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Exhibit 10(k)(6)(a)
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
FROM
XXXXX EQUITY, INC.
TO
FIRST UNION NATIONAL BANK OF FLORIDA
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
DATED AS OF APRIL 7, 1997
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ENVIRONMENTAL INDEMNIFICATION AGREEMENT
THIS ENVIRONMENTAL INDEMNIFICATION AGREEMENT (this "Agreement") is
made and executed as of this 7th day of April, 1997, from
XXXXX EQUITY, INC., a Florida corporation ("Borrower"), whose address is 0000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention:
X.X. Xxxxxx, Executive Vice President,
to and in favor of
FIRST UNION NATIONAL BANK OF FLORIDA, a national banking association ("FUNB"),
whose address is 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 Attention:
Real Estate Portfolio Management, and XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, a New York banking corporation ("MGT"), whose address is 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx X'Xxxxxxx (FUNB and MGT together
being referred to as "Lender"),
which terms Borrower and Lender, whenever hereinafter used will be construed to
refer to and include the heirs, legal representatives, executors,
administrators, successors and assigns of said parties.
R E C I T A L S :
A. Borrower has obtained financing from Lender pursuant to that
certain Revolving Credit Loan Agreement dated as of even date herewith
(hereinafter, together with any and all extensions, renewals, modifications,
replacements and substitutions thereof, referred to as the "Loan Agreement")
and those certain Revolving Promissory Notes dated as of even date herewith
(hereinafter, together with any and all extensions, renewals, modifications,
replacements and substitutions thereof, referred to as the "Loan").
B. Borrower's obligations under the Loan are secured in part by a Deed
to Secure Debt, Assignment of Leases and Rents, and Security Agreement in favor
of Lender (the "Deed to Secure Debt") encumbering real property located in
DeKalb County, Georgia, and being more particularly described on attached
Exhibit A (the "Property").
C. As a condition precedent to and as a material inducement for
Lender's agreement to provide the Loan to Borrower, Lender has required
Borrower to execute and deliver this Agreement, it being acknowledged and
understood by Borrower that Lender otherwise is not willing to make or provide
the Loan.
D. Borrower has obtained a Phase I Environmental Site Assessment
dated January 17, 1997, prepared by Law Engineering & Environmental
Services, Inc. (the
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"Environmental Assessment"), and has delivered a copy of the same to Lender.
Lender intends to rely on the Environmental Assessment in making the Loan.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and as a material inducement to Lender to make
or provide the Loan to Borrower, Borrower hereby covenants and agrees with
Lender as follows:
1. Definitions. The following terms as used in this Agreement
will have the meanings set forth below:
(a) "Hazardous Substances" will mean any hazardous or toxic substances,
materials or wastes, including without limitation any flammable explosives,
radioactive materials, friable asbestos, kepone, polychlorinated biphenyls
(PCB's), electrical transformers, batteries, paints, solvents, chemicals,
petroleum products, or other man-made materials with hazardous, carcinogenic or
toxic characteristics, and radioactive, toxic, ignitable, corrosive,
carcinogenic to human health, those substances, materials, and wastes listed in
the United States Department of Transportation Table (49 CFR 972.101) or by the
Environmental Protection Agency, as hazardous substances (40 CFR Part 302, and
amendments thereto) provided all such substances, materials and wastes are or
become regulated under applicable local, state or federal law relating to (i)
petroleum, (ii) asbestos, (iii) PCB's, or (iv) materials designated as a
"hazardous substance," "hazardous waste," "hazardous materials," "toxic
substances," "contaminants," in each case under any applicable Environmental
Laws.
(b) "Environmental Laws" will mean any applicable present or future
federal, state or local laws, ordinances, rules or regulations pertaining to
Hazardous Substances, including without limitation the following statutes and
regulations, as amended from time to time: (i) the Federal Clean Air Act, 42
U.S.C. Section 7401 et seq.; (ii) the Federal Clean Water Act, 33 U.S.C.
Section 1151 et seq.; (iii) the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901 et seq. ("RCRA"); (iv) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et
seq. ("CERCLA") and the Superfund Amendments and Reauthorization Act of 1986,
Pub. L. Xx. 00-000, 000 Xxxx. 0000 ("XXXX"); (v) the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1802; (vi) the National Environment
Policy Act, 42 U.S.C. Section 1857 et seq.; (vii) The Toxic Substance Control
Act of 1976, 15 U.S.C. Section 2601 et seq.; (viii) applicable regulations of
the Environmental Protection Agency, 33 CFR and 40 CFR relating to hazardous
substances; and (ix) and similar statutes, rules and regulations under the laws
of the State of Georgia.
