LOAN NO. 20028003005
ENVIRONMENTAL INDEMNITY
THIS ENVIRONMENTAL INDEMNITY (this "Agreement"), made as of February
27, 2003, by Biltmore Club Apartments, L.L.C., a Delaware limited liability
company having an address of 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx, 00000
("Borrower"), and by Wilshire Oil Company of Texas, a Delaware corporation
having an address of 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx, 00000
("Obligor"), jointly and severally (Borrower and Obligor being referred to
herein collectively as "Indemnitors" and individually as an "Indemnitor"), in
favor of Xxxxxxx Xxxxx Mortgage Lending, Inc., a Delaware corporation, having an
address at 4 World Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX, 00000, its
successors and assigns ("Lender"). All capitalized terms used but not defined
herein shall have the meaning set forth in the Mortgage (as hereinafter
defined).
W I T N E S S E T H:
WHEREAS, concurrently herewith, Lender has extended to Borrower a loan
in the original principal amount of NINE MILLION THREE HUNDRED THOUSAND AND
00/100 DOLLARS ($9,300,000.00) (the "Loan"), which is evidenced by the Note in
said amount and secured by (i) that certain Multifamily Deed of Trust, Security
Agreement, Assignment of Rents and Fixture Filing, dated of even date herewith,
given by Borrower to First American Title Insurance Company, as trustee, for the
benefit of Lender (the "Mortgage"), encumbering, among other things, that
certain real property situated in the County of Maricopa, State of Arizona, as
more particularly described on Exhibit A attached hereto, together with all
buildings and improvements now or hereafter located thereon (collectively, the
"Property") and (ii) the other Loan Documents; and
WHEREAS, as a condition to making the Loan, Lender has required that
Indemnitors indemnify the Indemnified Parties (as hereinafter defined) with
respect to environmental conditions or liabilities on, in, under or affecting
the Property as hereinafter set forth; and
WHEREAS, Obligor is an affiliate of Borrower and will derive
substantial economic benefit from Lender making the Loan to Borrower;
NOW, THEREFORE, to induce Lender to extend the Loan to Borrower and in
consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Indemnitors hereby covenant and agree for the benefit of the Indemnified Parties
as follows:
1. Definitions.
The following terms shall have the following meanings when used herein:
(a) "Indemnified Party" shall mean Lender, any subsequent holder of the
Loan and each of their officers, directors, shareholders, principals, partners,
representatives, employees, agents, successors and assigns.
(b) "Costs" shall mean, collectively, all liens, damages, losses,
fines, liabilities (including, without limitation, any strict liability),
obligations, settlements, penalties, assessments, citations, directives, claims,
litigations, demands, response costs (including, without limitation,
investigation, removal, remediation, mitigation, containment, post-closure and
monitoring costs), defenses, judgments, suits, proceedings, costs, laboratory
fees, disbursements and expenses of any kind or nature whatsoever (including,
without limitation, reasonable attorneys', consultants' and experts' fees and
disbursements). Costs shall also include any future reduction in sales price of,
or unmarketability and consequent inability of Lender to foreclose on or
otherwise sell, the Property and the lost opportunity costs resulting from the
inability of Lender to sell or dispose of its interest in the Property, all as a
consequence of any event described in Paragraph 2 herein.
(c) "Environmental Laws" shall mean, collectively, any local, state or
federal law, rule or regulation or common law duty pertaining to the
environment, natural resources, pollution, health, safety or clean-up including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. ss. 9601 et seq.), the Resource Conservation
and Recovery Act of 1976 (42 U.S.C. ss. 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. ss. 5101 et seq.), the Clean Air Act (42 U.S.C.
ss. 7401 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act (7
U.S.C. ss. 136 et seq.), the Emergency Planning and Community Right-to-Know Act
(42 U.S.C. ss. 11001 et seq.), the Occupational Safety and Health Act (29 U.S.C.
ss. 651 et seq.), the Residential Lead-Based Paint Hazard Reduction Act (42
U.S.C. ss. 4851 et seq.), any analogous state or local laws, any amendments
thereto, and the regulations promulgated pursuant to said laws, together with
all amendments from time to time to any of the foregoing.
(d) "Hazardous Substances" shall mean, collectively, any hazardous,
toxic or harmful substances, wastes, materials, pollutants or contaminants
(including, without limitation, asbestos, polychlorinated biphenyls ("PCB's"),
petroleum or petroleum by-products or wastes, flammable explosives, radioactive
materials, infectious substances, materials containing lead-based paint or raw
materials which include hazardous constituents) or any other substances or
materials which are identified under or regulated by Environmental Laws.
