INDEMNITY AGREEMENT Exhibit 10(a)(5)(B)
REGARDING HAZARDOUS MATERIALS
THIS INDEMNITY AGREEMENT REGARDING HAZARDOUS MATERIALS (this
"Agreement"), is made as of December 28, 2001, by XXXXX EQUITY, INC., a Florida
corporation, having a mailing address of 000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000 (the "Borrower"), for the benefit of the Lenders from time to time
party to that certain Revolving Credit Loan Agreement, dated as of December 28,
2001 by and among Borrower, Fleet National Bank, as Agent (the "Agent"), and
such Lenders (the "Lenders"), as the same may be amended from time to time (the
"Credit Agreement").
W I T N E S S E T H:
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WHEREAS Borrower owns certain real property located at 00000 Xxxxx
Xxxxxx Xxxxx and 10926 Xxxxx Xxxxxx Drive, both in Charlotte, North Carolina and
more particularly described in Exhibit A attached hereto and by this reference
made a part hereof (the "Real Estate") which shall be the "Mortgaged Property"
as defined in the Credit Agreement and more particularly described in the
Security Deed (as defined below) (the Real Estate, together with all
improvements now or hereafter located in, on or under the Real Estate,
collectively referred to as the "Property");
WHEREAS, pursuant to the Credit Agreement, the Lenders have provided
their commitment to provide loans and/or letters of credit in the aggregate
amount of up to $125,000,000 to Borrower on a revolving credit basis pursuant to
the terms and conditions of the Credit Agreement (the "Loans and LOC
Obligations");
WHEREAS, the Loans and LOC Obligations are or will be evidenced by
certain Notes from Borrower to the Lenders (the "Notes") and secured by, among
other things, a certain Deed of Trust and Security Agreement from Borrower to
the Trustee named therein for the benefit of Agent, conveying the Property as
security for the Loans and LOC Obligations under the Credit Agreement and
recorded or to be recorded in the public records of the counties where such
Property is located (together with all amendments, modifications,
consolidations, increases, supplements and extensions thereof, the "Security
Deed");
WHEREAS, as a condition to the effectiveness of the Credit Agreement
and the making of Loans therunder, the Lenders require Borrower to execute and
deliver this Agreement, which provides certain indemnities concerning Hazardous
Materials (as hereinafter defined), presently upon, in or under the Property, or
hereafter placed or otherwise located thereon or therein; and
WHEREAS, to induce the Lenders to enter into the Credit Agreement,
Borrower has agreed to provide this Agreement for the benefit of the Lenders;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
($10.00) Dollars and other good and valuable consideration, the receipt and
sufficient of which are hereby acknowledged, Agent, by its acceptance of
delivery hereof on behalf of the Lenders, and Borrower hereby agree as follows:
1. Definitions. The following definitions shall apply for
purposes of this Agreement:
(a) "Environmental Law" shall mean any federal, state or local
statute, regulation or ordinance or any judicial or
administrative decree or decision, whether now existing or
hereinafter enacted, promulgated or issued, with respect to any
Hazardous Materials, drinking water, groundwater, wetlands,
landfills, open dumps, storage tanks, underground storage tanks,
solid waste; waste water, storm water run-off waste emissions or
xxxxx. Without limiting the generality of the foregoing, the term
shall encompass each of the following statutes, and regulations
promulgated thereunder, and amendments and successors to such
statutes and regulations, as may be enacted and promulgated from
time to time: (i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (codified in scattered
sections of 26 U.S.C.; 33 U.S.C.; 42 U.S.C. and 42 U.S.C.ss.9601
et seq.); (ii) the Resource Conservation and Recovery Act of 1976
(42 X.X.X.xx. 6901 et seq.); (iii) the Hazardous Materials
Transportation Act (49 U.S.C.ss.1803 et seq.); (iv) the Toxic
Substances Control Act (15 U.S.C.ss.2061 et seq.); (v) the Clean
Water Act (33 U.S.C.ss.1251 et seq.); (vi) the Clean Air Act (42
U.S.C.ss.7401 et seq.); (vii) the Safe Drinking Water Act (21
U.S.C.ss.349; 42 U.S.C.ss.201 andss.300f et seq.); (viii) the
National Environmental Policy Act of 1969 (42 U.S.C.ss.432); (ix)
the Superfund Amendment and Reauthorization Act of 1986 (codified
in scattered sections of 10 U.S.C., 29 U.S.C., 33 U.S.C. and 42
U.S.C.); and (x) Title III of the Superfund Amendment and
Reauthorization Act (40 U.S.C.ss.1101 et seq.).
