EXHIBIT F
FORM OF ENVIRONMENTAL INDEMNITY AGREEMENT
ENVIRONMENTAL INDEMNITY AGREEMENT
---------------------------------
THIS ENVIRONMENTAL INDEMNITY AGREEMENT ("Agreement") dated as of the __ day
of ________, 199__, made by AFC ENTERPRISES, INC., a Minnesota corporation
having an office at Six Concourse Parkway, Suite 1700, Atlanta, Georgia 30328-
5352 (the "Indemnitor"), for the benefit of BANCO POPULAR DE PUERTO RICO, having
offices at 0 Xxxx 00/xx/ Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Lender"). All
capitalized terms appearing herein and not defined herein shall have the
meanings set forth in the Credit Agreement, dated as of the date hereof, between
Indemnitor and Lender (the "Credit Agreement").
R E C I T A L S
- - - - - - - -
A. [Indemnitor is the actual, record and beneficial owner of the real
property more particularly described in Schedule A attached hereto and by this
----------
reference made a part hereof (the "Land"), together with the improvements
located thereon (the ("Improvements"); the Land and the Improvements,
collectively, the ("Premises")./Indemnitor is the actual and beneficial owner of
the leasehold interest in the real property more particularly described in
Schedule A attached hereto and by this reference made a part hereof (the
----------
("Property"), together with a leasehold interest in the improvements located
thereon (the ("Improvements"); the Property and the Improvements, collectively,
the ("Premises") pursuant to that certain lease dated _________, 199__ (the
("Lease") between __________, as landlord, and Indemnitor, as tenant.]
B. Lender has agreed to make a loan to Indemnitor in the maximum
principal amount of $_________ (the "Loan") to, among other things, finance
Indemnitor's acquisition of the Premises and construction of the Improvements.
C. The Loan will be evidenced by the Note and secured by, among other
things, the Mortgage.
D. To induce Lender to make the Loan and to accept the Note and Mortgage,
Indemnitor has agreed to execute and deliver this Agreement, which Agreement is
to be executed by Indemnitor and to be binding upon Indemnitor and its
successors and assigns.
E. Lender has refused to make the Loan or accept the Note and Mortgage
unless this Agreement is executed by Indemnitor and delivered to Lender.
NOW, THEREFORE, in consideration of the Loan, and for other good and
valuable consideration, the receipt whereof is hereby acknowledged, Indemnitor,
for itself, its
successors and assigns, hereby covenants and agrees with Lender for the benefit
of Lender, its indorsees, successors and assigns, as follows:
1. Guarantee. Indemnitor unconditionally guarantees to Lender (i) the
---------
prompt payment, when due, of all "Claims and Costs" (as defined in paragraph
2(a) of this Agreement) and (ii) the timely performance of all of the
obligations of Indemnitor under this Agreement. All of the obligations
guaranteed or undertaken by Indemnitor in clauses (i) and (ii) of this paragraph
1 are hereinafter collectively referred to as the "Obligations".
2. Indemnity. (a) Indemnitor unconditionally agrees to indemnify and
---------
hold harmless Lender, its directors, officers, employees, agents, counsel,
successors and assigns from and against any and all losses, claims, damages,
penalties, liabilities, costs and expenses (including reasonable attorneys' fees
and court costs), fines, injuries, penalties, response costs (including the cost
of any required or necessary investigation, testing, monitoring, repair,
cleanup, detoxification, preparation of any closure or other required plans, or
other removal, response or remedial action at or relating to the Premises)
(collectively, the "Claims and Costs"), with respect to, as a direct or
indirect result of, or arising out of any of the following: (i) any law,
ordinance or regulation, lawsuit (brought or threatened), settlement, agreement,
consent order or judgment, injunction, restraining order, or requirement of any
insurer of the Premises or any portion thereof, relating to the generation,
presence, management, disposal, release (or threatened release), escape,
seepage, leakage or clean-up of any Hazardous Materials (as hereinafter defined)
at, on, in, from or under all or a portion of the Premises or any other real
property owned by Indemnitor in violation of any applicable Environmental Law
(as hereinafter defined); (ii) the migration of Hazardous Materials from the
Premises to any other property or onto the Premises from any property or area
adjacent to the Premises or any other real property owned by Indemnitor in
violation of any applicable Environmental Law; (iii) the past treatment,
disposal or storage of Hazardous Materials or the transportation of Hazardous
Materials onto or from the Premises or any other real property owned by
Indemnitor in violation of any applicable Environmental Law; or (iv) the
incorporation, whether prior or future, of any Hazardous Materials into the
Premises in violation of any applicable Environmental Law, except to the extent
that any of the foregoing are caused by Lender or Lender's designee after Lender
or Lender's designee has taken possession of or acquired title to the Premises
by foreclosure or other means.
