Exhibit 10.28
HAZARDOUS MATERIALS INDEMNITY AGREEMENT
THIS HAZARDOUS MATERIALS INDEMNITY AGREEMENT (the "AGREEMENT") is made as
of August 2, 1999, by PARK MEDICAL ASSOCIATES GENERAL PARTNERSHIP, a North
Carolina general partnership, and XXXXX X. XXXXXX (individually and
collectively, the "INDEMNITOR"), for the benefit of GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation ("LENDER").
RECITALS
A. Contemporaneously with the execution of this Agreement, PARK MEDICAL
ASSOCIATES (the "BORROWER") has executed and delivered to Lender that certain
Loan Agreement (the "LOAN AGREEMENT"), between the Borrower and Lender, and
that certain Promissory Note (the "NOTE") in the amount of $4,000,000.00 in
evidence of the loan (the "LOAN") made by Lender to Borrower.
B. The Loan is secured in part by that certain Deed of Trust, Assignment
of Leases and Rents, Security Agreement and Fixture Filing dated the date
hereof given by the Borrower to the Lender (the "MORTGAGE"). The Mortgage
secures Borrower's interest in and to the "Mortgaged Property" described in the
Mortgage (the "MORTGAGED PROPERTY").
C. Lender has required, as a condition of funding the Loan, that
Indemnitor indemnify and hold Lender harmless against and from certain
obligations for which Lender may incur liability, by reason of the threat or
presence of any hazardous substance at or near the Mortgaged Property.
D. Indemnitor is the Borrower and/or the owner of a direct or indirect
interest in Borrower, and Indemnitor will directly benefit from Lender's making
the Loan to Borrower.
NOW, THEREFORE, in consideration of the premises, Ten Dollars ($10.00),
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Indemnitor, intending to be legally bound, hereby
agrees as follows:
1. RECITALS. The foregoing recitals are incorporated into this
Agreement by this reference.
2. CERTAIN DEFINITIONS. As used herein, the following terms have the
meanings indicated:
2.1 "ENVIRONMENTAL LAWS" means any federal, state or local law
(whether imposed by statute, ordinance, rule, regulation, administrative or
judicial order, or common law), now or hereafter enacted, governing health,
safety, industrial hygiene, the environment or natural resources, or Hazardous
Materials, including, without limitation, such laws governing or regulating (a)
the use, generation, storage, removal, recovery, treatment, handling,
transport, disposal, control, release discharge of, or exposure to, Hazardous
Materials, (b) the transfer of property upon a negative declaration or other
approval of a governmental authority of the environmental condition of such
property, or (c) requiring notification or disclosure of releases of Hazardous
Materials or other environmental conditions whether or not in connection with a
transfer of title to or interest in property.
2.2 "HAZARDOUS MATERIALS" means (a) petroleum or chemical
products, whether in liquid, solid, or gaseous form, or any fraction or
by-product thereof, (b) asbestos or asbestos-containing materials, (c)
polychlorinated biphenyls (PCBs), (d) radon gas, (e) underground storage
tanks, (f) any explosive or radioactive substances, (g) lead or lead-based
paint, or (h) any other substance, material, waste or mixture which is or
shall be listed, defined, or otherwise determined by any governmental
authority to be hazardous, toxic, dangerous or otherwise regulated,
controlled or giving rise to liability under any Environmental Laws.
2.3 "SITE ASSESSMENT" means an environmental engineering report for the
Mortgaged Property prepared by an engineer engaged by Borrower and approved
by Lender, and in a manner satisfactory to Lender, based upon an
investigation relating to and making appropriate inquiries concerning the
existence of Hazardous Materials on or about the Mortgaged Property, and
the past or present discharge, disposal, release or escape of any such
substances, all consistent with ASTM Standard E1527-93 (or any successor
thereto published by ASTM) and good customary and commercial practice.
Other capitalized terms used in this Agreement and not defined shall have
the meanings assigned to such terms in the Loan Agreement.
