EXHIBIT 10(k)
ENVIRONMENTAL INDEMNITY AGREEMENT
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THIS ENVIRONMENTAL INDEMNITY AGREEMENT (the "Agreement") is made as of the
6th day of December, 2002 by XXXXX POST OAK LIMITED PARTNERSHIP, a Delaware
limited partnership, having an address at 000 Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000 ("Indemnitor"), in favor of COLUMN FINANCIAL, INC., having an
address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Indemnitee") and other
Indemnified Parties (defined below).
RECITALS:
A. Indemnitor is the owner of certain real property known as 0000 Xxxx Xxx
Xxxxxxxxx, 0000 Xxxx Xxx Xxxxxxxxx and 0000 Xxxx Xxx Xxxxxxxxx (said real
property being referred to as the "Land"; the Land, together with all
structures, buildings and improvements now or hereafter located on the Land,
being collectively referred to as the "Property").
B. Indemnitee is prepared to make a loan (the "Loan") to Indemnitor in the
principal amount of Seventy Seven Million and No/100 Dollars ($77,000,000.00)
pursuant to a Loan Agreement of even date herewith between Indemnitor and
Indemnitee (as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time, the "Loan Agreement"), which Loan shall be
evidenced by that certain Promissory Note of even date herewith given by
Indemnitor in favor of Indemnitee (as amended, restated, replaced, supplemented
or otherwise modified from time to time, the "Note") and secured by, among other
things, those certain deeds of trust of even date herewith given by Indemnitor
to Indemnitee and encumbering the Property (as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to time,
collectively, the "Mortgage"). Capitalized terms used by not otherwise defined
herein shall have the meaning provided in the Loan Agreement.
C. 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.
D. 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. Except as otherwise
disclosed by that certain Phase I environmental report (or Phase II
environmental report, if required) with respect to the Property delivered to
Indemnitee by Indemnitor in connection with
the origination of the Loan (referred to below as the "Environmental
Report"), a copy of which has been provided to Indemnitee, (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 disclosed to Indemnitee in writing pursuant to the Environmental
Report; (b) there are no past, present or, to Indemnitor's knowledge, 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) to Indemnitor's knowledge, there is no threat of any Release of
Hazardous Substances migrating to the Property; (d) to Indemnitor's knowledge,
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
Authority) 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 material information relating to conditions in, on,
under or from the Property that is known to Indemnitor and all information 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) except in compliance with Environmental Law, 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, perform any environmental site assessment or other investigation of
environmental conditions in connection with the Property, pursuant to any
reasonable 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) (provided that Lender
shall only make such request if Indemnitee has good faith reason to believe that
an undisclosed Release of a Hazardous Substance has occurred and/or that any
provision of this Agreement has been breached), 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 to
the extent permitted by the Person preparing the same; (g) Indemnitor shall, at
its sole cost and expense, comply with all reasonable written requests of
Indemnitee to (i) effectuate Remediation of any adverse environmental condition
(including but not limited to a Release of a Hazardous Substance
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other than a Release in compliance with Environmental Law) in, on, under or
from the Property; (ii) comply with any Environmental Law; (iii) comply with any
directive from any Governmental Authority; and (iv) take any other reasonable
action necessary or appropriate for protection of human health or the
environment; (h) with respect to the existence of Hazardous Substances on the
Property, Indemnitor shall not do or allow any tenant or other user of the
Property to do any act that materially increases the dangers to human health or
the environment, poses an unreasonable risk of harm to any Person (whether on or
off the Property), impairs or may impair the value of the Property in any
material respect, 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 of (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 or proposed Remediation of environmental conditions relating to the
Property; and (E) any written or oral 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 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 affect the value of the Property,
upon reasonable notice from the Indemnitee, Indemnitor shall, at Indemnitor's
expense, promptly cause an engineer or consultant satisfactory to the
Indemnified Parties to conduct any environmental assessment or audit (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
Borrower, 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.
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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: (a) any presence of any Hazardous Substances in, on, above, or under
the Property; (b) any past, present or threatened Release of Hazardous
Substances in, on, above, under or from the Property; (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; (d) any activity by Indemnitor, any Person affiliated with
Indemnitor, and any tenant or other user of the Property in connection with any
actual or proposed 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
reasonable 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 materials; (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 material 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. Notwithstanding
anything contained herein to the contrary Indemnitor's indemnification
obligations set forth in this Section 4, shall not include any Losses (including
attorneys' fees) (i) incurred as a result of any act or omission of, or breach
of this Agreement by any Indemnified Party, (ii) accruing after any Indemnified
Party obtains possession of the Property or exercises its rights with respect to
the Leases.
