EXHIBIT 10.2
Loan No. 3212462
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT made as of September 21, 1998, by 10
SPEEN STREET, LLC, with a principal place of business at 00 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 and ASA INTERNATIONAL, LTD., with a mailing
address at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, (hereinafter,
together, "INDEMNITOR"), to and for the benefit of XXXX XXXXXXX REAL ESTATE
FINANCE, INC., a Delaware corporation, having its principal place of business at
Xxxx Xxxxxxx Xxxxx, X-00, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("MORTGAGEE"),
W I T N E S S E T H:
WHEREAS, 10 Speen Street, LLC has applied to Mortgagee for a real
estate mortgage loan in the amount of THREE MILLION AND 00/100 DOLLARS
($3,000,000.00) (the "LOAN"), to be evidenced by its note (the "NOTE") in that
amount of even date herewith, secured by a real estate mortgage (the "MORTGAGE")
on property now known as ASA Building and located at 00 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx (the "MORTGAGED PROPERTY"), bearing
the same date as the Note; and
WHEREAS, Mortgagee is unwilling to make said Loan unless Indemnitor
agrees to indemnify and hold Mortgagee harmless from and against certain
matters;
WHEREAS, Indemnitor desires to give such indemnification to Mortgagee
in order to induce Mortgagee to make the Loan; and
WHEREAS, Indemnitor has full authority and power to execute and
deliver this Indemnification Agreement and to assume liability hereunder;
NOW, THEREFORE, for the purpose of inducing Mortgagee to make the Loan
to Indemnitor, which Indemnitor acknowledges is good, valuable, and sufficient
consideration:
1. INDEMNITIES.
(a) Notwithstanding any provisions in the Note or Mortgage
or any other instrument evidencing, securing, guaranteeing or executed
in connection with the Loan (collectively the "LOAN DOCUMENTS")
limiting or negating Indemnitor's personal liability, Indemnitor
agrees to unconditionally and absolutely indemnify and hold Mortgagee
(as defined in Section 12 hereof), its officers, directors, employees,
agents and attorneys harmless from and against any loss, cost,
liability, damage, claim or expense, including attorneys' fees,
suffered or incurred by Mortgagee in connection with the Mortgaged
Property at any time, whether before, during or after enforcement of
Mortgagee's rights and remedies upon default under the Loan Documents,
under or on account of, or as a result of (i) any Environmental Laws,
as that term is defined in Section 13 hereof, (ii) any presence,
release, or threat of release of Hazardous Materials, as defined in
Section 13 hereof, at, upon, under or within the Mortgaged Property,
(iii) the presence of asbestos or asbestos-containing materials,
PCB's, radon gas, urea formaldehyde foam insulation or lead (whether
in paint, water, soil, or plaster) at the Mortgaged Property, (iv) any
breach of the covenants and warranties made in Section 2 hereof or in
Paragraph 39 of the Mortgage or in that certain Environmental
Certificate (the "ENVIRONMENTAL CERTIFICATE") executed in connection
with Indemnitor's application for the Loan, (v) the falsity of any of
the representations made in Section 2 hereof or in Paragraph 39 of the
Mortgage or in the Environmental Certificate, whether or not caused by
Indemnitor or (vi) the failure of Indemnitor to duly perform the
obligations or actions set forth in Section 2 hereof and in Paragraph
39 of the Mortgage, including, without limitation, for all parts of
this subsection 1(a), with respect to: (A) the imposition by any
governmental authority of any lien upon the Mortgaged Property, (B)
clean-up costs, (C) liability for personal injury or property damage
or damage to the environment, (D) any diminution in the value of the
Mortgaged Property and (E) fines, penalties and punitive damages.
(b) Indemnitor further agrees that Mortgagee shall not
assume any liability or obligation for loss, damage, fines, penalties,
claims or duty to clean up or dispose of wastes or materials on or
relating to the Mortgaged Property as a result of any conveyance of
title to the Mortgaged Property to the Mortgagee or otherwise or as a
result of any inspections or any other actions made or taken by
Mortgagee on the Mortgaged Property. Indemnitor agrees to remain fully
liable and shall indemnify and hold harmless Mortgagee from any costs,
expenses, clean-up costs, waste disposal costs, litigation costs,
fines and penalties, including without limitation any costs, expenses,
penalties and fines within the meaning of any Environmental Laws.
(c) Indemnitor shall assume the burden and expense of
defending Mortgagee, with counsel satisfactory to Mortgagee, against
all legal and administrative proceedings arising out of the
occurrences set forth in the Indemnification Agreement. Mortgagee
shall have the right, but not the obligation, to participate in the
defense of any such proceedings. Indemnitor may compromise or settle
any such proceedings without the consent of Mortgagee only if the
claimant agrees as part of the compromise or settlement that Mortgagee
shall have no responsibility or liability for the payment or discharge
of any amount agreed upon or obligation to take any other action.
