ENVIRONMENTAL INDEMNITY AGREEMENT
Exhibit 10.61
ENVIRONMENTAL INDEMNITY AGREEMENT (the “Agreement”) made as of the 26th day of July, 2007 by
REGIONAL ENTERPRISES, INC., a Virginia corporation and a subsidiary of Borrower (as defined below)
having its principal place of business at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000
(“Indemnitor”), and RZB FINANCE LLC, having an address at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (“Indemnitee”) and other Indemnified Parties (defined below).
RECITALS:
A. Indemnitor is a wholly owned subsidiary of Borrower (as defined below) and is fee
owner in part and leaseholder in part of that certain real property located in the City of
Hopewell, Virginia as more particularly described in Exhibit A attached hereto (said real property,
together with any real property hereafter encumbered by the lien of the Security Instrument (as
defined in Section 6 hereof), 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”).
B. Indemnitee is prepared to make a loan (the “Loan”) to Rio Vista Energy Partners L.P.
(“Borrower”) pursuant to the Loan Agreement dated the date hereof (as amended, modified,
supplemented or restated from time to time, the “Loan Agreement”; capitalized terms used herein and
not otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement)
between the Borrower and the Lender, and the Loan shall be in the aggregate principal amount of
Five Million Dollars ($5,000,000), and shall be evidenced by that certain promissory note of even
date herewith made by Borrower to Indemnitee (together with all extensions, renewals,
modifications, substitutions and amendments thereof, collectively referred to as the “Note”).
C. Indemnitor has executed and delivered to the Indemnitee a Guaranty & Agreement dated the
date hereof (as amended, modified or supplemented from time to time, the “Guaranty”) covering
payment of all indebtedness, liabilities and obligations of Borrower to Indemnitee, including,
without limitation, under or in connection with the Loan Agreement and the note.
D. The Guaranty is secured by, among other things, the Security Instrument which will encumber
the Property.
E. Indemnitee is unwilling to make the Loan 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 best of Indemnitor’s
knowledge, after due inquiry, (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, except any
non-compliance which, individually and in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, and (ii) fully disclosed to Indemnitee in writing pursuant to 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”); (b) there are no
past,
present or threatened Releases (defined below) of Hazardous Substances in, on, under or from
the Property except as described in the Environmental Report; (c) there is no threat of any
Release of Hazardous Substances migrating to the Property except as described in the Environmental
Report; (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; (e) Indemnitor has no actual knowledge 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 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, except as described in the Environmental Report; and (f)
Indemnitor has truthfully and fully provided to Indemnitee, in writing, any and all information
relating to conditions in, on, under or from the Property that is known to Indemnitor and that is
contained in files and records of Indemnitor, including but not limited to any reports relating to
Hazardous Substances in, on, under or from the Property and/or to the environmental condition of
the Property.
2. Environmental Covenants. Indemnitor covenants and agrees that: (a) all uses and
operations on or of the Property, by Indemnitor or any other person or entity, shall be in
compliance with all Environmental Laws and permits issued pursuant thereto, except any
non-compliance which, individually and in the aggregate, could not reasonably be expected to have a
Material Adverse Effect; (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, except any non-compliance which, individually and in the aggregate, could not
reasonably be expected to have a Material Adverse Effect; (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 Indemnitor or any other person or entity (the “Environmental
Liens”); (d) Indemnitor, at its sole cost and expense, shall (i) perform or cause to be performed
any reasonably scoped 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 that
the basis of such belief has first been described in writing to Indemnitor), and (ii) provide
Indemnitee with copies of reports and other results thereof, on which reports and results
Indemnitee and other Indemnified Parties shall be entitled to rely; (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) in, on, under or from the Property where such action is also required by, or necessary
to comply with or avoid liability under, any Environmental Law, or is required by, or necessary to
comply with or to avoid liability under, any permits issued pursuant thereto, or any directive from
any governmental authority or is otherwise necessary to avoid liability to third parties; (ii)
comply with any Environmental Law; (iii) comply with any lawful directive from any governmental
authority, except any non-compliance which, individually and in the aggregate, could not reasonably
be expected to have a Material Adverse Effect; 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) except
as to matters, conditions or circumstances described or referenced in the Environmental Report
already provided to Indemnitee, Indemnitor shall promptly notify Indemnitee in writing of (i) any
presence or Releases or threatened Releases of Hazardous Substances in,
on, under, from or migrating towards the Property; (ii) any noncompliance, except any
non-compliance which, individually and in the aggregate,
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could not reasonably be expected to have a
Material Adverse Effect, with any Environmental Laws related in any way to the Property; (iii) any
Environmental Lien known to Indemnitor to exist or to be threatened; (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, but subject to
applicable site safety and security requirements and upon reasonable prior written notice to
Indemnitor of the intent to perform such work and the schedule for same (and Indemnitor hereby
agrees that two Business Days’ notice shall be deemed to be reasonable), 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, provided, however, that such work performed by or behalf of Indemnitees shall be performed
so as not to unreasonably interfere with Indemnitor’s or its customers’ operations at the Property.
