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Exhibit 10.67
ENVIRONMENTAL COMPLIANCE AND
INDEMNIFICATION AGREEMENT
THIS AGREEMENT, dated as of April 29, 1998 from Decora Incorporated
d/b/a Decora Manufacturing, having an address of 0 Xxxx Xxxxxx, Xxxx Xxxxxx, Xxx
Xxxx 00000 (the "Borrower") to Fleet Bank of New York, a bank organized and
existing under the laws of the State of New York and having its principal place
of business located at 00 Xxxxx Xxxxxx, Xxxx xxx Xxxxxx xx Xxxxxx, Xxxxx of New
York 12201, (the "Lender").
RECITALS
WHEREAS, Borrower is the owner of certain real property more
particularly described in Schedule "A" attached hereto (the "Premises"); and
WHEREAS, Borrower has applied to Lender for a loan (the "Loan"); and
WHEREAS, the Loan will be evidenced by certain Notes and related
documents in favor of the Lender on even date herewith, being hereinafter
referred to collectively as the "Loan Documents"); and
WHEREAS, Lender is unwilling to make the Loans to Borrower unless
Borrower executes and delivers this Agreement.
NOW THEREFORE, in order to induce Lender to make the Loans and for other
good and valuable consideration, Borrower hereby covenants and agrees with
Lender as follows:
I. DEFINITIONS: All capitalized terms used in this Agreement and
not heretofore defined shall have the meanings set forth below.
"Environment" means any water or water vapor, any land
including land surface or subsurface, air, fish, wildlife, biota and all other
natural resources.
"Environmental Laws" mean all federal, state and local
environmental, land use, zoning, health, chemical use, safety and sanitation
laws, statutes, ordinances and codes, and the common law, relating to pollution
and/or the protection of the Environment and/or the health and safety of any
persons and/or governing the use, storage, treatment, generation,
transportation, processing, handling, production or disposal of Hazardous
Substances and the rules, regulations, policies, guidelines, interpretations,
decisions, orders and directives of federal, state and local governmental
agencies and authorities with respect thereto.
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"Environmental Permits" mean all permits, licenses,
approvals, authorizations, consents or registrations required by an applicable
Environmental Law in connection with the ownership, use and/or operation of the
Premises for the storage, treatment, gen eration, transportation, processing,
handling, production or disposal of Hazardous Substances or the sale, transfer
or conveyance of the Premises.
"Hazardous Substance" means, without limitation, any
flammables, explosives, radon, radioactive materials, asbestos, urea
formaldehyde foam insulation, polychlorinated-biphenyls, petroleum and petroleum
based products or by-products, methane, hazardous materials, medical waste,
hazardous wastes, hazardous or toxic substances or related materials, as defined
in the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials
Transportations Act, as amended (49 U.S.C. Sections 1801, et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. Sections 2601, et seq.), Articles
15 and 27 of the New York State Environmental Conservation Law and in the
regulations promulgated thereunder. The term "Hazardous Substance" does not
include consumer products which are packaged for, stored, and used by a consumer
with reasonable care in accordance with labeling and instructions and for their
intended use.
"Improvements" mean the buildings, structures and other
improvements (if any) presently located on the Premises.
"Indemnitee" means the Lender, its participants in the
Loans, if any, and all subsequent holders of any of the loan documents, their
respective officers, directors, employees, agents, representatives, contractors
and subcontractors, and any subsequent owner of the Premises who acquires title
thereto from or through the Lender, and the successors and assigns of all the
foregoing.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into the Environment, including the abandonment or discarding of
barrels, containers, and other receptacles containing any Hazardous Substance.
II. REPRESENTATIONS AND WARRANTIES: Borrower represents and warrants
to Lender that Borrower has no knowledge of the presence of any
Hazardous Substances in the Environment or the violation of any
Environmental Laws or Environmental Permits on any property
adjacent to or within the immediate vicinity of the premises,
although Borrower has made no inquiry in such matters. Moreover,
Borrower has undertaken due and diligent inquiry and to the best
of its knowledge:
(a) The Borrower is in full compliance with and has
discharged all of its affirmative covenants
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regarding the Environmental Compliance and
Indemnification Agreement entered into between Borrower
and Lender on or about July 19, 1994; (the "1994 ECIA");
and
(b) Except for the reports itemized in Section II (a) of the
1994 ECIA and all quarterly reports submitted to the
Lender by the Borrower pursuant to the 1994 ECIA,
(hereinafter collectively referred to as the "Reports"),
Borrower has no knowledge regarding any Releases of
Hazardous Substances into the Environment at the
Premises; and
(c) The Premises are not being and have not been used for
the storage, treatment, generation, transportation,
processing, handling, production or disposal of any
Hazardous Substance in violation of any Environmental
Laws, or as a landfill or other waste disposal site or
for military manufacturing or industrial purposes.
