ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "Indemnity") is made this
22nd day of October, 1997 by and among SEL-LEB MARKETING, INC., a New York
corporation, having its principal place of business located at 000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 ("SEL-LEB"), and ALES SIGNATURE LTD., a New York
corporation having its principal place of businesslocated at 000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 ("ALES") (SEL-LEB and ALES each an "Indemnitor" and
collectively the "Indemnitors"), jointly and severally to SUMMIT BANK, a state
banking association organized under the laws of the State of New Jersey (the
"Bank") with an office at 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000.
RECITALS
WHEREAS, the Bank has made a certain credit facility (the "Facility")
available to the Indemnitors in the principal amount of $3,000,000.00 pursuant
to a Line of Credit Note ("Line of Credit Note") and a Term Note ("Term Note")
(the Line of Credit Note and the Term Note are hereinafter referred to as the
"Notes") executed and delivered by the Indemnitors to the Bank pursuant to a
certain Loan and Security Agreement dated the date hereof between the
Indemnitors and the Bank (the "Loan Agreement") (the Notes, the Loan Agreement
and all documents executed and delivered by the Indemnitors in connection with
the Loan Agreement are hereinafter collectively referred to as the "Loan
Documents"); and
WHEREAS, the Bank only made the Facility available to the Indemnitors,
if the Indemnitors agreed on a joint and several basis on to indemnify and hold
harmless the Bank from and against any and all claims, demands, liability, loss
and damage resulting from or in connection with certain activities, accidents or
conditions as hereinafter described now or hereinafter existing on and with
respect to that certain parcel of land and premises leased by either or both of
the Indemnitors located at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000(xxx
"Premises").
AGREEMENTS
NOW, THEREFORE, in consideration of the premises, the representations,
covenants and agreements hereinafter contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce the Bank to make the Facility to the Indemnitors, the
Indemnitors hereby, jointly and severally, covenant and agree with the Bank as
follows:
ARTICLE I
GENERAL DEFINITIONS AND CONSTRUCTION
SECTION 1.1. General Definitions. All capitalized terms used in this
Indemnity shall have the respective meanings specified in the Loan Documents,
unless the context clearly indicates otherwise.
SECTION 1.2. Rules of Construction. The words "hereof",
"herein", "hereunder", "hereto", and other words of similar
import refer to this Indemnity in its entirety.
The terms "agree" and "agreements" contained herein are intended to
include and mean "covenant" and "covenants".
References to Articles, Sections, and other subdivisions of this
Indemnity are to the designated Articles, Sections, and other subdivisions of
this Indemnity as originally executed.
The headings of this Indemnity are for convenience only and shall not
define or limit the provisions hereof.
All references made (a) in the neuter, masculine or feminine gender
shall be deemed to have been made in all such genders, and (b) in the singular
or plural number shall be deemed to have been made, respectively, in the plural
or singular number as well.
ARTICLE II
INDEMNIFICATION
SECTION 2.1. Indemnity. (a) The Indemnitors, jointly and severally,
undertake to and do hereby protect, indemnify, save and hold harmless Bank from
and against any and all costs, expenses, reasonable attorneys' fees, charges,
liability, loss or damage assessed or otherwise determined in, or arising from
or in connection with, judgments, orders, claims, suits, demands, binding
directives with the force of law, proceedings and investigations arising from or
related to the one or more Indemnitor's deposit, storage, disposal, burial,
dumping, injecting, spillage, leakage, seepage, discharge, emission, placement
or release in, on or from the Premises, of any Hazardous Substance, including,
but not limited to:
(i) liability for personal injury or property damage
arising under any statutory or common-law tort
theory, including the maintenance of a public or
private nuisance, or the carrying on of an abnormally
dangerous activity;
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(ii) liability arising out of any violation of
any Environmental Law, statute, ordinance, rule,
regulation, order or binding directive with the
force of law;
(iii) liability for injury to, destruction of, or
loss of natural resources including the reasonable
cost of assessing injury to, destruction of or
loss of natural resources, pursuant to any and all
Environmental Laws now or hereinafter promulgated,
including but not limited to, the Comprehensive
Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. Section 9601 et seq.