(d) Indemnitor shall pay when due any judgments against
Mortgagee which have been indemnified under this Indemnification
Agreement and which are rendered by a final order or decree of a court
of competent jurisdiction from which no further appeal may be taken or
has been taken within the applicable appeal period. In the event that
such payment is not made, Mortgagee, in its sole discretion, may pay
any such judgments, in whole or in part, and look to Indemnitor for
reimbursement pursuant to this Indemnification Agreement, or may
proceed to file suit against Indemnitor to compel such payment.
(e) It is understood that the presence and/or release of
substances referred to in section 1(a) hereof does not pertain to a
presence and/or release which first occurs solely after (A) repayment
of the Loan in full accordance with the Loan Documents or (B) taking
possession of or acquisition of title to the Mortgaged Property by
Mortgagee upon a foreclosure or acceptance of a deed in lieu of
foreclosure and surrender of possession and occupancy of the Mortgaged
Property by Indemnitor, its agents, affiliates, employees and
independent contractors, or (C) acquisition of title to the Mortgaged
Property by a Transferee (as defined in the Mortgage) in connection
with a transfer complying with the provisions of Paragraph 9(f) of the
Mortgage, including, without limitation, the provisions of Paragraph
9(f)(ix) thereof requiring the delivery to Mortgagee of an
environmental indemnity agreement in form and substance acceptable to
Mortgagee from an approved indemnitor. Indemnitor shall have the burden
of proving that the conditions in this subsection (e) were satisfied by
clear and convincing evidence and shall continue to defend with counsel
satisfactory to Mortgagee and shall indemnify and hold Mortgagee
harmless for all matters set forth in Section 1(a) hereof, unless and
until a court of competent jurisdiction finds that Indemnitor has met
such burden.
2. INDEMNITOR'S REPRESENTATIONS AND WARRANTIES. Indemnitor hereby
represents and warrants to Mortgagee as follows:
(a) Indemnitor is solvent and the execution of this
Indemnification Agreement does not render Indemnitor insolvent. Any
and all financial statements, balance sheets, net worth statements and
other financial data which have heretofore been furnished to Mortgagee
with respect to Indemnitor fairly and accurately present the financial
condition of Indemnitor as of the date they were furnished to
Mortgagee and, since that date, there has been no material adverse
change in the financial condition of Indemnitor.
(b) There are no legal proceedings or material claims or
demands pending against or, to the best of Indemnitor's knowledge,
threatened against Indemnitor or any of its assets.
(c) The execution and delivery of this Indemnification
Agreement and the assumption of liability hereunder have been in all
respects authorized and approved by Indemnitor and, if applicable,
each constituent party or owner of Indemnitor; Indemnitor has full
authority and power to execute this Indemnification Agreement and to
perform its obligations hereunder; and this Indemnification Agreement
constitutes a legal, valid and binding obligation of Indemnitor and is
fully enforceable in accordance with its terms.
(d) Neither the execution nor the delivery of this
Indemnification Agreement nor the fulfillment and compliance with the
provisions hereof will conflict with or result in a breach of or
constitute a default under or result in the creation of any lien,
charge or encumbrance upon any property or assets of Indemnitor under
any agreement or instrument to which Indemnitor is now a party or by
which it may be bound.
(e) (i) As evidenced by the Phase I Environmental Site
Assessment Report delivered to Lender in connection with the
Loan, Indemnitor has performed reasonable investigations,
studies and tests as to any possible environmental
contamination, liabilities or problems with respect to the
Mortgaged Property and such investigations, studies and tests
have disclosed no Hazardous Materials or possible violations
of any Environmental Laws.
(ii) To the best of Indemnitor's knowledge, there
have been no releases of Hazardous Materials either at, upon,
under or within the Mortgaged Property and no Hazardous
Materials have migrated to the Mortgaged Property. No
Hazardous Materials are located on or have been stored,
processed or disposed of on or released or discharged from
(including ground water contamination) the Mortgaged Property,
and no above or underground storage tanks exist on the
Property.