Indemnitees shall be fully responsible to use commercially reasonable efforts (and will be deemed
to have used commercially reasonably efforts if, without limitation, they engage the same Person
which provided the Environmental Report or obtain representations as to licenses and insurance in
the contract under which any such Person is engaged) for ensuring that all personnel used in such
work are employed by a Person which has received all necessary licenses for such work and is
adequately insured for such work, and shall cause the contract under which such Person is engaged
to require such person to comply with same in the performance of such work. Indemnitees shall
request in writing that the contract with the Person performing such work include provisions under
which (a) any insurance which names any Indemnittee as an additional insured also name Indemnitor
as an additional insured, provided that all recoveries under such insurance policy shall be
paid to Indemnitees to satisfy all claims by the Indemnitees prior to any payment to Indemnitor,
and (b) any indemnification provisions for the benefit of Indemnitees shall also benefit
Indemnitor, provided that all recoveries under such indemnification provisions shall be
paid to Indemnitees to satisfy all claims by the Indemnitees prior to any payment to Indemnitor.
In the event that the Person performing such work shall, as a condition to including the provisions
described in the preceding sentence, require any additional payment or compensation in connection
with the performance of such work, RZB shall not be obligated to include such provisions in the
contract with such Person unless Indemnitor shall pay to RZB, within three Business Days after
RZB’s request, the amount of such additional payment or compensation. Indemnitees shall, upon
completion of such work, be obligated to return the Property to substantially the same condition as
existed immediately prior to such work being performed (including without limitation, the proper
closing of all temporary groundwater monitoring xxxxx and grouting or filling of any boreholes).
Upon completion of such work, Indemnitees shall provide Indemnitor with copies of any reports or
results of such work (including any sampling, monitoring, and laboratory analyses results), and
Indemnitor shall be entitled to rely upon such reports and results.. All such investigations shall
be performed at Indemnitor’s sole cost and expense,
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4. Indemnification. Indemnitor covenants and agrees at its sole cost and expense, to
protect, defend, indemnify, release and hold Indemnified Parties harmless from and against any and
all Losses (defined below) imposed upon or incurred by or asserted against any Indemnified Parties
and directly or indirectly arising out of or in any way relating to any one or more of the
following (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; (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; and (e) any misrepresentation or inaccuracy
in any representation or warranty or material breach or failure to perform any covenants or other
obligations in this Agreement or any covenants or other obligations in the Security Instrument
which are related to Hazardous Substances or Environmental Law.
5. Duty to Defend and Attorneys and Other Fees and Expenses. Upon written request by
any Indemnified Party, Indemnitor shall defend and provide legal representation for such
Indemnified Party with respect to any of the matters referenced in Section 4 above (if requested by
any Indemnified Party, in the name of the Indemnified Party) 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 with respect to such matters, and, at the option of Indemnified Parties, their
attorneys shall control the resolution of such matters. 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:
“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, mold, polychlorinated biphenyls, lead, radon,
radioactive materials, flammables and explosives.
“Environmental Law” means any present and future federal, state and local laws, statutes,
ordinances, rules, regulations and the like, as well as common law, relating to protection of human
health or the environment, relating to Hazardous Substances, relating to liability for or costs of
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
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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.
