EXHIBIT 4.9
LOAN NO. 332156
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is entered into as of December 30, 1997 by the
undersigned (the "Indemnitor") in favor of The Northwestern Mutual Life
Insurance Company ("Northwestern") and the other Indemnified Parties referred to
herein.
RECITALS
A. Northwestern is contemporaneously herewith making a loan (the
"Loan") to Echelon International Corporation (the "Borrower") secured or to be
secured by a Mortgage, Deed to Secure a Debt or Deed of Trust and Security
Agreement from Borrower to Northwestern (the "Mortgage") on the fee title and/or
leasehold interest in the property described in Exhibit "A" attached hereto.
B. In order to induce Northwestern to make the Loan, the Indemnitor has
agreed to execute and deliver this Indemnity Agreement.
C. Indemnitor has a substantial direct or indirect interest in the
Property, financial or otherwise.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Indemnitor hereby agrees and covenants for the benefit of
Northwestern and the other Indemnified Parties as follows:
1. The following definitions shall apply to this Indemnity Agreement:
(a) "Environmental Activity or Condition" means the presence, use,
generation, manufacture, production, storage, release, threatened release,
discharge, disposal or transportation of any Hazardous Substance on, onto, in,
under, over or from the Property or the violation of any Environmental Law
because of the condition of, or activity on, the Property.
(b) "Environmental Law" means all law relating to hazardous waste,
chemical substances or mixtures or hazardous, toxic, dangerous or unhealthy
substances or conditions or relating to the interaction of the use or ownership
of property and the environment, whether such law is: (i) criminal or civil,
(ii) federal, state or local, (iii)
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statutory, common law or administrative regulation, (iv) currently in effect or
enacted in the future.
(c) "Hazardous Substance" means any substance which (i) is designated
as hazardous, toxic or dangerous or similarly designated under any Environmental
Law, (ii) is regulated under any Environmental Law or by any governmental or
quasi-governmental agency, or (iii) could be a hazard to health, safety or
property values. Without limiting the foregoing, Hazardous Substances shall
include underground storage tanks, asbestos, urea formaldehyde insulation,
polychlorinated biphenyls, dioxins and petroleum products.
(d) "Property" means the property described in Exhibit "A" attached
hereto, including the soil, surface water, ground water, air and improvements
on, beneath or above such property.
2. The Indemnitor hereby agrees to indemnify, defend and hold
Northwestern and its trustees, officers, policyholders, employees and agents
(collectively, the "Indemnified Parties") harmless from and against any and all
damages, liabilities, losses, costs and expenses, including reasonable
attorneys' fees, (collectively, "Damages") suffered or incurred by any of the
Indemnified Parties as a result of any Environmental Activity or Condition which
would not have been suffered or incurred if Northwestern had not made the Loan.
The liability of Indemnitor as set forth in the preceding sentence includes,
without limitation, the following:
(a) Any costs of, or liability for, investigation, cleanup or
remediation of environmental damage;
(b) Any damages resulting from the diminution in value or
unmarketability of the Property or any other property;
(c) Any consequential or punitive damages suffered or incurred by any
of the Indemnified Parties;
(d) Any fines, penalties, assessments, judgments or other liabilities
resulting from any claim, judgment or finding concerning the violation
of any Environmental Law;
(e) Any amounts expended by any of the Indemnified Parties in good
faith to settle or compromise any claim or allegation of liability
covered by this Agreement.
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The liability of the Indemnitor hereunder shall continue, without reduction or
change, upon and subsequent to Northwestern becoming owner of the Property
through foreclosure, deed-in-lieu of foreclosure or otherwise, excepting only
Damages resulting from actions taken either by Northwestern, by successive
owners of the Property or by those contracting with Northwestern or any
successive owner subsequent to Northwestern becoming owner of the Property;
provided, however, that the Indemnitor shall nonetheless be responsible for the
actions of any party investigating or cleaning up Hazardous Substances, whether
or not contracted for by Northwestern, if the Indemnitor is otherwise liable
hereunder or otherwise for such investigation or clean up. The liability of the
Indemnitor hereunder shall not be reduced or otherwise affected by any
Environmental Activity or Condition occurring or existing prior to Northwestern
becoming owner of the Property even if caused in whole or part by a predecessor
in title, tenant, trespasser or other third person, whether on or off of the
Property. As between the Indemnitor and the Indemnified Parties, the agreements
by the Indemnitor hereunder shall override and be in lieu of any statutory,
regulatory or common law prescriptions for liability, contribution or cost
sharing.
