REMEDIATION AND INDEMNIFICATION AGREEMENT
THIS REMEDIATION AND INDEMNIFICATION AGREEMENT (the
"Agreement") is made and entered into this 16th day of June, 1995
by and between Riverside Associates, a Michigan co-partnership,
whose address is 79 Macomb Place, Mt. Clemens, Michigan 48043 (the
"Purchaser") and Action Real Estate Development, Inc., a Delaware
corporation whose address is 460 Nixon Road, Cheswick Pennsylvania
15024-1098 (the "Seller").
Preliminary Statement
The Purchaser and Seller have entered into a certain Purchase
Agreement dated February 14, 1995, covering the purchase and sale
of certain real property (the "Property") located in the City of
Mt. Clemens, County of Macomb, State of Michigan, which Property is
more particularly described in Exhibit A hereto. Seller has
provided Purchaser with the environmental reports regarding the
Property as listed in Exhibit B of the Purchase Agreement which
indicated that certain contaminants are present on the Property.
Otherwise, Seller has made no representations or warranties to
Purchaser with respect to the environmental condition of Property.
Pursuant to Section 10.3 of the Purchase Agreement, Purchaser has
agreed to conduct a remediation of the Property and to indemnify
Seller from any liability related thereto. This Agreement is the
agreement Purchaser and Seller are entering into to satisfy the
terms of Section 10.3 of the Purchase Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
1. Definitions.
The following terms have the meanings set forth below for all
purposes of this Agreement, and the definitions of such terms are
equally applicable both to the singular and the plural forms
thereof:
"Action" mean Action Industries, Inc., a Pennsylvania
corporation.
"Affiliate" means as to any specified person any person
controlled by, controlling, or under common control with such
person. The term "control" of any person means possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether
through the ownership of voting securities or by contract or
otherwise.
"Agency" means the Michigan Department of Natural Resources or
any other governmental agency that is exercising lead or primary
jurisdiction over the Property (the "Agency").
"Contaminants" means collectively contaminants; pollutants;
toxic or hazardous chemicals, substances, materials, wastes and
constituents; petroleum products or fractions thereof;
polychlorinated biphenyls; medical wastes; radioactive materials;
infectious wastes; asbestos; paint containing lead; and urea
formaldehyde.
"Environmental Laws" means any past, present, future or
amended, federal, state, local or foreign statutory or common law
or any regulation, code, guideline, plan, order, decree, judgment,
permit, grant, franchise, concession, restriction, agreement or
injunction issued, entered, promulgated or approved thereunder,
relating to the environment, human health or safety, including,
without limitation, laws relating to emissions, discharges,
releases or threatened releases of Contaminants into the
environment (including, without limitation, air, surface water,
groundwater or land), or relating to the manufacture, generation,
refining, recycling, processing, distribution, use, sale,
treatment, receipt, storage, disposal, transport, arranging for
transport or handling of Contaminants and, including, without
limitation:
(i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C.A. Section 9601 et
seq. ("CERCLA"), as amended by the Superfund Amendments and
Reauthorization Act of 1986;
(ii) the Solid Waste Disposal Act, 42 U.S.C.A. Section 6901 et
seq., as amended by the Resource Conservation and Recovery
Act;
(iii) the Toxic Substances Control Act, 15 U.S.C.A. Section
2601 et seq.;
(iv) the Safe Drinking Water Act, 42 U.S.C.A. Section 300(f) et
seq.;
(v) the Refuse Act, 33 U.S.C.A. Section 407 et seq.;
(vi) the Clean Water Act, 33 U.S.C.A. Section 1251 et seq.;
(vii) the Clean Air Act, 42 U.S.C.A. Section 7401 et seq.
(viii) the Emergency Planning and Community Right-to-Know
Act of 1986, 42 U.S.C.A. Section 11001 et seq.;
(ix) the Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C.A. Section 136 et seq.,
(x) the Hazardous Materials Transportation Act, 49
U.S.C.A. Section 1801 et seq.; and
(xi) the Occupational Safety and Health Act, 29 U.S.C.A.
Section 651 et seq.
(xii) Michigan Environmental Response Act, M.C.L.A.
Section 299.601 et seq.
"Indemnitees" is defined in paragraph 6(a).
"Migrating Contaminants" means Contaminants which have
migrated, leaked, leached, flowed, emitted or otherwise moved from
the Property prior to the completion of the Work.
"Permits" means permits, consents, licenses, approvals and
registrations, and any renewals and modifications of any of the
foregoing.
"Plan" is defined in paragraph 2.
