ENVIRONMENTAL INDEMNITY AGREEMENT
Exhibit 10.3
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this “Agreement”), executed as of the 14th
day of August, 2006 (the “Effective Date”), is made by Midlothian Longbranch, L.P., a Texas limited
partnership (“Borrower”), Centurion Acquisitions, L.P., a Texas limited partnership (“Centurion”),
Pars Investments, Inc., a Texas corporation (the “General Partner”), and Xxxxxxx Xxxxxxx
(“Xxxxxxx”, and collectively with Borrower, Centurion and the General Partner, the “Affiliates”) in
favor of United Development Funding III, L.P., a Delaware limited partnership (“Lender”).
RECITALS:
A. Lender has agreed to advance funds to Borrower under that certain Secured Promissory Note
dated as of the Effective Date in the principal amount of U.S. $962,563.00 (the “Note”), which
shall be secured in part by a Deed of Trust, Security Agreement and Financing Statement (Fixture
Filing) (the “Deed of Trust”) executed and delivered by Borrower to Xxxx Xxxxx, trustee for the
benefit of Lender, covering that certain real property owned by Borrower located in the City of
Midlothian, County of Xxxxx, State of Texas and commonly referred to as “Xxxxxxx at Longbranch,” as
further described on Exhibit “A” attached to the Deed of Trust (the “Property”).
B. It is a condition precedent to Lender’s agreement to advance funds to Borrower under the
Note that Borrower and the Affiliates enter into this Agreement, and Borrower and the Affiliates
are willing to enter into this Agreement in favor of Lender and hereby agree to be bound by its
terms and conditions.
AGREEMENT:
NOW THEREFORE, in consideration of the premises and in order to induce Lender to advance funds
under the Note, and for other good and valuable consideration, the receipt and sufficiency of which
are acknowledged, Borrower and the Affiliates agree and covenant with Lender as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined shall have
the meaning set forth in the Note. In addition, as used in this Agreement, the following terms
have the following meanings:
“Environmental Activity” means the existence, use, storage, Release, threatened
Release, generation, processing, abatement, removal, or disposal of any Hazardous Substance on, to,
or from the Property or the handling, transportation, treatment, or disposal of any Hazardous
Substance arranged by or on behalf of any Indemnitor.
“Environmental Claims” means any and all governmental and third-party actions, suits,
demands, demand letters, claims, liens, notices of non-compliance or violation, investigations,
proceedings, consent orders, or consent agreements relating in any way to the presence or Use of
any Hazardous Substance on the Property or the Release or threatened Release of any Hazardous
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Substance to or from the Property or the violation of any Environmental Requirement or any
Environmental Permit applicable to the Property or which otherwise relate to any Environmental
Activity (hereafter “Claims”), including without limitation (a) any and all Claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial, or other actions or
damages pursuant to any applicable Environmental Requirement, and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery, compensation, or
injunctive relief arising in connection with any Hazardous Substance or arising from alleged injury
or threat of injury to property, human health, or the environment resulting or allegedly resulting
from any Environmental Activity.
