Exhibit 10.44
HAZARDOUS SUBSTANCES INDEMNITY AGREEMENT
THIS HAZARDOUS SUBSTANCES INDEMNITY AGREEMENT (the "Agreement") is made
as of the 1st day of October, 1997, by XXXXXXXX ADHESIVES, INC., a Virginia
corporation with an office for the transaction of business at 0000 Xxxxxxx
Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx (the "Company") and XXXXXXXX INDUSTRIES, INC.,
a Virginia corporation with an office for the transaction of business at 0000
Xxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx (the "Indemnitor") for the benefit of
KEYBANK NATIONAL ASSOCIATION, a national banking association with an office for
the transaction of business at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx (the
"Bank").
RECITALS
WHEREAS, contemporaneously with the execution of this Agreement,
Company and Bank have entered into a Letter of Credit Reimbursement Agreement
dated as of October 1, 1997 (the "Reimbursement Agreement") pursuant to which
the Bank has agreed to issue a letter of credit (the "Letter of Credit") to Star
Bank, N.A., as Trustee (the "Trustee"); and
WHEREAS, contemporaneously with the execution of this Agreement, the
Company has executed and delivered to the Bank a $1,500,000 Promissory Note (the
"Term Note") to evidence a loan (the "Term Loan") made by the Bank to the
Company; and
WHEREAS, the Reimbursement Agreement and the Term Note are secured in
part by a Mortgage and Security Agreement (the "Mortgage") from the County of
Saratoga Industrial Development Agency (the "Issuer") and the Company dated as
of October 1, 1997 which encumbers the real property (the "Mortgaged Property")
described in Exhibit "A" attached hereto and made a part hereof; and
WHEREAS, the payment of the Company's obligations under the
Reimbursement Agreement and the Term Note are unconditionally guaranteed by the
Indemnitor through the execution of a guaranty (the "Guaranty"); and
WHEREAS, Bank has required, as a condition of issuing the Letter of
Credit and funding the Term Loan, the Company and Indemnitor indemnify and hold
Bank harmless against and from certain obligations for which Bank may incur
liability, whether as beneficiary of the Mortgage held by Bank, as mortgagee in
possession, or by foreclosure, by reason of the threat or presence of any
hazardous substance at or near the Mortgaged Property.
NOW, THEREFORE, in consideration of the premises, Ten Dollars ($10.00),
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Company and Indemnitor, intending to be legally bound,
hereby agree as follows:
1. Recitals. The foregoing recitals are incorporated into this
Agreement by this reference.
2. Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Mortgage.
3. Representations and Warranties.
(a) Company and Indemnitor represent and warrant that (i)
neither has any actual knowledge of any unlawful deposit, storage, disposal,
burial, discharge, spillage, uncontrolled loss, seepage or filtration of oil,
petroleum or chemical liquids or solids, liquid or gaseous products or any
hazardous wastes or hazardous substances (collectively, "Hazardous Substances"),
as those terms are used in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 or in any other federal, state or local
law governing Hazardous Substances, as such laws may be amended from time to
time (collectively, the "Hazardous Waste Laws"), at, upon, under or within the
Mortgaged Property, except in compliance with Hazardous Waste Laws, and (ii)
neither has caused or permitted to occur, and shall not permit to exist, any
condition which may cause an unlawful discharge of any Hazardous Substances at,
upon, under or within the Mortgaged Property, except in compliance with
Hazardous Waste Laws.
(b) Company and Indemnitor further represent and warrant that
(i) neither has been nor will be involved in operations at or near the Mortgaged
Property which operations could lead to (A) the imposition of liability on
Company or Indemnitor, or on any subsequent or former owner of the Mortgaged
Property or (B) the creation of a lien on the Mortgaged Property under the
Hazardous Waste Laws or under any similar laws or regulations; and (ii) neither
has permitted, and will not permit, any tenant or occupant of the Mortgaged
Property to engage in any activity that could impose liability under the
Hazardous Waste Laws on such tenant or occupant, on Company or Indemnitor or on
any other owner of any of the Mortgaged Property.
4. Covenants.
(a) Company and Indemnitor shall comply strictly and in all
respects with the requirements of the Hazardous Waste Laws and related
regulations and with all similar laws and regulations and shall notify Bank
immediately in the event of any discharge or discovery of any Hazardous
Substance at, upon, under or within the Mortgaged Property. Company and
Indemnitor shall promptly forward to Bank copies of all orders, notices,
permits, applications or other communications and reports in connection with any
discharge or the presence of any Hazardous Substance or any other matters
relating to the Hazardous Waste Laws or any similar laws or regulations, as they
may affect the Mortgaged Property.
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(b) Promptly upon the written request of Bank, after the
occurrence of any unlawful discharge or discovery under 3(a) hereof, Company and
Indemnitor shall provide Bank, at their expense, with an environmental site
assessment or environmental audit report prepared by an environmental
engineering firm reasonably acceptable to Bank, to assess with a reasonable
degree of certainty the presence or absence of any Hazardous Substances and the
potential costs in connection with abatement, cleanup or removal of any
Hazardous Substances found on, under, at or within the Mortgaged Property.
