any notice or other communication that is to be given or is allowed under this Agreement, such notice or other communication shall be written, shall be conveyed electronically by email, and shall be provided at the same time to the designated representatives of all of the Parties. The Parties shall give notice if their designated representatives change or have a change in contact information. As of the Effective Date, the designated representatives are:
For Plaintiffs:
Mitchell Bernard, NRDC, 40 West 20th Street, New York, NY 10011; (212) 727‐4469; [email protected]; and Jared Thompson, NRDC, 1152 15th Street NW, Suite 300, Washington, DC 20005; (202) 513-6249; [email protected].
For Mallinckrodt:
Patricia Hitt Duft, Mallinckrodt US LLC, 710 Medtronic Parkway, LC 300, Minneapolis, MN 55432; (314) 753-0413; [email protected]; Lisa Palin, Mallinckrodt US LLC, c/o Medtronic plc, 15 Hampshire Street, Mansfield, MA 02048; (508) 452-4272; [email protected]; and Jeffrey Talbert, Preti Flaherty, One City Center, Portland, ME 04112; (207) 791-3000; [email protected].
For Remediation Trust:
Cynthia Brooks, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 11 Flagg Street, Unit 1, Cambridge, MA 02138; (617) 448-9762; [email protected]; Lauri Gorton, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 2116 East Estes Street, Milwaukee, WI 53207; (414) 732-4514; [email protected]; Craig Kaufman, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., 1506 D Street, SE Washington, DC 20003; (215) 837-3702; [email protected]; and Jennifer Roberts, Greenfield Penobscot Estuary Remediation Trust LLC c/o Greenfield Environmental Trust Group, Inc., PO Box 1189, Helena, MT 59624; (406) 457-2142; [email protected].
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For Trustee:
Cynthia Brooks, Greenfield Penobscot Estuary Project Trust LLC c/o Greenfield Environmental Trust Group, Inc., 11 Flagg Street, Unit 1, Cambridge, MA 02138; (617) 448-9762; [email protected]; Lauri Gorton, Greenfield Penobscot Estuary Project Trust LLC c/o Greenfield Environmental Trust Group, Inc., 2116 East Estes Street, Milwaukee, WI 53207; (414) 732-4514; [email protected]; Craig Kaufman, Greenfield Penobscot Estuary Project Trust LLC c/o Greenfield Environmental Trust Group, Inc., 1506 D Street, SE Washington, DC 20003; (215) 837-3702; [email protected]; and Jennifer Roberts, Greenfield Penobscot Estuary Project Trust LLC c/o Greenfield Environmental Trust Group, Inc., PO Box 1189, Helena, MT 59624; (406) 457-2142; [email protected].
7.9 Headings. The section and paragraph headings contained in this Agreement are solely for convenience of reference and shall not affect the meaning or interpretation of this Agreement or any term or provision hereof. 7.10 Actions Taken on Other Than Business Day. If any payment or act under the Consent Decree or this Agreement is required to be made or performed on a date that is not a business day, then the making of such payment or the performance of such act may be completed on the next succeeding business day, but shall be deemed to have been completed as of the required date. For the purposes of this Agreement, a business day shall be any of the days Monday through Friday excluding recognized federal holidays. 7.11 Consistency of Agreements and Construction. To the extent reasonably possible, the provisions of this Agreement shall be interpreted in a manner consistent with the Consent Decree. Where the provisions of this Agreement are irreconcilable with the provisions of the Consent Decree, the provisions of the Consent Decree shall prevail, with the exception of Article IV, Section 1.1.18 (definition of “Parties), Section 1.1.33 (definition of “Trust Administrative Costs”), and Section 7.5 (“Cooperation”), in which case this Agreement controls. 7.12 Compliance with Laws. Any and all distributions of Trust Assets shall be in compliance with applicable laws, including, but not limited to, applicable federal and state securities laws. 7.13 No Recourse to Plaintiffs. In no event shall the Plaintiffs have any responsibility for paying any expenses, fees, liabilities, or other obligations of the Project Trust, and in no event shall the Project Trust or the Trustee, or any of their agents, representatives, or professionals, have recourse to the Plaintiffs therefor. 7.14 Uniform Custodial Trust Act. The Agreement shall not be subject to any provision of the Uniform Custodial Trust Act as adopted by any state, now or in the future.
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7.15 Authority to Enter into Agreement; Counterparts. The undersigned representatives for each Party represent and warrant that they are duly authorized to enter into the terms of this Agreement and to bind such Party legally to this Agreement, and that such Party has the right, power, and authority to enter into this Agreement, to become a Party to this Agreement, and to perform its obligations under this Agreement. This Agreement may be signed electronically in counterparts and such counterpart signature pages shall be given full force and effect. IN WITNESS WHEREOF, THE UNDERSIGNED PARTIES ENTER INTO THIS PENOBSCOT ESTUARY BENEFICIAL ENVIRONMENTAL PROJECTS TRUST AGREEMENT.