(b) For the purpose of this Agreement, the term "Hazardous Materials"
shall include, but not be limited to, (i) any substances defined as "hazardous
substances," "pollutants," "contaminants," "hazardous materials," "hazardous
wastes," or "hazardous or toxic substances" or related materials as now or
hereafter defined in any applicable federal, state or local law, regulation,
ordinance or directive (collectively, "Environmental Laws"), including but not
limited to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. ' 9601, et seq.; the Hazardous Materials Transportation Act, 49
------
U.S.C. ' 1801, et seq.; the Toxic Substances Control Act, 15 U.S.C. ' 2601, et
-- --- --
seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. ' 9601,
---
et seq.; the Clean Water Act, 33 U.S.C. ' 1251 et seq.; the Clean Air Act, 42
-- --- -- ---
U.S.C. ' 7412 et seq.; [local environmental laws to be
-- ---
2
added]; as any such acts may be amended, modified or supplemented; (ii) those
substances listed or otherwise identified in the regulations adopted and
publications issued, as may be amended, modified or supplemented, pursuant to
any of the above referenced statutes; (iii) lead-based or lead-containing paint;
and (iv) any friable asbestos, airborne asbestos, or any substance or material
containing asbestos. The term "Hazardous Materials" shall specifically not
include the emission, discharge, generation, processing, storage or
transportation of any hazardous substances or hazardous materials (including,
without limitation, cleaning materials and solvents) pursuant to, and in
accordance with, a valid federal or state permit, license or order or otherwise
in accordance with applicable Environmental Laws.
3. Required Action of Indemnitor. Indemnitor shall comply with any law,
-----------------------------
ordinance, regulation, settlement, agreement, consent order, decree, judgment,
injunction or directive, affecting the Premises, or any requirement of any
insurer of the Premises or any portion thereof, and shall timely perform, or
cause to be performed, any investigation, testing, monitoring, repair, cleanup,
detoxification, preparation of any closure or other required plans, or other
removal, response or remedial action relating to (i) the presence, management,
disposal, release or threatened release, escape, seepage or leakage of any
Hazardous Materials at, on, in, from or under all or a portion of the Premises
or any other real property owned by Borrower in violation of Environmental Laws;
(ii) the migration of Hazardous Materials from the Premises to any other
property, or onto the Premises from any property or area adjacent to the
Premises in violation of Environmental Laws; (iii) the generation,
transportation, storage or disposal of Hazardous Materials onto or from the
Premises in violation of Environmental Laws; or (iv) the incorporation, whether
prior or future, of any Hazardous Materials into the Premises in violation of
Environmental Laws.
4. Representations, Warranties and Covenants. Indemnitor hereby
-----------------------------------------
represents, warrants and covenants as follows:
(a) Indemnitor is a corporation duly organized and validly existing
under the laws of Minnesota, is fully authorized to do business in the State of
[jurisdiction where Premises are located], and has full power and authority to
consummate the transactions contemplated hereby.
