ENVIRONMENTAL INDEMNITY
AGREEMENT
This ENVIRONMENTAL
INDEMNITY AGREEMENT (the “Agreement”) is made as of
this 27th day of May, 2009 from EDAC TECHNOLOGIES CORPORATION, a
Wisconsin corporation, with a place of business at 1806 Farmington
Avenue, Farmington, Connecticut 06032, GROS-ITE INDUSTRIES, INC., a
Connecticut corporation, with a place of business at 1806
Farmington Avenue, Farmington, Connecticut 06032, and APEX MACHINE
TOOL COMPANY, INC., a Connecticut corporation, with a place of
business at 1806 Farmington Avenue, Farmington, Connecticut 06032
(collectively, the “Indemnitor”), to TD BANK, N.A., a
national banking association with an office located at 102 West
Main Street, New Britain, Connecticut 06050-0174 (the
“Bank”).
WHEREAS, EDAC
Technologies Corporation is the owner of a fee interest in certain
real property located at 10 New Britain Avenue, Plainfield,
Connecticut, as more particularly described in
Exhibit A to the Mortgage (as hereinafter defined) (the
“Land”; the Land, together with all improvements now or
hereafter located on the Land, being hereinafter referred to as the
“Property”);
WHEREAS, this
Agreement is made pursuant to a certain Credit Agreement of even
date herewith by and between Indemnitor and Bank (the “Credit
Agreement”), pursuant to which the Bank has made (i) a
Mortgage Loan in the amount of TWO MILLION SIX HUNDRED FORTY
THOUSAND AND 00/100 DOLLARS ($2,640,000.00) (the “Mortgage
Loan”), which Mortgage Loan is evidenced by a certain
Mortgage Note of even date herewith in the original amount of TWO
MILLION SIX HUNDRED FORTY THOUSAND AND 00/100 DOLLARS
($2,640,000.00) (the “Mortgage Note”), (ii) a Term
Loan in the amount of FOUR MILLION THREE HUNDRED SIXTY THOUSAND AND
00/100 DOLLARS ($4,360,000.00) (the “Term Loan”), which
Term Loan is evidenced by a certain Term Note of even date herewith
in the original amount of FOUR MILLION THREE HUNDRED SIXTY THOUSAND
AND 00/100 DOLLARS ($4,360,000.00) (the “Term Note”),
and (iii) a Revolving Loan in the amount of SEVEN MILLION FIVE
HUNDRED THOUSAND AND 00/100 DOLLARS ($7,500,000.00) (the
“Revolving Loan”, together with the Mortgage Loan and
the Term Loan, collectively, the “Loan”), which
Revolving Loan is evidenced by a certain Revolving Credit Note of
even date herewith in the original amount of SEVEN MILLION FIVE
HUNDRED THOUSAND AND 00/100 DOLLARS ($7,500,000.00) (the
“Revolving Credit Note”, together with the Mortgage
Note and the Term Note, collectively, the “Note”);
and
WHEREAS, the Note
is secured by, among other things, a certain Open-End Mortgage Deed
and Security Agreement from EDAC Technologies Corporation in favor
of Bank (as amended from time to time, the “Mortgage”)
encumbering the Property; and
WHEREAS, as a
condition to making the Loan, Bank requires Indemnitor to provide
certain indemnities concerning existing and future asbestos,
polychlorinated biphenyls and petroleum products and any other
hazardous or toxic materials, wastes and substances which
are
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defined,
determined or identified as such in any Laws (as hereinafter
defined) (any such asbestos, polychlorinated biphenyls and
petroleum products and any such other hazardous or toxic materials,
wastes and substances being hereinafter collectively referred to as
“Hazardous Materials”); as used in this Agreement, the
term “Laws” means all federal, state and local laws,
rules and regulations (whether now existing or hereafter enacted or
promulgated), including, but not limited to, the Remediation
Standard Regulations, §22a-133k, et seq., and all judicial and
administrative interpretations thereof, including any judicial or
administrative orders, directives and judgments;
WHEREAS, to induce
Bank to consummate the above described transaction and to lend the
indicated amount to Borrower, Indemnitor has agreed to enter into
this Agreement;
NOW, THEREFORE, in
consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Indemnitor hereby represents, warrants and covenants
to Bank as follows:
1. Indemnitor
covenants and agrees, at its sole cost and expense, to defend,
indemnify, protect and save (i) Bank; (ii) any persons or
entities owned or controlled by, owning or controlling, or under
common control or affiliated, with Bank; (iii) any
participants in the Loan; (iv) the directors, officers,
partners, employees and agents of Bank and/or such persons or
entities; and (v) the heirs, personal representatives,
successors and assigns of each of the foregoing persons or entities
(each an “Indemnified Party”) harmless against and
from, and, if and to the extent paid, reimburse them on demand for,
any and all damages, losses, liabilities, obligations, penalties,
claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements and expenses (including, without
limitation, attorneys’ and experts’ reasonable fees and
disbursements) of any nature whatsoever (collectively, the
“Indemnified Matters”) which may at any time be
required by or imposed upon, incurred by or asserted or awarded
against Bank or an Indemnified Party arising directly or indirectly
from, out of, or any way related to:
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a.