"Property" is defined in the Preliminary Statement.
"Purchase Agreement" is defined in the Preliminary Statement.
"Purchaser" is defined in the introductory paragraph of this
Agreement.
"Seller" is defined in the introductory paragraph of this
Agreement.
"Work" is defined in paragraph 3(a).
2. Development of Remediation Plan.
Purchaser shall, at its expense, select and retain a
nationally recognized, independent contractor, qualified by
training and experience, to develop an investigation and
remediation plan (together with any amendments thereto which may be
approved in accordance with the terms of this Agreement, the
"Plan") for the Property. After the selection of the contractor,
Purchaser and the contractor shall deliver a copy of the Plan to
Seller, together with any changes to the Plan which Purchaser, the
contractor or any other party may require from time to time and any
other information reasonably requested by Seller related thereto.
After Seller and Purchaser have reviewed the Plan, Purchaser shall
submit the Plan to the Agency for its approval.
3. Remediation.
(a) After the Plan has been developed pursuant to
Paragraph 2 and approved by the Agency, Purchaser at its expense
shall select and retain a nationally recognized, independent
contractor, qualified by training and experience to investigate,
define, cleanup, respond, remove, remediate, contain, restore,
treat, dispose and monitor, including post-remedial monitoring,
with respect to Contaminants and, to the extent required by the
Plan, Migrating Contaminants (all of which is collectively called
the "Work"). After the retention of the contractor, Purchaser and
the contractor shall commence and diligently pursue completion of
the Work.
(b) Purchaser shall, at its expense, perform the Work
with diligence and continuity, and complete the Work within the
time set forth in the Plan and, if no time is set forth in the Plan
within twelve (12) months after the date of this Agreement. At any
reasonable time and from time to time on and after the date of this
Agreement, Seller and its employees, agents, contractors and
consultants shall have access to the Property and Purchaser's
records for the purpose of monitoring the development of the Plan
and the performance Work, including collecting samples, performing
tests, and verifying any data or information concerning the Plan or
the Work, and inspecting and copying all records, operating logs,
contracts and other documents required to monitor compliance with
the terms of this Agreement. In the exercise of it rights under
this paragraph (b), Seller shall use reasonable efforts to avoid
interfering the performance of the Work by Purchaser.
(c) The Work shall be complete upon delivery by the
Agency to Seller of a certification that implementation of the Plan
and conduct of the Work has been completed.
(d) If the Work is not performed with diligence and
continuity in accordance with this Agreement, Seller, without
excluding any other right or remedy, shall have the right, but not
the obligation, to perform and complete all or part of the Work
upon the following terms and conditions:
(i) Seller shall provide Purchaser with written notice
of Purchaser's failure to perform the Work with diligence and
continuity.
(ii) Purchaser shall have thirty (30) days (or such
shorter period of time as Seller may grant in the event of an
emergency or, in other cases, as shall then be permitted for
the initiation or resumption of the Work under applicable
Environmental Laws, the Plan or by the Agency) after the
giving of such notice to initiate or resume performance of the
Work and thereafter to pursue the Work to completion with
diligence and continuity.
(iii) If Purchaser fails to comply with the procedure
and obligations contained in the immediately preceding
subparagraph, Seller may immediately undertake performance and
completion of all or some portion of the Work and shall be
deemed to have an irrevocable license to enter upon the
Property for that purpose.
(iv) Purchaser shall, upon Seller's request, at any time
and from time to time, reimburse Seller for all costs and
expenses incurred in connection with the Work and the exercise
of its rights and remedies hereunder, including, without
limitation, all actual out-of-pocket legal, accounting,
consulting, engineering, contractor and laboratory costs and
expenses.
(v) Purchaser shall, at Seller's request, provide Seller
and its contractors, consultants and other designees with all
necessary and reasonable cooperation and assistance and, at
Seller's request, shall appoint an officer of Seller or at
Seller's option, Action, as designated from time to time by
Seller, to act as attorney-in-fact to sign, on Purchaser's
behalf, all manifests and other required documents as the
generator of any hazardous waste generated as part of the
Work.
(vi) If Seller elects to perform the Work or otherwise
exercises its rights and remedies hereunder, Purchaser shall
have no rights, legal or equitable, against Seller for any
alleged noncompliance with the Plan, any Permit or any
applicable federal, state and local statutes, laws, ordinances
or regulations, agreements with governments and regulatory
agencies, and court and administrative orders, including,
without limitation, all applicable Environmental Laws.