(b) This Agreement has been duly executed and delivered by Indemnitor
and constitutes the valid and binding obligations of Indemnitor and is
enforceable against Indemnitor in accordance with its terms, subject to any
limitations under applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors= rights generally and by
general equitable principles.
(c) The consummation of the transactions contemplated hereby and the
performance by Indemnitor of its obligations under this Agreement will not
result in any breach of, give rise to a lien under, or constitute a default
under, any mortgage, deed of trust, lease, bank loan or credit agreement,
partnership agreement, corporate charter, by-laws or other agreement or
instrument to which Indemnitor is a party or by which it may be bound or
affected.
3
(d) Indemnitor will promptly comply with all conditions of this
Agreement. Indemnitor will promptly (upon transmittal or receipt) deliver to
Lender copies of all notices and correspondence with respect to: (i) this
Agreement and (ii) any matter for which notice is required under Section 6.7 of
the Credit Agreement.
(e) Indemnitor agrees to pay on written demand all expenses
(including reasonable legal services of every kind and cost of any insurance,
any payment of taxes or other charges) of, or incidental to, or in any way
relating to the enforcement or protection of the rights of Lender hereunder.
(f) Indemnitor is deriving or expects to derive a financial or other
advantage from each and every Obligation incurred by Indemnitor to Lender.
5. Defaults. The following shall constitute a default hereunder (each,
--------
an "Event of Default"):
(a) If Indemnitor shall fail to timely perform, or cause to be timely
performed, any Obligation and such failure is not cured by Indemnitor within
thirty (30) days of written notice of such failure, provided that if such
failure is not curable within such thirty (30) day period, then Indemnitor shall
have such time as is reasonably required to cure same, provided (x) Indemnitor
promptly commences the cure within such thirty (30) day period, (y) thereafter
Indemnitor diligently attempts to cure such default, and (z) Lender, in its
reasonable judgment, determines that a cure may be effectuated during such
additional period;
(b) If Indemnitor shall fail to comply with any of the covenants made
by it in this Agreement, or if at any time any representation or warranty made
by Indemnitor to Lender in this Agreement or in any certificate or statement
delivered in connection herewith shall be false or misleading to an extent
deemed by Lender, in its reasonable judgment, to be material and such failure is
not cured by Indemnitor within thirty (30) days of written notice of such
failure, provided that if such failure is not curable within such thirty (30)
day period, then Indemnitor shall have such time as is reasonably required to
cure same, provided (x) Indemnitor promptly commences the cure within such
thirty (30) day period, (y) thereafter Indemnitor diligently attempts to cure
such default, and (z) Lender, in its reasonable judgment, determines that a cure
may be effectuated during such additional period; or
(c) If at any time Indemnitor shall revoke or attempt in bad faith to
revoke, disavow, contest, commence any action or raise any defense against its
obligations hereunder.
6. Remedies. Upon the occurrence of an Event of Default hereunder, in
--------
addition to any other remedy provided for under this Agreement or at law or in
equity. Indemnitor hereby authorized Lender, in Lender=s sole discretion, at
any time:
(a) At any time, or from time to time, without notice to Indemnitor
or to any other person, any such notice being hereby expressly waived,
immediately to set off and appropriate and apply any and all deposits (general
or special) at any time held by or owing to
4
Lender, if any, which are given to secure the obligations and liabilities of
Indemnitor hereunder to or for the credit or the account of Indemnitor against
and on account of the obligations and liabilities of Indemnitor hereunder;
(b) To foreclose nonjudicially or judicially against any real or
personal property security it holds for the Obligations or any part thereof, or
exercise any other remedy against Indemnitor or any security; and
(c) To exercise all other rights and remedies provided under the
Mortgage, the Credit Agreement and the other Loan Documents.