(b) "Hazardous Materials" shall mean each and every element,
compound, chemical mixture, contaminant, pollutant, material,
waste or other substance which is defined, determined or
identified as hazardous or toxic under any Environmental Law.
Without limiting the generality of the foregoing, the term shall
mean and include:
(i) "hazardous substances" as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, the Superfund Amendment and Reauthorization Act of
1986, or Title III of the Superfund Amendment and
Reauthorization Act, each as amended, and regulations
promulgated thereunder;
(ii) "hazardous waste" as defined in the Resource Conservation
and Recovery Act of 1976, as amended, and regulations
promulgated thereunder;
(iii)"hazardous materials" as defined in the Hazardous Materials
Transportation Act, as amended, and regulations promulgated
thereunder; and
(iv) "chemical substance or mixture" as defined in the Toxic
Substances Control Act, as amended, and regulations
promulgated thereunder.
(c) "Indemnified Parties" shall mean the Agent, the Lenders, the
Agent's and each Lender's parent, subsidiaries and affiliates,
each of their respective shareholders, directors, employees and
agents, and the successors and assigns of any of them; and
"Indemnified Party" shall mean any one of the Indemnified
Parties.
(d) "Requisite Lenders" shall have the meaning assigned to such term
in the Credit Agreement.
(e) "Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, storing, escaping,
leaching, dumping, or discarding, burying, abandoning, or
disposing into the environment in violation of Environmental Laws
or otherwise requiring action to prevent or mitigate damage or
threats to the public health, welfare, safety or the environment.
(f) "Threat of Release" shall mean a substantial likelihood of a
Release which requires action to prevent or mitigate damage to
the environment which may result from such Release.
2. Indemnity Agreement. Borrower, covenants and agrees, at its sole
cost and expense, to indemnify, defend (at trial and appellate levels and with
attorneys, consultants and experts reasonably acceptable to the Agent) and hold
each Indemnified Party harmless against and from any and all liens, damages,
losses, liabilities, obligations, settlement payments, penalties, assessments,
citations, directives, claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses of any kind or of any nature
whatsoever (including, without limitation, reasonable attorneys', consultants'
and experts' fees and disbursements incurred in investigating, defending
against, settling or prosecuting any claim, litigation or proceeding) which may
at any time be imposed upon, incurred by or asserted or awarded against such
Indemnified Party or the Property and attributable to events, acts or
circumstances first occurring prior to or during the period the Borrower
maintains an ownership interest in such Property, and arising directly or
indirectly from or out of: (A) the Release or Threat of Release of any Hazardous
Materials on, in, under, from or affecting all or any portion of the Property or
any surrounding areas, regardless of whether or not caused by or within the
control of Borrower; (B) the violation of any Environmental Laws relating to or
affecting the Property, the Borrower, whether or not caused by or within the
control of the Borrower; (C) the failure of the Borrower to comply fully with
the terms and conditions of this Agreement, (D) the violation of any
Environmental Laws in connection with other real property of the Borrower which
gives or may give rise to any rights whatsoever in any party with respect to the
Property by virtue of any Environmental Laws; or (E) the enforcement of this
Agreement, including, without limitation, (i) the costs of assessment,
containment and/or removal of any and all Hazardous Materials from all or any
portion of the Property or any surrounding areas affected thereby, (ii) the
costs of any actions taken in response to a Release or Threat of Release of any
Hazardous Materials on, in, under or affecting all or any portion of the
Property or any surrounding areas affected thereby to prevent or minimize such
