Loan No. 99-086
HAZARDOUS SUBSTANCE
INDEMNIFICATION AGREEMENT
THIS HAZARDOUS SUBSTANCE INDEMNIFICATION AGREEMENT ("Indemnity") is made
as of the ____ day of August 1999, by 000 XXXXX XXXXXX LIMITED PARTNERSHIP, a
limited partnership, organized and existing under the laws of Delaware, whose
address is 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Borrower"),
and XXXXXX X. XXXXXXX, XX., whose address is 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (said individual is hereinafter referred to as a "Principal" and
Borrower and Principal are hereinafter together referred to as "Indemnitors" and
each individually as an "Indemnitor") to and in favor of XXXXXX FINANCIAL, INC.,
a Delaware corporation, with a mailing address at 000 Xxxx Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx Express Servicing Department,
Re: Loan No. 99_086 (XXXXXX FINANCIAL, INC. and its successors and assigns are
hereinafter collectively referred to as "Lender").
RECITALS
A. Substantially contemporaneously herewith, Lender is entering into a
financing transaction ("Loan") with Borrower, which Loan is evidenced by a
certain Promissory Note ("Note") in the principal amount of THIRTY_TWO MILLION
and No/100 Dollars ($32,000,000.00) of even date herewith executed and delivered
by Borrower, as maker, to the order of Lender, as payee, secured by, inter alia,
a Mortgage Consolidation, Assignment of Rents, Security Agreement and Fixture
Filing of even date herewith ("Mortgage") encumbering certain real property
located in New York County, New York, and more fully described on Exhibit A to
the Mortgage ("Land") (the Note, the Mortgage, this Indemnity, and any other
documents evidencing or securing the indebtedness evidenced in connection
therewith, and any modification, renewal, or extension thereof are hereinafter
collectively referred to as the "Loan Documents").
B. Lender has required this Indemnity as a condition of Lender's making
and disbursing the Loan.
C. Principal indirectly owns some of the partnership interests in
Borrower, and it is in Principal's and Borrower's direct financial interest and
benefit to induce Lender to make the Loan by executing and delivering this
Indemnity.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Indemnity.
Each Indemnitor hereby agrees, jointly and severally, unconditionally,
absolutely and irrevocably, to indemnify, defend (with counsel reasonably
acceptable to Lender and at Indemnitor's sole cost) and hold harmless Lender and
its officers, directors, employees, shareholders, agents and affiliates
(individually and collectively the "Indemnified Party"), against and in respect
of any and all liabilities, obligations, deficiencies, demands, claims, actions,
or causes of action, assessments, losses, costs, expenses (including, without
limitation, court costs and reasonable attorneys' fees and expenses), interest,
fines, penalties, actual and punitive damages, and all costs and expenses of any
and all investigations, remedial measures, proceedings, arbitrations,
mediations, judgments, settlements, and compromises whatsoever (collectively the
"Liabilities") sustained or incurred by Indemnified Party resulting from or
arising out of or by virtue of a claim made by any party resulting from:
(a) The presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, disposal (whether arranged or otherwise)
or release from, the Land into or upon any land, the atmosphere, or any
watercourse, body of water or wetland, of any "Hazardous Materials" (as
hereinafter defined).
(b) Any failure of the Land or activities thereon to comply with
all applicable "Environmental Laws" (as hereinafter defined) relating to
the protection of health, safety or the environment.
(c) Any personal injury relating to the presence of any Hazardous
Materials on or from the Land.
Notwithstanding the foregoing, or anything in this Indemnity to the
contrary (i) Indemnitors' liability in respect of the Liabilities shall only
arise to the extent the Hazardous Materials, the presence of which gives rise to
liability to Indemnitors, existed in or about the Land during periods of
Borrower's ownership of the Land, (such liability to include any of such
Hazardous Materials introduced to the Land prior to such period of ownership);
(ii) Indemnitors shall not be responsible for any event described in (a), (b) or
(c) above and shall not be liable to any Indemnified Party to the extent any
Liabilities are sustained or incurred by any Indemnified Party on account of
Hazardous Materials introduced to the Land by anyone other than Indemnitors, or
their respective agents and employees, following Lender's taking of title to the
Land or assuming possession or control of the Land, as mortgagee in possession
or otherwise; and (iii) this Indemnity shall not apply to any Liabilities
sustained or incurred by any Indemnified Party to the extent same result from
the gross negligence or willful misconduct of any Indemnified Party. The term
"Environmental Laws" shall include any federal, state or local laws or
regulations relating to health, safety or protection of the environment. The
term "Hazardous Materials" shall include Hazardous Substances, as defined by the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
ss.9601 et seq., any petroleum or petroleum products, asbestos or asbestos
containing material, or any other hazardous substances, hazardous wastes or
hazardous materials as defined by other Environmental Laws.
