Exhibit 10.17
ENVIRONMENTAL INDEMNITY AGREEMENT
ENVIRONMENTAL INDEMNITY AGREEMENT (this "AGREEMENT") made as of the 1st
day of November, 2004 by CEDAR-FRANKLIN VILLAGE LLC, a Delaware limited
liability company, having an office at c/o Cedar Shopping Centers Partnership,
L.P., 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, XX 00000 ("BORROWER"),
and CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., a Delaware limited partnership,
having an office at 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, XX 00000
("PRINCIPAL", and together with Borrower, "INDEMNITOR"), in favor of EUROHYPO
AG, NEW YORK BRANCH, the New York branch of a German banking corporation, having
an office at 1114 Avenue of the Americas, Xxxxxx-Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("INDEMNITEE") and other Indemnified Parties (defined below).
RECITALS:
A. Indemnitee is prepared to make a loan (the "LOAN") to Borrower in
the principal amount of $43,500,000.00 pursuant to a Loan Agreement of even date
herewith between Borrower and Indemnitee (as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time, the "LOAN
AGREEMENT"). Capitalized terms not otherwise defined herein shall have the
meaning set forth in the Loan Agreement.
B. Indemnitee is unwilling to make the Loan unless Indemnitor agrees to
provide the indemnification, representations, warranties, covenants and other
matters described in this Agreement for the benefit of the Indemnified Parties.
C. Indemnitor is entering into this Agreement to induce Indemnitee to
make the Loan.
AGREEMENT
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Indemnitor hereby represents, warrants, covenants and agrees for
the benefit of the Indemnified Parties as follows:
1. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES. (A) Except as
otherwise specifically described in that certain Phase I environmental report
(or Phase II environmental report, if required) in respect of the Property
delivered to Indemnitee (referred to below as the "ENVIRONMENTAL REPORT"), a
copy of which has been provided to Indemnitee, and (b) except as otherwise
disclosed to Lender in connection with the Exxon Remediation, to Indemnitor's
knowledge (a) there are no Hazardous Substances (defined below) or underground
storage tanks in, on, or under the Property, except those that are both (i) in
compliance with all Environmental Laws (defined below) and with permits issued
pursuant thereto and (ii) fully and specifically described to Indemnitee in
writing pursuant to the Environmental Report; (b) there are no past, present or
threatened Releases (defined below) of Hazardous Substances in, on, under or
from the Property which have not been fully remediated in accordance with
Environmental Law; (c) there is no threat of any Release of Hazardous Substances
migrating to the Property; (d) there is no past or present non-compliance with
Environmental Laws, or with permits issued pursuant thereto, in connection with
the Property which has not been fully remediated in accordance with
Environmental Law; (e) Indemnitor does not know of, and has not received, any
written or oral notice or other communication from any Person (including but not
limited to a governmental entity) relating to Hazardous Substances or
Remediation (defined below) thereof, of possible liability of any Person
pursuant to any Environmental Law, other environmental conditions in connection
with the Property, or any actual or potential administrative or judicial
proceedings in connection with any of the foregoing; and (f) Indemnitor has
truthfully and fully provided to Indemnitee, in writing, any and all information
relating to conditions in, on, under or from the Property that is known to
Indemnitor and that is contained in files and records of Indemnitor, including
but not limited to any reports relating to Hazardous Substances in, on, under or
from the Property and/or to the environmental condition of the Property.