Release or Threat of Release so that it does not migrate or otherwise cause or
threaten danger to present or future public health, safety, welfare or the
environment, and (iii) costs incurred to comply with the Environmental Laws in
connection with all or any portion of the Property or any surrounding areas
affected thereby, except that such indemnity shall not apply to any Release of
Hazardous Substances or to any violation of Environmental Laws first occurring
after Borrower has been dispossessed of the Property by the appointment of a
receiver, foreclosure proceedings pursuant to the Security Deed or a transfer in
lieu of such foreclosure. The Agent's, the Lenders' and the other Indemnified
Parties' rights under this Agreement shall be in addition to all rights which
they may have under the Security Deed, the Credit Agreement, the Notes, and
under any other documents or instruments evidencing, securing or relating to the
Loans and LOC Obligations (the Security Deed, the Credit Agreement, the Notes,
and such other documents or instruments, as amended or modified from time to
time, being herein referred to as the "Loan Documents"), and payments by
Borrower under this Agreement shall not reduce Borrower's obligations and
liabilities under any of the Loan Documents, except for Borrower's environmental
indemnity obligations under any such Loan Documents.
3. Survival.
(a) The indemnity set forth above in Paragraph 2 shall survive the
repayment and termination of the Loans and LOC Obligations and
any exercise by Agent, on behalf of the Lenders, of any remedies
under the Security Deed, including, without limitation, the power
of sale, or any other remedy in the nature of foreclosure, and
shall not merge with any deed given by the Borrower to Agent, on
behalf of the Lenders, in lieu of foreclosure or any deed under a
power of sale.
(b) It is agreed and intended by Borrower, Agent and the Lenders that
the indemnity set forth above in Paragraph 2 may be assigned or
otherwise transferred by the Agent or any Lender to its
successors and assigns, without notice to Borrower and without
any further consent of Borrower. To the extent consent of any
such assignment or transfer is required by law, advance consent
to any such assignment or transfer is hereby given by Borrower in
order to maximize the extent and effect of the indemnity given
hereby.
4. No Waiver. The liabilities of Borrower under this Agreement shall in
no way be limited or impaired by any amendment or modification of the provisions
of the Loan Documents to or with the Agent or any Lender by Borrower or any
person who succeeds Borrower as owner of the Property. In addition,
notwithstanding any terms of any of the Loan Documents to the contrary, the
liability of Borrower under this Agreement shall in no way be limited or
impaired by: (i) any extensions of time for performance required by any of the
Loan Documents; (ii) any sale, assignment or foreclosure of the Notes or the
Security Deed or any sale or transfer of all or part of the Property; (iii) any
exculpatory provision in any of the Loan Documents limiting the Agent's recourse
to property encumbered by the Security Deed or to any other security, or
limiting the Lenders' rights to a deficiency judgment against the Borrower; (iv)
the accuracy or inaccuracy of the representations and warranties made by the
Borrower under any of the Loan Documents; (v) the release of the Borrower or any
other person from performance or observance of any of the agreements, covenants,
terms or conditions contained in the Loan Documents by operation of law, the
Agent's or the Lenders' voluntary act, or otherwise; (vi) the release or
substitution, in whole or in part, of any security for the Notes; or (vii) the
Agent's failure to record the Security Deed or file any UCC-1 financing
statements (or the Agent's improper recording or filing of any thereof) or to
otherwise perfect, protect, secure or insure any security interest or lien given
as security for the Notes; and, in such case, whether with or without notice to
Borrower and with or without consideration.