(c) "Hazardous Condition" will mean the presence, discharge, disposal,
storage or release of any Hazardous Substance, in violation of any
Environmental Laws, on or in the improvements, air, soil, groundwater, surface
water or soil vapor on or about the Property, or that migrates, flows,
percolates, diffuses or in any way moves onto or into
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the improvements, air, soil, groundwater, surface water or soil vapor on or
about the Property, or from the Property into adjacent property.
(d) "Claims" will mean, individually and collectively, any claims,
actions, administrative proceedings, judgments, damages, punitive damages,
penalties, fines, costs, liabilities, sums paid in settlement, interest, losses
or expenses (including reasonable attorneys' and paralegals' fees and costs,
whether incurred in enforcing this Agreement, collecting any sums due
hereunder, settlement negotiations, at trial or on appeal), reasonable
consultant fees and reasonable expert fees, together with all other reasonable
costs and expenses of any kind or nature, that arise directly from or in
connection with the existence of a Hazardous Condition, whether occurring
before, on or after the date of this Agreement or caused by any person or
entity.
Without limiting the generality of the foregoing definition, Claims
specifically will include claims, whether by related or third parties, for
personal injury or real or personal property damage, and capital, operating and
maintenance costs incurred in connection with any Remedial Work.
However, notwithstanding the foregoing, Claims will not be deemed to
include claims, actions, administrative proceedings, judgments, damages,
punitive damages, penalties, fines, costs, liabilities, sums paid in
settlement, interest, losses or expenses, that arise in connection with any
Hazardous Condition that is determined by proper judicial or administrative
procedure to have been introduced to the Property from and after the date upon
which Lender takes possession of the Property pursuant to an Order of
Receivership, foreclosure or deed in lieu of foreclosure, or which is caused by
the actions of Lender.
(e) "Remedial Work" will mean any investigation or monitoring of site
conditions, any clean-up, containment, remediation, removal or restoration work
required or performed by any federal, state or local governmental agency or
political subdivision or performed by any nongovernmental entity or person due
to the existence of a Hazardous Condition.
2. Compliance with Environmental Laws; Disclosure of Hazardous
Conditions. Except as to those conditions (the "Existing Conditions") as
specifically may be disclosed in the Environmental Assessment, Borrower hereby
represents, warrants, covenants and agrees in all material respects to and with
Lender that all operations or activities upon, or any use or occupancy of the
Property by Borrower, any tenant or other occupant, to the best of Borrower's
knowledge, is presently and will at all times until Borrower's conveyance of
the Property or foreclosure of Deed to Secure Debt be in compliance with all
Environmental Laws; that Borrower has not at any time engaged in or permitted,
nor has any existing or previous tenant or occupant of the Property engaged in
or permitted to the best of Borrower's knowledge the occurrence of any
Hazardous Condition, except as specifically may be disclosed in the
Environmental Assessment; and that to the best of Borrower's knowledge, there
does not now exist nor is there suspected to exist any Hazardous Condition on
or about the Property, except as specifically may be disclosed in the
Environmental Assessment.
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3. Indemnification. Borrower hereby indemnifies and agrees to
protect, defend and hold harmless Lender, which for purposes of this paragraph
will be deemed to include the directors, officers, shareholders, employees and
agents of Lender, from and against any Claims other than claims arising from
Lender's or such other included parties' gross negligence or willful
misconduct, including, without limitation, any claims relating to an Existing
Condition. In the event that Lender suffers or incurs any Claims, Borrower will
pay to Lender the total of all such Claims suffered or incurred by Lender upon
demand therefor by Lender.
4. Remedial Work. In the event that any Remedial Work with respect to
any Hazardous Conditions that could result in a Claim is required under any
Environmental Laws by any judicial order, or by any governmental entity, or in
order to comply with the terms, covenants and conditions of this Agreement or
of any other agreements affecting the Property, Borrower will perform or cause
to be performed the Remedial Work in compliance with such law, regulation,
order or agreement. All Remedial Work will be performed by one or more
contractors, selected by Borrower and under the supervision of a consulting
environmental engineer selected by Borrower, and approved in advance by Lender.
All costs and expenses of Remedial Work will be paid by Borrower including
without limitation the charges of such contractor(s) and the consulting
environmental engineer, and Lender's reasonable attorneys' and paralegals' fees
and costs incurred in connection with monitoring or review of all Remedial
Work. In the event that Borrower fails to timely commence, or cause to be
commenced, or fails to diligently prosecute to completion, such Remedial Work,
Lender may, but will not be required or have any obligation to, cause such
Remedial Work to be performed, and all costs and expenses thereof, or incurred
in connection therewith, will thereupon constitute Claims. All such Claims will
be due and payable by Borrower upon demand therefor by Lender.