3. INDEMNITY.
3.1 In accordance with the terms of the Loan Agreement, all risk
of loss associated with noncompliance with Environmental Laws, or with the
presence of any Hazardous Material at, upon, within, contiguous to or otherwise
affecting the Mortgaged Property lies solely with Borrower and the Borrower has
agreed to bear all risks and costs associated with any loss (including any loss
in value attributable to Hazardous Materials), damage or liability therefrom,
including all costs of removal of Hazardous Materials or other remediation
required by Lender or by law. Indemnitor shall at all times indemnify, defend
and hold Lender and its shareholders, directors, officers, employees and agents
harmless from and against any and all loss, liabilities, damages, claims, costs
and expenses (including reasonable costs of defense and consultant fees,
investigation and laboratory fees, court costs, and other litigation expenses)
of any nature whatsoever proffered or incurred by Lender (hereinafter
collectively referred to as "LIABILITIES"), whether as mortgagee under the
Mortgage, as a mortgagee in possession, or as successor-in-interest to Borrower
by foreclosure deed or deed in lieu of foreclosure, and whether based in
contract, tort, implied or express warranty, strict liability, criminal or civil
statute or common law, including those Liabilities arising from the joint,
concurrent or comparative negligence of Lender and including any Liabilities
arising out of or associated, in any way, with:
(a) the non-compliance of the Borrower or the Mortgaged
Property with Environmental Laws;
(b) any discharge or release of Hazardous Materials, the
threat of discharge or release of any Hazardous Materials or the storage or
presence of any Hazardous Materials affecting the Mortgaged Property or any
contiguous real estate;
(c) any personal injury (including wrongful death) or
property damage (real or personal) arising out or related to Hazardous
Materials;
(d) any lawsuit brought or threatened, settlement reached,
or government order relating to such Hazardous Materials;
(e) a breach of any representation, warranty or covenant
contained in any of the Loan Documents relating to Hazardous Materials or
Environmental Laws.
(f) the imposition of any environmental lien encumbering
the Mortgaged Property;
provided, however, Indemnitor shall not be liable under such indemnification to
the extent such Liabilities result solely from Lender's gross negligence or
willful misconduct.
Indemnitor's obligations under this Agreement shall arise upon the discovery of
the presence of any Hazardous Material, whether or not the Environmental
Protection Agency, any other federal agency or any state or local environmental
agency has taken or threatened any action in connection with the presence of any
Hazardous Materials and whether or not the existence of any such Hazardous
Material or potential liability on account thereof is disclosed in the Site
Assessment, and shall continue notwithstanding the repayment of the Loan or any
transfer or sale of any right, title and interest in the Mortgaged Property (by
foreclosure, deed in lieu of foreclosure or otherwise).
3.2 Indemnitor hereby acknowledges and agrees that the provisions of
this Agreement shall supersede any provisions in the Loan Documents which in any
way limit the personal liability of Indemnitor, including those contained in
Article 12 of the Loan Agreement, and that Indemnitor shall be personally liable
for any and all obligations arising under this Agreement even if the amount of
liability incurred exceeds the amount of the Loan. All of the representations,
warranties, covenants and indemnities of this Agreement shall survive the
repayment of the Note and/or the release of the lien of the Mortgage from the
Mortgaged Property, and shall survive the transfer of any or all right, title
and interest in and to the Mortgaged Property by Borrower to any party.
Indemnitor hereby acknowledges and agrees that, notwithstanding anything
contained in any of the Loan Documents to the contrary, this Agreement and the
obligations of Indemnitor under this Agreement shall not be secured by the
Mortgage or any other Loan Documents or any other mortgage, deed of trust or
other security document securing any obligations of Borrower in connection with
the Loan.
3.3 Notwithstanding any provision in this Agreement or elsewhere in
the Loan Documents, or any rights or remedies granted by the Loan Documents,
Lender does not waive and expressly reserves all rights and benefits now or
hereafter accruing to Lender under the "security interest" or "secured creditor"
exception under applicable Environmental Laws, as the same may be amended. No
action taken by Lender pursuant to the Loan Documents shall be deemed or
construed to be a waiver or relinquishment of any such rights or benefits under
the "security interest exception."
3.4 A separate right of action hereunder shall arise each time Lender
acquires knowledge of any violation of any of the terms hereof. Separate and
successive actions may be brought hereunder to enforce any of the provisions
hereof at any time and from time to time. No action hereunder shall preclude any
subsequent action, and Indemnitor hereby waives and covenants not to assert any
defense in the nature of splitting of causes of action or merger of judgments.
4. RELIANCE. Indemnitor recognizes and acknowledges that in making the
Loan and accepting the Mortgage and the other Loan Documents, Lender is
expressly and primarily relying on the truth and accuracy of the warranties and
representations set forth in Loan Documents without any obligation to
investigate the Mortgaged Property and notwithstanding any investigations of the
Mortgaged Property by Lender; that such reliance exists on the part of Lender
prior hereto; that such warranties and representations are a material inducement
to Lender in making the Loan and accepting the Mortgage and other Loan
Documents; and that Lender would not be willing to make the Loan and accept the
Mortgage in the absence of such warranties and representations.
