INDEMNITY AGREEMENT REGARDING HAZARDOUS MATERIALS
THIS INDEMNITY AGREEMENT (this "Agreement") is made and given as of the
31st day of March 1993, by Xxxxxx Xxxxxx Corporation, a Virginia corporation
("Xxxxxx"), to and in favor of the United States of America, acting by and
through the Secretary of Commerce (the "Secretary"), with reference to the
recitals hereinafter set forth.
R E C I T A L S:
X. Xxxxxx is the owner of certain real property located in Vermilion
Parish, Louisiana, more particularly described in Exhibit "A" attached hereto
and incorporated herein by this reference (the "Land"; the Land, together with
all improvements now or hereafter located thereon being referred to herein,
collectively, the "Property").
B. The Secretary has guaranteed certain obligation of Xxxxxx (the
"Guarantees") in consideration for which Xxxxxx has executed and delivered to
the Secretary certain promissory notes, as amended, payable to the Secretary
(the "Notes"), which Notes are secured by, among other things, that certain
Collateral Mortgage, Collateral Chattel Mortgage and Collateral Assignment of
Leases dated November 18, 1988, as amended, respecting the Property (the
"Mortgage").
C. As a condition to providing the Guarantees, the Secretary requires
Xxxxxx to provide certain indemnities concerning Hazardous Materials (as
hereinafter defined) affecting the Property.
NOW, THEREFORE, for and in consideration of the above premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Secretary, by its acceptance of delivery hereof, and Xxxxxx
hereby agree as follows:
1. Definitions. The following definitions shall apply for purposes of this
Agreement:
"Environmental Laws" shall mean any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees
or requirements of any Governmental Authority regulating, relating to or
imposing liability or standards of conduct concerning environmental protection
matters, including without limitation, Hazardous Materials, as now or may at any
time hereafter be in effect.
"Governmental Authorities" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, but only to the extent that any such
Governmental Authority shall exercise jurisdiction over Xxxxxx or the Secretary,
as the case may be.
"Hazardous Materials" shall mean any hazardous materials, hazardous wastes,
hazardous constituents, hazardous or toxic substances, petroleum products
(including crude oil or any fraction thereof), defined or regulated as such in
or under any Environmental Law.
2. Covenants. So long as the Notes remain outstanding and unpaid or any
other amount is owing to the Secretary hereunder or under any other document,
Xxxxxx shall, with respect to the Property:
(a) Comply with, and require all tenants and subtenants, if any, to comply
with, all Environmental Laws and obtain and comply with and maintain, and
require that all such tenants and subtenants obtain and comply with and
maintain, any and all licenses, approvals, registrations or permits required by
Environmental Laws, except to the extent that failure to do so could not have a
material adverse effect on the business, operations, property or financial
condition of Xxxxxx.
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and promptly comply with all lawful orders and directives of all Governmental
Authorities respecting Environmental Laws, except to the extent that the same
are being contested in good faith by appropriate proceedings and the pendency of
such proceedings could not have a material adverse effect on the business,
operations, property or financial condition of Xxxxxx.
3. Indemnity. Xxxxxx shall with respect to the Property, defend, indemnify
and hold harmless the Secretary, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise arising out
of, or in any way relating to the violation or noncompliance by Xxxxxx of or
with any Environmental Laws applicable to the Property, or any orders,
requirements or demands of Governmental Authorities related thereto, including,
without limitation, attorney's and consultant's fees, investigation and
laboratory fees, removal, remedial, and response costs, court costs and
litigation expenses.
4. Environmental Matters. To the best of Xxxxxx'x knowledge (i) none of the
operations or properties of Xxxxxx'x is the subject of Federal, state or foreign
investigation evaluating whether any remedial action is needed to respond to a
release or threat of a release of any Hazardous Material into the environment;
(ii) Xxxxxx has not received any written communication since July 18, 1989 from
a Governmental Authority that alleges that Xxxxxx is not in compliance with any
Environmental Laws with respect to the Property, other than any written
communication in response to which Xxxxxx took action and restored its
compliance with such Environmental Laws; (iii) Xxxxxx has filed all notices
required to be filed under any Environmental Law with respect to the Property
indicating past or present generation, treatment, storage or disposal of a
Hazardous Material or reporting a spill or release of a Hazardous Material
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into the environment; and (iv) Xxxxxx has no material contingent liability in
respect of the Property in connection with any Hazardous Material.
5. Relationship of the Parties. The Secretary is not (and shall not be
construed as) a partner, joint venturer, alter ego, manager, controlling person
or other business associate or participant of any kind of Xxxxxx, nor an "owner"
or "operator" of the Property, nor a "facility" (as such terms are defined by
applicable state and federal statutes) and the Secretary does not intend to
assume any such status; and the Secretary is not and shall not be deemed
responsible for (or a participant in) any acts, omissions or decisions of
Xxxxxx.
6. Notices and Requests. Any and all notices, elections, demands, or
requests permitted or required to be made under this Agreement shall be in
writing, signed by the party giving such notice, election, demand or request,
and shall be delivered personally or sent by registered, certified, or Express
United States mail, postage prepaid, or Federal Express or any similar service
requiring a receipt, to the other party at the following address:
Xxxxxx Xxxxxx Corporation
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Xxxxxx Xxxxxx of America
National Marine Fisheries Service
0000 Xxxxx Xxxxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
or to such other party and at such other address within the continental United
States of America as may have theretofore been designated in writing. The date
of receipt of such notice, election or demand shall by the earliest of (i) the
date of actual receipt of such notice, election or demand; (ii) three (3) days
after the date of mailing thereof by registered or certified mail, (iii) one (1)
day after the date of mailing thereof by Express Mail, or the delivery (for
redelivery) to Federal Express or another similar service requiring a receipt,
or (iv) the date of personal delivery (or refusal upon presentation for
delivery) thereof, if applicable.
7. Amendments. No provision of this Agreement may be changed, waived,
discharged or terminated orally, by telephone or by any other means except by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
8. Binding Effect. Except as herein provided, this Agreement shall be
binding upon Xxxxxx, its successors and permitted assigns, and shall inure to
the benefit of the Secretary, and its successors and assigns. Notwithstanding
the foregoing, Xxxxxx, without the prior written consent of the Secretary in
each instance, may not assign, transfer or set over to another, in whole or in
part, all or any part of its benefits, rights, duties and obligations hereunder,
including, but
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not limited to, performance of and compliance with the conditions hereof. Any
reference to Xxxxxx shall include the Xxxxxx'x successors and assigns.
9. Governing Law. This Agreement and the rights and obligations of the
parties hereunder shall in all respects be governed by, and construed and
enforced in accordance with, the laws of the State of Louisiana applicable to
contracts made and to be performed therein (excluding its choice of law
provisions).
10. Not Secured. The obligation evidenced by this Agreement IS NOT secured
by the Mortgage.
IN WITNESS WHEREOF, Xxxxxx has caused this Agreement to be executed as of
the day and year first written above.
XXXXXX XXXXXX CORPORATION
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Name:
Title:
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