("CERCLA"), as amended by the Superfund Amendments
and Reauthorization Act of 1986 ("XXXX"), the
Hazardous Materials Transportation Act, 49 U.S.C.
Section 1251 et seq., the Clean Air Act, 42 U.S.C.
Section 7401 et seq., the Clean Water Act, 33
U.S.C. Section 1251 et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq. ("RCRA"), the Toxic Substances
Control Act, 15 U.S.C. Section 2601, et seq.
("TSCA"), the Safe Drinking Water Act, 42 U.S.C.
Section 300f, the New Jersey Spill Compensation
and Control Act (the "Spill Act"), N.J.S.A. 58:10-
23.11 et seq., the New Jersey Water Pollution
Control Act, N.J.S.A. 58:10A-1 et seq., the New
Jersey Hazardous Discharges Law, N.J.S.A. 13:1K-
15, the New Jersey Industrial Site Recovery Act
("ISRA"), N.J.S.A. 13:1K-6 et seq., the New Jersey
Safe Drinking Water Act, N.J.S.A. 58:12A-1 et
seq., the New Jersey Solid Waste Management Act
("SWMA"), N.J.S.A. 13:1E-1 et seq., the New Jersey
Sanitary Landfill Facility Closure and Contingency
Fund Act ("Landfill Closure Act"), N.J.S.A. 13:lE-
100, the New Jersey Toxic Catastrophe Prevention
Act ("TCPA"), N.J.S.A. 13:1K-19 et seq., the New
Jersey Waste Control Act, N.J.S.A. 13:1I-1 et
seq., the New Jersey Underground Storage of
Hazardous Substances Act, N.J.S.A. 58:10A-21 et
seq., the New Jersey Comprehensive Regulated
Medical Waste Management Act ("Medical Waste
Act"), N.J.S.A. 13:1E-48.1 et seq., the New Jersey
Lead Acid Battery Disposal Act, N.J.S.A. 13:1E-199
et seq., the New Jersey Coastal Area Facility
Review Act ("CAFRA"), N.J.S.A. 13:19-1 et seq.,
the New Jersey Freshwater Wetlands Protection Act
("Wetlands Act"), N.J.S.A. 13:9B-1 et seq., the
New Jersey Air Pollution Control Act, N.J.S.A.
26:2C-1 and the New Jersey Pollution Prevention
Act, N.J.S.A. 13:1D-35 et seq., Solid Waste
Management Act, 35 P.S. orders and/or decrees now
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or hereafter promulgated pursuant to these
statutes; and
(iv) any and all reasonable costs and expenses,
arising from or in connection with any required and
necessary investigations, site characterizations,
testing, sampling, analytical work, abatements,
removals, remedial actions or cleanups, and any and
all fines, damages, liens, response costs or
penalties, arising under common law or under the
provisions of CERCLA, XXXX, the Hazardous Materials
Transportation Act, the Clean Air Act, the Clean
Water Act, RCRA, TSCA, the Safe Drinking Water Act,
the New Jersey Spill Act, the New Jersey Water
Pollution Control Act, the New Jersey Hazardous
Discharges Law, the New Jersey ISRA, the New Jersey
Safe Drinking Water Act, the New Jersey SWMA, the New
Jersey Landfill Closure Act, the New Jersey TCPA, the
New Jersey Waste Control Act, the New Jersey
Underground Storage of Hazardous Substances Act, the
New Jersey Medical Waste Act, the New Jersey Lead
Acid Battery Disposal Act, the New Jersey CAFRA, the
New Jersey Wetlands Act, the New Jersey Air Pollution
Control Act and the New Jersey Pollution Prevention
Act, or any other federal, state or local statute,
law, regulation, ordinance, rule or pursuant to any
order, judgment or other binding directive with the
force of law of any court, administrative body,
governmental authority or any person having
jurisdiction or authority with respect hereto.