2. ENVIRONMENTAL COVENANTS. Indemnitor covenants and agrees that: (a) all uses
and operations on or of the Property, whether by Indemnitor or any other Person,
shall be in compliance with all Environmental Laws and permits issued pursuant
thereto; (b) there shall be no Releases of Hazardous Substances in, on, under or
from the Property; (c) there shall be no Hazardous Substances in, on, or under
the Property, except those that are both (i) in compliance with all
Environmental Laws and with permits issued pursuant thereto and (ii) fully
disclosed to Indemnitee in writing; (d) Indemnitor shall keep the Property free
and clear of all liens and other encumbrances imposed pursuant to any
Environmental Law, whether due to any act or omission of Indemnitor or any other
Person (the "ENVIRONMENTAL LIENS"); (e) Indemnitor shall, at its sole cost and
expense, fully and expeditiously cooperate in all activities pursuant to
Paragraph 3 of this Agreement, including but not limited to providing all
relevant information and making knowledgeable Persons available for interviews;
(f) Indemnitor shall, at its sole cost and expense (but not more than one time
during the term of the Loan unless an Event of Default shall have occurred and
is then continuing or if Lender reasonably suspects that a new Release of a
Hazardous Substance or a condition other than that currently being remediated by
Exxon/Mobil has occurred), perform any environmental site assessment or other
investigation of environmental conditions in connection with the Property, by an
environmental consultant approved by Lender pursuant to any written request of
Indemnitee (including but not limited to sampling, testing and analysis of soil,
water, air, building materials, and other materials and substances whether
solid, liquid or gas), and share with Indemnitee the reports and other results
thereof, and Indemnitee and the other Indemnified Parties shall be entitled to
rely on such reports and other results thereof; (g) Indemnitor shall, at its
sole cost and expense, (i) effectuate Remediation of any condition (including
but not limited to a Release of a Hazardous Substance) in, on, under or from the
Property in full compliance of Environmental Laws or reasonably required by
Indemnitee based upon recommendations and observations of an independent
environmental consultant approved by Lender; (ii) comply with any Environmental
Law; (iii) comply with any directive from any governmental authority; and (iv)
take any other action necessary or appropriate for protection of human health or
the environment regarding Environmental Law; (h) Indemnitor shall not do or
allow any tenant or other user of the Property to do any act with respect to
Hazardous Substances that materially increases the dangers to human health or
the environment, poses an unreasonable risk of harm to any Person (whether on or
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off the Property), impairs or may impair the value of the Property, is contrary
to any requirement of any insurer, constitutes a public or private nuisance,
constitutes waste, or violates any covenant, condition, agreement or easement
applicable to the Property; and (i) Indemnitor shall immediately notify
Indemnitee in writing upon Indemnitor's receipt of written notice regarding (A)
any presence or Releases or threatened Releases of Hazardous Substances in, on,
under, from or migrating towards the Property; (B) any non-compliance with any
Environmental Laws related in any way to the Property; (C) any actual or
potential Environmental Lien; (D) any required Remediation of environmental
conditions relating to the Property; and (E) any written notice or other
communication of which any Indemnitor becomes aware from any source whatsoever
(including but not limited to a governmental entity) relating in any way to
Hazardous Substances or Remediation thereof, possible liability of any Person
pursuant to any Environmental Law, other environmental conditions in connection
with the Property, or any actual or potential administrative or judicial
proceedings in connection with anything referred to in this Agreement.
3. INDEMNIFIED RIGHTS/COOPERATION AND ACCESS. In the event the
Indemnified Parties have reason to believe, in the exercise of reasonable
discretion and good faith, that an environmental hazard exists on the Property
that does not, in the sole discretion of the Indemnified Parties, endanger any
tenants or other occupants of the Property or their guests or the general public
or materially and adversely affects the value of the Property, upon reasonable
notice from the Indemnitee, Indemnitor shall, at Indemnitor's expense, promptly
cause an engineer or consultant reasonably satisfactory to the Indemnified
Parties to conduct any environmental assessment or audit (the scope of which
shall be reasonably satisfactory to Lender) (the scope of which shall be
determined in the sole and absolute discretion of the Indemnified Parties) and
take any samples of soil, groundwater or other water, air, or building materials
or any other invasive testing requested by Indemnitee and promptly deliver the
results of any such assessment, audit, sampling or other testing; provided,
however, if such results are not delivered to the Indemnified Parties within a
reasonable period or if the Indemnified Parties have reason to believe that an
environmental hazard exists on the Property that, in the sole judgment of the
Indemnified Parties, endangers any tenant or other occupant of the Property or
their guests or the general public or may materially and adversely affect the
value of the Property, upon reasonable notice to Indemnitor, the Indemnified
Parties and any other Person designated by the Indemnified Parties, including
but not limited to any receiver, any representative of a governmental entity,
and any environmental consultant, shall have the right, but not the obligation,
to enter upon the Property at all reasonable times to assess any and all aspects
of the environmental condition of the Property and its use, including but not
limited to conducting any environmental assessment or audit (the scope of which
shall be determined in the sole and absolute discretion of the Indemnified
Parties) and taking samples of soil, groundwater or other water, air, or
building materials, and reasonably conducting other invasive testing. Indemnitor
shall cooperate with and provide the Indemnified Parties and any such Person
designated by the Indemnified Parties with access to the Property.