“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.
“Remediation” includes but is not limited to the following actions taken as required by or to
be in compliance with or to avoid liability under Environmental Laws or applicable standards
promulgated pursuant to Environmental Laws or otherwise mandated by governmental agencies having
jurisdiction over such actions and actions otherwise necessary to avoid liability to third parties:
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 (but excluding, however, routine
monitoring, sampling, or laboratory analyses which Indemnitor is actually performing or causing to
be performed in compliance with applicable rules, permits or other governmental authorizations).
“Legal Action” means any claim, suit or proceeding, whether administrative or judicial in
nature.
“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.
“Losses” includes any losses, damages, costs, fees, expenses, claims, suits, judgments,
awards, liabilities (including but not limited to strict liabilities), obligations, debts,
diminutions in value, fines, penalties, charges, costs of Remediation (whether or not performed
voluntarily), amounts paid in settlement, foreseeable and unforeseeable consequential damages,
litigation costs, 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.
“Security Instrument” includes the Deed of Trust and Security Agreements dated the date hereof
as amended, modified, supplemented or restated from time to time covering the Property.
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7. Unimpaired Liability. The liability of Indemnitor under this Agreement shall in no
way be limited or impaired by, and Indemnitor hereby consents to and agrees to be bound by, any
amendment or modification of the provisions of the Note, the Security Instrument or any of the
other Loan Documents (as defined in the Loan Agreement). In addition, the liability of Indemnitor
under this Agreement shall in no way be limited or impaired by (i) any extensions of time for
performance required by the Note, the Security Instrument or any of the other Loan Documents, (ii)
any sale or transfer of all or part of the Property, (iii) except as provided herein, any
exculpatory provision in the Note, the Security Instrument, or any of the other Loan Documents
limiting Indemnitee’s recourse to the Property or to any other security for the Note, or limiting
Indemnitee’s rights to a deficiency judgment against Indemnitor, (iv) the accuracy or inaccuracy of
the representations and warranties made by Indemnitor under the Note, the Security Instrument or
any of the other Loan Documents or herein, (v) the release of Indemnitor or any other person from
performance or observance of any of the agreements, covenants, terms or condition contained in any
of the other Loan Documents by operation of law, Indemnitee’s voluntary act, or otherwise, (vi) the
release or substitution in whole or in part of any security for the Guaranty, the Note, or any of
the other Loan Documents 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 Guaranty, the Note or any of the other Loan Documents; 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
Guaranty, the Note, the Security Instrument, or any other Loan Documents or any of the Property,
through foreclosure proceedings or otherwise, provided, however, that nothing herein shall inhibit
or prevent Indemnitee from suing on the Guaranty, the Note or any of the other Loan Documents,
foreclosing, or exercising any power of sale under, the Security Instrument, or exercising any
other rights and remedies thereunder. 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 Loan 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 Default Rate set forth in the
Loan Agreement, from the date payment was due.
11. Waivers.
(a) Indemnitor hereby waives (i) any right or claim of right to cause a
marshalling of any Indemnitor’s assets or to cause Indemnitee or other Indemnified Parties to
proceed against any of the security for the Loan before proceeding under this Agreement against
Indemnitor; (ii) and relinquishes all rights and remedies accorded by applicable law to Indemnitor,
except any rights of subrogation which Indemnitor may have, provided that the indemnity provided
for hereunder shall neither be contingent upon the existence of any such rights of subrogation nor
subject to any claims or defenses whatsoever which may be asserted in connection with the
enforcement or attempted enforcement of such
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subrogation rights including, without limitation, any
claim that such subrogation rights were abrogated by any acts of Indemnitee or other Indemnified
Parties; (iii) the right to assert a counterclaim, other than a mandatory or compulsory
counterclaim, in any action or proceeding brought against or by Indemnitee or other Indemnified
Parties; (iv) notice of acceptance hereof and of any action taken or omitted in reliance hereon;
(v) presentment for payment, demand of payment, protest or notice of nonpayment or failure to
perform or observe, or other proof, or notice or demand; and (vi) all homestead exemption rights
against the obligations hereunder and the benefits of any statutes of limitations or repose.