(b) The Indemnitors agree that neither of them shall not use
the Premises for the purpose of generating, treating, producing, storing,
handling, transferring, processing, transporting, disposing or otherwise
releasing hazardous substances either on, in, from or about the Premises which
(i) threatens to create, creates or causes a contamination or release either on
the Premises or elsewhere required by any governmental authority to be removed,
remediated, or otherwise cleaned up under any applicable Environmental Law, (ii)
creates any form of liability, civil or criminal, direct or indirect, due to
such actual or threatened contamination or release, or (iii) is in material
contravention of any Environmental Law.
(c) Environmental Definitions. The terms "Environmental Law"
and "Environmental Laws" as used in this Indemnity include all current and
future federal, state and local environmental laws, statutes, rules, regulations
and ordinances, as the same shall be amended and modified from time to time.
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The term "Hazardous Substances" as used in this Indemnity includes any
and all "hazardous substances" as defined in CERCLA and the New Jersey Spill Act
and the New Jersey ISRA, any and all "hazardous waste" as defined in RCRA and
under New Jersey regulations at N.J.A.C. 7:26-8.1, any and all "extraordinarily
hazardous substances" as defined in the New Jersey TCPA, any and all "toxic
substances" as defined in TSCA, petroleum products, asbestos or
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
flammable explosives, urea formaldehyde foam insulation, radioactive materials,
chemicals known to cause cancer or reproductive toxicity, pollutants, effluents,
contaminants, emissions and all other hazardous substances, materials and waste
regulated or controlled by any of the Environmental Laws.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Amendments. Neither this Indemnity nor any term,
condition, representation, warranty, covenant or agreement hereof may be
changed, waived, discharged or terminated orally, but, rather, only by an
instrument in writing by the party against whom such change, waiver, discharge
or termination is sought.
SECTION 3.2. Governing Law. This Indemnity shall be
governed and construed in accordance with the laws of the State
of New Jersey.
SECTION 3.3. Jurisdiction. (a) Each Indemnitor hereby irrevocably
submits to the jurisdiction of any New Jersey State or United States Federal
Court sitting in New Jersey over any action or proceeding arising out of or
relating to this Indemnity, and the Indemnitor hereby irrevocably agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New Jersey State or Federal Court. The Indemnitors
irrevocably consent to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to it at its address
specified in this Indemnity addressed to the attention of each Indemnitor's
President. The Indemnitors agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. The Indemnitors
further waive any objection to venue in such state and any objection to any
action or proceeding in such state on the basis of forum non convenience. The
Indemnitors further agree that any action or proceeding brought against the Bank
shall be brought only in New Jersey State or United States Federal Court sitting
in New Jersey.
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(b) Nothing in this Section 3.3 shall affect the right of the
Bank to serve legal process in any other manner permitted by law or affect the
right of the Bank to bring any action or proceeding against the Indemnitors or
the property of the Indemnitors in the courts of any other jurisdiction.
SECTION 3.4. Further Indemnification. The Indemnitors' liability
hereunder shall, without limiting the indemnity provided in Section 2.1 hereof,
extend to and further include all reasonable costs, expenses, and reasonable
attorneys' fees incurred or sustained by Bank in making any reasonable
investigation on account of any judgment, order, claim, suit, demand, proceeding
or investigation as referred to in Section 2.1 hereof, in prosecuting or
defending any action brought in connection therewith, in obtaining or seeking to
obtain a release therefrom and in enforcing any of the agreements contained
herein. Should the Bank incur any such liability, loss or damage by reason of
this Indemnity, or in the defense of any such claims or demands, the amount
thereof, including reasonable costs, expenses and reasonable attorneys' fees,
shall be reimbursed to the Bank immediately upon demand, with interest at the
rate set forth in Paragraph 2 of the Line of Credit Note plus five (5%) percent
per annum.