4. INDEMNIFICATION. Indemnitor covenants and agrees, at its sole cost
and expense, to protect, defend, indemnify, release and hold Indemnified Parties
harmless from and against any and all Losses (defined below) imposed upon or
incurred by or asserted against any Indemnified Parties and directly or
indirectly arising out of or in any way relating to any one or more of the
following except to the extent the same relate to Hazardous Substances first
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introduced to the Property by anyone other than Indemnitor or its respective
agents or employees following the foreclosure or delivery of a deed in lieu of
foreclosure: (a) any presence of any Hazardous Substances in, on, above, or
under the Property in violation of Environmental Law; (b) any past, present or
threatened Release of Hazardous Substances in, on, above, under or from the
Property in violation of Environmental Law; (c) any activity by Indemnitor, any
Person affiliated with Indemnitor, and any tenant or other user of the Property
in connection with any actual, proposed or threatened use, treatment, storage,
holding, existence, disposition or other Release, generation, production,
manufacturing, processing, refining, control, management, abatement, removal,
handling, transfer or transportation to or from the Property of any Hazardous
Substances at any time located in, under, on or above the Property in violation
of Environmental Law; (d) any activity by Indemnitor, any Person affiliated with
Indemnitor, and any tenant or other user of the Property in connection with any
actual Remediation of any Hazardous Substances at any time located in, under, on
or above the Property, whether or not such Remediation is voluntary or pursuant
to court or administrative order, including but not limited to any removal,
remedial or corrective action; (e) any past, present or threatened
non-compliance or violations of any Environmental Laws (or permits issued
pursuant to any Environmental Law) in connection with the Property or operations
thereon, including but not limited to any failure by Indemnitor, any Person
affiliated with Indemnitor, and any tenant or other user of the Property to
comply with any order of any governmental authority in connection with any
Environmental Laws; (f) the imposition, recording or filing or the threatened
imposition, recording or filing of any Environmental Lien encumbering the
Property; (g) any administrative processes or proceedings or judicial
proceedings in any way connected with any matter addressed in this Agreement;
(h) any past, present or threatened injury to, destruction of or loss of natural
resources in any way connected with the Property, including but not limited to
costs to investigate and assess such injury, destruction or loss; (i) any acts
of Indemnitor, any Person affiliated with Indemnitor, and any tenant or other
user of the Property in arranging for disposal or treatment, or arranging with a
transporter for transport for disposal or treatment, of Hazardous Substances at
any facility or incineration vessel containing such or similar Hazardous
Substances; (j) any acts of Indemnitor, any Person affiliated with any
Indemnitor, and any tenant or other user of the Property in accepting any
Hazardous Substances for transport to disposal or treatment facilities,
incineration vessels or sites from which there is a Release, or a threatened
Release of any Hazardous Substance which causes the incurrence of costs for
Remediation; (k) any personal injury, wrongful death, or property or other
damage arising under any statutory or common law or tort law theory, including
but not limited to damages assessed for private or public nuisance or for the
conducting of an abnormally dangerous activity on or near the Property; and (l)
any misrepresentation or inaccuracy in any representation or warranty or
material breach or failure to perform any covenants or other obligations
pursuant to this Agreement, the Loan Agreement or the Mortgage. The foregoing
indemnifications shall not apply to liability, loss or other claims caused by
the gross negligence, willful misconduct or bad faith by any Indemnified
Parties.
5. DUTY TO DEFEND AND ATTORNEYS AND OTHER FEES AND EXPENSES. Upon
written request by any Indemnified Party, Indemnitor shall defend same (if
requested by any Indemnified Party, in the name of the Indemnified Party) by
attorneys and other professionals approved by the Indemnified Parties.
Notwithstanding the foregoing, any Indemnified Parties may, in the event an
actual conflict exists which would prejudice any Indemnified Parties, engage
their own attorneys and other professionals to defend or assist them, and, at
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the option of Indemnified Parties, their attorneys shall control the resolution
of any claim or proceeding, providing that no compromise or settlement shall be
entered without Indemnitor's consent, which consent shall not be unreasonably
withheld. Upon demand, Indemnitor shall pay or, in the sole and absolute
discretion of the Indemnified Parties, reimburse, the Indemnified Parties for
the payment of reasonable fees and disbursements of attorneys, engineers,
environmental consultants, laboratories and other professionals in connection
therewith.
6. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:The term "ENVIRONMENTAL LAW" means any present and
future federal, state and local laws, statutes, ordinances, rules, regulations
and the like, as well as common law, relating to protection of human health or
the environment, relating to Hazardous Substances, relating to liability for or
costs of other actual or threatened danger to human health or the environment.
The term "ENVIRONMENTAL LAW" includes, but is not limited to, the following
statutes, as amended, any successor thereto, and any regulations promulgated
pursuant thereto, and any state or local statutes, ordinances, rules,
regulations and the like addressing similar issues: the Comprehensive
Environmental Response, Compensation and Liability Act; the Emergency Planning
and Community Right-to-Know Act; the Hazardous Substances Transportation Act;
the Resource Conservation and Recovery Act (including but not limited to
Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act;
the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the
Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal
Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide
Act; the Endangered Species Act; the National Environmental Policy Act; and the
River and Harbors Appropriation Act. The term "ENVIRONMENTAL LAW" also includes,
but is not limited to, any present and future federal, state and local laws,
statutes ordinances, rules, regulations and the like, as well as common law:
conditioning transfer of property upon a negative declaration or other approval
of a governmental authority of the environmental condition of the Property;
requiring notification or disclosure of Releases of Hazardous Substances or
other environmental condition of the Property to any Governmental Authority or
other Person, whether or not in connection with transfer of title to or interest
in property; imposing conditions or requirements in connection with permits or
other authorization for lawful activity; relating to nuisance, trespass or other
causes of action related to the Property; and relating to wrongful death,
personal injury, or property or other damage in connection with any physical
condition or use of the Property.
The term "HAZARDOUS SUBSTANCES" includes but is not limited to
any and all substances (whether solid, liquid or gas) defined, listed, or
otherwise classified as pollutants, hazardous wastes, hazardous substances,
hazardous materials, extremely hazardous wastes, or words of similar meaning or
regulatory effect under any present or future Environmental Laws or that may
have a negative impact on human health or the environment, including but not
limited to petroleum and petroleum products, asbestos and asbestos-containing
materials, polychlorinated biphenyls, lead, radon, radioactive materials,
flammables and explosives, but excluding substances of kinds and in amounts
ordinarily and customarily used or stored in similar properties for the purposes
of cleaning or other maintenance or operations and otherwise in compliance with
all Environmental Laws.
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The term "INDEMNIFIED PARTIES" includes Indemnitee, any Person who is
or will have been involved in the origination of the Loan, any Person who is or
will have been involved with the servicing of the Loan, any Person in whose name
the encumbrance created by the Mortgage is or will have been recorded, Persons
who may hold or acquire or will have held a full or partial interest in the Loan
(including, but not limited to, Investors (defined below) or prospective
Investors in the Securities (defined below), as well as custodians, trustees and
other fiduciaries who hold or have held a full or partial interest in the Loan
for the benefit of third parties) as well as the respective directors, officers,
shareholders, partners, employees, agents, servants, representatives,
contractors, subcontractors, affiliates, subsidiaries, participants, successors
and assigns of any and all of the foregoing (including but not limited to any
other Person who holds or acquires or will have held a participation or other
full or partial interest in the Loan or the Property, whether during the term of
the Loan or as a part of or following a foreclosure of the Loan and including,
but not limited to, any successors by merger, consolidation or acquisition of
all or a substantial portion of Indemnitee's assets and business).
The term "LEGAL ACTION" means any claim, suit or proceeding, whether
administrative or judicial in nature.
The term "LOSSES" includes any losses, actual damages, costs, fees,
expenses, claims, suits, judgments, awards, liabilities (including but not
limited to strict liabilities), obligations, debts, diminutions in value, fines,
penalties, charges, costs of Remediation (whether or not performed voluntarily),
amounts paid in settlement, foreseeable and unforeseeable consequential damages,
litigation costs, reasonable attorneys' fees, engineers' fees, reasonable
environmental consultants' fees, and investigation costs (including but not
limited to costs for sampling, testing and analysis of soil, water, air,
building materials, and other materials and substances whether solid, liquid or
gas), of whatever kind or nature, and whether or not incurred in connection with
any judicial or administrative proceedings, actions, claims, suits, judgments or
awards.