(iii) Indemnitor shall not allow any Hazardous
Materials to exist or be stored, located, discharged,
released, possessed, managed, processed or otherwise handled
on the Mortgaged Property or any other property currently or
subsequently owned or operated by Indemnitor or any affiliate
of Indemnitor (except materials which (a) are ordinarily and
customarily used in the regular operation of the Mortgaged
Property as an office project by the Mortgagor or any current
tenant or any future tenant, which tenant and its lease have
been approved by the Mortgagee, and (b) are used, stored,
disposed of and handled in compliance with and in quantities
permitted by all applicable Environmental Laws), and shall
strictly comply with all Environmental Laws affecting the
Mortgaged Property or such other property currently or
subsequently owned or operated by Indemnitor, including those
laws regarding the generation, storage, disposal, release and
discharge of Hazardous Materials. Without limiting the
generality of the foregoing, Indemnitor has not been, is not
and will not become involved in operations at the Mortgaged
Property or any other property currently or subsequently owned
or operated by Indemnitor which could lead to imposition on
Indemnitor of liability under any Environmental Law.
Indemnitor expressly warrants, represents and covenants that
Indemnitor shall strictly comply with all requirements of
applicable Environmental Laws and shall immediately notify
Mortgagee of any releases of Hazardous Materials at, upon,
under or within the Mortgaged Property.
(iv) Neither Indemnitor, the Mortgaged Property nor
any other property currently or previously owned or operated
by Indemnitor or any affiliate of Indemnitor (A) has received
notice of or is subject to any private or governmental lien or
judicial or administrative notice, order or action relating to
Hazardous Materials or environmental problems, impairments or
liabilities with respect to the Mortgaged Property or such
other property or (B) is in or, with any applicable notice or
lapse of time or failure to take certain curative or remedial
actions, will be in either direct or indirect violation of any
Environmental Laws.
(v) Indemnitor shall strictly comply with the
requirements of all Environmental Laws affecting the Mortgaged
Property and any other property currently or subsequently
owned or operated by Indemnitor.
(vi) Indemnitor hereby warrants and represents that
all of the answers on the Environmental Certificate are true
and complete as of the date hereof. Indemnitor shall
immediately notify Mortgagee in writing should Indemnitor
become aware that any of the answers on the Environmental
Certificate either (A) was not true at the time the
Environmental Certificate was executed or (B) becomes untrue
during the term of the Loan.
3. WAIVERS. Indemnitor hereby waives the following: (a) notice of
Mortgagee's acceptance of this Indemnification Agreement; (b) notice of
Indemnitor's grant to Mortgagee of a security interest lien or encumbrance in
any of Indemnitor's assets; (c) Mortgagee's release, waiver, modification or
amendment of any Loan Document or any security interest, lien or encumbrance in
any other party's assets given to Mortgagee to secure any Loan Document; (d)
presentment, demand, notice of default, non-payment, partial payment and protest
and all other notices or formalities to which Indemnitor may be entitled; (e)
extensions of time of payment of the Note granted to Indemnitor or any other
forbearances in Mortgagee's enforcement of the Loan Documents; (f) acceptance
from Indemnitor (or any other party) of any partial payment or payments of the
Note or any collateral securing the payment thereof or the settlement,
subordination, discharge or release of the Note; (g) notice of any of the
matters set forth in parts (c) through (f) of this Section 3; (h) all suretyship
defenses of every kind and nature; and (i) the defense of the statute of
limitations in any action brought to enforce this Indemnification Agreement.
Indemnitor agrees that Mortgagee may have done, or at any time may do, any or
all of the foregoing actions in such manner, upon such terms and at such times
as Mortgagee, in its sole discretion, deems advisable, without in any way
impairing, affecting, reducing or releasing Indemnitor from Indemnitor's
obligations under this Indemnification Agreement and Indemnitor hereby consents
to each of the foregoing actions.
4. ENFORCEMENT.
(a) Indemnitor agrees that this Indemnification Agreement
may be enforced by Mortgagee without first resorting to or exhausting
any other security or collateral or without first having recourse to
the Note or any of the property covered by the Mortgage through
foreclosure proceedings or otherwise; provided, however, that nothing
herein contained shall prevent Mortgagee from suing on the Note or
foreclosing the Mortgage or from exercising any other rights
thereunder.
(b) Indemnitor agrees that the indemnifications set forth
herein are separate, independent of and in addition to Indemnitor's
undertakings under the Note. Indemnitor agrees that a separate action
may be brought to enforce the provisions of this Indemnification
Agreement which shall in no way be deemed to be an action on the Note,
whether or not Mortgagee would be entitled to a deficiency judgment
following a judicial foreclosure or sale under the Mortgage.