Notwithstanding anything to the contrary contained herein, Indemnitor hereby agrees to postpone the
exercise of any rights of subrogation with respect to any collateral securing the Loan until the
Loan shall have been paid in full.
(b) INDEMNITOR HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING
DIRECTLY OR INDIRECTLY TO THE LOAN, THE GUARANTY, THE APPLICATION FOR THE LOAN, THIS ASSIGNMENT,
THE NOTE, THE SECURITY INSTRUMENT, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY ACTS OR
OMISSIONS OF ANY INDEMNIFIED PARTIES IN CONNECTION THEREWITH.
12. Subrogation. Indemnitor shall take any and all reasonable actions, including
institution of legal action against third-parties, necessary or appropriate to obtain
reimbursement, payment or compensation from such persons responsible for the presence of any
Hazardous Substances at, in, on, under or near the Property or otherwise obligated by law to bear
the cost. Indemnified Parties shall be and hereby are subrogated to all of Indemnitor’s rights now
or hereafter in such claims.
13. Indemnitor’s Representations and Warranties. Indemnitor represents and warrants
that:
(a) if Indemnitor is a corporation, partnership or limited
liability company, it has the full corporate/partnership/limited liability
company power and authority to execute and deliver this Agreement and to
perform its obligations hereunder; the execution, delivery and performance of
this Agreement by Indemnitor has been duly and validly authorized; and all
requisite corporate/partnership/limited liability company action has been taken
by Indemnitor to make this Agreement valid and binding upon Indemnitor,
enforceable in accordance with its terms;
(b) if Indemnitor is an individual, he/she is acting in an
individual capacity and has full power and authority to make this Agreement
valid and binding upon Indemnitor, enforceable in accordance with its terms;
(c) if Indemnitor is a corporation, partnership or limited
liability company, its execution of, and compliance with, this Agreement is in
the ordinary course of business of that Indemnitor and will not result in the
breach of any term or provision of the charter, by-laws, partnership or trust
agreement, articles of
organization, operating agreement or other governing instrument of that
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;
(d) if Indemnitor is an individual, his/her execution of, and
compliance with, this Agreement will not result in the breach of any term or
provision of, or conflict with or constitute a default under or result in the
acceleration of any obligation under any agreement, indenture or loan or credit
agreement or other instrument to which Indemnitor or the Property is subject,
or result in the violation of any law, rule, regulation, order, judgment or
decree to which the Indemnitor or the Property is subject;
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(e) 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;
(f) 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;
(g) 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
(h) 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 Indemnitor may have liability under this
Agreement. Such notice shall comply with the provisions of Section 19 hereof.
16. Examination of Books and Records. Indemnified Parties and their accountants shall
have the right to examine the records, books, management and other papers of Indemnitor which
reflect upon its financial condition, at the Property or at any office regularly maintained by
Indemnitor where the books and
records are located. Indemnified Parties and their accountants shall have the right to make
copies and extracts from the foregoing records and other papers. In addition, Indemnified Parties
and their accountants shall have the right to examine and audit the books and records of Indemnitor
pertaining to the income, expenses and operation of the Property during reasonable business hours
at any office of Indemnitor where the books and records are located.
17. Transfer.
(a) Indemnitee may, at any time, sell, transfer or assign the Guaranty,
the Note, the Security Instrument, this Agreement and the other Loan Documents, and any or all
servicing rights with respect thereto, or grant participations therein or issue mortgage
pass-through certificates or other securities evidencing a beneficial interest in a rated or
unrated public offering or private placement (the “Securities”). Indemnitee may forward to each
purchaser, transferee, assignee, servicer, participant or investor in such Securities or any credit
rating agency rating such Securities (the foregoing entities hereinafter collectively referred to
as the “Investor”) and each prospective Investor, all documents and information (including
financial information) but not limited to, which Indemnitee now has or may hereafter acquire
relating to Indemnitor and the Property, whether furnished by Indemnitor or otherwise, as
Indemnitee determines necessary or desirable.