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any
Hazardous Materials on, in, under, affecting or emanating from all
or any portion of the Property;
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b.
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the
enforcement of this Agreement or the assertion by Indemnitor of any
defense to its obligations hereunder (except the successful defense
of actual performance not subject to further appeal);
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c.
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any
act, omission, event or circumstance existing or occurring in
connection with the handling, treatment, containment, removal,
storage, decontamination, clean-up, transport or disposal of any
Hazardous Material which is at any time on the Property;
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d.
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the
breach of any representation, warranty, covenant or agreement
contained in this Agreement;
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e.
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any
violation of any Laws regardless of whether any act, omission,
event or circumstance giving rise to the violation constituted a
violation at the time of the occurrence or inception of such act,
omission, event or circumstance; and/or
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f.
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any
environmental claim, or the filing or imposition of any
environmental lien against the Property, because of, resulting
from, in connection with, or arising out of any of the matters
referred to in subparagraphs (a) through
(e) preceding;
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whether any of
such matters arise before or after foreclosure of the Mortgage or
other taking of title to all or any portion of the Property by Bank
or any affiliate of Bank (provided, however, that any such
indemnity shall not, as to any Indemnified Party, be available to
the extent that any Indemnified Matter resulted from the actions of
an Indemnified Party after title to the Property has been conveyed
to such Indemnified Party). Indemnified Matters shall include,
without limitation, all of the following: (i) the costs of
remediation, removal or abatement (“remedial
activities”) of Hazardous Materials from the Property or,
when applicable, the surrounding areas (except that the indemnity
provided for under this Agreement shall not cover the costs of such
remedial activities unless either (a) such remedial activities
are required by any Law, (b) such remedial activities
constitute accepted practice by owners of similar properties,
(c) any present or future use, operation, development,
transfer, sale, lease, construction, alteration or reconstruction
of all or any portion of the Property is or would be conditioned or
affected in any way upon, or is or would be limited in any way
until the completion of, such remedial activities, or (d) such
removal is necessary to bring the surrounding areas into compliance
with the Remediation Standard Regulations, §22a-133k et seq.);
(ii) additional costs required to take necessary precautions
to protect against, or to mitigate the effects of, the release of
Hazardous Materials on, in, under, affecting or emanating from the
Property or into the air, any body of water, any other public
domain or any surrounding areas; and (iii) costs incurred to
comply, in connection with all or any portion of the Property or,
when applicable, any surrounding areas, with all applicable Laws
with respect to Hazardous Materials (all remedial activities
referred to in clause (i) above, all work and other actions to
take precautions against any release referred to in clause
(ii) above and all work and other actions performed in order
to comply with Laws referred to in clause (iii) above being
hereinafter collectively referred to as “Corrective
Work”). Bank’s rights under this Agreement shall be in
addition to all rights of Bank under the Credit Agreement, the
Mortgage, the Note and any guaranty or guaranties (whether of
payment and/or performance) given to Bank in connection with the
Loan and under any other documents evidencing, securing or relating
to the Loan (which documents together with the Mortgage, the Note
and any such guaranty or guaranties, as amended from time to time,
being hereinafter referred to as the “Loan Documents”),
and payments by Indemnitor under this Agreement shall not reduce
Indemnitor’s obligations and liabilities under the Loan
Documents.
2. Bank
hereby agrees that, prior to Bank’s taking the actions
described in clauses (x) and (y) below, Indemnitor may,
at its sole cost and expense, (x) contest the assertion by any
governmental authority or any third party of any obligation or
liability affecting Indemnitor, Bank or the Property relating to
the Corrective Work and (y) perform the Corrective Work,
provided that at all times all of the following conditions are
satisfied in full:
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a.
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no
default, Default or Event of Default (as defined in the various
Loan Documents) (subject to applicable notice and/or the expiration
of any cure periods) exists under any of the Loan Documents, and
Bank has not commenced or completed foreclosure or a sale under
power of sale or accepted a deed in lieu of foreclosure or
otherwise taken title to al
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