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Signature Page for Penobscot Estuary Beneficial Environmental Projects Trust Agreement
FOR MALLINCKRODT US LLC:
__________ ___________________________________
Date Name: Title:
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Signature Page for Penobscot Estuary Beneficial Environmental Projects Trust Agreement
FOR MAINE PEOPLE’S ALLIANCE:
__________ ___________________________________
Date Name: Jesse Graham Title: Co-Director
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Signature Page for Penobscot Estuary Beneficial Environmental Projects Trust Agreement
FOR NATURAL RESOURCES DEFENSE COUNCIL, INC.:
__________ ___________________________________
Date Name: Mitchell S. Bernard Title: President and Chief Counsel
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Signature Page for Penobscot Estuary Beneficial Environmental Projects Trust Agreement
FOR GREENFIELD PENOBSCOT ESTUARY REMEDIATION TRUST LLC, not individually but solely in its representative capacity as trustee of the Penobscot Estuary Mercury Remediation Trust:
By: Greenfield Environmental Trust Group, Inc., Member
__________ ___________________________________
Date Name: Cynthia Brooks Title: President
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Signature Page for Penobscot Estuary Beneficial Environmental Projects Trust Agreement
FOR GREENFIELD PENOBSCOT ESTUARY PROJECT TRUST LLC, not individually but solely in its representative capacity as trustee of the Penobscot Estuary Beneficial Environmental Projects Trust:
By: Greenfield Environmental Trust Group, Inc., Member
__________ ___________________________________
Date Name: Cynthia Brooks Title: President
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APPENDIX D
to the Consent Decree in Maine People’s Alliance v. HoltraChem Mfg. Co., LLC,
No. 1:00-cv-00069-JAW (D. Me)
Form of Surety Bond
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Financial Assurance - Payment Bond
[Letterhead of Bond Issuer]
PAYMENT BOND Surety’s Payment Bond Number: [insert number] Date of Execution of Payment Bond: [insert date] Effective Date of Payment Bond: [insert date] Total Dollar Amount of Payment Bond: $[insert dollar amount] PRINCIPAL: Legal Name: Mallinckrodt US LLC Address: [insert address] Contact Person(s)/Information: [insert name and contact information (phone, email)] SURETY: Legal Name: [insert name of surety providing the bond] Address: [insert address] Contact Person(s)/Information: [insert name and contact information (phone, email)] BENEFICIARIES: Legal Name: Penobscot Estuary Mercury Remediation Trust
c/o [Trustee Recipient] Address/Contact Information: [insert address and contact information (phone, email)] Legal Name: Penobscot Estuary Beneficial Environmental Projects Trust
c/o [Trustee Recipient] Address/Contact Information: [insert address and contact information (phone, email)] SITE INFORMATION: Name and Location of Site: Penobscot River Estuary (the Site) Agreement Governing Site Work: Consent Decree, dated [insert date], in Case No. 1:00-cv-
00069-JAW (D. Me.), ECF No. __, between Mallinckrodt US LLC and Maine People’s Alliance and Natural Resources Defense Council
KNOW ALL PERSONS BY THESE PRESENTS, THAT: WHEREAS, said Principal is required, under the Consent Decree entered pursuant to the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992, to fund the Penobscot Estuary Mercury Remediation Trust and the Penobscot Estuary Beneficial
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Environmental Projects Trust as defined in the Consent Decree, and to fulfill its other obligations as set forth in the Consent Decree; and WHEREAS, said Principal is required by the Consent Decree to provide financial assurance to ensure completion of its funding obligations. NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. The Principal and Surety hereto are firmly bound to the Penobscot Estuary Mercury Remediation Trust and the Penobscot Estuary Beneficial Environmental Projects Trust (the Beneficiaries), in the above Total Dollar Amount of this Payment Bond, for the payment of which we, the Principal and Surety, bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, subject to and in accordance with the terms and conditions hereof. 2. The conditions of the Surety’s obligation hereunder are such that if the Principal shall promptly, faithfully, fully, and finally fulfill its obligations in accordance with the terms of the Consent Decree, the Surety’s obligation hereunder shall be null and void; otherwise it is to remain in full force and effect. 3. Pursuant to and in accordance with the terms of the Consent Decree, and except as specifically provided in Paragraph 5 below, the Surety shall become liable on the obligation evidenced hereby only upon the Principal’s failure to perform all or any portion(s) of its obligations, as defined in Paragraph 20(e) of the Consent Decree. At any time and from time to time upon notification by any Beneficiary that a drawdown has commenced, as specified in the Consent Decree, the Surety shall promptly (and in any event within 15 days after receiving such notification) pay to the Beneficiary funds up to the Total Dollar Amount of this Payment Bond in such amounts and to such person(s), account(s), or otherwise as the Beneficiary may direct. If the Surety does not render such payment within the specified 15-day period, the Surety shall be deemed to be in default of this Payment Bond and the Beneficiary shall be entitled to enforce any remedy available to it at law, in equity, or otherwise. 4. The liability of the Surety shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the Total Dollar Amount of this Payment Bond, but in no event shall the aggregate obligation of the Surety hereunder exceed the amount of said sum. 5. The Surety may cancel this Payment Bond only by sending notice of cancellation to the Principal and to the Beneficiaries, provided, however, that no such cancellation shall be effective during the 120-day period beginning on the date of receipt of the notice of cancellation by both the Principal and the Beneficiaries, as evidenced by return receipts. If after 90 days of such 120-day period, the Principal has failed to provide alternative financial assurance to the