(e) "Tenants" shall mean all tenants, lessees, subtenants and other
occupants of the Property.
2. Indemnity.
(a) Indemnitors hereby assume liability for, and agree to pay, protect,
defend, indemnify and save all Indemnified Parties harmless from and against any
and all Costs which may be imposed upon, incurred by or asserted or awarded
against any of the Indemnified Parties or the Property, and arising directly or
indirectly from: (i) the violation or alleged violation of any Environmental
Laws relating to or affecting the Property, whether or not caused by or within
the control of Indemnitors; (ii) the actual or alleged presence, release or
threat of release of, or exposure to any Hazardous Substances on, in, under or
affecting all or any portion of the Property or any surrounding areas,
regardless of whether or not caused by or within the control of Indemnitors;
(iii) any actual or alleged personal injury or property damage arising out of or
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related to Hazardous Substances and the Property; (iv) any acts or omissions
that exacerbate an existing condition at the Property or that give rise to
liability under any Environmental Law; (v) the failure by Indemnitors to comply
fully with the terms and conditions of this Agreement; (vi) the breach of any
representation or warranty contained in this Agreement; (vii) the enforcement of
this Agreement; or (viii) assessment, investigation, containment, monitoring,
remediation and/or removal of any and all Hazardous Substances from the Property
or any surrounding areas, and costs incurred to comply with Environmental Laws
in connection with the Property or any surrounding areas.
(b) Notwithstanding any provision hereof to the contrary, Indemnitors
shall have no liability under this Agreement with respect to Costs relating to
Hazardous Substances which are initially placed on, in or under the Property
after the earlier of (i) Lender taking actual possession and control of the
Property following an Event of Default, and (ii) Lender completing a foreclosure
or other sale pursuant to which Lender takes title to the Property. Indemnitors
shall have no liability under this Agreement to any Indemnified Party with
respect to Costs which result directly and solely from such Indemnified Party's
willful misconduct or gross negligence.
(c) Indemnitors' obligation to defend the Indemnified Parties hereunder
shall include defense at both the trial and appellate levels and shall be with
attorneys, consultants and experts acceptable to the Indemnified Party.
3. Representations Regarding Hazardous Substances. Indemnitors hereby
represent and warrant to and covenant and agree with the Indemnified Parties as
follows:
(a) The Property and all businesses or operations conducted
thereon are in compliance with all Environmental Laws;
(b) No Hazardous Substances have been disposed of on or
released (as used herein, "release" shall have the meaning provided in 42 U.S.C.
ss. 9601(22)) at, onto or under the Property by any Indemnitor or, to the
Indemnitors' best knowledge, after due inquiry and investigation, by any other
Person;
(c) No Hazardous Substances are located in, on or under, or
have been handled, generated, stored, processed or discharged from the Property
by any Indemnitor or, to the Indemnitors' best knowledge, after due inquiry and
investigation, by any other Person, except for those substances used by Borrower
or tenants of the Property in the ordinary course of their business in
compliance with all Environmental Laws and not reasonably expected to give rise
to liability under Environmental Laws;
(d) The Property is not subject to any private or governmental
lien or judicial or administrative notice or action relating to or arising under
Environmental Laws;
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(e) There are no underground storage receptacles or surface
impoundments, landfills or dumps for Hazardous Substances on the Property;
(f) Indemnitors have received no notice of, and to the best of
Indemnitors' knowledge and belief, there exists no investigation, action,
proceeding or claim by any agency, authority or unit of government or by any
third party which could result in any liability, penalty, sanction or judgment
under any Environmental Laws with respect to any condition, use or operation of
the Property, nor do Indemnitors know of any basis for any of the foregoing;
(g) Except as previously disclosed to Lender in writing, there
is no asbestos-containing material or lead-based paint at the Property nor are
there any PCB's, endangered species' habitats or wetlands at the Property;
(h) Indemnitors have received no notice that, and to the best
of Indemnitors' knowledge and belief, there has been no claim by any party that,
any use, operation or condition of the Property has caused any nuisance or any
other liability or adverse condition on any other property nor do Indemnitors
know of any basis for such a claim;
(i) Except as previously disclosed in writing to Lender,
Indemnitor has not knowingly waived or released any Person's liability with
regard to Hazardous Substances in, on, under or around the Property nor retained
or assumed, contractually or otherwise, any other Person's liability relative to
Hazardous Substances or any claim, action or proceeding relating thereto; and
(j) Neither the Property nor any other property owned by
Borrower (i) is included or, to Indemnitor's knowledge, after due inquiry,
proposed for inclusion on the National Priorities List issued pursuant to CERCLA
by the United States Environmental Protection Agency (the "EPA") or on any of
the inventories of other potential "Problem" sites issued by the EPA or other
applicable Governmental Authority nor (ii) otherwise identified by the EPA as a
potential CERCLA site or included or, to Indemnitor's knowledge, after due
inquiry, proposed for inclusion on any such list or inventory issued pursuant to
any other Environmental Law or issued by any other Governmental Authority.