(c) This Indemnification Agreement shall be enforced and
construed in accordance with the laws of the state in which the
Mortgaged Property is located. Indemnitor hereby submits to personal
jurisdiction in said state for the enforcement of this Indemnification
Agreement and hereby waives any claim or right under the laws of any
other state or of the United States to object to such jurisdiction. If
such litigation is commenced, Indemnitor agrees that service of
process may be made by serving a copy of the summons and complaint
upon Indemnitor, through any lawful means, including upon its
registered agent within said state, whom Indemnitor hereby appoints as
its agent for these purposes. Nothing contained herein shall prevent
Mortgagee's bringing any action or exercising any rights against
Indemnitor personally or against any property of Indemnitor within any
other county, state, or country. The means of obtaining personal
jurisdiction and perfecting service of process set forth above are not
intended to be exclusive but are in addition to all other means of
obtaining personal jurisdiction and perfecting service of process now
or hereafter provided by applicable law.
5. DURATION. Subject to Section 1(e) hereof, Indemnitor agrees that
this Indemnification Agreement shall survive a foreclosure or the taking of a
deed in lieu of foreclosure, the discharge of Indemnitor's obligations under any
of the Loan Documents, or any transfer of the Mortgaged Property.
6. NOTICE BY INDEMNITOR. Indemnitor shall promptly after obtaining
knowledge thereof advise Mortgagee in writing of (a) any governmental or
regulatory actions instituted or threatened in writing under any Environmental
Law affecting the Mortgaged Property or the matters indemnified hereunder,
including without limitation any notice of inspection, abatement or
non-compliance; (b) all claims made or threatened in writing by any third party
against Indemnitor or the Mortgaged Property relating to damage, contribution,
cost recovery, compensation, loss or injury resulting from the presence,
release, threat of release or discharge on or from the Mortgaged Property of any
Hazardous Materials; and (c) Indemnitor's discovery of the presence of Hazardous
Materials on the Mortgaged Property or on any real property adjoining or in the
vicinity of the Mortgaged Property, or of any occurrence or condition on any
such property which could subject Indemnitor or the Mortgaged Property to a
claim under any Environmental Law or to any restrictions on ownership,
occupancy, transferability or use of the Mortgaged Property under any
Environmental Law. Indemnitor shall deliver to Mortgagee any documentation or
records as Mortgagee may request and which are susceptible of being obtained by
Indemnitor without undue cost or expense and without the necessity for
initiating legal proceedings to obtain the same in connection with all such
actions, claims, discoveries, notices, inquiries and communications and shall
advise Mortgagee of any subsequent developments regarding the same.
7. PAYMENT OF MORTGAGEE'S EXPENSES. If Mortgagee retains counsel for
advice or other representation (a) in any litigation, contest, dispute, suit, or
proceeding (whether instituted by Mortgagee, Indemnitor, or any other party)
relating to any of the occurrences for which indemnification is given in this
Indemnification Agreement or otherwise relating in any way to this
Indemnification Agreement and the indemnities described herein or (b) to enforce
Indemnitor's obligations hereunder, the attorneys' fees arising from such
services and all related expenses and court costs shall be paid by Indemnitor
upon demand of Mortgagee.
8. NO WAIVER.
(a) Indemnitor's obligations hereunder shall in no way be
impaired, reduced or released by reason of (i) Mortgagee's omission or
delay to exercise any right described herein or (ii) any act or
omission of Mortgagee in connection with any notice, demand, warning or
claim regarding violations of codes, laws or ordinances governing the
Mortgaged Property.
(b) Nothing contained herein shall constitute or be construed
as a waiver of any statutory or judicial federal, state or local law
which may provide rights or remedies to Mortgagee against Indemnitor or
others in connection with any claim relating to the Mortgaged Property
and pertaining to the presence and/or release, threatened release,
storage, disposal, generating or removal of any Hazardous Materials or
to the failure to comply with any Environmental Laws now or hereafter
enacted.
9. NOTICE. All notices hereunder shall be given at the following
address. If to Indemnitor, c/o 10 Speen Street, LLC, 00 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxxx X. XxXxxxxx; if to
Mortgagee, Xxxx Xxxxxxx Real Estate Finance, Inc., 000 Xxxxxxxxx Xxxxxx, X-00,
Xxxxxx, Xxxxxxxxxxxxx 00000, Re: Loan No. 3212462. Either party may change their
address for notice purposes upon giving fifteen (15) days prior notice thereof
in accordance with this section. All notices given hereunder shall be in writing
and shall be considered properly given if delivered either personally to such
other party, or sent by nationally recognized overnight courier delivery service
or by certified mail of the United States Postal Service, postage prepaid return
receipt requested, addressed to the other party as set forth above (or to such
other address or person as either party entitled to notice may by notice to the
other party specify). Unless otherwise specified, notices shall be deemed given
as follows: (i) if delivered personally, when delivered, (ii) if delivered by
nationally recognized overnight courier delivery service, on the day following
the day such material is sent or (iii) if delivered by certified mail, on the
third day after the same is deposited in the United States Postal Service as
provided above.