5. 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 Mortgage, the Loan Agreement or any other Loan Documents. In addition,
the liability of Indemnitor under this Agreement shall in no way be limited or
impaired by (a) the unenforceability of the Note, Mortgage, Loan Agreement or
any other Loan Document against Borrower and/or any guarantor or Joinder Party;
(b) any release or other action or inaction taken by Lender with respect to the
collateral, the Loan, the Borrower, any Guarantor and/or Joinder Party, whether
or not the same may impair or destroy any subrogation rights of the Indemnitor,
or constitute a legal or equitable discharge of any surety or indemnitor; (c)
the existence of any collateral or other security for the Loan, and any
requirement that Lender pursue any of such collateral or other security, or
pursue any remedies it may have against Borrower, any Guarantor and/or any
Joinder Party; (d) any requirement that Lender provide notice to or obtain
Indemnitor's consent to any modification, increase, extension or other amendment
of the Loan; (e) any right of subrogation (until payment in full of the Loan and
the expiration of any applicable preference period and statute of limitations
for fraudulent conveyance claims); (f) any defense based on any statute of
limitations; (g) any payment by Borrower to Lender if such payment is held to be
a preference or fraudulent conveyance under bankruptcy laws or Lender is
otherwise required to refund such payment to Borrower or any other party; (h)
any voluntary or involuntary bankruptcy, receivership,
insolvency, reorganization or similar proceeding affecting Borrower or any of
its assets; (i) any extensions of time for performance required by the Note, the
Mortgage, the Loan Agreement or any of the other Loan Documents; (i) any sale or
transfer of all or part of the Mortgaged Property; (k) any exculpatory provision
in the Note, the Mortgage, the Loan Agreement or any of the other Loan Documents
limiting Lender's recourse to the Mortgaged Property or to any other security
for the Note, or limiting Lender's rights to a deficiency judgment against any
Indemnitor; (1) the accuracy or inaccuracy of the representations and warranties
made by the Borrower under the Note, the Mortgage, the Loan Agreement or any of
the other Loan Documents or herein; (m) the release of the Borrower or any other
person from performance or observance of any of the agreements, covenants, terms
or condition contained in the Note, Mortgage, Loan Agreement or any of the other
Loan Documents by operation of law, Borrower's voluntary act, or otherwise; (n)
the release or substitution in whole or in part of any security for the Note; or
(o) Lender's failure to record the Mortgage 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 Note; and, in any such case, whether with or without notice to
Indemnitors and with or without consideration.
6. ENFORCEMENT. Lender may enforce the obligations of the Indemnitor
without first resorting to or exhausting any security or collateral or without
first having recourse to the Note, the Mortgage, or any other Loan Document or
any of the Mortgaged Property, through foreclosure proceedings or otherwise,
provided, however, that nothing herein shall inhibit or prevent Lender from
suing on the Note, foreclosing, or exercising any power of sale under, the
Mortgage, or exercising any other rights and remedies it may have under the Loan
Documents. It is not necessary for an Event of Default to have occurred for
Lender to exercise it rights pursuant to this Agreement.
7. INDEMNITORS' REPRESENTATIONS AND WARRANTIES. Indemnitor hereby
represents and warrants that:
(a) if Indemnitor is a corporation, partnership or limited
liability company, it has the full corporate/partnership/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/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, a partnership or a 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 Mortgaged 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 Mortgaged Property is
subject, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Indemnitor or the Mortgaged Property is subject;
(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.
8. INTEREST. In the event that Lender incurs any obligations, costs or
expenses under this Agreement, Indemnitor shall pay Lender immediately on
demand, and if such payment is not received within ten (10) days, interest on
such amount shall, after the expiration of the ten (10) day period, accrue at
the Default Rate until such amount, plus interest, is paid in full.
9. JOINT AND SEVERAL LIABILITY. In the event that this Agreement is
executed by more than one party as Indemnitor, the liability of such parties is
joint and several. In addition, Indemnitor's obligations hereunder are joint
and several with any other person now or hereafter obligated under the Loan
Documents and are independent of any obligations of Indemnitor under the Loan
Documents. A separate action or actions may be brought and prosecuted against
Indemnitor, whether or not action is brought against any other person or
whether or not any other person is joined in such action or actions.
10. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be mailed by certified mail, postage
prepaid, return receipt requested, or sent by overnight air courier service, or
personally delivered to a representative of the receiving party, or sent by
telecopy (provided an identical notice is also sent simultaneously by mail,
overnight courier, or personal delivery as otherwise provided in this Section
10). All such communications shall be mailed, sent or delivered, addressed to
the party for whom it is intended at its address set forth below.