4. Covenants of Indemnitors.
(a) Indemnitors shall, and shall cause all property managers,
agents, employees and tenants of the Property to: (i) comply with all applicable
Environmental Laws applicable to the Property, (ii) keep or cause the Property
to be kept free from Hazardous Substances (except those substances used by
Borrower or tenants of the Property in the ordinary course of their business),
in compliance with, and not likely to give rise to liability under Environmental
Laws, (iii) not install or use, or permit the installation or use of, any
underground receptacles containing Hazardous Substances on the Property, (iv)
expressly prohibit the use, generation, handling, storage, production, release,
processing and disposal of Hazardous Substances by all future tenants of the
Property (except those substances used by such tenants in the ordinary course of
their business, in compliance with, and not likely to give rise to liability
under, Environmental Laws) and use all reasonable efforts to prevent existing
tenants and other permitted occupants of the Property from taking any such
actions, (v) in any event, not install on the Property or permit to be installed
on the Property PCB's, urea formaldehyde insulation, asbestos or any substance
containing asbestos or any material containing lead-based paint, and (vi)
prohibit the disposal and/or release of any Hazardous Substances on, at,
beneath, or near the Property.
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(b) Indemnitors immediately shall notify Lender in writing
should any Indemnitor become aware of (i) any release of Hazardous Substances,
or other actual or potential environmental problem or liability, with respect to
or affecting the Property, (ii) any lien, action or notice of violation or
potential liability affecting the Property or Borrower arising under any
Environmental Law, (iii) the institution of any investigation, inquiry or
proceeding concerning Borrower or the Property pursuant to any Environmental Law
or otherwise relating to Hazardous Substances, or (iv) the discovery of any
occurrence, condition or state of facts which would render any representation or
warranty contained in this Agreement incorrect in any respect if made at the
time of such discovery. Indemnitor shall promptly transmit to Lender copies of
any and all citations, orders, notices or, upon written request of Lender, other
communications relating to any of the foregoing provisions of this paragraph.
(c) Regardless of the source of contamination, Indemnitors
shall, at their own expense, promptly take or cause to be taken all actions
necessary or advisable for the clean-up of the Property and other property
affected by contamination in, on, under or at the Property, including, without
limitation, all investigative, monitoring, removal, containment and remedial
actions required of Borrower in accordance with all applicable Environmental
Laws (and in all events in a manner satisfactory to the applicable Governmental
Authority and Lender). Indemnitor shall further pay or cause to be paid, at no
expense to any Indemnified Party, all clean-up, administrative and enforcement
costs of applicable governmental agencies which may be asserted against the
Property. In the event Indemnitors fail to do so, or following an Event of
Default, Lender may, at its sole election, cause the Property or other affected
property to be freed from any Hazardous Substances or otherwise brought into
compliance with Environmental Laws and any cost incurred in connection therewith
shall be included in Costs. Borrower hereby grants to Lender access to the
Property and an irrevocable license to remove any items deemed by Lender to be
Hazardous Substances and to do all things Lender shall deem necessary to bring
the Property into compliance with Environmental Laws. However, Lender shall have
no obligation to inspect or clean up any Hazardous Substances. Lender shall not
be deemed a generator of any Hazardous Substances removed from the Property.