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2. Indemnification Procedure.
(a) Notice. Each Indemnitor shall notify Lender promptly (and in
any event within 10 business days) upon receipt of any inquiry, notice,
claim, charge, cause of action or demand pertaining to the matters
indemnified under Paragraph 1, including, without limitation, any notice
of inspection, abatement or noncompliance, stating the nature and basis
of such inquiry or notification. For identical notices from different
Indemnitors, only one such notice needs to be provided to Lender. Each
Indemnitor shall immediately deliver to Lender any and all documentation
or records in such Indemnitor's possession or control as Lender may
reasonably request in connection with such notice or inquiry and shall
keep Lender advised of any subsequent developments. If any Indemnified
Party asserts a claim for indemnification or receives notice of the
assertion of any claim or of the commencement of any action or proceeding
against such Indemnified Party, Indemnified Party shall give written
notice ( the "Notice of Claim") together with a statement of any
available information regarding such claim to Indemnitors within 30 days
after learning of such claim or within such shorter time as may be
necessary to give Indemnitors a reasonable opportunity to respond to such
claim. Indemnitors shall have the right, upon written notice to
Indemnified Party (the "Notice to Defend") within 30 days after receipt
from Indemnified Party of a Notice of Claim regarding such claim, to
conduct at Indemnitors' expense the defense against such claim in
Indemnitors' own name, or if necessary in the name of Indemnified Party.
(b) Effect of Failure to Give Notice. If Indemnitors shall fail to
give the requisite Notice to Defend set forth in Paragraph 2(a) above,
Indemnitors shall be deemed to have elected not to conduct the defense of
the subject claim, and in such event, Indemnified Party shall have the
right to conduct such defense in good faith and to compromise and settle
the claim without the prior consent of Indemnitors, and Indemnitors will
be liable for all costs, expenses, settlement amounts or other
Liabilities paid or incurred in connection therewith.
(c) Parties to Cooperate. If Indemnitors elect to conduct the
defense of the subject claim, Indemnified Party will cooperate with and
make available to Indemnitors such assistance and materials as may be
reasonably requested by Indemnitors, all at the expense of Indemnitors,
and Indemnified Party shall have the right at Indemnified Party's expense
to participate in the defense assisted by counsel of Indemnified Party's
own choosing and at Indemnified Party's sole cost and expense, provided
that Indemnified Party shall have the right to compromise and settle the
claim only with the prior written consent of Indemnitors, which consent
shall not be unreasonably withheld or delayed. Without the prior written
consent of Indemnified Party, which consent shall not be unreasonably
withheld or delayed, Indemnitors will not enter into any settlement of
any claim or cease to defend against a claim, if pursuant to or as a
result of such settlement or cessation, (i) injunctive or other equitable
relief would be imposed against Indemnified Party, or (ii) such
settlement or cessation would lead to liability or create any financial
or other obligation on the part of the Indemnified Party for which
Indemnified Party is not entitled to indemnification hereunder.
Indemnitors shall not be entitled to control, and Indemnified Party shall
be entitled to have sole control of the defense or settlement of any
claim to the
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extent that claim seeks an order, injunction or other equitable relief
against Indemnified Party which, if successful, could materially
interfere with the business, operations, assets, condition (financial or
otherwise) or prospects of Indemnified Party (and the cost of such
defense shall constitute an amount for which Indemnified Party is
entitled to indemnification under this Indemnity). If a firm decision is
made by Indemnitors to settle a claim, which offer Indemnitors are
permitted to settle under this Paragraph 2(c), and Indemnitors desire to
accept and agree to such offer, Indemnitors will give written notice to
Indemnified Party to that effect. If Indemnified Party fails to consent
to such firm offer within ten business days after Indemnified Party's
receipt of such notice, Indemnified Party may continue to contest or
defend such claim and, in such event, the maximum liability of
Indemnitors as to such claim will not exceed the amount of such
settlement offer, plus costs and expenses paid or incurred by Indemnified
Party through the end of such 10 business day period.