If to Indemnitor: Park Medical Associates General Partnership
c/x Xxxxxxxx Company
000 X. Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
If to Lender: General Electric Capital Corporation
c/o GE Capital Loan Services, Inc.
000 Xxxxx Xxx Xxxxxxx Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Portfolio Manager/Access Program
Telecopy: (000) 000-0000
with a copy to: General Electric Capital Corporation
16479 Dallas Parkway, Suite 000
Xxx Xxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
Any communication so addressed and mailed shall be deemed to be given on the
earliest of (1) when actually delivered, (2) on the first Business Day after
deposit with an overnight air courier service, or (3) on the third Business Day
after deposit in the United States mail, postage prepaid, in each case to the
address of the intended addressee, and any communication so delivered in person
shall be deemed to be given when receipted for by, or actually received by
Lender or Indemnitor, as the case may be, or (4) if given by telecopy, when
transmitted to the party's telecopy number specified above and confirmation of
complete receipt is received by the transmitting party during normal business
hours, and an identical notice is also sent simultaneously by mail, overnight
courier, or personal delivery as otherwise provided in this Section 10. Either
party may designate a change of address by written notice to the other by giving
at least ten (10) days prior written notice of such change of address.
11. WAIVERS. No course of dealing on the part of Lender, its officers,
employees, consultants or agents, nor any failure or delay by Lender with
respect to exercising any right, power or privilege of Lender hereunder, shall
operate as a waiver thereof.
12. SEVERABILITY. If any clause or provision herein contained operates
or would prospectively operate to invalidate this Agreement in whole or in
part, then such clause or provision shall be held for naught as though not
contained herein, and the remainder of this Agreement shall remain operative
and in full force and effect.
13. INCONSISTENCIES AMONG THE LOAN DOCUMENTS. Nothing contained herein
is intended to modify in any way the obligations of Indemnitor under the Loan
Agreement, the Note, the Mortgage or any other Loan Document. Any
inconsistencies among the Loan Documents shall be construed, interpreted and
resolved so as to benefit Lender, and Lender's election of which
interpretation or construction is for Lender's benefit shall govern.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
Indemnitor's successors, assigns, heirs, personal representatives and estate
and shall inure to the benefit of Lender and its successors and assigns.
15. CONTROLLING LAWS. This agreement shall be governed by and construed
according to the laws of the State where the Mortgaged Property is located.
16. CONSTRUCTION. Whenever the context requires, all words used in the
singular will be construed to have been used in the plural, and vice versa, and
each gender will include any other gender. The captions of the sections of this
Agreement are for convenience only and do not define or limit any terms or
provisions. The work "include(s)" means "include(s), without limitation," and
the word "including" means "including, but not limited to." No listing of
specific instances, items or matters in any way limits the scope or generality
of any language of this Agreement. Time is of the essence in the performance of
this Agreement by Indemnitor.
17. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
INDEMNITOR AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT TO A TRIAL BUY JURY IN RESPECT OF ANY LITIGATION BASED HEREON. ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF EITHER PARTY OR
ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS HEREUNDER OR IN ANY WAY
RELATING TO THE LOAN OR THE MORTGAGED PROPERTY (INCLUDING ANY ACTION TO RESCIND
OR CANCEL THIS AGREEMENT, AND ANY CLAIM OR DEFENSE ASSERTING THAT THIS AGREEMENT
WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A
MATERIAL INDUCEMENT FOR LENDER TO MAKE THE LOAN.
18. COUNTERPARTS. This agreement may be executed in multiple
counterparts, each of which shall constitute an original, but all of which shall
constitute one document.
IN WITNESS WHEREOF, Indemnitor has executed this Hazardous Materials
Indemnity Agreement as of the date first above written.
"INDEMNITOR":
PARK MEDICAL ASSOCIATES GENERAL PARTNERSHIP,
a North Carolina general partnership
By: P-51 ASSOCIATES,
a North Carolina general partnership,
Its: Managing General Partner
By: Xxxxx Xxxxxxxx Company, Inc.,
a North Carolina corporation,
Its: Managing General Partner
[SEAL]
BY: /s/ XXXXX X. XXXXXX
ATTEST: ------------------------------------------
Xxxxx X. Xxxxxx, President
/s/ XXXXX XXXXX
------------------------
Xxxxx Xxxxx, Secretary
[Corporate Seal]
/s/ XXXXX X. XXXXXX
--------------------------------------------
XXXXX X. XXXXXX