10. AMENDMENT AND WAIVER. This Indemnification Agreement may be
amended and observance of any term of this Indemnification Agreement may be
waived only with the written consent of Mortgagee.
11. SEVERABILITY. All provisions contained in this Indemnification
Agreement are severable, and the invalidity or unenforceability of any provision
shall not affect or impair the validity or enforceability of the remaining
provisions of this Indemnification Agreement.
12. SUCCESSORS AND ASSIGNS. This Indemnification Agreement shall inure
to the benefit of and may be enforced by, and the term "Mortgagee" as used in
this Agreement shall include, Xxxx Xxxxxxx Real Estate Finance, Inc. and its
successors and assigns, including (a) any subsequent holder of the Note and
Mortgage, and (b) any person or entity that acquires the Mortgaged Property at a
foreclosure sale or by deed in lieu of foreclosure and the immediate grantee of
such person or entity. This Agreement shall be binding upon and enforceable
against Indemnitor and its legal representatives or successors. This Agreement
may not be assigned or transferred by Indemnitor, in whole or in part.
13. DEFINITIONS. "HAZARDOUS MATERIALS" shall mean and include, but
shall not be limited to, any petroleum product and all hazardous or toxic
substances, wastes or substances, any substances which because of their
quantitative concentration, chemical, radioactive, flammable, explosive,
infectious or other characteristics, constitute or may reasonably be expected to
constitute or contribute to a danger or hazard to public health, safety or
welfare or to the environment, including, without limitation, any asbestos
(whether or not friable) and any asbestos-containing materials, waste oils,
solvents and chlorinated oils, polychlorinated biphenyls (PCBs), toxic metals,
etchants, pickling and plating wastes, explosives, reactive metals and
compounds, pesticides, herbicides, radon gas, urea formaldehyde foam insulation
and chemical, biological and radioactive wastes, or any other similar materials
or any hazardous or toxic wastes or substances which are included under or
regulated by any federal, state or local law, rule or regulation (whether now
existing or hereafter enacted or promulgated, as they may be amended from time
to time) pertaining to environmental regulations, contamination, clean-up or
disclosures and any judicial or administrative interpretation thereof, including
any judicial or administrative orders or judgments, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. section 9601 et SEQ. ("CERCLA"); The Federal Resource
Conservation and Recovery Act, 42 U.S.C. section 6901 ET SEQ. ("RCRA");
Superfund Amendments and Reauthorization Act of 1986, Public Law No. 99-499
("XXXX"); Toxic Substances Control Act, 15 U.S.C. section 2601 ET SEQ. ("TSCA");
the Hazardous Materials Transportation Act, 49 U.S.C. section 1801 ET SEQ.; and
any other state superlien or environmental clean-up or disclosure statutes (all
such laws, rules and regulations being referred to collectively as
"ENVIRONMENTAL LAWS").
14. JOINT AND SEVERAL LIABILITY. If more than one person is included
in the definition of Indemnitor, the liability of all such persons hereunder
shall be joint and several.
15. SPECIAL STATE PROVISIONS.
(a) In the event of any inconsistencies between the other
paragraphs of the Indemnification Agreement and this PARAGRAPH 15, the
terms and conditions of this PARAGRAPH 15 shall control and be binding.
(b) The term "ENVIRONMENTAL LAWS" shall be deemed to include,
without limitation, the following statutes: Massachusetts Oil and
Hazardous Materials Release Prevention and Response Act (X.X. x. 21E),
Massachusetts Hazardous Waste Management Act (X.X. x. 21C),
Massachusetts Wetlands Protection Act (X.X. x. 121, ss.40),
Massachusetts Clean Waters Act (X.X. x. 21, ss.ss.26-53),
Massachusetts Clean Air Act (X.X. x. 111, ss.142) and the
Massachusetts Environmental Policy Act (X.X. x. 30 ss.61).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE(S) FOLLOW(S)]
IN WITNESS WHEREOF, Indemnitor has executed this instrument under seal
the day and year first above written.
10 SPEEN STREET, LLC
By: ASA Properties, Inc., its
Managing Member
By: /S/ XXXXXXXX X. XXXXXXXX
---------------------------
Name: Xxxxxxxx X. XxXxxxxx
Its: Vice President and
Treasurer
ASA INTERNATIONAL, LTD.
By: /S/ XXXXXXXX X. XXXXXXXX
--------------------------------
Name: Xxxxxxxx X. XxXxxxxx
Its: Vice President and Treasurer