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Beneficiaries in accordance with the terms of the Consent Decree, the Beneficiaries shall have the right to draw upon the Total Dollar Amount of this Payment Bond. 6. The Principal may terminate this Payment Bond only by sending written notice of termination to the Surety and to the Beneficiaries, provided, however, that no such termination shall become effective unless and until the Surety receives written authorization for termination of this Payment Bond by both of the Beneficiaries, or if one of the Trusts has been terminated, by the remaining Beneficiary. 7. Any modification, revision, or amendment that may be made to the terms of the Consent Decree, or any extension of the Consent Decree, or other forbearance on the part of either the Principal or the Beneficiaries to the other, shall not in any way release the Principal and the Surety, or either of them, or their heirs, executors, administrators, successors, or assigns from liability. The Surety expressly waives notice of any change, revision, or amendment to the Consent Decree or to any related obligations between the Principal and the Beneficiaries. 8. The Surety will immediately notify the Beneficiaries of any of the following events: (a) the filing by the Surety of a petition seeking to take advantage of any laws relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts; (b) the Surety’s consent to (or failure to contest in a timely manner) any petition filed against it in an involuntary case under such bankruptcy or other laws; (c) the Surety’s application for (or consent to or failure to contest in a timely manner) the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator, or the like of itself or of all or a substantial part of its assets; (d) the Surety’s making a general assignment for the benefit of creditors; or (e) the Surety’s taking any corporate action for the purpose of effecting any of the foregoing. 9. Any provision in this Payment Bond that conflicts with RCRA or any other applicable statutory or legal requirement shall be deemed deleted and provisions conforming to such statutory or legal requirement shall be deemed incorporated. 10. All notices, elections, consents, approvals, demands, and requests required or permitted shall be given in writing to (unless updated from time to time) the addressees shown on the first page of this Payment Bond, identify the Site, and provide a contact person (and contact information). All such correspondence shall be: (a) effective for all purposes if hand delivered or sent by (i) certified or registered United States mail, postage prepaid, return receipt requested or (ii) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery, to the relevant address shown on the first page of this Payment Bond; and (b) effective and deemed received upon the earliest of (i) the actual receipt of the same by personal delivery or otherwise, (ii) one business day after being deposited with a nationally recognized overnight courier service as required above, or (iii) three business days after being deposited in the United States mail as required above. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as herein required shall be deemed to be receipt of the notice, election, consent, approval, demand, or request sent.
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11. The Surety hereby agrees that the obligations of the Surety under this Payment Bond shall be in no way impaired or affected by any winding up, insolvency, bankruptcy, or reorganization of the Principal or by any other arrangement or rearrangement of the Principal for the benefit of creditors. 12. No right of action shall accrue on this Payment Bond to or for the use of any person other than the Beneficiaries or the executors, administrators, successors or assigns of the Beneficiaries.
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IN WITNESS WHEREOF, the Principal and Surety have executed this Payment Bond and have affixed their seals on the date set forth above. The persons whose signatures appear below hereby represent, warrant, and certify that they are authorized to execute this Payment Bond on behalf of the Principal and Surety, respectively.
FOR THE PRINCIPAL:
Date: _____________ By [signature]: ________________________ Printed name: ________________________ Title: ________________________
State of [insert state] County of [insert county] On this [insert date], before me personally came [insert name of Mallinckrodt’s signatory] to me known, who, being by me duly sworn, did depose and say that she/he is [insert title] of Mallinckrodt US LLC, the entity described in and which executed the above instrument; and that she/he signed her/his name thereto. _______________________ [Signature of Notary Public]
FOR THE SURETY:
Date: _____________ By [signature]: ________________________ Printed name: ________________________
Title: ________________________ State of [insert state] County of [insert county] On this [insert date], before me personally came [insert name of Surety’s signatory] to me known, who, being by me duly sworn, did depose and say that she/he is [insert title] of [insert name of Surety], the entity described in and which executed the above instrument; and that she/he signed her/his name thereto. _______________________ [Signature of Notary Public]
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APPENDIX E
to the Consent Decree in Maine People’s Alliance v. HoltraChem Mfg. Co., LLC,
No. 1:00-cv-00069-JAW (D. Me)
Study Reaches Map
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