(d) Effect of Judgment. Any judgment entered or settlement agreed
upon in the manner provided herein shall be binding upon Indemnitors and
Indemnified Party, and, to the extent imposing liability on Indemnitors,
shall conclusively be deemed to be an obligation with respect to which
Indemnified Party is entitled to prompt indemnification hereunder.
(e) Failure to Give Timely Notice. A failure by an Indemnified
Party to give timely, complete or accurate notice as provided in
Paragraph 2(a) will not affect the rights or obligations of any party
hereunder except and only to the extent that, as a result of such
failure, any party entitled to receive such notice was deprived of its
right to recover any payment under its applicable insurance coverage or
was otherwise directly and materially damaged as a result of such
failure to give timely notice.
(f) Reduction of Loss. To the extent any Liabilities of an
Indemnified Party are reduced by receipt of payment (i) under insurance
policies which are not subject to retroactive adjustment or other
reimbursement to the insurer in respect of such payment, or (ii) from
third parties not affiliated with the Indemnified Party, such payments
(net of the expenses of the recovery thereof) (such net payment being
referred to herein as a "Reimbursement") shall be credited against such
Liabilities; provided, however, (y) the pendency of such payments shall
not delay or reduce the obligation of Indemnitors to make payment to
Indemnified Party in respect of such Liabilities, and (z) Indemnified
Party shall have no obligation, hereunder or otherwise, to pursue payment
under or from any insurer or third party in respect of such Liabilities.
If any Reimbursement is obtained subsequent to payment by any Indemnitors
in respect to any Liabilities, such Reimbursement shall be promptly paid
over to such Indemnitor.
(g) Subrogation. Indemnitors shall be subrogated to Indemnified
Party's rights of recovery to the extent of any Liabilities satisfied by
Indemnitors. Indemnified Party shall execute and deliver such instruments
and papers as are necessary to assign such rights and assist in the
exercise thereof.
(h) Immediate Payment. All expenses of Indemnified Party
determined hereunder to be payable by Indemnitors shall be payable within
five (5) business days after receipt
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by Indemnitors of written demand therefor with appropriate documentation
thereof, after which interest shall accrue thereon at the Default Rate
and such amounts shall be secured by the Loan Documents.
3. Survival.
The provisions of and undertakings and indemnification set out in this
Indemnity shall continue in full force and effect and shall survive the
satisfaction, termination, suspension or cancellation of the indebtedness
evidenced by the Note, the release of the Mortgage, the acceptance by Lender of
a deed in lieu of foreclosure with respect to the Land, a foreclosure of the
Land and/or the exercise by Lender of any of its rights under any Loan Document.
Except as otherwise provided herein, this Indemnity shall be continuing,
irrevocable and binding on each of the Indemnitors, jointly and severally, and
their respective successors and assigns, and shall inure to the benefit of
Lender and Indemnitor's obligations hereunder may not be assigned. The
dissolution of an Indemnitor shall not affect this Indemnity or any of
Indemnitors' obligations hereunder.
4. Controlling Provisions.
The provisions of this Indemnity shall govern and control over any
inconsistent provision of any other Loan Document, including, without
limitation, Paragraph 10 of the Note and any other exculpatory or non-recourse
provisions contained in any Loan Document relative to the Indemnitors' liability
hereunder.
5. Waivers.
Each Indemnitor hereby waives notice of the following events or
occurrences: (a) Lender's acceptance of this Indemnity; (b) any Indemnitor's
heretofore, now or at any time or times hereafter, granting to Lender of
security interests, liens or encumbrances in any of such Indemnitor's assets or
Lender's heretofore, now or from time to time hereafter obtaining, amending,
substituting for, releasing, waiving or modifying any such security interests,
liens or encumbrances; (c) Lender's heretofore, now or at any time or times
hereafter, obtaining, releasing, waiving or modifying the Mortgage or any other
lien or encumbrance in any other party's assets given to Lender to secure the
Note or this Indemnity; (d) Lender's heretofore, now or at any time or times
hereafter, amending or modifying any of the Loan Documents other than this
Indemnity; and (e) presentment, demand, notices of default, non-payment, partial
payment and protest, and all other notices or formalities to which any
Indemnitor may be entitled except as otherwise provided herein. Indemnitor
agrees that Lender heretofore, now or at any time or times hereafter, may do any
or all of the foregoing in such manner, upon such terms and at such times as
Lender, in its sole discretion, deems advisable, without in any way, manner or
respect impairing, affecting, reducing or releasing Indemnitor from its
obligations hereunder and Indemnitor hereby consents to each and all of the
foregoing events or occurrences.