7. Equitable Relief; Specific Performance. Indemnitor acknowledges and
--------------------------------------
agrees that it may be impossible to measure accurately the damages to Lender
resulting from a breach of Indemnitor's covenant to satisfy the Obligations and
that such a breach will cause irreparable injury to Lender and that Lender may
not have an adequate remedy at law in respect of such breach and, as a
consequence, agrees that such covenant shall be specifically enforceable against
Indemnitor and hereby waives and agrees not to assert any defense against an
action for specific performance of such covenant. This clause shall not
prejudice Lender's rights to assert any and all claims for damages incurred as a
result of Indemnitor's default hereunder, and Lender may, before, during, or
after any foreclosure of the Mortgage, hold Indemnitor liable for any deficiency
arising from Indemnitor's default hereunder and for all losses and damages
sustained and expenses incurred by reason of Indemnitor failing to satisfy the
Obligations.
8. Waiver of Election of Remedies. Indemnitor waives any right to
------------------------------
require or compel Lender to (a) proceed against or exhaust any security for the
Obligations; or (b) pursue any other remedy in Lender's power whatsoever; and
failure of Lender to do any of the foregoing shall not exonerate, release or
discharge Indemnitor from its absolute, unconditional and independent
liabilities to Lender hereunder. Indemnitor hereby waives any and all legal
requirements that Lender shall institute any action or proceedings at law or in
equity in respect of the Loan or any other Loan Document or resort to or seek to
realize upon the security held by Lender, as a condition precedent to bringing
an action against Indemnitor upon this Agreement.
9. Right of Separate Actions. Lender may bring and prosecute a separate
-------------------------
action against Indemnitor to enforce its liabilities hereunder, whether or not
any action is brought against any other person and whether or not any other
person is joined in any such action or actions. Nothing shall prohibit Lender
from exercising its rights against Indemnitor, any security for the Obligations,
and any other person simultaneously, jointly and/or severally.
10. Waiver of Rights of Subrogation. Indemnitor hereby irrevocably waives
-------------------------------
any rights to be subrogated to the rights of Lender with respect to the
Obligations. No failure on the part of Lender to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Lender
5
of any right, remedy or power hereunder preclude any other or future
exercise of any other right, remedy or power.
11. Waiver of Notice, Consent, Etc. (a) This Agreement shall be
-------------------------------
construed as a continuing, absolute and unconditional indemnity.
(b) Indemnitor hereby waives notice of acceptance of this Agreement
by Lender and of presentment, demand, protest, notice of protest and of
dishonor, notices of default (except as otherwise expressly provided herein) and
all other notices relative to this Agreement of every kind and description now
or hereafter provided by any other agreement between Indemnitor and Lender or
any statute or rule of law.
(c) Indemnitor waives any and all notice of the creation, renewal,
extension or accrual of any of the Obligations or of the reliance by Lender upon
this Agreement. Said Obligations, and each of them, shall conclusively be
deemed to have been created, contracted, or incurred in reliance upon this
Agreement and all dealings between Indemnitor and Lender shall likewise be
conclusively presumed to have been made or consummated in reliance upon this
Agreement.
(d) Indemnitor hereby agrees that the terms, covenants and provisions
contained in the Note, the Credit Agreement, the Mortgage or in any other Loan
Document may be altered, extended, modified, waived, released or canceled by
Lender, and Indemnitor agrees that this Agreement and its liability hereunder
shall be in no way affected, diminished or released by any such alteration,
extension, modification, release, waiver or cancellation.
12. Waiver of Priority of Collateral. Indemnitor hereby agrees that, in
--------------------------------
the event that any of its property is or may be hypothecated as security for any
of its obligations under any other Loan Document, any right of Indemnitor to
have such other property first applied to the discharge of such obligations is
hereby irrevocably waived by Indemnitor. Indemnitor hereby expressly recognizes
that any of its property which is or may be hereafter hypothecated pursuant to
the Mortgage is security for such obligations and is not security for this
Agreement.