(d) Upon the request of Lender, at any time (i) after the
occurrence of a default under this Agreement or an Event of Default or (ii)
Lender has reasonable grounds to believe that (x) Hazardous Substances are or
have been released, stored or disposed of on or around the Property or (y) the
Property may be in violation of Environmental Laws, Indemnitors shall cause an
investigation or audit of the Property to be undertaken by a hydrogeologist or
environmental engineer or other appropriate consultant approved by Lender to
determine whether any Hazardous Substances are located on, at, beneath, or near
the Property and/or whether the Property is in compliance with Environmental
Laws. The scope of any investigation or audit shall be approved by Lender. If
Indemnitors fail to provide reports of such investigation or audit within thirty
(30) days after such request, Lender may, but shall have no obligation to, order
the same. Borrower hereby grants to Lender and Lender's contractors access to
the Property and an irrevocable license to undertake such investigation or
audit. All costs of any such investigation or audit shall be included in Costs
and shall be paid by Indemnitors in accordance with the terms of Paragraph 5(c)
hereof.
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(e) In the event that a Lien is filed against the Property
pursuant to any Environmental Law, Indemnitors shall, within thirty (30) days
from the date that Borrower receives notice of such Lien (but in any event ten
(10) days prior to the date of any contemplated sale pursuant to such Lien),
either (i) pay the claim and remove the Lien from the Property, or (ii) furnish
(A) a bond satisfactory to Lender in the amount of the claim out of which the
Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien
arises, (C) other security reasonably satisfactory to Lender in an amount
sufficient to discharge the claim out of which the Lien arises, or (D) security
in a form and amount satisfactory to the applicable Governmental Authority
pursuant to a valid consent or other order, and Indemnitors shall promptly
arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors
shall prevent a sale pursuant to any Lien.
(f) The amount of Indemnitors' liability hereunder is
unrelated to the amount of the Loan and any failure of the Loan to be repaid in
full. The enforcement of this Agreement by the Indemnified Parties shall not be
construed by Indemnitors as an indirect attempt to recover any Loan deficiency
or loss relating to the failure of the Loan to be repaid in full. Indemnitors
acknowledge that they may have liability hereunder even if the Loan is repaid in
full by reason of a full credit bid at any foreclosure sale under the Mortgage,
and that the amount of Indemnitor's liability hereunder could exceed the entire
amount paid by Borrower for the Property.
5. Indemnification Procedures.
(a) If any action, proceeding, litigation or claim shall be
brought or asserted against any Indemnified Party for any matter which the
Indemnified Parties are indemnified hereunder (each, a "Claim"), Indemnified
Party shall notify Indemnitors in writing thereof and Indemnitors shall promptly
assume the defense thereof, including, without limitation, the employment of
counsel acceptable to such Indemnified Party and the negotiation of any
settlement. Any failure of such Indemnified Party to notify Indemnitors of such
matter shall not impair or reduce the obligations of Indemnitors hereunder. The
Indemnified Parties shall have the right, at the expense of Indemnitors (which
expense shall be included in Costs), if an Indemnified Party has reason to
believe that its interests are not being adequately represented or diverge from
other interests being represented by such counsel, to employ separate counsel in
any such action and to participate in the defense thereof. In the event
Indemnitors shall fail to discharge or undertake to defend any Indemnified Party
against any Claim, such failure shall constitute an Event of Default and the
Indemnified Party may, at its sole election, defend or settle such Claim. The
liability of Indemnitors to such Indemnified Party hereunder for any settlement
by such Indemnified Party shall be conclusively established by any settlement
entered into by the Indemnified Party in good faith, and such good faith shall
be conclusively established if the settlement is made on the advice of
independent legal counsel for the Indemnified Party. The amount of Indemnitors'
liability hereunder shall include the settlement consideration and all other
Costs, which shall be paid by the Indemnitors as hereinafter provided. Costs
incurred in connection with a Claim shall be reimbursed by Indemnitors without
the requirement of waiting for the ultimate outcome of such Claim.
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(b) Indemnitors shall not, without the prior written consent
of the Indemnified Party, settle or compromise any Claim in any manner or
consent to the entry of any judgment (i) in which the claimant or plaintiff does
not unconditionally release the Indemnified Party from all liability and
obligations in respect of such Claim and obtain a dismissal of such Claim with
prejudice; or (ii) that may adversely affect the Indemnified Party (as
determined in the sole discretion of such Indemnified Party) or obligate the
Indemnified Party to pay any sum or perform any obligation.
(c) Indemnitors shall pay to the applicable Indemnified Party
any and all Costs within ten (10) days after written notice from such
Indemnified Party. All Costs shall be immediately reimbursable to the
Indemnified Party or, upon request of the Indemnified Party, paid directly to
the party sending a xxxx or other statement to the Indemnified Party. Any Costs
not paid within the aforementioned ten (10) day period shall bear interest at
the Default Rate from the date incurred until the date paid in full.
