Exhibit 10(u)
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (the "Agreement") is made and
entered into as of the 2nd day of March, 2001, by OTR EXPRESS, INC., a Kansas
corporation, ("Indemnitor") having an address for notice purposes hereunder
at 000 X. Xxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxx 00000, in favor of ASSOCIATES
COMMERCIAL CORPORATION, a Delaware corporation ("ACC"), having an address
for notice purposes hereunder at 000 X. Xxxxxxxxx Xxxxxxx, 00 Xxxxx, Xxxxxx,
Xxxxx 00000, Attention: Xxxxx Xxxxxx, Vice President, ASSOCIATES LEASING,
INC., an Indiana corporation ("ALI"), having an address for notice purposes
hereunder at 000 X. Xxxxxxxxx Xxxxxxx, 00 Xxxxx, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx Xxxxxx, Vice President, NAVISTAR FINANCIAL CORPORATION
("Navistar"), having an address for notice purposes hereunder at 0000 Xxxx
Xxxx Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attention: Vice President,
Credit, MERCEDES BENZ CREDIT CORPORATION, a Delaware corporation
("Mercedes"), having an address for notice purposes hereunder at 0000
Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxxx,
and PACCAR FINANCIAL CORP., a Washington corporation ("Paccar" and ACC, ALI,
Navistar, Mercedes and Paccar are hereinafter individually and collectively
referred to as the "Indemnitee"), having an address for notice purposes
hereunder at 000 000xx Xxxxxx XX, Xxxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxx Xxxxxx, and other Indemnified Parties (defined below).
RECITALS:
A. Indemnitor is the owner of certain real property encumbered by the
Mortgage, Assignment of Rents and Leases, and Security Agreement dated of
even date herewith executed by Indemnitor for the benefit of Indemnitee
covering certain real and personal property situated in Xxxxxxx County,
Kansas (the "Security Instrument") (said property, together with any real
property hereafter encumbered by the lien of the Security Instrument, being
herein collectively 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" and as described on Exhibit
AA" hereto).
B. Indemnitee is prepared to amend and modify certain terms contained
in those certain financing agreements between Indemnitor and Indemnitee as
more fully described in Exhibit B of the Security Instrument (collectively,
the "Security Agreements") and to forbear exercising certain rights and
remedies Indemnitee possesses under the Security Agreements pursuant to that
certain Workout Agreement of even date herewith, by and among Indemnitor and
Indemnitee (the "Forbearance Agreement"). The sum of all indebtedness,
obligations and liabilities of Indemnitor now or hereafter existing of any
kind of Indemnitor to Indemnitee, including but not limited to the
indebtedness owing by Indemnitor to Indemnitee under the Security Agreements
and the Forbearance Agreement, is hereinafter individually and collectively
referred to as the "Loan".
C. Indemnitee is unwilling to amend and modify the Security
Agreements and enter into the Forbearance Agreement unless Indemnitor, agrees
to provide the indemnification, representations, warranties, and covenants
and other matters described in this Agreement for the benefit of Indemnified
Parties.
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 Indemnified Parties as follows:
1. Environmental Representations and Warranties. To the actual
knowledge of Indemnitor, (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) disclosed to
Indemnitee in writing either through the written report(s) resulting from the
environmental assessment(s) of the Property delivered to Indemnitee (such
report(s) are identified in Exhibit B attached hereto and are referred to
below collectively as the "Environmental Report") or by description on
Schedule I attached hereto and made a part hereof ("Schedule I"); (b) there
are no past, present or threatened Releases (defined below) of Hazardous
Substances or in connection with the Storage Tanks in, on, under or from the
Property except as described in the Environmental Report or Schedule I; (c)
there is no threat of any Release of Hazardous Substances migrating to the
Property except as described in the Environmental Report or Schedule I; (d)
there is no past or present non-compliance with Environmental Laws, or with
permits issued pursuant thereto, in connection with the Property, except as
described in the Environmental Report or Schedule I; (e) Indemnitor does not
know of, and has not received, any written notice or other communication from
any person or entity (including but not limited to a governmental entity)
relating to Hazardous Substances, the Storage Tanks or Remediation (defined
below) thereof, of possible liability of any person or entity 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 on Schedule I
hereto truthfully and fully identified any instances related to Releases or
Remediation of Hazardous Substances or the Storage Tanks on the Property and
shall provide to Indemnitee as soon as practicable after execution of this
Agreement copies of any and all information relating to Hazardous Substances
and/or the Storage Tanks that is known to Indemnitor and that is contained in
files and records of Indemnitor.