4. Compliance with Laws.
In connection with development of the Plan and performance of
the Work by Purchaser, its Affiliates, their respective general and
limited partners, and their respective officers, directors,
shareholders, members, managers, employees and agents shall comply,
or assure compliance, with all applicable federal, state and local
statutes, laws, ordinances or regulations, agreements with
governments and regulatory agencies, and court and administrative
orders, including, without limitation, all applicable Environmental
Laws.
5. Covenants.
(a) Purchaser covenants to Seller that, until the
completion of the Work:
(i) To the extent that it relates to the Property or the
Contaminants or, to the extent covered by the Work, Migrating
Contaminants, Purchaser shall notify Seller of any written
communication from or to any government officials or third
parties and shall deliver copies of the communications to
Seller.
(ii) Seller shall have the right to provide comments for
any communication noted in paragraph 5(a)(i) of the Agreement.
6. Indemnification.
(a) Purchaser shall indemnify, defend and hold harmless
Seller, Action, any assignee of Seller or Action, their respective
Affiliates, their respective general and limited partners, and
their respective officers, directors, shareholders, members,
managers, employees and agents (collectively, the "Indemnitees")
from and against all liabilities, costs, claims, damages, demands,
litigation, suits, proceedings, actions, losses, obligations,
penalties, fines, judgments, sums paid in settlement of any of the
above, and disbursements arising from or out of, or in any way
related to:
(i) any failure by Purchaser to perform or observe any
covenant or condition to be performed or observed by Purchaser
under this Agreement;
(ii) the lack of any Permit required at or in connection
with the Property under any applicable Environmental Laws;
(iii) noncompliance with any such Permit or any
applicable Environmental Laws at or in connection with the
Property;
(iv) the presence, emission, discharge, release or
threatened release from the Property into the environment of
any Contaminants on, in, under or above the Property;
(v) the presence or suspected presence of any
Contaminants on, in, under or above the Property or any
location containing Contaminants removed in connection with
the performance of the Work;
(vi) the migration, leaking, leaching, flowing, emitting
or other movement of Contaminants from the Property to any
other location;
(vii) the characterization of the Property or any
portion thereof as a "facility," as defined in and for purpose
of CERCLA, or as any Contaminant facility, site, storage area,
landfill or refuse location under and for purpose of any
applicable Environmental Laws, as a result of the presence of
Contaminants and, to the extent covered by the Work, Migrating
Contaminants;
(viii) any event at the Property or any portion
thereof constituting an actual or threatened release of
Contaminants and, to the extent covered by the Work, Migrating
Contaminants, as defined in CERCLA or any other applicable
Environmental Law;
(ix) the migration, leaking, leaching, flowing, emitting,
emission, discharge, release or threatened release or other
movement of the Contaminants or, to the extent covered by the
Work, Migrating Contaminants, resulting from the
transportation of the Contaminants and, if applicable, the
Migrating Contaminants, in connection with the performance of
the Work; or
(x) the migration, leaking, leaching, flowing, emitting,
emission, discharge, release or threatened release or other
movement of the Contaminants or, to the extent covered by the
Work, Migrating Contaminants, from the site(s) of disposal of
the Contaminants and, if applicable, the Migrating
Contaminants, to any other location.
Without limiting the generality of the foregoing, this
indemnification shall specifically cover actual out-of-pocket fees
and expenses for attorneys, accountants, laboratories, consultants,
engineers, contractors and experts, and out-of-pocket costs of
investigation, cleanup, response, removal, remediation,
containment, restoration, treatment, disposal or monitoring.
(b) Seller shall notify Purchaser of (i) any claim
asserted against any Indemnitee which is subject to the indemnity
contained in this paragraph 6 within 60 days after Seller receives
written notice of such claim, and (ii) any other claim which Seller
has as an Indemnitee under this paragraph 6 with reasonable
promptness after Seller obtains knowledge of the existence of such
claim, but failure to notify Purchaser shall not affect the rights
of the Indemnitees or the obligations of Purchaser under this
paragraph 6 unless Purchaser fails to obtain knowledge of such
claim from any other source and Purchaser suffers pecuniary loss by
reason of such failure or such failure materially impairs
Purchaser's ability to defend such claim, and then only to the
extent of such loss or impairment.