6. Reinstatement of Obligations. If at any time all or any part of any
payment received by an Indemnified Party pursuant to this Agreement shall be
rescinded or returned for any reason whatsoever, including, without limitation,
the insolvency, bankruptcy or reorganization of any Obligor or Borrower, then
the obligations of Indemnitors hereunder shall, to the extent of such rescinded
or returned payment, be reinstated and shall continue as though such previous
payment received by the Indemnified Party had never occurred.
7. Waivers by Indemnitors. To the extent permitted by law, Indemnitors
hereby waive and agree not to assert or take advantage of:
(a) Any right to require an Indemnified Party (i) to proceed
against Borrower or any other Person, (ii) to proceed against or exhaust any
security held by any Indemnified Party at any time or (iii) to pursue any other
remedy in such Indemnified Party's power or under any other agreement, in any
case, before proceeding against Indemnitors hereunder;
(b) Any defense that may arise by reason of the incapacity,
lack of authority, death or disability of any other Person or the failure of an
Indemnified Party to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any other Person;
(c) Demand, presentment for payment, protest and notice of
protest, demand, dishonor and nonpayment and all other notices except as
expressly required in the Loan Documents, including, without limitation, notice
of new or additional indebtedness or obligations or of any action or non-action
on the part of Borrower, Lender, any endorser or creditor of Borrower or of
Indemnitor or of any other Person whomsoever under this Agreement or any other
Loan Document;
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(d) Any defense based upon an election of remedies, splitting
a cause of action or merger of judgments by any Indemnified Party;
(e) Any right or claim of right to cause a marshaling of the
assets of Indemnitors;
(f) Any principle or provision of law, statutory or otherwise,
which is or might be in conflict with the terms and provisions of this
Agreement;
(g) Any duty on the part of any Indemnified Party to disclose
to Indemnitors any facts such Indemnified Party may now or hereafter know about
Borrower or the Property, regardless of whether such Indemnified Party (i) has
reason to believe that any such facts materially increase the risk beyond that
which Indemnitors intend to assume, (ii) has reason to believe that such facts
are unknown to Indemnitors or (iii) has a reasonable opportunity to communicate
such facts to Indemnitors, it being understood and agreed that Indemnitors are
fully responsible for being informed of the financial condition of Borrower, the
condition of the Property and of all other circumstances bearing on the risk
that liability may be incurred by Indemnitors hereunder;
(h) Any invalidity, irregularity or unenforceability, in whole
or in part, of any one or more of the Loan Documents;
(i) Any lack of commercial reasonableness in dealing with the
collateral for the Loan;
(j) Any deficiencies in the collateral for the Loan or any
deficiency in the ability of Lender to collect or to obtain performance from any
Persons now or hereafter liable for the payment and performance of any
obligation hereby guaranteed;
(k) An assertion or claim that the automatic stay provided by
11 U.S.C. ss. 362 (arising upon the voluntary or involuntary bankruptcy
proceeding of Borrower) or any other stay provided under any other debtor relief
law (whether statutory, common law, case law or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, which may be or become applicable, shall
operate or be interpreted to stay, interdict, condition, reduce or inhibit the
ability of Lender to enforce any of its rights, whether now existing or
hereafter acquired, which Lender may have against Obligor, the Borrower or the
collateral for the Loan;
(l) Any modifications of the Loan Documents or any obligation
of Borrower relating to the Loan by operation of law or by action of any court,
whether pursuant to the Bankruptcy Reform Act of 1978, as amended, or any other
debtor relief law (whether statutory, common law, case law or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, or otherwise;
(m) Any action, occurrence, event or matter consented to by
Indemnitors under Section 8(k) hereof, under any other provision hereof, or
otherwise;
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(n) The benefits of any statutory or other provision limiting
the liability of a surety, including without limitation the provisions of A.R.S.
Sections 12-1641, et seq. and Rule 17(f) of the Arizona Rules of Civil
Procedure; and
(o) Any benefit of, and any right to participate in, any
security now or hereafter held by Lender and, until payment and performance of
all of Indemnitor's obligations hereunder, any right of subrogation.