The term "RELEASE" with respect to any Hazardous Substance includes but
is not limited to any release, deposit, discharge, emission, leaking, leaching,
spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping,
dumping, disposing or other movement of Hazardous Substances in amounts in
violation of Environmental Law.
The term "REMEDIATION" includes but is not limited to any response,
remedial, removal, or corrective action required by Environmental Law; any
activity to clean up, detoxify, decontaminate, contain or otherwise remediate
any Hazardous Substance required by Environmental Law; any actions to prevent,
cure or mitigate any Release of any Hazardous Substance required by
Environmental Law; any action to comply with any Environmental Laws or with any
permits issued pursuant thereto; any inspection, investigation, study,
monitoring, assessment, audit, sampling and testing, laboratory or other
analysis, or evaluation relating to any Hazardous Substances or to anything
referred to herein.
7. UNIMPAIRED LIABILITY. The liability of Indemnitor under this
Agreement shall in no way be limited or impaired by, and Indemnitor hereby
consents to and agrees to be bound by, any amendment or modification of the
provisions of the Note, the Loan Agreement, the Mortgage or any other Loan
Document to or with Indemnitee by Indemnitor or any Person who succeeds
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Indemnitor or any Person as owner of the Property. In addition, the liability of
Indemnitor under this Agreement shall in no way be limited or impaired by (i)
any extensions of time for performance required by the Note, the Loan Agreement,
the Mortgage or any of the other Loan Documents, (ii) any sale or transfer of
all or part of the Property, (iii) except as provided herein, any exculpatory
provision in the Note, the Loan Agreement, the Mortgage, or any of the other
Loan Documents limiting Indemnitee's recourse to the Property or to any other
security for the Note, or limiting Indemnitee's rights to a deficiency judgment
against Indemnitor, (iv) the accuracy or inaccuracy of the representations and
warranties made by Indemnitor under the Note, the Loan Agreement, the Mortgage
or any of the other Loan Documents or herein, (v) the release of Indemnitor or
any other Person from performance or observance of any of the agreements,
covenants, terms or condition contained in any of the other Loan Documents by
operation of law, Indemnitee's voluntary act, or otherwise, (vi) the release or
substitution in whole or in part of any security for the Note, or (vii)
Indemnitee's failure to record the Mortgage or file any UCC financing statements
(or Indemnitee'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 Note; and, in any such case, whether with or without notice to
Indemnitor and with or without consideration.
8. ENFORCEMENT. Indemnified Parties may enforce the obligations of
Indemnitor without first resorting to or exhausting any security or collateral
or without first having recourse to the Note, the Loan Agreement, the Mortgage,
or any other Loan Documents or any of the Property, through foreclosure
proceedings or otherwise, provided, however, that nothing herein shall inhibit
or prevent Indemnitee from suing on the Note, foreclosing, or exercising any
power of sale under, the Mortgage, or exercising any other rights and remedies
thereunder. This Agreement is not collateral or security for the debt of
Borrower pursuant to the Loan, unless Indemnitee expressly elects in writing to
make this Agreement additional collateral or security for the debt of Borrower
pursuant to the Loan, which Indemnitee is entitled to do in its sole and
absolute discretion. It is not necessary for an Event of Default to have
occurred pursuant to and as defined in the Mortgage or the Loan Agreement for
Indemnified Parties to exercise their rights pursuant to this Agreement.
Notwithstanding any provision of the Loan Agreement (including, without
limitation, Section 11.22 thereof) the obligations pursuant to this Agreement
are exceptions to any non-recourse or exculpation provision of the Loan
Agreement; Indemnitor is fully and personally liable for such obligations, and
such liability is not limited to the original or amortized principal balance of
the Loan or the value of the Property.
9. SURVIVAL. The obligations and liabilities of Indemnitor under this
Agreement shall fully survive indefinitely notwithstanding any termination,
satisfaction, assignment, entry of a judgment of foreclosure, exercise of any
power of sale, or delivery of a deed in lieu of foreclosure of the Mortgage.
10. INTEREST. Any amounts payable to any Indemnified Parties under this
Agreement shall become immediately due and payable on demand and, if not paid
within five (5) days of such demand therefor, shall bear interest at the Default
Rate.