After receipt by Bank of notice of any action, suit, or proceeding
potentially giving rise to a claim by Bank under this Indemnity, Bank shall, if
a claim in respect thereof is to be made, use reasonable efforts to notify the
Indemnitors in writing of the commencement thereof; provided that the failure of
Bank to so notify Indemnitors shall not relieve the Indemnitors from any
liability under this Indemnity. The Indemnitors shall have the right to assume
the defense or conduct of such litigation or proceeding. If the Indemnitors fail
to assume the defense or conduct of the litigation or proceeding referred to in
Bank's notice within ten (10) days of receipt of such notice, or such shorter
period of time as may be required under any applicable Environmental Law, Bank
may, in its sole discretion and at Indemnitors' expense, assume the defense or
conduct of such litigation or proceeding, and the Indemnitors shall, upon
demand, reimburse Bank for all costs incurred by Bank in connection with the
litigation or proceeding. In any such litigation or proceeding the defense of
which the Indemnitors shall have assumed, the Bank shall have the right in its
reasonable discretion to participate therein and retain its own counsel at the
expense of the Indemnitors.
SECTION 3.5. Continuation of Indemnity. Upon the payment in full of all
Obligations, this Indemnity shall become and be void and of no effect, but the
affidavit of any officer of the Bank showing any part of said Obligations to
remain unpaid or the continuing effect of the Loan Documents shall be and
constitute conclusive evidence of the validity, effectiveness and continuing
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force of this Indemnity, and any Person may and is hereby authorized to rely
thereon. Notwithstanding the above, this Indemnity shall continue in full force
and effect with respect to all actions, or omissions, of an Indemnitor occurring
or not occurring prior to the date the Obligations are paid in full.
SECTION 3.6. Successors and Assigns. The rights, powers, privileges and
discretions (hereinafter collectively called the "rights") specifically granted
to the Bank are not in limitation of, but in addition to, those to which the
Bank is entitled under any law relating to such indemnities. The rights to which
the Bank may be entitled shall inure to the benefit of its successors and
assigns. All the rights of the Bank are cumulative and not alternative and may
be enforced successively or concurrently. Failure of the Bank to exercise any of
its rights shall not impair any of its rights nor be deemed a waiver thereof and
no waiver of any of its rights shall be deemed to apply to any other such rights
nor shall it be effective unless in writing and signed by the Bank.
The terms and conditions agreed to by the Indemnitors and the covenants
of the Indemnitors shall be binding upon the successors and assigns of each
Indemnitor, but this provision does not waive any prohibition of assignment or
any requirement of consent to an assignment; any consent to an assignment shall
not be consent to any further assignment, each of which must be specifically
obtained in writing.
SECTION 3.7. Waiver of Acceptance by the Indemnitors. The Indemnitors
hereby waive acceptance of this Indemnity by the Bank.
SECTION 3.8. Illegality. If fulfillment of any provision hereof or any
transaction related hereto, at the time transcends the limit of validity
prescribed by law, then ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity; and if any clause or provision herein
contained operates or would prospectively operate to invalidate this Indemnity
in whole or part, then such clause or provision only shall be void, as though
not herein contained, and the remainder of this Indemnity shall remain in full
force and effect.
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IN WITNESS WHEREOF, each Indemnitor has executed this Indemnity by
causing its name to be hereunder subscribed under seal as of the day and year
first above written.
ATTEST: SEL-LEB MARKETING, INC.
BY: /s/ Xxxx Xxxxxx BY: /s/ Xxx Xxxxxx
---------------------- ------------------------
XXXX XXXXXX, Assistant XXX XXXXXX, Executive Vice
Secretary President of Finance
ATTEST: ALES SIGNATURE, LTD.
BY: /s/ Xxxx Xxxxxx BY: /s/ Xxx Xxxxxx
---------------------- ---------------------------
XXXX XXXXXX, Secretary XXX XXXXXX, Chief Financial
Officer
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