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
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Indemnified Party, in the name of the Indemnified Party) by attorneys and
other professionals approved by the Indemnified Party, which approval shall not
be unreasonably withheld or delayed. Notwithstanding the foregoing, any
Indemnified Parties may, in their sole and absolute discretion, at their sole
cost and expense, engage their own attorneys and other professionals to defend
or assist them, and, at 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. Capitalized terms used herein and not specifically defined
herein shall have the respective meanings ascribed to such terms in the Loan
Agreement. 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, permits or authorizations and the like, as well
as common law that (a) condition transfer of property upon a negative
declaration or other approval of a Governmental Authority of the environmental
condition of the Property; (b) require 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; or (c) impose conditions or
requirements in connection with permits or other authorization for lawful
activity; (d) relate to nuisance, trespass or other causes of action related to
the Property; or (e) relate 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
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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.
The term "Indemnified Parties" includes Indemnitee, any Person in whose
name the encumbrance created by the Mortgage is or will have been recorded,
persons and entities 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)),
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 "Investors" means collectively, any purchaser, transferee,
assignee, servicer, participant or investor of or in the Loan or the Securities.
The term "Legal Action" means any claim, suit or proceeding, whether
administrative or judicial in nature.
The term "Losses" includes any losses, 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, 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" 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 other than in accordance with Environmental Law.
The term "Remediation" includes, but is not limited to, any response,
remedial, removal, or corrective action; any activity to clean up, detoxify,
decontaminate, contain or otherwise remediate any Hazardous Substance; any
actions to prevent, cure or mitigate any Release of any Hazardous Substance; 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.
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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 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
Indemnitor pursuant to the Loan, unless Indemnitee expressly elects in writing
to make this Agreement additional collateral or security for the debt of
Indemnitor 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 for Indemnified Parties to exercise their rights pursuant to this
Agreement. Notwithstanding any provision of the Loan Agreement, 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. Except as set forth in Section 4 hereof, 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. Notwithstanding the provisions of this Agreement to
the contrary, the liabilities and obligations of Indemnitor hereunder shall not
apply to the extent that Indemnitor can prove that such liabilities and
obligations arose solely from Hazardous Substances that: (a) were not present on
or a threat to the Property prior to the date that Indemnitee or its nominee
acquired title to the Property,
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whether by foreclosure, exercise of power of sale or otherwise and (b) were
not the result of any act or negligence of Indemnitor or any of Indemnitor's
affiliates, agents or contractors.
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 thirty (30) days of such demand therefor, shall bear interest at the
lesser of (a) the Default Rate or (b) the maximum interest rate which Indemnitor
may by law pay or Indemnified Parties may charge and collect, from the date
payment was due, provided that the foregoing shall be subject to the provisions
of Article 4 of the Note.
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
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; 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 AND INDEMNITEE, ON BEHALF OF ITSELF AND THE OTHER
INDEMNIFIED PARTIES (TO THE EXTENT SUCH WAIVER ON BEHALF OF SUCH PARTIES BY
INDEMNITEE IS PERMITTED BY APPLICABLE LAW OR OTHERWISE), HEREBY WAIVE, 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 TO
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF THE
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.
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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 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.
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 Authority
or any source whatsoever with respect to Hazardous Substances on, from or
affecting the Property, and (ii) any legal action brought
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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.
17. Transfer of Loan. 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. Indemnitee
may forward to each purchaser, transferee, assignee, servicer or participant
(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 reasonably necessary. Indemnitor and any guarantor agree to cooperate
with Indemnitee in connection with any transfer made pursuant to this Section,
including, without limitation, the delivery of an estoppel certificate 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.
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 10.6 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.
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
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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 include the 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.
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. 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.
26. 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.
27. Governing Law. This Agreement shall be governed in accordance with the
terms and provisions of Section 10.3 of the Loan Agreement.
28. 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.
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, reasonable legal fees and disbursements of Indemnitee, whether retained
firms, the reimbursements for the expenses of the in-house staff or otherwise.
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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:
XXXXX POST OAK LIMITED PARTNERSHIP,
a Delaware limited partnership
By: XXXXX POST OAK, INC., a Delaware
corporation, its general partner
By: /S/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