11. WAIVERS. (a) Indemnitor hereby waives (i) any right or claim of
right to cause a marshaling of Indemnitor's assets or to cause Indemnitee or
other Indemnified Parties to proceed against any of the security for the Loan
before proceeding under this Agreement against Indemnitor; (ii) and relinquishes
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all rights and remedies accorded by applicable law to indemnitors or guarantors,
except any rights of subrogation which Indemnitor may have, provided that the
indemnity provided for hereunder shall neither be contingent upon the existence
of any such rights of subrogation nor subject to any claims or defenses
whatsoever which may be asserted in connection with the enforcement or attempted
enforcement of such subrogation rights including, without limitation, any claim
that such subrogation rights were abrogated by any acts of Indemnitee or other
Indemnified Parties; (iii) the right to assert a counterclaim, other than a
mandatory or compulsory counterclaim, in any action or proceeding brought
against or by Indemnitee or other Indemnified Parties; (iv) notice of acceptance
hereof and of any action taken or omitted in reliance hereon; (v) presentment
for payment, demand of payment, protest or notice of nonpayment or failure to
perform or observe, or other proof, or notice or demand unless specifically
required by applicable law; and (vi) all homestead exemption rights against the
obligations hereunder and the benefits of any statutes of limitations or repose.
Notwithstanding anything to the contrary contained herein, Indemnitor hereby
agrees to postpone the exercise of any rights of subrogation with respect to any
collateral securing the Loan until the Loan shall have been paid in full.
(B) INDEMNITOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN
CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN
EVIDENCED BY THE NOTE, THE APPLICATION FOR THE LOAN EVIDENCED BY THE NOTE, THE
MORTGAGE, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF
ANY INDEMNIFIED PARTIES IN CONNECTION THEREWITH.
12. SUBROGATION. Indemnitor shall take any and all reasonable actions,
including institution of legal action against third parties, necessary or
appropriate to obtain reimbursement, payment or compensation from such Persons
responsible for the presence of any Hazardous Substances at, in, on, under or
near the Property or otherwise obligated by law to bear the cost. Indemnified
Parties shall be and hereby are subrogated to all of Indemnitor's rights now or
hereafter in such claims.
13. INDEMNITOR'S REPRESENTATIONS AND WARRANTIES. Indemnitor represents
and warrants that:
(a) it has the full power and authority to execute and deliver
this Agreement and to perform its obligations hereunder; the execution,
delivery and performance of this Agreement by Indemnitor has been duly
and validly authorized; and all requisite action has been taken by
Indemnitor to make this Agreement valid and binding upon Indemnitor,
enforceable in accordance with its terms;
(b) its execution of, and compliance with, this Agreement is
in the ordinary course of business of Indemnitor and will not result in
the breach of any term or provision of the charter, by-laws,
partnership or trust agreement, or other governing instrument of
Indemnitor or result in the breach of any term or provision of, or
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conflict with or constitute a default under, or result in the
acceleration of any obligation under, any agreement, indenture or loan
or credit agreement or other instrument to which Indemnitor or the
Property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which Indemnitor or the
Property is subject;
(c) to the best of Indemnitor's knowledge, there is no action,
suit, proceeding or investigation pending or threatened against it
which, either in any one instance or in the aggregate, may result in
any material adverse change in the business, operations, financial
condition, properties or assets of Indemnitor, or in any material
impairment of the right or ability of Indemnitor to carry on its
business substantially as now conducted, or in any material liability
on the part of Indemnitor, or which would draw into question the
validity of this Agreement or of any action taken or to be taken in
connection with the obligations of Indemnitor contemplated herein, or
which would be likely to impair materially the ability of Indemnitor to
perform under the terms of this Agreement;
(d) it does not believe, nor does it have any reason or cause
to believe, that it cannot perform each and every covenant contained in
this Agreement;
(e) to the best of Indemnitor's knowledge, no approval,
authorization, order, license or consent of, or registration or filing
with, any governmental authority or other person, and no approval,
authorization or consent of any other party is required in connection
with this Agreement; and
(f) this Agreement constitutes a valid, legal and binding
obligation of Indemnitor, enforceable against it in accordance with the
terms hereof except as limited by bankruptcy, insolvency or other laws
of general application relating to the enforcement of obligations under
this Agreement and creditors rights.
14. NO WAIVER. No delay by any Indemnified Party in exercising any
right, power or privilege under this Agreement shall operate as a waiver of any
such privilege, power or right.