5. Permitted Contests. Notwithstanding any provision of this
Agreement to the contrary, provided that (i) Agreement, (ii) neither Lender
nor any assignee of its interest (including any person having a beneficial
interest) in the Property, the Loan and the Loan Documents will be exposed or
subjected to civil or criminal liability, and (iii) the lien and security
interest of Lender or any such assignee in the Property, the Loan, the Loan
Documents, or the payment of any sums to be paid under the Loan Documents, is
not jeopardized or in any way adversely affected, Borrower may contest or cause
to be contested, by appropriate action, the application, interpretation or
validity of any Environmental Laws or any agreement requiring any Remedial Work
pursuant to a good faith dispute regarding such application, interpretation or
validity of such Environmental Laws or agreement requiring such Remedial Work.
During the pendency of any such permitted contest, Borrower may delay
performance of Remedial Work or compliance with the Environmental Laws or
agreement requiring such Remedial Work, provided that (i) Borrower actually
contests and prosecutes such contest by appropriate proceedings conducted in
good faith and with due diligence to resolution, (ii) prior to any such delay
in compliance with any Environmental Laws or any Remedial Work requirement on
the basis of a good faith contest of such requirement, Borrower will have given
Lender written notice that Borrower intends to contest or will contest or cause
to be contested the same, and will
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have given such security or assurances as Lender reasonably may request to
ensure compliance with the legal requirements pertaining to the Remedial Work
(and payment of all costs, expenses, interest and penalties in connection
therewith) and to prevent any sale, forfeiture or loss of all or any part of
the Property by reason of such noncompliance, delay or contest, and (iii) prior
to any such delay in compliance with any Environmental Laws or any Remedial
Work requirement on the basis of a good faith contest of such requirement,
Borrower will have taken such steps as may necessary to prevent or mitigate any
continuing occurrence of any existing or suspected Hazardous Condition giving
rise to the contested Remedial Work requirement. Subject to the terms and
conditions set forth above, during the pendency of any such permitted contest
resulting in a delay of performance of any required Remedial Work, Lender
agrees that it will not perform such Remedial Work requirement on behalf of
Borrower.
6. Subrogation of Indemnity Rights. If Borrower fails to perform its
obligations under paragraphs 3 and 4 above, Lender will be subrogated to any
rights Borrower may have under any indemnifications from any present, future or
former owners, tenants or other occupants or users of the Property relating to
the matters covered by this Agreement.
7. Assignment by Lender. No consent by Borrower will be required
for any assignment or reassignment of the rights of Lender hereunder to one or
more purchasers of the Loan, the Loan Documents or Lender's interest in the
Property under the Deed to Secure Debt.
8. Merger, Consolidation or Sale of Assets. Subject to limitations
regarding disposition of any interest or control in Borrower as may be set
forth in the Loan Documents, in the event of a disposition involving Borrower
or all or a substantial portion of the assets of Borrower to one or more
persons or other entities or the merger or consolidation of Borrower with
another entity, the surviving entity or transferee of assets, as the case may
be, will (i) be formed and existing under the laws of a state, district or
commonwealth of the United States of America, and (ii) deliver to Lender an
acknowledged instrument in recordable form assuming all obligations, covenants
and responsibilities of Borrower under this Agreement.
9. Survival; Independent Obligations. Notwithstanding anything to
the contrary contained in the Loan Agreement, the obligations of Borrower
under this Agreement will survive (a) the consummation of the Loan
transaction described above; (b) satisfaction of all terms and conditions to be
performed by or on behalf of Borrower under the Loan Agreement; (c)
termination, in accordance with their respective terms, of the Loan transaction
and the Loan Agreement; (d) any assumption of Borrower's obligations under the
Loan Agreement by a successor to Borrower (whether or not Lender approved such
assumption and whether or not Borrower was released from liability under the
Loan Agreement); (e) conveyance of title to all or any portion of the Property
to any third party, and subsequent reconveyance of all or any portion of the
Property by any such third party to subsequent transferees; and (f) conveyance
of title to the Property to Lender through power of sale, process of
foreclosure, or by conveyance in lieu of foreclosure of the Deed to Secure
Debt; provided, however, that
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Borrower will not be liable for damages resulting from Hazardous Conditions
which are determined either by a written agreement or stipulation between
Borrower and Lender or, if Borrower and Lender are unable to agree or
stipulate, a final judicial or administrative action (after all available
appeals have been taken or waived) to have been introduced to the Property from
and after the date upon which Lender takes possession of the Property pursuant
to an Order of Receivership, power of sale, process of foreclosure, or deed in
lieu of foreclosure; provided, however, that the obligations of Borrower under
this Agreement will finally cease and terminate upon the final expiration of
any applicable statute of limitation of actions as to any potential Claim.
