HAZARDOUS SUBSTANCE CERTIFICATE
AND
INDEMNIFICATION AGREEMENT
This Hazardous Substance Certificate and Indemnification Agreement (the
"Indemnity") is made as of the 5th day of March, 2004 by and between APEX
MACHINE TOOL COMPANY, INC., a Connecticut corporation AND EDAC TECHNOLOGIES
CORPORATION, a Wisconsin corporation (collectively "Borrower") and Banknorth,
N.A. ("Lender").
W I T N E S S E T H:
WHEREAS, On March 5, 2004, the Lender entered into a financing transaction
(the "Loan") with the Borrower, evidenced by a certain note of even date
herewith (the "Note"), executed and delivered by the Borrower, as maker, to the
order of the Lender, as payee, in the principal amount of One Million Six
Hundred Fifty Nine Thousand and No/100 Dollars ($1,659,000.00) and secured by a
certain Mortgage Deed ("Mortgage") encumbering certain real property located at
00 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx and 1790, 1798 and 0000 Xxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx as more fully described in Exhibit A attached
hereto and incorporated herein; and
WHEREAS, no present environmental pollution or contamination of the real
property securing said loan has been disclosed to the Lender, except as may be
disclosed in certain environmental reports provided to the Lender including a
Phase I environmental report dated July, 1998, a Phase II environmental report
dated July, 1998 and a Phase I update dated January, 2004 issued by
Environmental Resources Management (the "Environmental Reports"); and
WHEREAS, the Lender has requested this Indemnity as a condition of the
Lender's entering into the Loan; and
WHEREAS, to induce the Lender to make the Loan to the Borrower, the
Borrower has executed and delivered this Indemnity;
NOW THEREFORE, in consideration of the Loan and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Borrower hereby certifies to the Lender and agrees as follows:
1. Except as disclosed in the Environmental Reports, the individual
executing this document on behalf of the Borrower has no actual knowledge of (a)
any spills, releases, discharges or disposal of Hazardous Substances that have
occurred or are presently occurring on or onto the Premises, including the
surface or subsurface waters thereof, or any adjacent properties, or (b) any
spills or disposal of Hazardous Substances that have occurred or are presently
occurring off the Premise as a result of any operation of or use of the
Premises.
2. In connection with the operation of and use of the Premises, the
individual executing this document on behalf of the Borrower represents that, as
of the date of this Indemnity, it has no
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knowledge of any failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and judicial
orders relating to the generation, use, recycling, reuse, sale, storage,
handling, transport or disposal of any Hazardous Substances.
3. The Borrower agrees to immediately notify the Lender if the Borrower
becomes aware of any lien, action or notice of the nature described in paragraph
2 above. This provision specifically includes the creation of any lien pursuant
to Section 22a-452a of the Connecticut General Statutes or any similar federal
laws or regulations. At its own cost, the Borrower will take all actions which
are necessary to clean up any Hazardous Substances affecting the Premises,
including removal, containment or any other remedial action required by
applicable governmental authorities.
4. The Borrower hereby agrees, unconditionally, absolutely and
irrevocably, to indemnify, defend and hold harmless the Lender, its affiliates,
successors, assigns and the officers, directors, employees and agents of the
Lender against and in respect of:
(a) any loss, liability, cost, injury, expense or damage of any and
every kind whatsoever (including, without limitation, court costs and attorneys'
fees and expenses) which at any time or from time to time may be suffered or
incurred in connection with any inquiry, charge, claim, cause of action, demand
or lien made or arising directly or indirectly or in connection with, with
respect to, or as a direct or indirect result of the presence on or under, or
the escape, seepage, leakage, spillage, discharge, emission or release from, the
Premises into or upon any land, the atmosphere, or any watercourse, body of
water or wetland, of any Hazardous Substances including, without limitation, any
losses, liabilities, damages, injuries, costs, expenses or claims asserted or
arising under the "Statutes" (as hereinafter defined), whether now known or
unknown, including without limitation:
(i) any costs, fees or expenses incurred in connection with the
removal, encapsulation, containment or other treatment of Hazardous Substances
from or on the Premises;
(ii) any loss or damage resulting from a loss of priority of the
Mortgage due to the imposition of a lien against the Premises;
(iii) any attorneys' fees, engineer's fees, and/or charges of any
contractor or professional retained or consulted in connection with any inquiry,
claim or demand, including without limitation, any costs incurred in connection
with compliance with such inquiry, claim or demand;
(b) any loss, liability, cost, expense or damage (including, without
limitation, attorneys' fees) suffered or incurred as a result of, arising out of
or in connection with any failure of the Premises to comply with all applicable
environmental protection laws, ordinances, rules and regulations, including, but
not limited to, any violation of or any liability arising under any provision of
Title 22a of the Connecticut General Statutes, and any litigation, proceeding or
governmental investigation relating to such compliance or non-compliance.