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(b) Upon any transfer or proposed transfer contemplated above and by the Security Instrument,
at Indemnitee’s request, Indemnitor shall provide an estoppel certificate to the Investor or any
prospective Investor in such form, substance and detail as Indemnitee, such Investor or prospective
Investor may require.
18. Taxes. Indemnitor has filed all federal, state, county, municipal, and city
income and other tax returns required to have been filed by it and has paid all taxes and related
liabilities which have become due pursuant to such returns or pursuant to any assessments received
by it. Indemnitor does not know of any basis for any additional assessment in respect of any such
taxes and related liabilities for prior years.
19. Notices. All notices or other written communications hereunder shall be deemed to
have been properly given (i) upon delivery, if delivered in person, (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 as follows:
If to Indemnitor:
|
Regional Enterprises, Inc. | |
| 000 Xxxxx Xxxxxx | ||
| Xxxxxxxx, Xxxxxxxx 00000 | ||
| Attention: Chief Executive Officer | ||
With a copy to:
|
Christian & Xxxxxx, L.L.P. | |
| 000 Xxxx Xxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxxxx, Xxxxxxxx 00000-0000 | ||
| Attention: Xxxxx X. Xxxxxxx, V, Esq. | ||
If to Indemnitee:
|
RZB Finance LLC | |
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xx. Xxxxx Xxxxxx | ||
With a copy to:
|
Xxxxxxx & Wiener LLP | |
| 000 Xxxxx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxxx X. Xxxxxx, Esq. |
or addressed as such party may from time to time designate by written notice to the other
parties.
Either party by notice to the other 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 New York, New York.
20. Submission to Jurisdiction. With respect to any claim or action arising
hereunder, Indemnitor (a) irrevocably submits to the nonexclusive jurisdiction of the courts of the
State in which the Property is located and the United States District Court that is proper venue
for the city in which the Property is located, and appellate courts from any thereof, and (b)
irrevocably waives any objection which it may have at any time to the laying on venue of any suit,
action or proceeding arising out of or relating to this Agreement brought in any such court,
irrevocably waives any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
9
21. 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.
22. 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.
23. 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.
24. 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.
25. 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 each and
every person or entity comprising an Indemnitor from time to time, as the sense of a particular
provision may require, and to
include the heirs, executors, administrators, legal representatives, successors and assigns of
Indemnitor, 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 each Indemnitee.
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.
26. Joint and Several Liability. If any Indemnitor consists of more than one person
or entity, the obligations and liabilities of each such person hereunder are joint and several.
27. 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.
28. Rights Cumulative. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies which Indemnitee has under the Guaranty, the Security
Instrument, or the other Loan Documents or would otherwise have at law or in equity.
29. 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.
10
30. Governing Law. This Agreement shall be deemed to be governed, construed, applied
and enforced in accordance with the laws of the state of New York and the applicable laws of the
United States of America.
31. 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.
11
IN WITNESS WHEREOF, this Agreement has been executed and delivered by all parties and is
effective as of the day and year first above written.
| INDEMNITOR: | INDEMNITEE: | |||||
| REGIONAL ENTERPRISES, INC. | RZB FINANCE LLC | |||||
By:
|
/s/ Xxx Xxxxxxxx | By: | /s/ Xxxxx Xxxxxx | |||
| Name: Xxx Xxxxxxxx | Name: Xxxxx Xxxxxx | |||||
| Title: President | Title: Vice President | |||||
12
EXHIBIT A
(Description of the Property)
PARCEL A:
ALL that certain tract or parcel of land with improvements thereon and appurtenances thereto
belonging, lying in the City of Hopewell, Virginia containing 530 square feet and more particularly
shown as Parcel A on a plat entitled “Plat of Survey Showing Three Parcels Adjacent the Norfolk &
Western Railroad, Located Within the City of Hopewell, Virginia”, dated November 12, 1982, made by
Xxxxx & Xxxxx, Inc., Consulting Engineers & Surveyors, Richmond, Virginia, a copy of which plat is
recorded in the Clerk’s Office, Circuit Court, City of Hopewell, Virginia in Plat Book 7, page 118,
to which plat reference is hereby made for a more particular description of the property hereby
conveyed.