(d) Except as indicated in the Reports and in Appendix A:
(i) underground storage tanks are not and have not
been located on the Premises.
(ii) the soil, subsoil, bedrock, surface water and
groundwater of the Premises are free of any
Hazardous Substances in violation of
Environmental Laws or Environmental Permits.
(iii) there has been no Release nor is there the
threat of a Release on, at or from the Premises
which through soil, subsoil, bedrock, surface
water or groundwater migration could come to be
located on the Premises, and Borrower has not
received any form of notice or inquiry from any
federal, state or local governmental agency or
authority, any owner, operator, tenant,
subtenant, licensee or occupant of the Premises
or any property adjacent to or within the
immediate vicinity of the Premises, or any other
person with regard to a Release or the threat of
a Release on, at or from the Premises or any
property adjacent to or within the immediate
vicinity of the Premises.
(iv) all Environmental Permits relating to the
Premises have been obtained and are in full
force and effect.
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(v) no event has occurred with respect to the
Premises which, with the passage of time or the
giving of notice, or both, would constitute a
violation of any applicable Environmental Law or
non-compliance with any Environmental Permit.
There are no liens, covenants, deed
restrictions, or notice registration
requirements based upon any Environmental Laws.
(vi) there are no agreements, consent orders,
decrees, judgments, License or permit conditions
or other orders or directives of any federal,
state or local court, governmental agency or
authority relating to the past, present or
future ownership, use, operation, sale, transfer
or conveyance of the Premises which require any
change in the present condition of the Premises
or any work, repairs, construction, containment,
clean up, investigations, studies, removal or
other remedial action or capital expenditures
with respect to the Premises.
(vii) with the exception of an ongoing investigation
(which has not been officially closed but which
management believes has been resolved) by the
New York State Department of Environmental
Conservation concerning (i) Borrower's Rotostar
machine volatile emissions, and (ii) Borrower's
print machine source testing resulting from a
permit condition, there are no actions, suits,
claims or proceedings, pending or threatened,
which could cause the incurrence of expenses or
costs of any name or description or which seek
money damages, injunctive relief, remedial
action or any other remedy that arise out of,
relate to or result from (i) a violation or
alleged violation of any applicable
Environmental Law or non-compliance or alleged
non-compliance with any Environmental Permit, or
(ii) the Release or the presence of any
Hazardous Substance or nuisances of whatever
kind to the extent the same arise from the
condition of the Premises or the ownership, use,
operation, sale, transfer or conveyance thereof.
(d) Borrower's Rotostar system and print machine emissions
are in full compliance with all Environmental Laws and
Environmental Permits.
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(e) All drains within the interior of the Premises discharge
to the sanitary sewer system with the permission of
local public works officials.
III. COVENANTS OF BORROWER: Borrower covenants and agrees with Lender
as follows:
(a) Borrower shall keep, and shall cause all operators,
tenants, subtenants, licensees and occupants of the
Premises to keep, the Premises in full compliance with
all Environmental Laws and all Environmental Permits and
shall not cause or permit the Premises or any part
thereof to be used for the storage, treatment,
generation, transportation, processing, handling,
production or disposal of any Hazardous Substances in
violation of any Environmental Laws or Environmental
Permits.
(b) Borrower shall comply with, and shall cause all
operators, tenants, subtenants, licensees and occupants
of the Premises to comply with, all applicable
Environmental Laws, and all orders, decrees, or
directives by federal, state, or local courts or
government agencies relating thereto, and shall obtain
and comply with, and shall cause all operators, tenants,
subtenants, licensees and occupants of the Premises to
obtain and comply with all Environmental Permits.
(c) Borrower shall not cause or permit any change to be made
in the present or intended use of the Premises which
would violate any applicable Environmental Law or
constitute non-compliance with any Environ mental
Permit.