(c) any loss, liability, cost, damage or expense directly or indirectly
arising from any claim, act on, demand, cause of action or damage relating to
the presence of asbestos or other Hazardous
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Substances in or on the Premises.
5. As used herein, "Hazardous Substances" means and includes, without
limitation, any toxic, hazardous, or radioactive substances or materials,
petroleum or chemical liquid or solid, liquid or gaseous products or hazardous
waste, all as defined by Section 22a-448 of the Connecticut General Statutes, or
other pollutants and substances, whether or not naturally occurring, including,
without limitation, asbestos, and methane gas, generated, used, treated, stored
or disposed of, or otherwise deposited in or located on or under the Premises,
including without limitation, the surface and subsurface waters of the Premises.
For purposes of this Indemnity, "Hazardous Substances" shall also include any
materials, the generation, use, treatment, storage or disposal of which would
cause (i) the Premises at which such materials are located to become a hazardous
waste treatment, storage or disposal facility within the meaning, or otherwise
bring the Premises within the ambit of, the Resource Conservation and Recovery
Act of 1976, ("RCRA") 42 U.S.C. Section 6901 et. seq., or regulation promulgated
thereunder or any similar state law or regulation promulgated thereunder or
local ordinance; (ii) a release or threatened release of hazardous waste from
the Premises within the meaning, or otherwise bring the Premises within the
ambit of, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, ("CERCLA") 42 U.S.C. Section 9601-9675, or regulation promulgated
thereunder, as the same may be amended from time to time, or any similar state
law or regulation, including, but not limited to, activities constituting "a
spill" as defined in Connecticut General Statutes Section 22a-452c, or local
ordinance or any other environmental law; or (iii) the discharge of pollutants
or effluents into any water source or system, or the discharge into the air of
any emissions, which would require a permit under the Federal Water Pollution
Control Act, 33 U.S.C. Section 1251, et. seq., or the Clean Air Act, 42 U.S.C.
Section 7401 et. seq., or any similar state laws, regulations or local
ordinance; or (iv) any substances or conditions in, on or under the Premises
which may support a claim or cause of action under RCRA, CERCLA or any other
federal, state or local environmental statutes, regulations, ordinances or other
environmental regulatory requirements (collectively, the "Statutes"), including
the presence of any underground storage tanks or underground deposits located on
the Premises. In the event that any "Statute" referenced in this paragraph is
amended to broaden the meaning of any term defined thereby, such broadened
meaning shall apply subsequent to the effective date of such amendment. The
Borrower assumes all obligations of compliance with all environmental
requirements imposed by federal, state and local authorities that affect the
Premises or any business or other activity conducted thereon or therewith.
6. The provisions of any undertakings and indemnifications set out in
this Indemnity shall survive the satisfaction and release of the Mortgages and
shall continue to be the liability, obligation and indemnification of the
Borrower, binding upon the Borrower forever.
7. The provisions of this Indemnity shall govern and control over any
inconsistent provision of the Note, the Mortgage and any other agreement,
instrument, or document evidencing or securing the Loan (collectively, the "Loan
Documents"), including, without limitation, any exculpatory or non-recourse
provisions contained in any of the foregoing agreements.
8. If at any time hereafter the Lender employs counsel for advice or
other representation (i) with respect to this indemnity, (ii) except as
otherwise expressly provided herein, to represent the
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Lender in any litigation, contest, dispute, suit or proceeding (whether
instituted by the Lender, the Borrower or any other party) in any way or respect
relating to the Indemnity, or (iii) to enforce the Borrower's obligations
hereunder, then, in any of the foregoing events, all of the reasonable
attorneys' fees and expenses arising from such services and all expenses, costs
and charges in any way or respect arising in connection therewith or relating
thereto shall be paid by the Borrower to the Lender, on demand.
9. (a) The Borrower shall notify the Lender promptly upon receipt of
any inquiry, notice, claim, charge, cause of action or demand pertaining to the
matters indemnified hereunder, including without limitation any notice of
inspection, abatement or noncompliance, stating the nature and basis of such
inquiry or notification. The Borrower shall promptly deliver to the Lender any
and all documentation or records as the Lender may request in connection with
such notice or inquiry, and shall keep the Lender advised of any subsequent
developments.
(b) The Lender shall give written notice to the Borrower of any claim
against the Lender which might give rise to claim by the Lender against the
Borrower under this Indemnity stating the nature, basis and amount of the claim
if known.