5. Waiver by Borrower. Borrower waives any right or claim of right to
cause a marshalling of the assets of Borrower or to cause the Agent, on behalf
of the Lenders, to proceed against any of the security for the Loans and LOC
Obligations before proceeding under this Agreement against Borrower or to
proceed against Borrower in any particular order; Borrower agrees that any
payments required to be made hereunder shall become due within ten (10) days
after Agent's written request.
6. Delay. No delay on the Agent's part in exercising any right, power
or privilege under any of the Loan Documents, on behalf of the Lenders, shall
operate as a waiver of any privilege, power or right hereunder.
7. Releases. Any one or more of Borrower or any other party liable
upon or in respect of this Agreement or the Loans and LOC Obligations may be
released without affecting the liability of any party not so released.
8. 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 individually as fully and completely as if all had signed but one
instrument so that the joint and several liability of each of the undersigned
hereunder shall be unaffected by the failure of any of the undersigned to
execute any or all of the said counterparts.
9. Notices. Each notice, demand, election or request provided for or
permitted to be given pursuant to this Agreement (hereinafter in this paragraph
9 referred to as "Notice") must be in writing and shall be deemed to have been
sufficiently given or served by personal delivery or by sending same by
overnight courier or by depositing same in the United States Mail, postpaid and
registered or certified, return receipt requested, and addressed as follows:
If to Agent:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 021 10
Attn: Structured Real Estate
with a copy to:
Fleet National Bank
000 Xxxxxxxxx Xxxxxx Xxxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telecopy No.: (000) 000-0000
If to Borrower:
Xxxxx Equity, Inc.
000 Xxxxx Xxxx, Xxxxx 000,
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
Each Notice shall be effective upon delivery and the time period, in which a
response to such Notice must be given or any action taken with respect thereto
(if any) shall commence to run from the date of receipt. Rejection or other
refusal to accept or the inability to deliver because of changed address for
which no Notice was given shall be deemed to be receipt of the Notice sent. By
giving at least ten (10) days prior Notice thereof, the Agent, Borrower shall
have the right from time to time and at any time during the term of this
Agreement to change their respective addresses and each shall have the right to
specify as its address any other address within the United States of America,
excepting a post office box.
10. Amendments. No provision of this Agreement may be changed, waived,
discharged or terminated orally, by telephone or by any other means except by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
11. Binding Effect. Except as herein provided, this Agreement shall be
binding upon Borrower and their respective successors and assigns, and shall
inure to the benefit of the Agent, the Lenders, the other Indemnified Parties,
and their respective successors and assigns. Notwithstanding the foregoing,
Borrower, without the prior written consent of the Requisite Lenders in each
instance, may not assign, transfer or set over to another, in whole or in part,
all or any part of its benefits, rights, duties and obligations hereunder,
including, but not limited to, performance of and compliance with conditions
hereof.
12. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This
agreement and the rights and obligations of the parties hereunder shall in all
respects be governed by, and interpreted and determined in accordance with, the
laws of the Commonwealth of Massachusetts (excluding the laws applicable to
conflicts or choice of law). The Borrower has consented to jurisdiction in
Massachusetts and has agreed to service of process in a certain manner with
respect to any action or claim arising out of this Agreement pursuant to ss.20
of the Credit Agreement. The Borrower has waived its right to a jury trial with
respect to any action or claim arising out of this Agreement pursuant to ss.24
of the Credit Agreement.
[signature page follows]
IN WITNESS WHEREOF, Borrower has caused this Agreement to be executed
as of the day and year first written above.
Signed, sealed and delivered XXXXX EQUITY, INC., a Florida corporation
by Assignor in the presence of:
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Unofficial Witness Xxxxxxxxxxx X. Xxxxxx
Its Senior Vice President
/s/ Xxxxxx X. Xxxxxxx
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Notary Public Attest:
Printed Name:
Commission Expiration Date: Printed Title:
[NOTARIAL SEAL] [CORPORATE SEAL]