Borrower and Obligor covenant and agree that upon the commencement of a
voluntary or involuntary bankruptcy proceeding by or against Borrower, neither
Borrower nor Obligor shall seek a supplemental stay or otherwise pursuant to 11
U.S.C. ss. 105 or any other provision of the Bankruptcy Reform Act of 1978, as
amended, or any other debtor relief law (whether statutory, common law, case
law, or otherwise) of any jurisdiction whatsoever, now or hereafter in effect,
which may be or become applicable, to stay, interdict, condition, reduce or
inhibit the ability of Lender to enforce any rights of Lender against Borrower
or Obligor by virtue of this Agreement or otherwise.
8. General Provisions.
(a) Rules of Construction. This Agreement is governed by and
incorporates by reference the Rules of Construction set forth in Article XV of
the Mortgage, which shall have the same force and effect as if fully set forth
herein.
(b) Full Recourse. Notwithstanding any provision of any other
Loan Document to the contrary, all of the terms and provisions of this Agreement
are recourse obligations of Indemnitors and not restricted by any limitation on
personal liability.
(c) Right to Indemnification Not Affected by Knowledge. An
Indemnified Party's right to defense, indemnification, payment of Costs or other
rights and remedies pursuant to this Agreement shall not be diminished or
affected in any way by any investigation conducted by or on behalf of such
Indemnified Party or other knowledge acquired (or capable of being acquired) by
such Indemnified Party through any means at any time.
(d) Reliance. Indemnitors hereby acknowledge that Lender would
not make the Loan without being able to rely upon the covenants and obligations
of Indemnitors set forth herein. Accordingly, Indemnitors intentionally and
unconditionally enter into this Agreement.
(e) Obligations Unsecured. Indemnitors acknowledge that even
though the representations, warranties and covenants of Indemnitors contained
herein may be identical or substantially similar to those of Borrower set forth
in the Mortgage, the obligations of Indemnitors hereunder are independent
obligations which are not secured by the Mortgage or other Loan Documents. The
Indemnitors further acknowledge that it is the intent of Lender to create
separate obligations of Indemnitors hereunder which can be enforced against
Indemnitors without regard to the existence of the Mortgage or other Loan
Documents or the liens or security interests created therein.
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(f) Survival. This Agreement shall be deemed to be continuing
in nature, remain in full force and effect and survive indefinitely,
notwithstanding the exercise of any remedy by Lender under the Mortgage or any
of the other Loan Documents, including, without limitation, any foreclosure or
deed in lieu thereof, even if, as a part of such remedy, the Loan is paid or
satisfied in full.
(g) Subordination; No Recourse Against Lender. Obligor hereby
subordinates any and all indebtedness of Borrower now or hereafter owed to
Obligor to all indebtedness of Borrower to Lender. Obligor shall not demand or
accept any payment of principal or interest from Borrower, shall not claim any
offset or other reduction of Obligor's obligations hereunder because of any such
indebtedness and shall not take any action to obtain any of the collateral for
the Loan. Further, Indemnitors shall not have any right of recourse against any
Indemnified Party by reason of any action such Indemnified Party may take or
omit to take under the provisions of this Agreement or any other Loan Documents.
(h) Reservation of Rights. Nothing contained in this Agreement
shall prevent or in any way diminish or interfere with any rights or remedies,
including, without limitation, the right to cost recovery or contribution, which
any Indemnified Party may have against either Indemnitor or any other party
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (codified at Title 42 U.S.C. ss. 9601 et seq.), as it may be amended
from time to time, or any other applicable federal, state or local laws, all
such rights being hereby expressly reserved.
(i) Financial Statements. Each Indemnitor hereby agrees to
furnish Lender promptly upon demand by Lender current and dated financial
statements detailing the assets and liabilities of such Indemnitor, certified by
such Indemnitor, in form and substance acceptable to Lender. Each Indemnitor
hereby warrants and represents to Lender that any and all balance sheets, net
worth statements and other financial data which have heretofore been given or
may hereafter be given to Lender with respect to such Indemnitor did or will at
the time of such delivery fairly and accurately present the financial condition
of such Indemnitor.
(j) Nature of Obligations. The obligations of Indemnitors
hereunder are independent of the obligations of Borrower under the other Loan
Documents. In the event of any default hereunder, a separate action or actions
may be brought and prosecuted against Indemnitors whether or not Indemnitors are
the alter ego of Borrower and whether or not Borrower is joined therein or a
separate action or actions are brought against Borrower. Lender's rights
hereunder shall not be exhausted until all of the obligations of Indemnitor
hereunder have been fully paid and performed.