7. Security.
Upon the execution hereof by Purchaser, Purchaser and
Purchaser' lender, First National Bank in Macomb County (the
"Bank") shall enter into an agreement, of which Seller shall be a
third party beneficiary, pursuant to which the Bank shall hold
funds in amount which is not less than 125% of the cost of
completing the Work, as the security for the performance of the
Work and Purchaser's other obligations under this Agreement, and
the punctual payment of all sums which may be due Seller or the
Indemnitees under this Agreement. Within ten (10) days after the
selection of the contractor pursuant to Paragraph 3(a) of this
Agreement, Purchaser and the approved contractor shall certify to
Seller the estimated cost of completion of the Work. In the event
the estimated cost of completion of the Work shall change or if
Seller requests confirmation of the cost of completion, Purchaser
and the contractor shall submit a new certification of the cost of
completion to Seller. At any time and from time to time, Seller
may require that Purchaser provide an additional funds so that the
account at all times is not less than 125% of the estimated cost of
completion. The agreement with the Bank shall provide that
agreement shall not be cancelled or changed in any manner for any
reason whatsoever without the written consent of Seller.
8. Release and Waiver.
(a) Notwithstanding anything set forth elsewhere in this
Agreement, neither Seller nor any of the other Indemnitees waives
any of its rights and remedies (i) under CERCLA or (ii) against any
other potentially responsible party.
(b) Purchaser hereby releases and waives any rights it
may have had, or may hereinafter have against the Indemnitees, or
any one or any combination of them, contingent or liquidated, known
or unknown, arising from or with respect to any acts or omissions
of any one or any combination of them, from the beginning of time
to the date of this Agreement, under common law, rule, regulation
or statute, including, but not limited to, all Environmental Laws,
with respect to Contaminants, Migrating Contaminants or the
Property. Purchaser agrees that all its legal and equitable
remedies against Seller are contained in this Agreement.
(c) In the event Seller elects to complete the Work,
Purchaser hereby releases and waives any rights it may have had, or
may hereinafter have against the Indemnitees, or any one or any
combination of them, contingent or liquidated, known or unknown,
arising from or with respect to any acts or omissions of any one or
any combination of them, under common law, rule, regulation or
statute, including, but not limited to, all Environmental Laws,
with respect to any claim that Seller on any other person or entity
has not properly performed the Work or otherwise with respect to
Contaminants, Migrating Contaminants or the Property.
9. Miscellaneous.
(a) This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Michigan.
(b) Any notice, request, demand, instruction or other
document to be given or served hereunder or under any document or
instrument executed pursuant to hereto shall be in writing and
shall be delivered personally with a receipt requested therefor or
sent by a recognized overnight courier service or by United States
registered or certified mail, return receipt requested, postage
prepaid, or by telecopy and, in each case, addressed to the parties
at their respective addresses set forth below, and the same shall
be effective (a) upon telecopy transmission if sent via telecopy,
or receipt or refusal if delivered personally; (b) one (1) business
day after depositing with such an overnight courier service; or (c)
two (2) business days after deposit in the mail if mailed. A party
may change its address for receipt of notices by service of a
notice of such change in accordance herewith.
If to Purchaser: Riverside Associates
79 Macomb Place
Mt. Clemens, Michigan 48043
Attention: Gebran S. Anton
Telecopy Number: (810) 469-3049
With a required copy to:
Schlenke, Staugaard & Hearsch, P.C.
85 Macomb Place
Mount Clemens, Michigan 48043
Attention: Francis J. Hearsch, Jr.
Telecopy Number: (810) 307-8904
If to Seller: Action Real Estate Development, Inc
460 Nixon Road
Cheswick Pennsylvania 15024-1098
Attention: Linda S. Wyckoff
Telecopy Number: (412) 782-8606
With a required copy to:
Jaffe, Raitt, Heuer & Weiss,
Professional Corporation
One Woodward Avenue, Suite 2400
Detroit, Michigan 48226
Attention: Mark P. Krysinski
Telecopy Number: (313) 961-8358
(c) The captions and paragraph numbers appearing in this
Agreement are inserted only as a matter of convenience and do not
define, limit, construe or describe the scope or intent of such
paragraphs of this Agreement nor in any way affect this Agreement.
(d) This Agreement is the entire agreement between the
parties with respect to the subject matter hereof and supersedes
all prior and contemporaneous oral and written agreements and
discussions. Neither this Agreement nor any of the terms hereof
may be terminated, amended or waived orally, but only by an
instrument in writing signed by all the parties.
(e) Notwithstanding any other provision of this
Agreement, if any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable in accordance with its terms,
the remainder of this Agreement or the application of such term or
provision to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby,
and each term and provision of this Agreement shall be valid and
enforceable to the extent permitted by law.
(f) This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, and it
shall not be necessary in making proof of this Agreement to produce
or account for more than one such counterpart.
