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EXHIBIT 10.5
LOAN NO.: 94-0950936
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (the "Indemnity") is entered into as
of September 9, 2005, by the undersigned TABB Realty, LLC, a Michigan limited
liability company ("Borrower") in favor of PNC Bank, National Association
("Lender").
RECITALS:
A. Contemporaneously with this Indemnity, Borrower has executed and
delivered its Promissory Note (the "Note") to Lender evidencing Lender's loan to
Borrower in the amount of $100,000,000.00 (the "Loan").
B. The Note is secured by, among other security: (i) the Security
Instruments (as defined in the Note), which Security Instruments encumber the
property described therein (the "Mortgaged Property") and including, without
limitation, the real property more particularly described in Exhibit A attached
hereto, and the Other Security Documents (as defined in the Security
Instruments). The Note, the Security Instruments and the Other Security
Documents are hereinafter collectively referred to as the "Loan Documents".
C. As a condition to making the Loan, Lender has required that Borrower
indemnify Lender with respect to the matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of Lender making the
Loan and other valuable consideration, the receipt and adequacy of which is
hereby acknowledged, Borrower agrees as follows:
1. Certain Defined Terms. Unless otherwise expressly herein provided, each
defined term in this Indemnity, as indicated by the initial capitalization
thereof, shall have the meaning set forth in the Loan Documents. As used herein,
the singular shall include the plural and the masculine shall include the
feminine and neuter and vice versa, if the context so requires. The following
terms shall have the following meanings:
(a) "Affiliates" the respective successors, assigns and participants,
parent, subsidiary and affiliated corporations and entities of any Borrower, and
the respective partners, directors, officers, agents, attorneys and employees of
each of the foregoing.
(b) "CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as heretofore or
hereafter amended from time to time.
(c) "Environmental Laws" means all present and future laws (whether common
law, statute, rule, regulation or otherwise), permits and other requirements of
governmental authorities relating to the environment or to any Hazardous
Material or Hazardous Material Activity, including, without limitation, CERCLA;
the Hazardous Materials Transportation Act; the Resource Conservation and
Recovery Act; the Toxic Substance Control Act; the Clean Air Act; the Federal
Water Pollution Control Act; the Hazardous Substance Control Act; the Emergency
Planning and Community Right to Know Act; the Occupational Safety
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and Health Act; the Underground Tank Act of 1984; any so-called "Super-Fund" or
"Super-Lien" law, or any other federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, as of now or at any time hereafter in effect.
(d) "Environmental Report" shall mean the following Phase I Environmental
Site Assessments prepared for each property comprising the Mortgaged Property in
favor of Lender:
(1) 500 N. Dunham, Dundee, Michigan prepared by EBI dated July 19,
2005;
(2) 1351 Hix Road, Westland, Michigan prepared by EBI dated July 18,
2005;
(3) 3310 W. Springfield, Champaign, Illinois prepared by EBI dated
July 19, 2005;
(4) 108 Industrial Drive, East Longmeadow, Massachusetts prepared by
EBI dated July 14, 2005
(5) 435 Rousch Road, Lima, Ohio prepared by AEC dated July 12, 2005;
(6) 850 W. Smith Road, Medina, Ohio prepared by AEC dated July 14,
2005;
(7) 18015 St. Route 65, Jackson Center, Ohio prepared by AEC July 14,
2004;
(8) 300 Washington Street, Jackson Center, Ohio prepared by AEC dated
July 14, 2005;
(9) 3201 Miller Park North, Garland, Texas prepared by RCI dated July
22, 2005;
(10) 222 & 213 Kerry Street and 313, 215 & 217 E. Wallisville Road,
Highlands, Texas prepared by RCI dated July 25, 2005;
(11) 4211 Amberjack Blvd., Plant City, Florida prepared by EBI dated
July 19, 2005;
(12) 7150 Jefferson Metropolitan Parkway, McCalla, Alabama prepared by
AEC dated July 14, 2005;
(13) 4101 Pardue Road, Pineville, Louisiana prepared by RCI dated July
25, 2005; and
(14) 41605 Ann Arbor Road, Plymouth, Michigan prepared by EBI dated
July 22, 2005
(e) "Foreclosure Transfer" means the transfer of title to all or any part
of the Mortgaged Property in connection with a foreclosure of the Security
Instruments, including, without limitation, a sale pursuant to judicial decree
or power of sale, or by deed in lieu of such foreclosure.