“Environmental Damages” means all claims, judgments, damages, losses, penalties,
fines, liabilities (including strict liability), encumbrances, liens, costs, and expenses imposed
against any party in connection with any Environmental Activity, and all costs and expenses of
investigation and defense of any Environmental Claim, whether or not such Environmental Claim is
ultimately defeated, and in connection with any good faith settlement or agreed judgment,
including, without limitation, reasonable attorneys’ fees and disbursements and consultants’ fees,
which are reasonably necessary or required as a result of an Environmental Claim based on the
existence or alleged existence of any Hazardous Substance upon, about, or beneath the Property, or
the migration or threat of migration of any Hazardous Substance to or from the Property, or the
existence of a violation of any Environmental Requirement pertaining to any Indemnitor or the
Property, regardless of whether the existence or alleged existence of such Hazardous Substance or
the violation of Environmental Requirements arose prior to any Indemnitor’s ownership or operation
of the Property. “Environmental Damages” shall include, without limitation, (a) damages
for personal injury or injury to property or natural resources occurring upon or off of the
Property, (b) fees incurred for the services of attorneys, consultants, contractors, experts, and
laboratories, and all other costs incurred in connection with the investigation of the presence or
alleged presence of Hazardous Substances on, about, or under the Property, the removal or
remediation of any Hazardous Substances, or the violation of Environmental Requirements, including,
without limitation, costs and expenses for the preparation of any feasibility studies or reports or
the performance of any cleanup, remediation, removal, response, abatement, containment, closure,
restoration, or monitoring work required by any Governmental Authority or reasonably necessary in
defense of any Environmental Claim, and reasonable attorneys’ fees, costs, and expenses incurred in
enforcing this Agreement or collecting any sums due hereunder, and (c) liability to any third
person or Governmental Authority to indemnify such person or entity for costs expended in
connection with the items referenced in subparagraph (b) preceding, and (d) diminution in the value
of the Property.
“Environmental Laws” means all statutes and ordinances of any Governmental Authority
having jurisdiction over any Indemnitor, the Property, or any user or occupant of the Property, and
relating to the protection of human health and the environment, now existing or hereafter adopted,
including without limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. § 9601, et seq.), the Solid Waste Disposal Act, as amended (42
U.S.C. § 6901, et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. § 1801,
et seq.), the Clean Air Act, as amended (42 U.S.C. § 7401, et seq.), the Federal Water Pollution
Control Act, as amended (33 U.S.C. § 1251, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. § 2601, et seq.), the
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Safe Drinking Water Act, as amended (42 U.S.C. § 300f, et seq.), the Atomic Energy Act, as amended
(42 U.S.C. § 2014, et seq.), the Federal Insecticide, Fungicide and Rodenticide Act, as amended (7
U.S.C. § 136, et seq.), the Oil Pollution Act of 1990, as amended (33 U.S.C. § 2701, et seq.), the
Emergency Planning and Community Right-to-Know Act of 1986, as amended (42 U.S.C. § 11001, et
seq.), the Occupational Safety and Health Act, as amended (29 U.S.C. § 651, et seq.), the
Endangered Species Act, the Texas Water Code, as amended, and the Texas Health and Safety Code, as
amended, and the regulations adopted and publications promulgated pursuant thereto.
“Environmental Permits” means all permits, approvals, identification numbers,
licenses, and other authorizations required under any applicable Environmental Requirement.
“Environmental Requirements” means all applicable present and future Environmental
Laws and all rules, regulations, orders, decrees, permits, licenses, concessions, franchises, or
other restrictions or requirements of any Governmental Authority relating to the protection of
human health or the environment and all applicable judicial, regulatory, or administrative
decisions, decrees, judgments, or orders thereunder.
“Governmental Authority” means any governmental authority, the United States of
America, any state of the United States of America, and any subdivision of any of the foregoing,
and any agency, department, commission, board, authority, instrumentality, bureau, or court having
jurisdiction over the Property, or over any Indemnitor or any occupant or user of the Property, or
any of their respective businesses, operations, assets, or properties.
“Hazardous Substance” means any substance, material, or waste (a) the presence or
Release of which requires reporting, investigation, or remediation under any Environmental
Requirement, (b) which is defined or listed as a “hazardous waste,” “hazardous substance,”
“extremely hazardous waste,” “restricted hazardous waste,” “hazardous material,” “toxic substance,”
or other similar or related term under any Environmental Law, (c) which is toxic, radioactive, or
otherwise classified as hazardous or toxic and is or becomes regulated by any Governmental
Authority as a threat to human health or the environment, (d) the presence of which on the Property
causes or threatens to cause a nuisance upon the Property or to adjacent property, (e) the presence
of which on adjacent properties could constitute a trespass by any Indemnitor, (f) which is
asbestos, (g) which is polychlorinated biphenyls, or (h) which contains petroleum or any
petroleum-derived product.