13. No Discharge; Remedies Cumulative. Indemnitor shall not be
---------------------------------
discharged, released or exonerated, in any way, from its absolute, unconditional
and independent liabilities hereunder, even though any rights or defenses which
Indemnitor may have against Lender or others may be destroyed, diminished or
otherwise affected by:
(a) Any declaration by Lender of a default in respect of any of the
Obligations;
(b) The exercise by Lender of any rights or remedies against
Indemnitor or any other person under any other Loan Document;
6
(c) The failure of Lender to exercise any rights or remedies against
Indemnitor or any other person under any other Loan Document;
(d) The sale or enforcement of, or realization upon (through judicial
foreclosure, power of sale or any other means) any security for any of the
Obligations, even though (i) recourse may not thereafter be had against
Indemnitor under any other Loan Document for any deficiency, or (ii) Lender
fails to pursue any such recourse which might otherwise be available, whether by
way of deficiency judgment following judicial foreclosure or otherwise; and
no such action by Lender will release or limit the liability of Indemnitor to
Lender. All rights and remedies of Lender hereunder or under any of the Loan
Documents shall be cumulative and may be exercised singularly or concurrently
against the party to whom enforcement is sought. The rights of Lender under
this Agreement are in addition to and not in diminution of the rights of Lender
under any other Loan Document.
14. Survival. Each and every of the terms, covenants and conditions of
--------
this Agreement shall survive the repayment of Indemnitor's obligations under the
Loan Documents, and Indemnitor shall not be released by any act or thing which
might, but for this provision, be deemed a legal or equitable discharge of a
surety, or by reason of any waiver, extension, modification, forbearance or
delay or other act or omission of Lender or its failure to proceed promptly or
otherwise, or by reason of any action taken or omitted or circumstance which may
or might vary the risk or affect the rights or remedies of Indemnitor or by
reason of any further dealings between Indemnitor and Lender, whether relating
to the Loan or otherwise, and Indemnitor hereby expressly waives and surrenders
any defenses to its liability hereunder based upon any of the foregoing acts,
omissions, things or agreements or waivers of Lender; it being the purpose and
intent of the parties hereto that the obligations of Indemnitor hereunder shall
survive the repayment of Indemnitor's obligations under the Loan Documents and
are absolute and unconditional under any and all circumstances.
15. Notices. Any notice, demand, statement, request or consent made
-------
hereunder shall be in accordance with and as provided in Section 9.2 of the
Credit Agreement.
16. Entire Agreement. This Agreement represents the entire agreement
----------------
between Indemnitor and Lender with respect to the matters referred to herein,
and no waiver or modification hereof or thereof shall be effective unless in
writing and signed by Lender and Indemnitor.
17. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
-------------
PARTIES HEREUNDER SHALL BE CONSTRUED, ENFORCED, AND INTERPRETED ACCORDING TO THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE IN AND PERFORMED IN
THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. UNLESS
THE TEXT OTHERWISE REQUIRES, ALL TERMS USED HEREIN SHALL HAVE THE MEANING
SPECIFIED IN THE UNIFORM COMMERCIAL CODE
7
AS IN EFFECT IN THE STATES OF NEW YORK AND __________ AT THE DATE HEREOF.
18. Successors and Assigns. This Agreement shall be binding upon
----------------------
Indemnitor and upon its successors and assigns and shall inure to the benefit of
Lender and its indorsees, successors and assigns.
19. Time of the Essence. Time shall be of the essence with regard to the
-------------------
performance by Indemnitor of its obligations under this Agreement.
20. Waiver of Trial by Jury. To the extent permitted by law, Lender and
-----------------------
Indemnitor shall and hereby do waive trial by jury in any action, proceeding or
counterclaim brought by any of the parties hereto against the other on any
matters arising out of or in any way connected to the Loan, this Agreement or
any of the other Loan Documents.
IN WITNESS WHEREOF, this Agreement has been executed by the undersigned as
of the date first above written.
AFC ENTERPRISES, INC.,
a Minnesota corporation
By:_____________________________
Name:___________________________
Title:__________________________
SCHEDULE A
LEGAL DESCRIPTION
9