(k) No Limitation on Liability. Indemnitors hereby consent and
agree that any of the following may occur from time to time, without notice or
consideration to, or consent of, Indemnitors, and the liability of Indemnitors
hereunder shall remain unconditional and absolute and shall in no way be
impaired or limited by reason thereof:
(i) any extension of time for performance required by any of the Loan
Documents or otherwise granted by Lender or any extension or renewal of the
Note;
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(ii) any sale, assignment or foreclosure of the Note, the Mortgage or
any of the other Loan Documents or any sale or transfer of the Property;
(iii) any change in the composition of Borrower, including, without
limitation, the voluntary or involuntary withdrawal or removal of Indemnitors
from any current or future position of ownership, management or control of
Borrower;
(iv) any representations and warranties made by any Indemnitor herein
or by Borrower in any of the Loan Documents;
(v) the release of Borrower or of any other Person from performance or
observance of any of the agreements, covenants, terms or conditions contained in
any of the Loan Documents by operation of law, Lender's voluntary act or
otherwise;
(vi) the release or substitution in whole or in part of any security
for the Loan;
(vii) Lender's failure to record the Mortgage or to file any financing
statement (or Lender's improper recording or filing thereof) or to otherwise
perfect, protect, secure or insure any lien or security interest given as
security for the Loan;
(viii) the modification of the terms of any one or more of the Loan
Documents; or
(ix) the taking or failure to take any action of any type whatsoever.
No such action which Lender shall take or fail to take in connection with the
Loan Documents or any collateral for the Loan, nor any course of dealing with
Borrower or any other Person, shall limit, impair or release Indemnitor's
obligations hereunder, affect this Agreement in any way or afford Indemnitors
any recourse against any Indemnified Party. Nothing contained in this Section
shall be construed to require any Indemnified Party to take or refrain from
taking any action referred to herein.
(l) Representations. Each Indemnitor represents and warrants
that there is no bankruptcy, reorganization or insolvency proceeding pending or,
to its knowledge, threatened against it.
(m) Attorneys' Fees. In the event it is necessary for any
Indemnified Party to retain the services of an attorney or any other consultants
in order to enforce this Agreement, or any portion hereof, Indemnitors agree to
pay to such Indemnified Party any and all costs and expenses, including, without
limitation, reasonable attorneys' and consultants' fees and disbursements,
incurred by such Indemnified Party as a result thereof and all such amounts
shall be included in Costs. In the event of legal proceedings, court costs and
attorneys' fees shall be set by the court and not by jury and shall be included
in any judgment obtained by Lender.
(n) Successive Actions. A separate right of action hereunder
shall arise each time an Indemnified Party acquires knowledge of any matter
indemnified or guaranteed by Indemnitors hereunder. Separate and successive
actions may be brought hereunder to enforce any of the provisions hereof at any
time and from time to time and no action hereunder shall preclude any subsequent
action.
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IN WITNESS WHEREOF, Indemnitors have executed this Agreement
as of the day and year first above written.
BORROWER:
Biltmore Club Apartments, L.L.C.
a Delaware limited liability company
By: Biltmore Club Holding, Inc.
a Delaware corporation
Its Managing Member
By: ____________________________
Xxxxxx X. Xxxxxxxxx
Its President
OBLIGOR:
Wilshire Oil Company of Texas
a Delaware corporation
__________________________________
By:
Its: President
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STATE OF ARIZONA )
)ss.
County of __________ )
The foregoing instrument was acknowledged before me this _____ day of
___________, 2003, by Xxxxxx X. Xxxxxxxxx, the President of BILTMORE CLUB
HOLDING, INC., a Delaware corporation, Managing Member of BILTMORE CLUB
APARTMENTS, L.L.C., a Delaware limited liability company, on behalf of that
limited liability company.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary Public
My commission expires:
________________________
-13-
STATE OF ARIZONA )
)ss.
County of __________)
The foregoing instrument was acknowledged before me this _____ day of
__________, 2003, by __________________________, the ___________ of WILSHIRE OIL
COMPANY OF TEXAS, a Delaware corporation, on behalf of that corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
_________________________
Notary Public
My commission expires:
________________________
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EXHIBIT A
---------
LEGAL DESCRIPTION*
------------------
Xx. 0000000
XXXXXX XX. 0: (A.P.N. 163-21-003G 8)
The East 625.00 feet of the North half of the Southeast quarter of the
Northeast quarter of Section 22, Township 2 North, Range 3 East, of the
Gila and Salt River Base and Meridian, Maricopa County, Arizona;
Except the South 326.00 feet thereof; and
Except the East 40.00 feet thereof for roadway purposes; and
Except those portions Quit Claimed in Deeds recorded as Docket 7074,
Pages 595 through 598 inclusive.