“Indemnitees” means Lender and its subsidiaries and affiliates, any assignee of Lender
with respect to all or any portion of the Loan, and their respective subsidiaries, affiliates,
shareholders, partners, members, directors, officers, agents, attorneys, and employees, and their
respective successors and assigns, and “Indemnitee” means any one of the Indemnitees.
“Indemnitors” means, collectively, (i) Borrower and its successors and permitted
assigns and (ii) each Affiliate and their respective successors and permitted assigns.
“Lien” means any encumbrance, lien, deed of trust, change, claim, or security interest
of any kind or nature.
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“Note” means the Secured Promissory Note dated of August 14, 2006, executed by
Borrower and payable to the order of Lender in the original principal amount of U.S. $962,563.00.
“Permitted Substances” means common cleaning, maintenance, repair, painting materials,
and other commercial or retail products properly stored and handled in normal, commercially
reasonable quantities and consumed or used in the ordinary course of use and operation of the
Property.
“Property” means the real and personal property covered by and described in
Exhibit “A” attached to the Deed of Trust and includes any soil, surface water, or
groundwater on or under any of the real property and all improvements located thereon.
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including
the abandonment or discarding of barrels, containers, or other closed receptacles containing any
Hazardous Substance).
“Use” means use, ownership, development, construction, maintenance, management,
operation, or occupancy.
2. Indemnity by Indemnitors.
(a) Indemnitors shall indemnify, defend, save, and hold harmless each Indemnitee from and
against any and all Environmental Damages imposed or asserted against the Property or Indemnitees
(i) arising from the presence or alleged presence of Hazardous Substances upon, about, or beneath
the Property or arising from the migration of Hazardous Substances to or from the Property
regardless of the source of such release or when such release occurred or such presence is
discovered, (ii) arising in any manner whatsoever out of the violation of any Environmental
Requirement pertaining to any Indemnitor or the Property, or (iii) arising from the breach of any
covenant or the inaccuracy of any representation or warranty of Indemnitors contained in this
Agreement; unless, and to the extent, such Environmental Damages are finally determined to have
arisen solely and directly from the gross negligence or willful misconduct of Indemnitees. THIS
OBLIGATION SHALL INCLUDE ANY CLAIMS RESULTING FROM THE NEGLIGENCE OR ALLEGED NEGLIGENCE OF ANY
INDEMNITEE. This obligation shall include, but shall not be limited to, (A) the burden of
defending all claims, suits, and administrative proceedings (with counsel reasonably approved by
Indemnitees), even if such claims, suits, or proceedings are groundless, false, fraudulent, or
frivolous, and conducting all negotiations of any description, (B) paying and discharging, when and
as the same shall become due, any and all judgments, penalties, or other sums due against any
Indemnitee, (C) paying and discharging, when and as the same shall become due, all costs of removal
and/or remediation of any kind, and promptly disposing of such Hazardous Substances (whether or not
such Hazardous Substance may be legally allowed to remain upon, about, or beneath the Property if
removal or remediation is prudent), (D) paying and discharging, when and as the same shall become
due, all costs of determining whether the Property is in compliance and promptly causing the
Property to
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be in compliance with all applicable Environmental Requirements, (E) paying and discharging, when
and as the same shall become due, all costs associated with claims for damages to persons,
property, or natural resources, and (F) paying and discharging, when and as the same shall become
due, Indemnitees’ reasonable attorneys’ fees, consultants’ fees, and court costs. Any Indemnitee
(or at Indemnitors’ expense if Indemnitors’ counsel or Indemnitee reasonably believes a conflict
exists in dual representation), at its expense, may employ additional counsel of its choice to
associate with counsel employed by Indemnitors; and any Indemnitee may in good xxxxx xxxxxx any
Environmental Claim against it, whether or not subject to indemnification hereunder, without the
consent or joinder of Indemnitors or any other party.