(d) Borrower shall promptly provide Lender with a copy of
any and all notifications it receives of alleged
violation of any Environmental Law or Environmental
Permit and which it gives or receives with respect to
any past or present Release or the threat of a Release
on, at or from the Premises or any property adjacent to
or within the immediate vicinity of the Premises, and,
in any event, will immediately notify Lender of any such
Release or threat of a Release once Borrower has
knowledge of such Release or threat of a Release.
(e) Borrower shall undertake and complete all
investigations, studies, sampling and testing and all
removal and other remedial actions necessary to contain,
remove and clean up all Hazardous Substances that are
determined to be present at the Premises in accordance
with all applicable Environmental Laws and all
Environmental Permits.
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(f) Borrower shall at all times allow Lender and its
officers, employees, agents, representatives,
contractors and subcontractors reasonable access to the
Premises for inspection and testing and to relevant
books and records, for any items related to compliance
with Environmental Laws and Environmental Permits,
environmental reporting, record keeping, notices or
violations. Lender may inspect and conduct any tests on
the Premises required in the reasonable professional
judgment of Lender's engineer or legal counsel,
including taking soil, air, water, dust, waste or other
samples in order to determine whether (i) a Release has
occurred or (ii) the Borrower or any other party in
possession of the Premises are in continuing compliance
with all Environmental Laws and Environmental Permits.
(g) If at any time Lender obtains any evidence or
information which suggests that potential environmental
problems may exist at the Premises, Lender may require
that a full or supplemental environmental inspection and
audit report with respect to the Premises of a scope and
level of detail satisfactory to Lender be prepared by an
environmental engineer or other qualified person
acceptable to Lender, at Borrower's expense. Said audit
may include a physical inspection of the Premises, a
visual inspection of any property adjacent to or within
the immediate vicinity of the Premises, personnel
interviews and a review of all Environmental Permits. If
Lender requires, such inspection shall also include a
records search and/or subsurface testing on or at the
Premises for the presence of Hazardous Substances in the
Environment. All audits and inspections shall generally
comply with industry standards and Borrower shall be
provided an opportunity to comment on the scope of an
audit inspection work plan. If said audit report
indicates the presence of any Hazardous Substance or a
Release or the threat of a Release on, at or from the
Premises, Borrower shall promptly undertake and
diligently pursue to completion all necessary and
appropriate investigative, containment, removal, clean
up and other remedial actions, using methods recommended
by the engineer or other person who prepared said audit
report.
(h) Borrower agrees to reimburse Lender for any and all
expenses, costs and fees (including attorney's fees)
incurred in exercising any of Lender's rights to
inspect, investigate, audit, test or review matters
under this Agreement. Such costs shall be
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chargeable to the Borrower and shall be secured by any
and all Instruments of Collateral Security, as that term
is defined in the Loan and Security Agreement.
(i) Borrower shall reimburse Lender for any diminution in
the value of the Premises that results in a higher
loan-to-value ratio than exists on the date of this
Agreement, which diminution is caused by the presence of
Hazardous Substances on the Premises or by the breach of
any representation, warranty, covenant, obligation or
indemnification provision of this Agreement.
(j) Borrower shall comply with all of the conditions set
forth in the attached Appendix A, "Affirmative
Covenants."
IV. INDEMNIFICATION PROVISIONS: Borrower hereby covenants and
agrees, at its sole cost and expense, to indemnify, protect,
defend and save harmless each and every Indemnitee from and
against any and all damages, losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, judgments,
suits, actions, proceedings, costs, disbursements and/or
expenses (including, without limitation attorneys', consultants'
and experts' fees, expenses and disbursements) of any kind or
nature whatsoever by whomever asserted which may at any time be
imposed upon, incurred by or asserted or awarded against any
Indemnitee relating to, resulting from or arising out of the
past, present or future (a) use of the Premises for the storage,
treatment, generation, transportation, processing, handling,
production or disposal of any Hazardous Substance or as a
landfill or other waste disposal site or for military,
manufacturing or industrial purposes, (b) presence of any
Hazardous Substances or a Release or the threat of a Release on,
at or from the Premises, (c) appropriate investigative,
containment, removal, clean up and other remedial actions with
respect to a Release or the threat of any Release on, at or from
the Premises, (d) human exposure to any Hazardous Substance or
nuisances of whatever kind to the extent the same arise from the
condition of the Premises or the ownership, use, operation,
sale, transfer or conveyance thereof, (e) violation of any
applicable Environmental Law, (f) non-compliance with any
Environmental Permit or (g) material misrepresentation or
inaccuracy in any representation or warranty or a material
breach of or failure to perform any covenant made by Borrower in
this Agreement or arising out of Lender's exercise of any of its
rights under this Agreement (collectively, the "Indemnified
Matters").