(f) "Hazardous Material" means, at any time: (I) any substance that is then
defined or listed in, or otherwise classified, designated or regulated pursuant
to any applicable Environmental Laws as a "hazardous substance", "hazardous
material", "hazardous waste", "infectious waste", "toxic substance", "toxic
pollutant" or any other formulation intended to define, list, or classify
substances by reason of deleterious properties such as
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radioactivity, ignitability, corrosivity, reactivity, carcinogenicity, toxicity,
explosiveness, reproductive toxicity or "EP toxicity"; (ii) any petroleum and
petroleum byproducts, drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude oil, natural
gas or geothermal resources; (iii) asbestos and polychlorinated biphenyls; and
(iv) any other material or substance, naturally occurring or otherwise, which
causes or poses a threat to cause a contamination or nuisance on the Mortgaged
Property or any adjacent property or a hazard to the environment or to the
health or safety of persons on the Mortgaged Property or any adjacent property.
(g) "Hazardous Material Activity" means any actual, proposed or threatened
storage, holding, existence, release, emission, discharge, generation,
processing, abatement, removal, disposition, handling or transportation of any
Hazardous Material from, under, into or on the Mortgaged Property or surrounding
property.
(h) "Borrower" means any person or entity executing this Indemnity, and
their respective successors and assigns.
(I) "Lender" means Lender, any person or entity that may acquire the
Mortgaged Property in connection with any Foreclosure Transfer and their
respective successors, assigns and participants, parent, subsidiary and
affiliated corporations and entities, and the respective partners, directors,
officers, agents, attorneys and employees of each of the foregoing.
(j) "Losses" means any and all losses, liabilities, damages, demands,
claims, actions, judgments, causes of action, assessments, penalties, costs and
expenses (including, without limitation, all fees and costs of any attorneys and
accountants, including on appeal and in any bankruptcy case or proceeding) and
all consequential damages.
(k) "Environmental Losses" means Losses suffered or incurred by Lender
arising out of or as a result of: (I) any breach of any representation,
warranty, covenant or agreement contained herein; (ii) the occurrence of any
Hazardous Material Activity prior to a Foreclosure Transfer; (iii) any violation
of any applicable Environmental Laws relating to the Mortgaged Property or the
ownership, use, maintenance, occupancy or operation thereof prior to a
Foreclosure Transfer; (iv) any investigation, inquiry, order, hearing, action,
or other proceeding by or before any governmental agency in connection with any
Hazardous Material Activity occurring or allegedly occurring prior to a
Foreclosure Transfer; or (v) any claim, demand or cause of action, or any action
or other proceeding, whether meritorious or not, brought or asserted against
Lender to the extent directly or indirectly relating to, arising from or based
on any of the matters described in clauses (I), (ii), (iii) or (iv) above, or
any allegation of any such matters.
2. Indemnity. Borrower hereby assumes liability for and agrees to pay,
protect, indemnify, defend and hold harmless Lender from and against any and all
Environmental Losses, excluding any such losses arising from Lender's gross
negligence or willful misconduct. A separate right of action hereunder shall
arise each time Lender acquires knowledge of any matter indemnified by Borrower
under this Indemnity. Separate successive actions may be brought hereunder to
enforce any of the provisions hereof at any time and from time to time. No
action hereunder shall preclude any subsequent action, and Borrower hereby
waives and covenants not to assert any defense in the nature of splitting of
causes of action or merger or judgments. Each person or party executing the
Indemnity agrees that the liability hereunder shall be joint and several.
3. Covenants and Representations. Borrower hereby represents and warrants
to Lender that, to
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the best of its knowledge, after due inquiry and investigation, the Mortgaged
Property is not subject to any private or governmental lien or judicial or
administrative notice or action relating to any Hazardous Material; and except
as disclosed to Lender in the Environmental Report: (a) the Mortgaged Property
is not in violation of any Environmental Laws; (b) no Hazardous Material is
present at the Mortgaged Property; (c) no Hazardous Material has been
discharged, generated, treated, disposed of or stored on, incorporated in, or
removed or transported from the Mortgaged Property otherwise than in compliance
with all Environmental Laws; and (d) no underground storage tanks exist on any
of the Mortgaged Property. Until a Foreclosure Transfer, Borrower shall keep the
Mortgaged Property free from Hazardous Material and in compliance with all
Environmental Laws. Borrower shall notify Lender within five (5) business days
after it becomes aware of the existence of any Hazardous Material on, or any
alleged or actual violation of any Environmental Laws with respect to, the
Mortgaged Property. Borrower shall remove any such Hazardous Material and/or
cure any such violations, as applicable, as required by law, p