PARCEL B:
ALL that certain tract or parcel of land with improvements thereon and appurtenances thereto
belonging, lying in the City of Hopewell, Virginia containing 4.30 acres more or less and more
particularly shown as Parcel B on a plat entitled “Plat of Survey Showing Three Parcels Adjacent
the Norfolk & Western Railroad, Located Within the City of Hopewell, Virginia”, dated November 12,
1982, made by Xxxxx & Xxxxx, Inc., Consulting Engineers & Surveyors, Richmond, Virginia, a copy of
which plat is recorded in the Clerk’s Office, Circuit Court, City of Hopewell, Virginia in Plat
Book 7, page 118, to which plat reference is hereby made for a more particular description of the
property hereby conveyed.
PARCEL C:
ALL that certain tract or parcel of land with improvements thereon and appurtenances thereto
belonging, lying in the City of Hopewell, Virginia containing 1.20 acres more or less and more
particularly shown as Parcel C on a plat entitled “Plat of Survey Showing Three Parcels Adjacent
the Norfolk & Western Railroad, Located Within the City of Hopewell, Virginia”, dated November 12,
1982, made by Xxxxx & Xxxxx, Inc., Consulting Engineers & Surveyors, Richmond, Virginia, a copy of
which plat is recorded in the Clerk’s Office, Circuit Court, City of Hopewell, Virginia in Plat
Book 7, page 118, to which plat reference is hereby made for a more particular description of the
property hereby conveyed.
BEING the same real estate conveyed to Regional Enterprises, Inc., a Virginia corporation, by Deed
from City Point Oil Terminal, a Virginia corporation, dated October 26, 1982, recorded October 29,
1982, in the Clerk’s Office, Circuit Court, City of Hopewell, Virginia in Deed Book 177, page 591.
AND FURTHER BEING the same real estate conveyed to Regional Enterprises, Inc., a Virginia
corporation by Deed of Correction from City Point Oil Terminal, a Virginia corporation,
dated November 24, 1982, recorded May 13, 1983, in the Clerk’s Office, Circuit Court, City of
Hopewell, Virginia in Deed Book 179, page 717.
PARCEL D:
ALL that certain lot or parcel of land, with improvements thereon and appurtenances thereto,
pertaining, lying and being in the City of Hopewell, Virginia, containing 0.39 acres, more or less,
as shown on a plat entitled, “Map of .039 Acre of Land Situated in Hopewell, Virginia, Belonging to
the Estate of Xxxx Xxxx”, dated September 20, 1954, revised December 19, 1954, made by X.X. XxXxxxx
& Bros., Civil Engineers and more particularly described as follows:
BEGINNING at an iron rod in the southern line of Xxxxxx Street at a point where the line dividing
the property hereby conveyed from the property now or formerly owned by City Point Terminal Oil
Company intersects the southern line of Xxxxxx Street; thence S 8° 43’ W 93.5 feet ot an iron rod;
thence S 9° 45’ W 18.85 feet to an iron rod; then S° 23 07’ W 77.86 feet to an iron rod; thence N
86° 05 1/2’ W 63 feet to an old concrete stone; thence N 3° 20’ 15” E 196.64 feet along the line
dividing the property hereby conveyed from the property now or formerly owned by the School Board
to a point in the southern line of Xxxxxx Street; thence S 79° 43’ E 101 feet to the iron rod at
the point and place of beginning; said property being known by the current street address of 0000
Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx.
BEING the same real estate conveyed to Regional Enterprises, Inc., a Virginia corporation by deed
from Xxxxxxxx X. Xxxxxx (formerly Xxxxxxxx X. Xxxxx) and C.D. French, dated November 28, 1990,
recorded June 11, 1991, in the Clerk’s Office, Circuit Court, City of Hopewell, Virginia in Deed
Book 233, page 897.
2
EXHIBIT B
(Identification of Environmental Report)
| 1. | Report of Delta Consultants dated June 29, 2007 (and all enclosures and appendices contained
therein, including copies of earlier reports by other parties) |
|
| 2. | Report of UNI Engineering dated June 2007 (and all enclosures and appendices contained
therein) |