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The liability of Borrower to each Indemnitee hereunder shall in
no way be limited, abridged, impaired or otherwise affected by (i) any amendment
or modification of the Loans Documents by or for the benefit of Borrower or any
subsequent owner of the Premises, (ii) any extensions of time for payment or
performance required by any of the Loans Documents, (iii) any extensions of time
for payment or performance required by any of the Loans Documents, (iv) the
release of Borrower, any guarantor of the Loans or any other person from the
performance or observance of any of the agreements, covenants, terms or
conditions contained in any of the agreements, covenants, terms or provisions of
the Loans Documents, (v) any exculpatory provision contained in any of the Loans
Documents limiting Lender's recourse to property encumbered by the Mortgage or
to any other security or limiting Lender's rights to a deficiency judgment
against Borrower, (vi) any applicable statute of limitations, (vii) any
investigation or inquiry conducted by or on the behalf of Lender or any other
Indemnitee or any information which Lender or any other Indemnitee may have or
obtain with respect to the environmental or ecological condition of the Premises
(viii) the sale, assignment or foreclosure of the Note or the mortgage, (ix) the
sale, transfer, conveyance or lease of all or part of the Premises, (x) the
dissolution or liquidation of Borrower, (xi) the death or legal incapacity of
any Borrower, (xii) the release or discharge, in whole or in part, of any
Borrower in any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding or (xiii) any other
circumstances which might otherwise constitute a legal or equitable release or
discharge, in whole or in part, of Borrower under the Note, the Mortgage or
under this Agreement.
The indemnification agreement contained herein is wholly
independent of and in addition to any indemnification agreement heretofore given
to Lender or any other Indemnitee as part of the application process for the
Loans.
V. TERMINATION OF AGREEMENT: Notwithstanding anything to the
contrary contained herein, this Agreement shall terminate and be
of no further force and effect when all of the following
conditions are satisfied in full:
(a) all principal, interest and other sums evidenced or
secured by the Loans Documents and any other costs and
expenses incurred by Lender in connection with the Loans
or as may be required by this Agreement are paid in full
by Borrower;
(b) no Indemnitee has at any time or in any manner
participated in the management or control of, taken
possession of or title to the Premises or any portion
thereof, whether by foreclosure of the Mortgage, deed in
lieu of foreclosure or otherwise;
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(c) between the date of this Agreement and the date on which
the Loans is paid in full, as provided in clause (a)
above, there has been no change in any applicable
Environmental Law which would make the Lender liable in
respect of the Indemnified Matters notwithstanding the
fact that no event, circumstance or condition of the
nature described in clause (b) above ever occurred; and
(d) there exists no pending Indemnified Matters at the time
a, b and c of this paragraph 5 are satisfied in full.
VI. COUNTERPARTS: This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original. Said
counterparts shall constitute but one and the same instrument
and shall be binding upon each of the undersigned as fully and
completely as if all had signed the same instrument.
VII. SUCCESSORS AND ASSIGNS: This Assignment shall be binding upon
Borrower, its successors and assigns and shall inure to the
benefit of each Indemnitee.
IN WITNESS WHEREOF, the Borrower has caused this Agreement to be duly
executed as of the day and year first above written.
DECORA, INCORPORATED d/b/a
DECORA MANUFACTURING
By:________________________________
Xxxxxxx X. Xxxxxxx, Vice
President Finance
FLEET NATIONAL BANK
By: ________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
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STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this ____ day of April, 1998, before me personally appeared Xxxxxxx
X. Xxxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides in Xxxxxxx Park, New York, that he is the Vice President, Finance of
DECORA, INCORPORATED d/b/a DECORA MANUFACTURING, the corporation described in
and which executed the above instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
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Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this ____th day of April, 1998, before me personally appeared Xxxxx
X. Xxxxxx, to me known, who being by me duly sworn, did depose and say that he
resides in Valatie, New York, that he is a Vice President of FLEET NATIONAL
BANK, the corporation described in and which executed the above instrument; and
that he signed his name thereto by order of the Board of Directors of said
corporation.
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Notary Public
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