Hazardous Substances Certificate And Indemnity Agreement

EXHIBIT 10.12

HAZARDOUS SUBSTANCES CERTIFICATE AND INDEMNITY AGREEMENT


THIS HAZARDOUS SUBSTANCES CERTIFICATE AND INDEMNITY AGREEMENT dated as of August 1, 1995, is made by and between Burlington Coat Factory Warehouse of New Jersey, Inc., a New Jersey corporation with an office located at 1830 Route 130, Burlington, New Jersey, 08016 (referred to as the "Company," and FIRST FIDELITY BANK, NATIONAL ASSOCIATION, a national banking association with an address at 123 S. Broad Street, Philadelphia, PA 19109 (referred to as the "Bank").

DEFINITIONS. The following words shall have the following meaning when used in this Agreement. All references to dollar amounts shall mean amounts in lawful money of the United States of America.

Agreement. The word "Agreement" means this Hazardous Substances Certificate and Indemnity Agreement, as this Hazardous Substances Certificate and Indemnity Agreement may be modified from time to time, together with all exhibits and schedules attached to this Hazardous Substances Certificate and Indemnity Agreement.

Bank. The word "Bank" means First Fidelity Bank, National Association, its successors and assigns.

Company. The word "Company" means Burlington Coat Factory Warehouse of New Jersey, Inc., a New Jersey corporation, its successors and assigns.

Environmental Laws. The words "Environmental Laws" mean (i) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601, et seq. ("CERCLA"); (ii) the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6901, et seq. ("RCRA"); (iii) the New Jersey Industrial Site Recovery Act, as amended, P.L. 1995, C. 139 ("ISRA"); (iv) the New Jersey Spill Compensation and Control Act, as amended, N.J.S.A. 58:10-23.11b, et seq. ("Spill Act"); (v) the New Jersey Underground Storage Tank Act, as amended, N.J.S.A. 58:10A-21, et seq. ("UST"); (vi) the New Jersey Solid Waste Management Act, as amended, N.J.S.A. 13:1E-1, et seq. ; (vii) the New Jersey Toxic Catastrophe Prevention Act, as amended, N.J.S.A. 13:1K-19, et seq. ; (viii) the New Jersey Water Pollution Control Act, as amended, N.J.S.A. /U> 58:10A-1, et seq.; (ix) the Clean Air Act, as amended, 42 U.S.C. 7401, et seq.; (x) the New Jersey Air Pollution Control Act, as amended, N.J.S.A. 26:2C-1, et seq.; and (xi) any and all laws, regulations, and executive orders, both Federal, State and local, pertaining to pollution or protection of the environment (including laws, regulations and other requirements relating to emissions, discharges, releases or threatened releases of pollutants, contaminants, or hazardous or toxic materials or wastes into ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, or hazardous or toxic material or wastes), as the same may be amended or supplemented from time to time. Any capitalized terms which are defined in any Applicable Environmental Law shall have the meanings ascribed to such terms in sa id laws; provided, however, that if any of such laws are amended so as to broaden any term defined therein, such broader meaning shall apply subsequent to the effective date of such amendment.

Hazardous Substance. The words "Hazardous Substance" are used in their very broadest sense and refer to materials that, because of their quantity, concentration or physical chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. "Hazardous Substances" include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. "Hazardous Substances" also include without limitation petroleum and petroleum by-products or any fraction thereof and asbestos.

LC Indebtedness. The words "LC Indebtedness" mean the liability of the Company to pay to the Bank (a) the sums due to the Bank pursuant to Article 2 of that certain Letter of Credit and Reimbursement Agreement dated as of August 1, 1995, by and between the Company and the Bank (the "Reimbursement Agreement"), together with the contingent liability of the Company with respect to reimbursement of draws on the Letter of Credit, and any and all other advances made pursuant to this Agreement and all other payment obligations of the Company hereunder, (b) all liabilities and obligations of the Company to the Bank under the other Loan Documents (as defined in the Reimbursement Agreement), and (c) any and all reasonable expenses and out-of-pocket costs incurred by the Bank in connection with the enforcement of this Agreement or any other Loan Document or the protection of the Bank's rights hereunder or thereunder;

Occupant. The word "Occupant" means individually and collectively all persons or entities occupying or utilizing the Real Property, whether as owner, tenant, operator or other occupant.

Real Property. The word "Real Property" means the Real Property, and all improvements thereon located on Lots 7, 6.01 and a small part of Lots 6 of Block 147 in the tax map of Burlington, Township, County of Burlington, State of New Jersey, as more particularly described on Schedule "A" attached hereto.

REPRESENTATIONS. The following representations based are made to the Bank, subject to disclosures made pursuant to that certain Environmental Questionnaire delivered to and accepted by the Bank in writing:

Use of Real Property. After due inquiry and investigation, the Company has no knowledge, or reason to believe, that there has been any use, generation, manufacture, storage, treatment, refinement, transportation, disposal, release, or threatened release of any Hazardous Substance by any person on, under, or about the Real Property.

Hazardous Substances. After due inquiry and investigation, the Company has no knowledge, or reason to believe, that the Real Property, whenever and whether owned by previous Occupants, has ever contained asbestos, PCB or other Hazardous Substances, whether used in construction or stored on the Real Property.

No Notices. The Company has received no summons, citation, directive, letter or other communication, written or oral, from any agency or department of any county or state or the United States Government concerning any intentional or uninten ...