Indemnitors and their successors and assigns hereby waive, release, and agree not to make any
claim or bring any cost recovery action against Indemnitees under any Environmental Requirement now
existing or hereafter enacted. It is expressly understood and agreed that to the extent that
Indemnitees are strictly liable under any Environmental Requirements, Indemnitors’ obligations to
Indemnitees under this Agreement shall likewise be without regard to fault on the part of
Indemnitors with respect to the violation or condition which results in liability to Indemnitees.
(b) Indemnitors shall indemnify, defend, and hold harmless each Indemnitee from and against
any and all loss, liability, obligation, damage, penalty, judgment, claim, deficiency, and expense
(including interest, penalties, attorneys’ fees, and amounts paid in settlement) to which
Indemnitees may become subject arising out of or relating to the Property, this Agreement and the
other Loan Documents, other than those which are finally determined to have arisen solely by reason
of the gross negligence or willful misconduct of Lender, BUT SPECIFICALLY INCLUDING ANY LOSS,
LIABILITY, OBLIGATION, DAMAGE, PENALTY, JUDGMENT, CLAIM, DEFICIENCY, OR EXPENSE ARISING OUT OF THE
SOLE OR CONCURRENT NEGLIGENCE OF ANY INDEMNITEE. The provisions of and undertakings and
indemnifications set forth in this Section 2(b) shall survive (i) the satisfaction and
payment of the and termination of the Note, and (ii) the release of any Liens held by Lender on
real property or the extinguishment of such Liens by foreclosure or action in lieu thereof.
INDEMNITORS HEREBY WAIVE ANY RIGHT OR CLAIM TO CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR
RELATED TO THE LOAN OR THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREBY, OR
THE ACTIONS OF ANY INDEMNITEE IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT HEREOF OR THEREOF.
(c) If the undertaking in the preceding paragraphs, or in any portion thereof, is at any time
determined to be unenforceable because it is violative of any law or public policy, Indemnitors
will contribute the maximum portion that they are permitted to pay and satisfy under applicable law
to the payment and satisfaction of all Environmental Damages incurred by Indemnitees as set forth
above.
3. Costs and Expenses. Indemnitors shall pay to each Indemnitee all reasonable costs
and expenses (including the reasonable fees and disbursements of Indemnitee’s legal
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counsel) incurred by that Indemnitee in connection with this Agreement or the enforcement of the
terms of this Agreement.
4. Survival of Indemnity. Indemnitors’ obligations under Sections 2 and
3 of this Agreement (the “Indemnity Obligations”) shall survive the making and
repayment of the Loan and the termination of the Note and any transfer of Indemnitors’ right,
title, and interest in and to any or all of the Property (whether by sale, foreclosure, deed in
lieu of foreclosure, release, or otherwise) until such time as any claim described in Sections
2 and 3 hereof shall be barred by all of the applicable statutes of limitations, if
any. Indemnitors, without the prior written consent of Lender in each instance, may not assign,
transfer, or set over to another, in whole or in part, all or any part of its benefits, rights,
duties, or obligations hereunder.