3. The liability of the Indemnitor under this Indemnity Agreement (i)
shall not be subject to any limitations on liability set forth in any of the
documents evidencing the Loan and (ii) shall be an unsecured obligation of
Indemnitor to each of the Indemnified Parties, notwithstanding the terms of the
Mortgage or any other agreement.
4. Except as provided in paragraph 2 hereof, without limitation, the
obligations and liability of any Indemnitor under this Indemnity Agreement shall
in no way be waived, released, discharged, reduced, mitigated or otherwise
affected by:
(a) The repayment of the Loan and/or the satisfaction or release
of the Mortgage; or
(b) Any neglect, delay or forbearance of Northwestern in
demanding, requiring or enforcing payment of the indemnity due hereunder; or
(c) The receivership, bankruptcy, insolvency or dissolution of
Indemnitor or any affiliate thereof; or
(d) Any sale or refinancing of, or other transactions related to,
the Property by Borrower or Northwestern; or
(e) Indemnitor transferring or divesting any or all of its estate,
right, title or interest in or to the Property or any interest in any entity.
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5. Without limiting the other provisions hereof, in the event any claim
(whether or not a judicial or administrative action is involved) is asserted
against any of the Indemnified Parties with respect to any Environmental
Activity or Condition, Northwestern shall have the right to select the
engineers, other consultants and attorneys for the defense of the Indemnified
Parties, to determine the appropriate legal strategy for such defense and to
compromise or settle such claim, all in Northwestern's discretion, and the
Indemnitor shall be liable to Northwestern in accordance with the terms hereof
for all Damages suffered or incurred by Northwestern in this regard.
6. Without limiting the other provisions hereof, if Northwestern
acquires legal possession and/or title to the Property and Northwestern becomes
aware of any Environmental Activity or Condition for which Indemnitor may have
liability in accordance with the other provisions of this Indemnity Agreement,
whether or not a claim is asserted against Northwestern or any of the other
Indemnified Parties, Northwestern shall have the right to take such action as
Northwestern shall deem reasonably necessary, in Northwestern's discretion, to
protect health, safety and property values and to minimize the probability or
extent of liability to Northwestern and the other Indemnified Parties,
including, without limitation, investigation and/or cleanup, and the Indemnitor
shall be liable to Northwestern in accordance with the terms hereof for all
Damages suffered or incurred by Northwestern in this regard.
7. No action or proceeding brought or instituted under this Indemnity
Agreement and no recovery made as a result thereon shall be a bar or defense to
any further action or proceeding under this Indemnity Agreement.
8. The covenants, agreements, indemnities, terms and conditions
contained in this Indemnity Agreement shall extend to, and be binding upon, the
Indemnitor, its heirs, executors, administrators, successors and assigns, and
shall inure to the benefit of, and may be enforced by, Northwestern or any of
the other Indemnified Parties and its and their successors and assigns.
9. Each provision of this Indemnity Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Indemnity Agreement shall be prohibited, invalid or
ineffective under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Indemnity Agreement.
10. Indemnitor shall reimburse Northwestern and the other Indemnified
Parties for all reasonable attorneys' fees and expenses incurred in connection
with the enforcement of the Indemnified Parties' rights under this Indemnity
Agreement, including those
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incurred in any case, action, proceeding, claim under the Federal Bankruptcy
Code or any successor statute.
11. As additional assurance for the timely performance of the
obligations of the Indemnitor hereunder, Indemnitor hereby assigns to
Northwestern any rights such Indemnitor may have against any other person or
entity (including, without limitation, any present, future or former owners,
tenants or other occupants or users of the Property or any portion thereof)
relating to the matters covered by this Indemnity Agreement.
12. No consent by any Indemnitor shall be required for any assignment
or reassignment of the rights of Northwestern hereunder to one or more
purchasers of the Loan or the Property or any portion of either.
IN WITNESS WHEREOF, the undersigned Indemnitor has executed this
Indemnity Agreement as of the day and year first above written.
ECHELON INTERNATIONAL
CORPORATION, a Florida corporation
By:_______________________________
By:_______________________________
(corporate seal)
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