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 or entity, 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 by Indemnitor or
anyone controlled by, controlling or under common control with Indemnitor;
(c) 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 any Indemnitor or any other person or entity (the
"Environmental Liens"); (d) 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
written request of Indemnitee (provided that such request is made based upon
Indemnitee's reasonable belief that there are Hazardous Substances in, or
under the Property which are not in compliance with Environmental Laws), and
share with Indemnitee the reports and other results thereof, and Indemnitee
and other Indemnified Parties shall be entitled to rely on such reports and
other results thereof; (e) Indemnitor shall, at its sole cost and expense,
comply with all reasonable written requests of Indemnitee to (i) reasonably
effectuate Remediation of any condition (including but not limited to a
Release of a Hazardous Substance or in connection with the Storage Tanks) 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; (f) 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 or entity (whether on or 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 (g) Indemnitor shall immediately notify Indemnitee in writing
of (i) any presence or Releases or threatened Releases of Hazardous
Substances or in connection with the Storage Tanks in, on, under, from or
migrating towards the Property; (ii) any non-compliance with any
Environmental Laws related in any way to the Property; (iii) any actual or
potential Environmental Lien; (iv) any required or proposed Remediation of
environmental conditions relating to the Property; and (v) any written or
oral notice or other communication of which 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 or entity 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 Parties' Rights/Cooperation and Access. Indemnified
Parties and any other person or entity designated by 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 Indemnitee=s
sole and absolute discretion) and taking samples of soil, groundwater or
other water, air or building materials, and conducting other invasive
testing. Indemnitor shall cooperate with and provide access to Indemnified
Parties and any such person or entity designated by Indemnified Parties. All
such investigations shall be performed at Indemnitee's sole cost and expenses
except following an Event of Default (as defined in the Security Instrument),
in which case all such investigations shall be performed at Indemnitor's sole
cost and expense.
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 solely to Hazardous
Substances first introduced to the Property by anyone other than Indemnitor,
or its respective agents or employees following the foreclosure of the
Security Instrument (or the delivery and acceptance of a deed in lieu of such
foreclosure), the expiration of any applicable right of redemption and the
obtaining by the purchaser at such foreclosure sale or grantee under such
deed of possession of the Property): (a) the past, present or future
presence, Release or threatened Release of any Hazardous Substances in, on,
above, or under the Property or in connection with the Storage Tanks; (b) 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; (c) any legal or administrative processes
or proceedings or judicial proceedings in any way connected with any matter
addressed in this Agreement; (d) any personal injury, wrongful death, or
property or other damage arising under any statutory or common law or tort
law theory concerning Hazardous Substances or the Storage Tanks; and (e) 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 Security Agreements or the Security Instrument. THE
FOREGOING INDEMNITY IS EXPRESSLY INTENDED TO INCLUDE, AND DOES INCLUDE, ANY
LOSSES ARISING AS A RESULT OF ANY STRICT LIABILITY IMPOSED UPON OR INCURRED
BY OR ASSERTED AGAINST ANY INDEMNIFIED PARTY OR ARISING OUT OF OR IN ANY WAY
RELATING TO THE NEGLIGENCE OF ANY OF THE 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)
against claims covered by Section 4 of this Agreement by attorneys and other
professionals approved by the Indemnified Parties. Notwithstanding the
foregoing, any Indemnified Parties may, in their sole and absolute
discretion, 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. 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 "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 shall expressly exclude the Storage Tanks (as
defined below) and any tires, motor oil, transmission oil or other products
used in the ordinary course of business in the vehicle maintenance facility
located on the Mortgaged Property.
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 or the Storage Tanks,
relating to liability for or costs of Remediation or prevention of Releases
of Hazardous Substances or 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 or entity, 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 "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.
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.
The term "Legal Action" means any claim, suit or proceeding,
whether administrative or judicial in nature.
The term "Indemnified Parties" includes Indemnitee, any person or
entity who is or will have been involved in the origination of the Loan, any
person or entity who is or will have been involved in the servicing of the
Loan, any person or entity in whose name the encumbrance created by the
Security Instrument 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, custodians, trustees and other fiduciaries who
hold or have held a full or partial interest in the Loan for the benefit of
third parties.
The term "Losses" includes any losses, damages, costs, fees,
expenses, claims, suits, judgments, awards, liabilities (INCLUDING BUT NOT
LIMITED TO STRICT LIABILITIES, WHETHER UNDER ENVIRONMENTAL LAW OR OTHERWISE,
AND THOSE ARISING OUT OF THE NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES),
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, 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 "Storage Tanks" shall collectively refer to those two
(2) certain underground storage tanks located upon the Property as of the
date of this Agreement and the contents thereof.