PARCEL NO.2: (A.P.N. 163-21-003F 9)
The North half of the Southeast quarter of the Northeast quarter
of Section 22, Township 2 North, Range 3 East, of the Gila and Salt River
Base and Meridian, Maricopa County, Arizona;
Except the East 625.00 feet thereof; and
Except the North 40 feet; and
Except that part of the North half of the Southeast quarter of the
Northeast quarter of Section 22, Township 2 North, Range 3 East, of the
Gila and Salt River Base and Meridian, Maricopa County, Arizona,
described as follows:
Beginning at a point on the South line of the North half of the Southeast
quarter of the Northeast quarter of said Section 22, from which the
Southwest corner of the North half of the Southeast quarter of the
Northeast quarter of said Section 22, bears North 88 degrees, 30 minutes,
30 seconds West, a distance of 25.00 feet;
thence South 88 degrees, 30 minutes, 30 seconds East along the South line
of the North half of the Southeast quarter of the Northeast quarter of
said Section 22, a distance of 282.00 feet;
thence North 02 degrees, 07 minutes, 00 seconds East, parallel to the
West Line of the Southeast quarter of the Northeast quarter of said
Section 22, a distance of 101.65 feet;
thence North 87 degrees, 53 minutes, 00 seconds West, a distance of
116.0O feet;
thence North 02 degrees, 07 minutes, 00 seconds East, a distance
of 109.17 feet;
thence South 87 degrees, 53 minutes, 00 seconds East, a distance of
100.00 feet;
thence South 02 degrees, 07 minutes, 00 seconds West, a distance of
20.00 feet;
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No. 4062756
thence South 87 degrees, 53 minutes East. a distance of 72.00 feet;
thence North 02 degrees, 07 minutes, 00 seconds East, a distance of
79.83 feet;
thence South 87 degrees, 53 minutes, 00 seconds East a distance of
33.67 feet;
thence North 02 degree; 07 minutes, 00 seconds East, a distance of
91.38 feet;
thence South 88 degrees, 31 minutes, 00 seconds East, parallel to the
North line of the Southeast quarter of the Northeast quarter of said
Section 22, a distance of 155.14 feet;
thence North 01 degrees, 29 minutes, 00 seconds East, a distance of
299.00 feet to a point on the North line of the Southeast quarter of the
Northeast quarter of said Section;
thence North 88 degrees, 31 minutes, 00 seconds West, along the North
line of the Southeast quarter of the Northeast quarter of said Section
22, a distance of 267.02 feet;
thence South 01 degrees, 29 minutes, 00 seconds West, a distance of
174.19 feet;
thence North 87 degrees, 53 minutes, 00 seconds West, a distance of
150.42 feet;
thence South 02 degrees, 07 minutes, 00 seconds West, a distance of
8.00 feet;
thence North 87 degrees, 53 minutes, 00 seconds West, a distance of
108.00 feet;
thence South 02 degrees, 07 minutes, 00 seconds West, parallel and 25.00
feet East of the West line of the Southeast quarter of the Northeast
quarter of said Section 22, a distance of 480.57 feet to the POINT OF
BEGINNING; and
Except beginning at the Northwest corner of the Southeast quarter of the
Northeast quater of Section 22, Township 2 North, Range 3 East, of the
Gila and Salt River Base and Meridian;
thence South 88 degrees, 31 minutes, 00 seconds East along the North line
of the Southeast quarter of the Northeast quarter of said Section 22, a
distance of 281.51 feet;
thence South 01 degrees, 29 minutes, 00 seconds West, a distance of
174.19 feet;
thence North 87 degrees, 53 minutes, 00 seconds West, a distance of
15O.42 feet;
thence South 02 degrees, 07 minutes, 22 seconds West, a distance of
8.00 feet;
thence North 87 degrees, 53 minutes, 00 seconds West, a distance of
133.00 feet to the West line of the Southeast quarter of the Northeast
quarter of said Section 22;
thence North 02 degrees, 07 minutes, 00 seconds East along said West
line to the POINT OF BEGINNING; and
EXCEPT that portion quit claimed in Deeds recorded as Docket 7074, Page
595 and as Docket 7074, Page 598; and
EXCEPT the West 25 feet of said Southeast quarter of the Northeast
quarter.
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