Hexio level 6411/5/2023 ![]() The sale was consummated with a detailed asset purchase agreement, in which OakBark agreed to place $3 million ofthe purchase money in an escrow account for a period of3 years. ![]() The purpose of the escrow account was to provide indemnification to Hexion for any damages suffered as a result of, inter "any breach of any representation or warranty made by in. or any other certificate, document, writing or instrument delivered by pursuant to. ![]() 2 After the sale, Hexion encountered various problems in the plant. On March 12, 2009, Hexion demanded indemnification pursuant to section 11.2 of the APA. OakBark refused indemnification, and Hexion filed this action on July 1, 2009, alleging breach of warranty. On October 2, 2009, this court entered a scheduling order. OnJanuary 19,2010, Hexion (with OakBarks's consent and this court's approval) filed an amended complaint. Hexion's amended complaint describes three specific breaches. 1 Hexion's first claim relates to the treatment ofthe plant's wastewater, which is a byproduct of the plant's chemical manufacturing process. Hexion contends in its amended complaint that: 10. A publicly owned treatment works wastewater facility ("POTW Wastewater Facility" as defined in the Agreement) supports the operation of the Business. OakBark was responsible for the design ofthe POTW Wastewater Facility. Since acquiring the Business, Hexion has received notices from Columbus County that the POTW Wastewater Facility has had persistent ammonia and biological oxygen demand violations since it began operation. These violations indicate that the POTW Wastewater Facility is underdesigned and as a result, sustained operation of the POTW Wastewater Facility at its maximum design capacity will result in failure to comply with the relevant NPDES permits. Though Hexion has modified its operations to address the violations, Hexion has had to pay over $13,000 in fines related to the POTW Wastewater Facility.
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