5. Representations and Warranties. Indemnitors represent and warrant that:
(a) (i) the Property has not been used at any time during any Indemnitor’s management or
ownership to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer,
produce, process, or in any manner deal with Hazardous Substances; (ii) to Indemnitors’ knowledge
after reasonable inquiry, the Property has not been used at any time prior to any Indemnitor’s
management or ownership to generate, manufacture, refine, transport, treat, store, handle, dispose
of, transfer, produce, process, or in any manner deal with Hazardous Substances; (iii) at no time
during any Indemnitor’s management or ownership of the Property has there occurred a Release or
threatened Release of a Hazardous Substance; (iv) no Indemnitor has received any written notice or
advice from any Governmental Authority or quasi-Governmental Authority, any lessee of the Property,
or any other party alleging any claim based upon an Environmental Activity, alleging the presence,
Release, or threatened Release of a Hazardous Substance on, from, or affecting the Property, or
alleging any violation of any Environmental Requirement; and (v) to Indemnitors’ knowledge, no
prior owner of the Property or any lessee of the Property has received any written notice or advice
from any Governmental Authority or quasi-Governmental Authority or from any other party alleging
any claim based upon an Environmental Activity, alleging any Release of any Hazardous Substance on,
from, or affecting the Property, or alleging any violation of any Environmental Requirement;
(b) all Environmental Permits necessary for the current use and operation of the Property, if
any are required, have been obtained and are in effect for the operations conducted at the
Property;
(c) Indemnitors have operated the Property in material compliance with all applicable
Environmental Requirements;
(d) there are no past, pending, or, to Indemnitors’ knowledge, threatened Environmental Claims
against Indemnitors or the Property;
(e) Indemnitors have not transported or arranged for the transportation from the Property of
any Hazardous Substance to any location that is listed or proposed for listing on the National
Priorities List under CERCLA or on the CERCLIS or any analogous state list or, to Indemnitors’
knowledge, that is the subject of any Environmental Claim;
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(f) no asbestos-containing materials are located in any of the improvements constituting any
part of, or located on any part of, the Property;
(g) there are not now and, to Indemnitors’ knowledge, never have been, any underground storage
tanks, as such term is defined in 42 U.S.C. § 6991, located on the Property or on any property
adjoining the Property.
6. Affirmative and Negative Covenants. Until payment in full of the Secured
Indebtedness, unless Lender shall otherwise consent in writing:
(a) Indemnitors shall keep the Property free of Hazardous Substances, except for Permitted
Substances and Indemnitors shall not allow any tenant, occupant, or other party to generate,
manufacture, refine, transport, treat, store, handle, dispose, transfer, produce, process, or in
any manner deal with Hazardous Substances on or at the Property, except for Permitted Substances.
Indemnitors shall not cause or permit, as a result of any intentional or unintentional act or
omission on the part of any Indemnitor, and Indemnitors shall at all times prior to the date
Indemnitors cease to own, operate, or control the Property, use (and shall cause all others to use)
their best efforts not to permit, as a result of any act or omission on the part of any tenant or
subtenant or occupant of the Property, a Release of any Hazardous Substance onto the Property or
onto any other property.
(b) Indemnitors shall acquire and comply with all Environmental Permits necessary for the
ownership, operation, or use of the Property. Indemnitors shall comply with, and shall use their
best efforts to ensure compliance by all tenants, subtenants, and occupants of the Property with
all Environmental Requirements and shall keep the Property free and clear of any liens imposed
pursuant thereto. Indemnitors shall immediately pay or cause to be paid all costs and expenses
incurred to ensure such compliance. Indemnitors shall obtain and renew all Environmental Permits
required for the ownership, operation, or use of the Property. If Indemnitors receive any written
notice or advice from any Governmental Authority or from any tenant, subtenant, or occupant with
regard to any Environmental Claim or alleged Environmental Claim or of any Release or threatened
Release of any Hazardous Substance from or affecting the Property, then Indemnitors shall
immediately notify Lender in writing. Indemnitors shall conduct and complete all investigations,
studies, sampling, and testing which are reasonably necessary or required, and all remedial,
removal, and other actions necessary to investigate, clean up, and remove all Hazardous Substances
on or affecting the Property or originating from the Property in accordance with and to the full
extent required by Environmental Requirements and to the satisfaction of all applicable
Governmental Authorities. If Indemnitors do not proceed with any investigation, removal, remedial,
or other action in compliance with Environmental Requirements within thirty (30) days of receipt of
the initial written advice or notice with regard to the Property, then Lender, within thirty (30)
days after notice to Indemnitors by Lender, may elect, in its sole discretion and with no
obligation to do so, to undertake such action. Any monies expended by Lender in efforts to comply
with any Environmental Requirements (including the costs of hiring consultants, undertaking
sampling and testing, performing any removal or remedial action necessary or useful in the
compliance process, and reasonable attorneys’ fees and disbursements) will be reimbursed by
Indemnitors to Lender on demand, will constitute a portion
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of the Secured Indebtedness, will bear interest from the date incurred until paid at the applicable
rate set forth in the Note, and will be secured by all collateral for the Loan.