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6. Notice.
Any notice to any Principal provided for herein shall be given by sending
such notice by Federal Express or any other overnight carrier addressed to such
Principal at such Principal's address stated above or at such other address as
such Principal may designate by notice to Lender, Borrower as provided herein.
Any notice provided for herein shall be deemed to have been given to Principal
on the first business day following such sending in the manner designated
herein. Any notice to Borrower or Lender shall be given as set forth in the
Mortgage.
7. Governing Law.
This Indemnity shall be governed by, and shall be construed and enforced
in accordance with, the internal laws of the State of Illinois, without regard
to conflicts of laws principles.
8. Jury Trial Waiver.
EACH INDEMNITOR AND LENDER BY ITS ACCEPTANCE OF THIS INDEMNITY, HEREBY
WAIVES THEIR RESPECTIVE RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON, OR ARISING OUT OF THIS INDEMNITY AND THE OTHER LOAN DOCUMENTS. EACH
INDEMNITOR AND LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THIS WAIVER IN
ENTERING INTO THIS INDEMNITY AND THE OTHER LOAN DOCUMENTS AND THAT EACH WILL
CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH
INDEMNITOR AND LENDER REPRESENT AND WARRANT THAT EACH HAD THE OPPORTUNITY TO
REVIEW THIS JURY WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
9. Severability.
The invalidity, illegality or unenforceability of any provision of this
Indemnity shall not affect or impair the validity, legality or enforceability of
the remainder of this Indemnity and the other Loan Documents, and to this end,
the provisions of this Indemnity and the other Loan Documents are declared
severable.
10. Binding Effect.
This Indemnity shall be binding on the parties hereto, their successors,
assigns, heirs and legal representatives and all other persons claiming by,
through or under them, but shall not apply for the benefit of any third party
purchaser (other than an affiliate of Lender) at a foreclosure sale or any other
third party (but Indemnitors shall not be relieved of any of the obligations
hereunder by any such assignment or succession).
11. Termination of Principal's Liability.
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Notwithstanding anything in this Indemnity or in the Loan Documents to
the contrary, Principal's liability hereunder, including for any Liabilities to
Indemnified Party, shall terminate if (a) Xxxxxx X. Xxxxxxx, Xx. shall no longer
be a general partner of Corporate Realty Income Fund I, L.P. and (b) a successor
general partner or another individual or entity acceptable to Lender in Lender's
reasonable discretion agrees to assume all of Principal's liabilities hereunder.
IN WITNESS WHEREOF, the undersigned have executed this Hazardous
Substance Indemnification Agreement as of the date first written above.
BORROWER:
000 XXXXX XXXXXX LIMITED PARTNERSHIP,
a Delaware limited partnership
By: 475 Fifth-GP, Inc., a Delaware
corporation, its sole general partner
By: _____________________________
Name: ___________________________
Its: ____________________________
PRINCIPAL:
________________________________
Name: Xxxxxx X. Xxxxxxx, Xx.
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STATE OF ____________ )
) SS
COUNTY OF __________ )
I, ____________________________, a Notary Public in and for said County,
in the State aforesaid, DO HEREBY CERTIFY, that____________, the __________
president of 475 Fifth_GP, Inc., a Delaware corporation ("Corporate G.P.") and
the general partner in 000 Xxxxx Xxxxxx Limited Partnership, a Delaware limited
partnership, who is personally known to me to be the same person whose name is
subscribed to the foregoing instrument as such officer in such Corporate G.P.,
appeared before me this day in person and acknowledged that (he/she) signed and
delivered the said instrument as (his/her) own free and voluntary act, as the
free and voluntary act of Corporate G.P., and as the free and voluntary act of
said limited partnership, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal this ____ day of _______________,
1999.
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Notary Public
My Commission Expires:
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STATE OF __________ )
) SS
COUNTY OF _________ )
On this ____ day of ______________, 1999, before me, a Notary Public in
and for the State of ___________, personally appeared Xxxxxx X. Xxxxxxx, Xx.,
who executed the within and foregoing instrument, and acknowledged said
instrument to be his free and voluntary act and deed for the uses and purposes
therein mentioned.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day
and year first above written.
NOTARY PUBLIC in and for the State
of
My commission expires:
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