(c) If any action shall be brought against the Lender, then after the
Lender notifies the Borrower thereof as provided in paragraph 10(b), the
Borrower shall be entitled to participate therein, and to assume the defense
thereof at the expense of the Borrower with counsel reasonable satisfactory to
the Lender and to settle and compromise any such claim or action; provided,
however, that the Lender may elect to be represented by separate counsel, at the
Lender's expense, and if the Lender so elects such settlement or compromise
shall be effected only with the consent of the Lender, which consent shall not
be unreasonably withheld.
(d) The Borrower shall make any payment required to be made under this
Indemnity promptly, and shall make such payment in cash in the full amount
thereof. In the event that such payment is not made forthwith, the Lender, at
its sole election and in its sole discretion, may proceed to suit against the
Borrower.
10. The Borrower's obligations hereunder shall in no way, manner or
respect be impaired, affected, reduced or released by reason of (a) the Lender's
failure or delay to do or take any of the acts, actions or things described
herein; or (b) any act or omission of the Lender in connection with any notice,
demand, warning or claim regarding Hazardous Substances on the Premises.
11. This Indemnity shall be continuing, irrevocable and binding on the
Borrower and its successors and assigns and shall inure to the benefit of the
Lender and the Lender's successors and assigns. The Borrower's obligations
hereunder may not be assigned.
12. Any notice required to be given hereunder shall be in writing and
addressed to the address set forth below, and shall be delivered by hand, by
United States certified or registered mail, return receipt requested, or by
overnight express delivery. Notices shall be deemed received on the date of
receipt if delivered by hand, on the day after delivery to any overnight express
delivery service,
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charges prepaid, if service is by overnight courier; and on the third (3rd) day
following posting if delivered by United States mail, at the addresses set forth
below or such other addresses as the parties may respectively designate from
time to time:
To Lender: 000 Xxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
To Borrower: 0000 Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
13. The provisions of this Indemnity shall be governed by Connecticut
law.
14. The representations, warranties and covenants of the Borrower set
forth in this Indemnity shall continue in effect and, to the extent permitted by
law, shall survive the transfer of the Premises pursuant to foreclosure
proceedings (whether judicial or non-judicial), by deed in lieu of foreclosure
or otherwise. The Borrower acknowledges and agrees that the covenants and
obligations hereunder are separate and distinct from its obligations under the
Loan Documents.
15. If any provision of this Indemnity or the application thereof to any
party or circumstance is held invalid or unenforceable, the remainder of this
Indemnity and the application of such provision or provisions to the other
parties and circumstances will not be affected thereby, the provisions of this
Indemnity being severable in any such instance.
16. Notwithstanding anything to the contrary contained herein, Borrower
shall have no liability or obligations hereunder with respect to any spill,
violation of the environmental laws or any other event or circumstance to the
extent that the same is the result of any act or omission that occurs after
Lender has taken possession of the Property or after the foreclosure of Lender's
mortgage or after a conveyance by deed-in-lieu of foreclosure.
IN WITNESS WHEREOF, the undersigned have executed this Hazardous Substance
Certificate and Indemnification Agreement as of the date first written above.
Witnessed: Apex Macine Tool Company, Inc.
/s/ Xxxxxxx X. Carrier By: /s/ Xxxxx X. Purple
------------------------------ ------------------------------------
Xxxxx X. Purple
Its Secretary, duly authorized
/s/ Xxxxxx X. Xxxx
------------------------------
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Witnessed: EDAC Technologies Corporation
/s/Xxxxxxx X. Carrier By: /s/Xxxxxx X. Xxxx
------------------------------ ------------------------------------
Xxxxx X. Purple
Its Vice President-Finance, duly authorized
/s/Xxxxxx X. Xxxx
-----------------------------
STATE OF CONNECTICUT )
) ss. New Britain March 5, 2004
COUNTY OF HARTFORD )
Personally appeared, Xxxxx X. Purple, Vice President-Finance of EDAC
Technologies Corporation, signer and sealer of the foregoing instrument, and
acknowledged to me that he executed the same for the purposes therein expressed,
in his capacity as Vice President-Finance and as the free act and deed of EDAC
Technologies Corporation, before me.
/s/Xxxxxxx X. Carrier
-----------------------------------
Commissioner of the Superior Court
STATE OF CONNECTICUT )
) ss. New Britain March 5, 2004
COUNTY OF HARTFORD )
Personally appeared, Xxxxx X. Purple, Secretary of Apex Machine Company,
Inc., signer and sealer of the foregoing instrument, and acknowledged to me that
he executed the same for the purposes therein expressed, in his capacity as
Secretary and as the free act and deed of Apex Machine Company, Inc., before me.
/s/Xxxxxxx X. Xxxxxxx
----------------------------------
Commissioner of the Superior Court
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