(c) Indemnitors shall provide Lender, within thirty (30) days after demand by Lender, with a
bond, letter of credit, or similar financial assurance evidencing to Lender’s satisfaction that
necessary funds are available to pay the cost of removing, treating, and disposing of such
hazardous substances and discharging any assessments which may be established on the Property as a
result thereof, if in Lender’s reasonable opinion, Indemnitors do not have sufficient funds to pay
for such costs for discharge of such assessments or if an Event of Default has occurred.
7. Recourse Obligations. Indemnitors agree that notwithstanding any term or provision
contained in this Agreement or any other Loan Document apparently to the contrary, Indemnitors’
obligations as set forth in this Agreement shall be exceptions to any non-recourse or exculpatory
provision relating to the Loan, if any, and Indemnitors shall be unconditionally liable for the
obligations under this Agreement, and such liability shall not be limited to the original principal
amount of the Loan.
8. Periodic Site Assessments. Lender (by its officers, employees, and agents) at any
time and from time-to-time, may contract for the services of persons (the “Site Reviewers”)
to perform environmental site assessments (“Site Assessments”) on the Property for the
purpose of determining whether there exists on the Property any environmental condition which could
reasonably be expected to result in any liability, costs, or expense to the owner, occupier, or
operator of the Property arising under any Environmental Requirement relating to Hazardous
Substances. The Site Assessments may be performed at any time or times, upon reasonable notice,
and under reasonable conditions established by Indemnitors which do not impede the performance of
the Site Assessments. The Site Reviewers are hereby authorized by Indemnitors to enter upon the
Property for such purposes and as provided hereinbelow. The Site Reviewers are further authorized
to perform both above and below the ground testing for environmental damage or the presence of
Hazardous Substances on the Property and such other tests on the Property as may be necessary to
conduct the Site Assessments in the reasonable opinion of the Site Reviewers. Indemnitors shall
supply to the Site Reviewers such historical and operational information regarding the Property as
may be reasonably requested by the Site Reviewers to facilitate the Site Assessments and will make
available for meetings with the Site Reviewers appropriate personnel having knowledge of such
matters. The cost of performing such Site Assessments shall be paid by Indemnitors upon demand of
Lender and any such obligations shall be added to and become a part of the Loan.
9. Miscellaneous.
(a) Notices. Notices to be made under this Agreement shall be given in accordance
with the Note.
(b) Number and Gender. Whenever used herein, the singular number shall include the
plural and the singular, and the use of any gender shall be applicable to all genders.
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(c) Captions. The captions, headings, and arrangements used in this Agreement are for
convenience only and do not in any way affect, limit, amplify, or modify the terms and provisions
hereof.
(d) Successors and Assigns. Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and assigns of such party as
Lender or Indemnitors; and all covenants, promises, and agreements by or on behalf of Indemnitors
that are contained in this Agreement shall bind and inure to the benefit of Indemnitees’ successors
and assigns; provided, however, that Indemnitors may not assign their obligations and duties
hereunder without the prior written consent of Lender, and any such attempted assignment shall not
have the effect of releasing Indemnitors from any of their obligations or duties hereunder.