5. Indemnity.
(a) Company and Indemnitor, jointly and severally, shall at
all times indemnify and hold harmless Bank against and from any and all claims,
suits, actions, debts, damages, costs, losses, obligations, judgments, charges,
and expenses, of any nature whatsoever suffered or incurred by Bank, whether as
mortgagee, as mortgagee in possession, or as successor-in-interest to Company by
foreclosure deed or deed in lieu of foreclosure, under or on account of the
Hazardous Waste Laws or any similar laws or regulations, including the assertion
of any lien thereunder, with respect to:
(1) any discharge of Hazardous Substances, the threat
of a discharge of any Hazardous Substances, or the presence of
any Hazardous Substances affecting the Mortgaged Property
whether or not the same originates or emanates from the
Mortgaged Property including any loss of value of the Mortgaged
Property as a result of any of the foregoing;
(2) any costs of removal or remedial action incurred
by the United States Government or any costs incurred by any
other person or damages from injury to, destruction of, or loss
of natural resources, including reasonable costs of assessing
such injury, destruction or loss incurred pursuant to any
Hazardous Waste Laws;
(3) liability for personal injury or property damage
arising under any statutory or common law tort theory,
including, without limitation, damages assessed for the
maintenance of a public or private nuisance or for the carrying
on of an abnormally dangerous activity at or near the Mortgaged
Property; and/or
(4) any other environmental matter affecting the
Mortgaged Property within the jurisdiction of the Environmental
Protection Agency, any other federal agency, or any state or
local agency.
The obligations of Company and Indemnitor under this Agreement shall arise
whether or not the Environmental Protection Agency, any other federal agency or
any state or local agency has taken or threatened any action in connection with
the presence of any Hazardous Substances.
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(b) In the event of any discharge of Hazardous Substances,
the threat of a discharge of any Hazardous Substances, or the presence of any
Hazardous Substances affecting the Mortgaged Property, whether or not the same
originates or emanates from the Mortgaged Property or any contiguous real
estate, and/or if Company or Indemnitor shall fail to comply with any of the
requirements of the Hazardous Waste Laws or related regulations or any other
environmental law or regulation, Bank may at its election, but without the
obligation so to do, give such notices and/or cause such work to be performed at
the Mortgaged Property and/or take any and all other actions as Bank shall deem
necessary or advisable in order to xxxxx the discharge of any Hazardous
Substance, remove the Hazardous Substance or cure the noncompliance of Company
or Indemnitor.
(c) Company and Indemnitor acknowledge that Bank has agreed
to issue the Letter of Credit in reliance upon the representations, warranties,
covenants and indemnities of the Company and Indemnitor in this Agreement. All
of the representations, warranties, covenants and indemnities of this Agreement
shall survive the repayment of all amounts due or to become due under the
Reimbursement Agreement and/or the release of the lien of the Mortgage from the
Mortgaged Property and shall survive the transfer of any or all right, title and
interest in and to the Mortgaged Property by Company to any party, whether or
not affiliated with Indemnitor.
6. Attorney's Fees. If Bank, or someone on Bank's behalf retains
the services of any attorney in connection with the subject of the indemnity
herein, Company and Indemnitor shall pay Bank's reasonable costs and attorney's
fees thereby incurred. Bank may employ an attorney of its own choice.
7. Interest. In the event that Bank incurs any obligations, costs
or expenses under this Agreement, Company and Indemnitor shall pay Bank
immediately on demand, and if such payment is not received within ten (10) days,
interest on such amount shall, after the expiration of the ten-day period,
accrue at the interest rate set forth in the Reimbursement Agreement until such
amount, plus interest, is paid in full.
8. No Waiver. The liabilities of Company and Indemnitor under this
Agreement shall in no way be limited or impaired by, and Company and Indemnitor
hereby consent to and agree to be bound by any amendment or modification of the
provisions of the Financing Documents or Bank Documents to or with Bank by
Company or Indemnitor or any person who succeeds Company as owner of the
Mortgaged Property. In addition, notwithstanding any terms of the Financing
Documents or the Bank Documents to the contrary, the liability of the Company
and Indemnitor under this Agreement shall in no way be limited or impaired by:
(i) any extensions of time for performance required by any of the Financing
Documents or the Bank Documents; (ii) any sale, assignment or foreclosure of the
Mortgage or any sale or transfer of all or part of the Mortgaged Property; (iii)
any exculpatory provision in any of the Financing Documents or Bank Documents
limiting Bank's recourse to property encumbered by the Mortgage or to any other
security, or limiting Bank's rights to a deficiency judgment against Company;
(iv) the accuracy or inaccuracy of the representations and warranties made by
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Company under any of the Financing Documents or Bank Documents; (v) the release
of Company or any other person from performance or observance of any of the
agreements, covenants, terms or conditions contained in the Financing Documents
or Bank Documents by operation of law, Bank's voluntary act, or otherwise; (vi)
the release or substitution, in whole or in part, of any security for the
Reimbursement Agreement; or (vii) Bank's failure to record the Mortgage or file
any UCC-1 financing statements (or Bank's improper recording or filing of any
thereof) or to otherwise perfect, protect, secure or insure any security
interest or lien given as security for the Reimbursement Agreement; and, in any
such case, whether with or without notice to Company or Indemnitor and with or
without consideration.