The obligations of Borrower under this Agreement are separate and
distinct from the obligations of Borrower under the Loan Agreement. This
Agreement may be enforced by Lender without regard to any other rights and
remedies Lender may have against Borrower under the Loan Agreement and without
regard to any limitations on Lender's recourse as may be provided in the Loan
Agreement; provided, however, that a default by Borrower under this
Agreement will constitute a default under the Loan Agreement. Enforcement of
this Agreement will not be deemed to constitute an action for recovery of
Borrower's indebtedness under the Loan Agreement nor for recovery of a
deficiency judgment against Borrower following exercise of Borrower's remedies
under the Deed to Secure Debt. Borrower expressly and specifically agrees that
Lender may bring and prosecute a separate action or actions against Borrower
hereunder whether or not Lender has brought an action against Borrower under
the Loan Agreement.
10. Default Interest. Any Claims and other payments required to be
paid by Borrower to Lender under this Agreement which are not paid on demand
therefor will thereupon be considered "Delinquent," and will result in and
constitute a default hereunder. In addition to all other rights and remedies of
Lender against Borrower as provided herein, or under applicable law, Borrower
will pay to Lender, immediately upon demand therefor, Default Interest (as
defined below) on any such payments which are or have become Delinquent.
Default Interest will be paid by Borrower from the date such payment becomes
Delinquent through and including the date of payment of such Delinquent sums.
As used herein, "Default Interest" will be equal to the rate of interest
charged for a payment default under the Loan Agreement, but in any event not to
exceed the maximum rate of interest permitted to be contracted for under
Georgia law. Borrower expressly and specifically agrees that any Default
Interest charged to Borrower hereunder will in no manner or respect constitute
a penalty or interest under the Loan Agreement, with the express understanding
that this Agreement and Borrower's obligations hereunder constitute separate
obligations of Borrower independent of the Loan Agreement.
11. Miscellaneous. If there is more than one party executing this
Agreement as an indemnitor, each such party agrees that (i) the obligations of
Borrower hereunder are joint and several, (ii) a release of any one or more
such parties or any limitation of this Agreement in favor of or for the benefit
of one or more such parties will not in any way be deemed a release of or
limitation in favor of or for the benefit of any other party, and (iii) a
separate action hereunder may be brought and prosecuted against one or more
such parties. If any term of this Agreement or any application thereof will be
invalid,
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illegal or unenforceable, the remainder of this Agreement and any other
application of such term will not be affected thereby. No delay or omission in
exercising any right hereunder will operate as a waiver of such right or any
other right. This Agreement will be binding upon, inure to the benefit of and
be enforceable by Borrower and Lender, and their respective successors and
assigns. This Agreement will be governed and construed in accordance with the
laws of the State of Georgia. The parties hereby stipulate that jurisdiction
and venue for purposes of enforcement of this Agreement and adjudication of the
respective rights and obligations of the parties shall be in the Georgia
circuit court in the judicial circuit in which the Property is located.
12. Conflict. In the event of conflict between the terms and
conditions hereunder and the terms and conditions of the Loan Agreement, the
terms and conditions of the Loan Agreement will govern.
13. Waiver of Defenses. In any action, suit or proceeding relating
to this Agreement, Borrower and Lender waive the right to interpose a
defense of laches, failure of consideration or mutuality of remedy.
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement
as of the date first above written.
BORROWER:
Signed, sealed and delivered XXXXX EQUITY, INC., a
in the presence of: Florida corporation
/s/ Xxxxxx X. Xxxx By: /s/ G. Xxxxx Xxxxxxx
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Witness Name: G. Xxxxx Xxxxxxx
----------------------------------
Title: Treasurer
---------------------------------
Attest: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------
Title: Assistant Secretary
---------------------------------
[CORPORATE SEAL]
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LENDER:
Signed, sealed and delivered FIRST UNION NATIONAL BANK OF
in the presence of: FLORIDA, a national banking association
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Witness Name: Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Sr. Vice President
--------------------------------
Attest: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
---------------------------------
Title: Vice President
--------------------------------
[CORPORATE SEAL]
Signed, sealed and delivered XXXXXX GUARANTY TRUST
in the presence of: COMPANY OF NEW YORK,
a New York banking corporation
/s/ Xxx X. Xxxxxx By: /s/ Xxxxxxx X. X'Xxxxxxx
------------------------------- ------------------------------------
Witness Name: Xxxxxxx X. X'Xxxxxxx
---------------------------------
Title: Vice President
--------------------------------
Attest: /s/ Silke Ossenkohp
--------------------------------
Name: Silke Ossenkohp
--------------------------------
Title: Assistant Secretary
--------------------------------
[CORPORATE SEAL]
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EXHIBIT A
DESCRIPTION OF PROPERTY
[NOT INCLUDED IN FORM 8-K FILING WITH SECURITIES AND EXCHANGE COMMISSION]