(e) CHOICE OF LAW; JURISDICTION; VENUE. EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF SECURITY INTERESTS OR REMEDIES IN RESPECT OF ANY PARTICULAR COLLATERAL IS
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF TEXAS, THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE
STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PROVISIONS. JURISDICTION FOR ALL MATTERS
ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE EXCLUSIVELY IN THE STATE AND
FEDERAL COURTS SITTING IN DALLAS COUNTY, TEXAS, AND EACH INDEMNITOR HEREBY IRREVOCABLY SUBMITS
ITSELF TO THE JURISDICTION OF SUCH STATE AND FEDERAL COURTS AND AGREES AND CONSENTS NOT TO ASSERT
IN ANY PROCEEDING, THAT ANY SUCH PROCESS IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE
THEREOF IS IMPROPER, AND FURTHER AGREES TO A TRANSFER OF SUCH PROCEEDING TO THE COURTS SITTING IN
DALLAS COUNTY, TEXAS.
(f) Waivers. No failure or delay of any Indemnitee in exercising any power, right, or
benefit hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of Indemnitees hereunder are cumulative and not exclusive of any rights or
remedies which any of them would otherwise have. No waiver of any provision in this Agreement or
consent to any departure by Indemnitors therefrom shall in any event be effective unless signed in
writing by Lender, and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given.
(g) Amendment. This Agreement may be amended only by an agreement in writing signed
by the party against whom enforcement thereof is sought.
(h) WAIVER OF JURY TRIAL, PUNITIVE DAMAGES, ETC. EACH INDEMNITOR HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY (A) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY
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LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
THE LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY OR ASSOCIATED HEREWITH OR
THEREWITH, BEFORE OR AFTER MATURITY OF THE NOTE; (B) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED
BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY “SPECIAL DAMAGES”, AS
DEFINED BELOW, (C) CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OF LENDER OR COUNSEL FOR
ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (D) ACKNOWLEDGES THAT LENDER
HAS BEEN INDUCED TO ENTER INTO THE NOTE AND THE OTHER LOAN DOCUMENTS AND THE TRANSACTIONS
CONTEMPLATED THEREBY BY AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED IN THIS
SECTION. AS USED IN THIS SECTION, “SPECIAL DAMAGES” INCLUDES ALL SPECIAL, CONSEQUENTIAL, EXEMPLARY,
OR PUNITIVE DAMAGES (REGARDLESS OF HOW NAMED), BUT DOES NOT INCLUDE ANY PAYMENTS OR FUNDS WHICH ANY
PARTY HERETO HAS EXPRESSLY PROMISED TO PAY OR DELIVER TO ANY OTHER PARTY HERETO.
(i) ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS TOGETHER
CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES CONCERNING THE SUBJECT MATTER HEREOF, AND ALL
PRIOR DISCUSSIONS, AGREEMENTS AND STATEMENTS, WHETHER ORAL OR WRITTEN, ARE MERGED INTO THIS
AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES AND THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
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EXECUTED
on this the 18th day of August, 2006, effective for all purposes as of the Effective Date.
INDEMNITORS: | MIDLOTHIAN LONGBRANCH, L.P., a Texas limited partnership |
|||||
By: Pars Investments, Inc. Its: General Partner |
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By: /s/ Xxxxxxx Xxxxxxx | ||||||
Name: Xxxxxxx Xxxxxxx Its: President |
||||||
CENTURION ACQUISITIONS, L.P., a Texas limited partnership |
||||||
By: Pars Investments, Inc. Its: General Partner |
||||||
By: /s/ Xxxxxxx Xxxxxxx | ||||||
Name: Xxxxxxx Xxxxxxx | ||||||
Its: President | ||||||
PARS INVESTMENTS, INC., a Texas corporation |
||||||
By: /s/ Xxxxxxx Xxxxxxx | ||||||
Name: Xxxxxxx Xxxxxxx | ||||||
Its: President | ||||||
/s/ Xxxxxxx Xxxxxxx | ||||||
Xxxxxxx Xxxxxxx, individually |
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