9. Waiver by Company and Indemnitor. Company and Indemnitor waive
any right or claim of right to cause a marshalling of Company's assets or to
cause Bank to proceed against any of the security for the Reimbursement
Agreement before proceeding under this Agreement against Company and Indemnitor
or to proceed against Company and Indemnitor in any particular order; Company
and Indemnitor agree that any payments required to be made hereunder shall
become due on demand; Company and Indemnitor expressly waive and relinquish all
rights and remedies (including any rights of subrogation) accorded by applicable
law to indemnitors or guarantors.
10. Releases. Any one or more of Company and Indemnitor or any other
party liable upon or in respect of this Agreement or the Reimbursement Agreement
may be released without affecting the liability of any party not so released.
11. 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.
12. Joint and Several Liability. In the event that this Agreement is
executed by more than one party, the liability of such parties is joint and
several. A separate action or actions may be brought and prosecuted against
Company and Indemnitor, whether or not an action is brought against any other
person or whether or not any other person is joined in such action or actions.
13. Consent to Jurisdiction. Company and Indemnitor consent to the
exercise of personal jurisdiction over Company and Indemnitor by any federal or
state court in the State of New York and consent to the laying of venue in any
jurisdiction or locality in the State of New York. Service shall be effected by
any means permitted by the court in which any action is filed.
14. Notices. All notices, demands, requests and other communications
required hereunder shall be in writing and shall be deemed to have been properly
given if personally delivered or sent by United States, certified or registered
mail, return receipt requested, postage prepaid, addressed to the party for whom
it is intended at its address hereinafter set forth:
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If to Company:
Xxxxxxxx Adhesives, Inc.
0000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
If to Indemnitor:
Xxxxxxxx Industries, Inc.
0000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: ____________________________
If to Bank:
KeyBank National Association
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Corporate Banking Division
Notice shall be deemed given upon receipt. Any party may designate a change of
address by written notice to the others, given at least ten (10) days before
such change of address is to become effective.
15. Waivers. The parties waive trial by jury in any action brought
on, under or by virtue of this Agreement. Company and Indemnitor waive any right
to require Bank at any time to pursue any remedy in Bank's power whatsoever. The
failure of Bank to insist upon strict compliance with any of the terms hereof
shall not be considered to be a waiver of any such terms, nor shall it prevent
Bank from insisting upon strict compliance with this Agreement or any other
Financing Document or Bank Document at any time thereafter.
16. Severability. If any clause or provisions herein contained
operates or would prospectively operate to invalidate this Agreement in whole or
in part, then such clause or provision shall be held for naught as though not
contained herein, and the remainder of this Agreement shall remain operative and
in full force and effect.
17. Inconsistencies Among the Financing Documents and Bank
Documents. Nothing contained herein is intended to modify in any way the
obligations of Company or Indemnitor under the Reimbursement Agreement, the
Mortgage or any other Financing Document or Bank Document. Any inconsistencies
among the Financing Documents and Bank
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Documents shall be construed, interpreted and resolved so as to benefit Bank,
and Bank's election of which interpretation or construction is for Bank's
benefit shall govern.
18. Successors and Assigns. This Agreement shall be binding upon
Company's and Indemnitor's successors, assigns, heirs, personal representatives
and estate and shall inure to the benefit of Bank and its successors and assigns
but, to the extent the Reimbursement Agreement may be assigned to a third party,
the benefits of this Agreement shall continue to inure only to the benefit of
Bank.
19. Controlling Laws. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, Company and Indemnitor have executed this Agreement
as of the date first above written.
XXXXXXXX ADHESIVES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Authorized Officer
XXXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Authorized Officer
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STATE OF NEW YORK )
) SS.:
COUNTY OF SARATOGA )
On the 9th day of October, 1997, before me personally appeared Xxxxxxx
X. Xxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at 00000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx, that he is the Executive
Vice President of XXXXXXXX ADHESIVES, INC., the corporation described in and
which executed the foregoing instrument, and that he signed his name thereto by
order of the Board of Directors of said corporation.
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Notary Public - State of New York
My Commission Expires:
Xxxxx X. Xxxxxx
Notary Public, State of New York
Qualified in Albany County
Commission Expires 10/31/97
STATE OF NEW YORK )
) SS.:
COUNTY OF SARATOGA )
On the 9th day of October, 1997, before me personally appeared Xxxxxxx
X. Xxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides at 00000 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx, that he is the Executive
Vice President of XXXXXXXX INDUSTRIES, INC., the corporation described in and
which executed the foregoing instrument, and that he signed his name thereto by
order of the Board of Directors of said corporation.
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Notary Public - State of New York
My Commission Expires:
Xxxxx X. Xxxxxx
Notary Public, State of New York
Qualified in Albany County
Commission Expires 10/31/97
01294\hazard.agr
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