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 agree to be bound by, any amendment or modification of the
provisions of the Security Agreements, the Security Instrument or any of the
other Financing Documents (as defined in the Security Instrument). 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 Security Agreements, the Security Instrument or any of the other
Financing Documents, (ii) any sale or transfer of all or part of the
Property, (iii) except as provided herein, any exculpatory provision in the
Security Instrument, or any of the other Financing Documents limiting
Indemnitee's recourse to the Property or to any other security for the
indebtedness under the Security Agreements, or limiting Indemnitee's rights
to a deficiency judgment against any Indemnitor, (iv) the accuracy or
inaccuracy of the representations and warranties made by any Indemnitor under
the Security Agreements, the Security Instrument or any of the other
Financing Documents or herein, (v) the release of any Indemnitor or any other
person from performance or observance of any of the agreements, covenants,
terms or condition contained in any of the other Financing 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 indebtedness
under the Security Agreements, or (vii) Indemnitee's failure to record the
Security Instrument 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 indebtedness under the Security Agreements; 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 Security Agreements, the
Security Instrument, or any other Financing 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 Security
Agreements, foreclosing, or exercising any power of sale under, the Security
Instrument, or exercising any other rights and remedies thereunder. This
Agreement is not collateral or security for the debt of Indemnitor pursuant
to the Security Agreements, unless Indemnitee expressly elects in writing to
make this Agreement additional collateral or security for the debt of
Indemnitor pursuant to the Security Agreements, which Indemnitee is entitled
to do in its sole and absolute discretion. It is not necessary for an Event
of Default (as defined in the Security Instrument) to have occurred for
Indemnified Parties to exercise their rights pursuant to this Agreement.
Notwithstanding any provision of the Security Instrument, the obligations
pursuant to this Agreement are exceptions to any non-recourse or exculpation
provision of the Security Instrument, Indemnitor is fully liable for such
obligations, and its liability is not limited to the original or amortized
principal balance of the indebtedness under the Security Agreements or the
value of the Property.
9. Survival. The obligations and liabilities of Indemnitor under
this Indemnity 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 Security Instrument.
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
a per annum rate equal to the lesser of (a) the rate of 1 1/2% per month for
the period the amount owed remains unpaid 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.
11. Waivers. Indemnitor hereby waives (i) any right or claim of
right to cause a marshaling of any Indemnitor's assets or to cause Indemnitee
or other Indemnified Parties to proceed against any of the security for the
indebtedness under the Security Agreements before proceeding under this
Agreement against any Indemnitor; (ii) and relinquishes all rights and
remedies accorded by applicable law to Indemnitor or guarantors, except any
rights of subrogation which any 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.
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, as a corporation, has the full corporate power and au-
thority 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 corporate action has been taken by Indemnitor to make this
Agreement valid and binding upon Indemnitor, enforceable in accordance
with its terms;
(b) Indemnitor's 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, articles of incorporation 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 the Indemnitor or the
Property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Indemnitor or the
Property is subject;
(c) 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) 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
entity or any source whatsoever with respect to 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 any Indemnitor may
have liability under this Agreement. Such notice shall comply with the
provisions of Section 18 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 any Indemnitor which reflect upon its financial
condition, at the Property or at any office regularly maintained by any
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. In addition, Indemnified Parties and
their accountants shall have the right to examine and audit the books and
records of any Indemnitor pertaining to the income, expenses and operation of
the Property during reasonable business hours at any office of such
Indemnitor where the books and records are located.
17. 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 knows of no basis for any additional assessment in respect of any
such taxes and related liabilities for prior years.
18. Notices. All notices or other written communications hereunder
shall be deemed to have been properly given (i) upon delivery, if delivered
in person or by facsimile transmission with receipt acknowledged by the
recipient thereof, (ii) one (1) Business Day (defined below) after having
been deposited for overnight delivery with any reputable overnight courier
service, or (iii) three (3) Business Days after having been deposited in any
post office or mail depository regularly maintained by the U.S. Postal
Service and sent by registered or certified mail, postage prepaid, return
receipt requested, addressed to the address of the parties to this Agreement
at the addresses set forth above, or addressed as such party may from time to
time designate by written notice to the other parties.
Any party by notice to the others may designate additional or different
addresses for subsequent notices or communications.
For purposes of this Section, "Business Day" shall mean a day on which
commercial banks are not authorized or required by law to close in Dallas,
Texas.
19. Submission to Jurisdiction/Governing Law. THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH (A) THE LAWS OF
THE STATE WHERE THE PROPERTY IS LOCATED, AND (B) THE LAWS OF THE UNITED
STATES OF AMERICA AND ANY RULES, REGULATIONS OR ORDERS ISSUED OR PROMULGATED
THEREUNDER APPLICABLE TO THE AFFAIRS AND TRANSACTIONS ENTERED INTO BY
INDEMNITEE, TO THE EXTENT SUCH LAWS, RULES, REGULATIONS OR ORDERS OTHERWISE
PREEMPT THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED, IN WHICH EVENT
SUCH FEDERAL LAW SHALL CONTROL.