(g) In the event of litigation relating to this
Agreement, the prevailing party to this Agreement and its
successors or assigns shall be entitled to its reasonable
attorneys' fees and disbursements.
(h) Purchaser shall not have the right to assign this
Agreement or delegate its duties hereunder without first obtaining
the prior written consent of Seller in action. Seller and Action
reserves the right to assign this Agreement and to delegate their
duties hereunder, and all provisions of this Agreement shall inure
to the benefit of Seller's and Action's respective successors and
assignees.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
PURCHASER:
Riverside Associates, a
Michigan co-partnership
Dated: July 11, 1995 By: SALVATORE COTTONE
Salvatore Cottone, Partner
By: CARLO T. CATENACCI
Carlo T. Catenacci, Partner
By: JOSEPTH E. CATENACCI
Joseph E. Catenacci,
Partner
By: GEBRAN S. ANTON
Gebran S. Anton, Partner
SELLER:
Action Real Estate Development,
Inc.
Dated: June 14, 1995 By: KENNETH L. CAMPBELL
Its: Treasurer
STATE OF MICHIGAN )
)SS
COUNTY OF )
The foregoing instrument was acknowledged before me this 11th
day of July, 1995, by Salvatore Cottone, a Partner of Riverside
Associates, on behalf of said co-partnership.
DAVID F. GIRODAT
Notary Public, Macomb County
Michigan
My Commission Expires: 2-21-98
STATE OF MICHIGAN )
)SS
COUNTY OF )
The foregoing instrument was acknowledged before me this _____
day of _____________, 1995, by Carlo T. Catenacci, a Partner of
Riverside Associates, on behalf of said co-partnership.
JACK NELSON
Notary Public, Macomb County
Michigan
My Commission Expires: 1-29-96
STATE OF MICHIGAN )
)SS
COUNTY OF )
The foregoing instrument was acknowledged before me this _____ day
of _____________, 1995, by Joseph E. Catenacci, a Partner of
Riverside Associates, on behalf of said co-partnership.
JACK NELSON
Notary Public, Macomb County
Michigan
My Commission Expires: 1-29-96
STATE OF MICHIGAN )
)SS
COUNTY OF )
The foregoing instrument was acknowledged before me this _____
day of _____________, 1995, by Gebran S. Anton, the General Partner
of LCDA ENTERPRISES, a Michigan limited, a Partner of Riverside
Associates, on behalf of said partnerships.
JACK NELSON
Notary Public, Macomb County
Michigan
My Commission Expires: 1-29-96
STATE OF PENNSYLVANIA )
)SS
COUNTY OF ALLEGHENY )
The foregoing instrument was acknowledged before me this 14th
day of June 1995, by Kenneth L. Campbell, the Treasurer of Action
Real Estate Development, Inc., on behalf of said corporation.
PATRICIA A. PERRI
Notary Public, Allegheny County
State of Pennsylvania
My Commission Expires: 6-4-96
EXHIBIT A
Legal Description
Land in the City of Mt. Clemens, Macomb County, Michigan described
as:
PARCEL 1-A: Lots 145 through 150, both inclusive, the Wood
Subdivision, according to the plat thereof as recorded in liber 2,
page 100 of Plats, Macomb County Records.
PARCEL 1-B: Lots 151 through 156, both inclusive, the Wood
Subdivision, according to the plat thereof as recorded in liber 2,
page 100 of Plats, Macomb County Records.
PARCEL 1-C: Lots 157 through 162, both inclusive, the Wood
Subdivision, according to the plat thereof as recorded in liber 2,
page 100 of Plats, Macomb County Records.
PARCEL 2: Lot 3, Assessors Plat no. 17A, according to the plat
thereof as recorded in liber 16, page 20 of Plats, Macomb County
Records.
PARCEL 3: Lot 7, Assessors Plat no. 17A, (being re-plat of
Assessors Plat no. 17), according to the plat thereof as recorded
in liber 16, page 20 of Plats, Macomb County Records, excepting the
south 250.0 feet of said Lot 7, said exception being more
particularly described as: Beginning at a point on the west side of
Floral Avenue south 12 degrees 19 minutes west 266.2 feet from the
southwest corner of Church and Floral Avenues: thence south 12
degrees 19 minutes west 250 feet along Floral Avenue: thence north
75 degrees 58 minutes west 727.16 feet; thence north 37 degrees 05
minutes east 271.06 feet; thence south 75 degrees 58 minutes west
613.8 feet to the point of beginning.
PARCEL 4: Lot 1, Assessors Plat no. 21, according to the plat
thereof as recorded in liber 13, page 38 of Plats, Macomb County
Records.