15. NOTICE OF LEGAL ACTIONS. Each party hereto shall, within five (5)
business days of receipt thereof, give written notice to the other party hereto
of (i) any notice, advice or other communication from any governmental entity or
any source whatsoever with respect to Release of Hazardous Substances on, from
or affecting the Property, and (ii) any legal action brought against such party
or related to the Property, with respect to which Indemnitor may have liability
under this Agreement. Such notice shall comply with the provisions of Section 19
hereof.
16. EXAMINATION OF BOOKS AND RECORDS. Indemnified Parties and their
accountants shall have the right to examine the records, books, management and
other papers of Indemnitor which reflect upon its financial condition, at the
Property or at the office regularly maintained by Indemnitor where the books and
records are located. Indemnified Parties and their accountants shall have the
right to make copies and extracts from the foregoing records and other papers.
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In addition, at reasonable times and upon reasonable notice, Indemnified Parties
and their accountants shall have the right to examine and audit the books and
records of Indemnitor pertaining to the income, expenses and operation of the
Property during reasonable business hours at the office of Indemnitor where the
books and records are located.
17. TRANSFER OF LOAN. (a) Indemnitee may, at any time, sell, transfer
or assign the Note, the Loan Agreement, the Mortgage, this Agreement and the
other Loan Documents, and any or all servicing rights with respect thereto, or
grant participations therein or issue mortgage pass-through certificates or
other securities evidencing a beneficial interest in a rated or unrated public
offering or private placement (the "SECURITIES"). Indemnitee may forward to each
purchaser, transferee, assignee, servicer, participant or investor in such
Securities or any credit rating agency rating such Securities (the foregoing
entities hereinafter collectively referred to as the "INVESTOR") and each
prospective Investor, all documents and information which Indemnitee now has or
may hereafter acquire relating to Indemnitor and the Property, whether furnished
by Indemnitor, any guarantor or otherwise, as Indemnitee determines necessary or
desirable. Indemnitor and any guarantor agree to cooperate at no material cost
or expense with Indemnitee in connection with any transfer made or any
Securities created as described in this Section, including, without limitation,
the delivery of an estoppel certificate required in accordance with the Loan
Agreement and such other documents as may be reasonably requested by Indemnitee.
Indemnitor shall also furnish, and Indemnitor and any guarantor hereby consent
to Indemnitee furnishing to such Investors or such prospective Investors, any
and all information concerning the financial condition of the Indemnitor and any
guarantor and any and all information concerning the Property and the Leases as
may be requested by Indemnitee, any Investor or any prospective Investor in
connection with any sale, transfer or participation interest.
(b) Upon any transfer or proposed transfer contemplated above and by
Section 9.1 of the Loan Agreement, at Indemnitee's request, Indemnitor shall
provide an estoppel certificate to the Investor or any prospective Investor in
such form, substance and detail as Indemnitee, such Investor or prospective
Investor may require.
18. TAXES. Indemnitor has filed all federal, state, county, municipal,
and city income and other tax returns required to have been filed by it and has
paid all taxes and related liabilities which have become due pursuant to such
returns or pursuant to any assessments received by it. Indemnitor has no
knowledge of any basis for any additional assessment in respect of any such
taxes and related liabilities for prior years.
19. NOTICES. All notices or other written communications hereunder
shall be made in accordance with Section 11.6 of the Loan Agreement.
20. DUPLICATE ORIGINALS; COUNTERPARTS. This Agreement may be executed
in any number of duplicate originals and each duplicate original shall be deemed
to be an original. This Agreement may be executed in several counterparts, each
of which counterparts shall be deemed an original instrument and all of which
together shall constitute a single Agreement. The failure of any party hereto to
execute this Agreement, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.
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21. NO ORAL CHANGE. This Agreement, and any provisions hereof, may not
be modified, amended, waived, extended, changed, discharged or terminated orally
or by any act or failure to act on the part of Indemnitor or any Indemnified
Party, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
22. HEADINGS, ETC. The headings and captions of various paragraphs of
this Agreement are for convenience of reference only and are not to be construed
as defining or limiting, in any way, the scope or intent of the provisions
hereof.