20. No Third-party Beneficiary. The terms of this Agreement are for
the sole and exclusive protection and use of Indemnified Parties. No party
shall be a third-party beneficiary hereunder, and no provision hereof shall
operate or inure to the use and benefit of any such third party. It is
agreed that those persons and entities included in the definition of
Indemnified Parties are not such excluded third party beneficiaries.
21. 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.
22. 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 any 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.
23. 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.
24. 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 OTR Express, Inc., a Kansas corporation, and its successors and assigns,
all of whom shall be bound by the provisions of this Agreement, provided that
no obligation of any Indemnitor may be assigned except with the written
consent of Indemnitee. In no event shall this Agreement be interpreted as
binding upon or subjecting any officer, director, shareholder, employee or
agent of Indemnitor to any liability whatsoever. 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.
25. Joint and Several Liability. If Indemnitor consists of more than
one person or entity, the obligations and liabilities of each such person
hereunder are joint and several.
26. 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.
27. Rights Cumulative. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies which Indemnitee has
under the Security Agreements, the Security Instrument, or the other
Financing Documents or would otherwise have at law or in equity.
28. 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.
29. Jury Trial Waiver. AS A MATERIAL INDUCEMENT FOR INDEMNITEE TO
MODIFY AND AMEND THE SECURITY AGREEMENTS CONTEMPLATED HEREBY [AND TO ENTER
INTO THE FORBEARANCE AGREEMENT], INDEMNITEE AND INDEMNITOR HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY OF ANY OR ALL ISSUES ARISING IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BETWEEN INDEMNITEE AND INDEMNITOR OR ITS
RESPECTIVE SUCCESSORS OR ASSIGNS IN RESPECT OF ANY MATTER ARISING OUT OF,
UNDER OR CONNECTED IN ANY MANNER WHATSOEVER HEREWITH (INCLUDING ANY ACTION TO
RESCIND OR CANCEL THIS AGREEMENT), OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PERSON OR ANY
EXERCISE BY ANY PARTY OF ITS RIGHTS HEREUNDER. THIS WAIVER IS KNOWINGLY,
INTENTIONALLY, VOLUNTARILY, UNCONDITIONALLY AND IRREVOCABLY MADE BY
INDEMNITEE AND INDEMNITOR, AND EACH OF INDEMNITEE AND INDEMNITOR ACKNOWLEDGES
THAT NEITHER INDEMNITEE, INDEMNITOR NOR ANY PERSON ACTING ON BEHALF OF
INDEMNITEE OR INDEMNITOR HAS MADE ANY REPRESENTATION OF FACT TO INDUCE THIS
WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. EACH
OF INDEMNITEE AND INDEMNITOR ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE
SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT
LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE
OPPORTUNITY TO FULLY DISCUSS THIS WAIVER WITH SUCH COUNSEL. EACH OF
INDEMNITEE AND INDEMNITOR ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE
MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION.
30. Miscellaneous. Wherever pursuant to this Agreement (i)
Indemnitee exercises any right given to it to 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.
IN WITNESS WHEREOF, this Agreement has been executed by
Indemnitor and is effective as of the day and year first above written.
INDEMNITOR:
OTR EXPRESS, INC.,
a Kansas corporation
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President
EXHIBIT A
(Property Description)
EXHIBIT B
(Identification of Environmental Report)
Phase I Environmental Site Assessment, Project No. 50965041, dated April 8,
1996, prepared by Terracon Environmental, Inc.
SCHEDULE I
(Information required under Section 1 of the Agreement)
There have been occasional spills of diesel fuel and other chemicals and
products used in the ordinary course of Indemnitor's business. including
the following:
In 1991, Xxxxx Xxxxxx poked a hole in his fuel tank and lost about
100-150 gallons of diesel on the ground. There was no call made to
the regulatory authorities on this matter.
In 1991, Xxxx Xxxxx had the fuel nozzle fall out of the tank and he
lost approximately 75 gallons of diesel. Ther was a regulaory and
Haz-Mat cleanup.
From 1991 through 1995, there were several spills of diesel fuel
east of the main office building which were cleaned up with a clay
absorbing material.
In 1999, there was a spill of diesel fuel east of the loading dock.
Approximately 25 gallons were cleaned up with clay absorbing
material.
In 1999, there were two spills of diesel fuel in the parking area
just north of the repair shop, which were approximately 25 gallons
each. They were cleaned up by the Company.
In the parking area next to the creek, there were 25-50 gallon
spill of diesel fuel which was cleaned up by the Company with a
clay absorbing material.
There have been one or two instances where the tank trap at the back of
the building malfunctioned and allowed diesel fuel to go over the baffle
in the storage tank and move beyond the perimeter of the property. In
those instances, equipment was used to remove the diesel and dispose of it
properly, and the Company believes regulatory authorities were involved.