23. NUMBER AND GENDER/SUCCESSORS AND ASSIGNS. All pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identity of the Person or Persons referred to may
require. Without limiting the effect of specific references in any provision of
this Agreement, the term "INDEMNITOR" shall be deemed to refer to each and every
Person comprising an Indemnitor from time to time, as the sense of a particular
provision may require, and to include the heirs, executors, administrators,
legal representatives, successors and assigns of Indemnitor, all of whom shall
be bound by the provisions of this Agreement, provided that no obligation of
Indemnitor may be assigned except with the written consent of Indemnitee. Each
reference herein to Indemnitee shall be deemed to include its successors and
assigns. This Agreement shall inure to the benefit of Indemnified Parties and
their respective successors and assigns forever.
24. RELEASE OF LIABILITY. Any one or more parties liable upon or in
respect of this Agreement may be released without affecting the liability of any
party not so released.
25. RELEASE OF INDEMNITOR. Upon the substitution of either Indemnitor
pursuant to Section 8.3 of the Loan Agreement, such Indemnitor shall be released
from any liability or other obligation under this Agreement first arising after
the date of such substitution.
26. RIGHTS CUMULATIVE. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies which Indemnitee has
under the Note, the Mortgage, the Loan Agreement or the other Loan Documents or
would otherwise have at law or in equity.
27. INAPPLICABLE PROVISIONS. If any term, condition or covenant of this
Agreement shall be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be construed without such provision.
28. GOVERNING LAW. A. THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW
YORK, AND MADE BY INDEMNITOR AND ACCEPTED BY INDEMNITEE IN THE STATE OF NEW
YORK, AND THE PROCEEDS OF THE NOTE SECURED HEREBY WERE DISBURSED FROM THE STATE
OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
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LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF
THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE
CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS
CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS WITH RESPECT TO
THE PROPERTY SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE
STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST
EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK
SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS
AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST
EXTENT PERMITTED BY LAW, INDEMNITOR HEREBY UNCONDITIONALLY AND IRREVOCABLY
WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
AGREEMENT AND THE NOTE, AND THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
B. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST INDEMNITEE OR
INDEMNITOR ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY AT INDEMNITEE'S
OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX,
XXXXXX XX XXX XXXX, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, AND INDEMNITOR WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR
HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND INDEMNITOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. INDEMNITOR
DOES HEREBY DESIGNATE AND APPOINT:
XXXXXX X. XXXXXXXX
00 XXXXX XXXXXX XXXXXX
XXXX XXXXXXXXXX, XXX XXXX 00000
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO INDEMNITOR IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON INDEMNITOR IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. INDEMNITOR (I) SHALL GIVE PROMPT
NOTICE TO INDEMNITEE OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER,
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(II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED
AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE
SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III)
SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO
HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A
SUCCESSOR.
29. MISCELLANEOUS. (a) Wherever pursuant to this Agreement (i)
Indemnitee exercises any right given to it approve or disapprove, (ii) any
arrangement or term is to be satisfactory to Indemnitee, or (iii) any other
decision or determination is to be made by Indemnitee, the decision of
Indemnitee to approve or disapprove, all decisions that arrangements or terms
are satisfactory or not satisfactory and all other decisions and determinations
made by Indemnitee, shall be in the sole and absolute discretion of Indemnitee
and shall be final and conclusive, except as may be otherwise expressly and
specifically provided herein.
(b) Wherever pursuant to this Agreement it is provided that Indemnitor
pay any costs and expenses, such costs and expenses shall include, but not be
limited to, legal fees and disbursements of Indemnitee, whether retained firms,
the reimbursements for the expenses of the in-house staff or otherwise.
(c) Joint and Several Liability. If Indemnitor consists of more than
one person or party, the obligations and liabilities of each such person or
party hereunder shall be joint and several.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, this Agreement has been executed by
Indemnitor and is effective as of the day and year first above written.
INDEMNITOR:
CEDAR-FRANKLIN VILLAGE LLC,
a Delaware limited liability company
By: Cedar-Franklin Village 2 LLC, a Delaware
limited liability company, its sole member
By: Cedar Shopping Centers Partnership,
L.P., a Delaware limited partnership,
its sole member
By: Cedar Shopping Centers, Inc., a
Maryland corporation, its
general partner
By: _____________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
INDEMNITEE:
EUROHYPO AG, NEW YORK BRANCH, the New York branch of
a German banking corporation
By:
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Name:
Title:
By:
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Name:
Title:
