ADA AND ENVIRONMENTAL INDEMNITY AGREEMENT
ADA AND ENVIRONMENTAL INDEMNITY AGREEMENT (this "Agreement") made as
of the 9th day of February, 2006, by INTERPHARM, INC., a New York corporation,
having an address at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000 ("Indemnitor") in
favor of XXXXX FARGO BANK, NATIONAL ASSOCIATION, acting through its Xxxxx Fargo
Business Credit operating division, having an address at 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Lender" or "Indemnitee") and other Indemnified
Parties (defined below).
RECITALS:
A. This Assignment is given in connection with a loan in the
principal sum of up to a maximum of Twelve Million and No/100 Dollars
($12,000,000.00) (the "Loan") made by Indemnitee to Indemnitor, as evidenced by
that certain Consolidated Real Estate Term Note, dated the date hereof, made by
Debtor to Indemnitor in the maximum principal amount of the Loan (as the same
may be amended, extended, restated, replaced, supplemented or otherwise modified
from time to time, the "Note"); and
B. The Note is secured by, among other things, that certain Mortgage
and Security Agreement, as modified and consolidated by a Mortgage
Consolidation, Modification and Extension Agreement, made by Indemnitor to
Indemnitee, dated the date hereof (as the same may be amended, extended,
restated, replaced, supplemented or otherwise modified from time to time, the
"Mortgage") encumbering the premises known as 00 Xxxxxxxxxx Xxxx in the Town of
Yaphank, County of Suffolk, State of New York, as more fully described as set
forth in Exhibit "A" attached hereto and made a part hereof (the "Property");
and
C. Indemnitor desires to further secure the Note and the performance
by Indemnitor of all of its obligations under the Mortgage and the other Loan
Documents (as such term is defined in the Mortgage).
D. Indemnitee is unwilling to make the Loan unless Indemnitor agrees
to provide the indemnification, representations, warranties, covenants and other
matters described in this Agreement for the benefit of the Indemnified Parties.
E. Indemnitor is entering into this Agreement to induce Indemnitee
to make the Loan.
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 the Indemnified Parties as follows:
1.Representations And Warranties. (a) There are no Hazardous
Substances (defined below) or underground storage tanks in, on, or under the
Property, except those that are in compliance with all Environmental Laws
(defined below) and with permits issued pursuant thereto; (b) there are no past,
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present or threatened Releases (defined below) of Hazardous Substances in, on,
under or from the Property which have not been fully remediated in accordance
with Environmental Law; (c) there is no threat of any Release of Hazardous
Substances migrating to the Property; (d) there is no past or present
non-compliance with Environmental Laws, or with permits issued pursuant thereto,
in connection with the Property which has not been fully remediated in
accordance with Environmental Law; (e) Indemnitor does not know of, and has not
received, any written or oral notice or other communication from any person
(including but not limited to a governmental entity) relating to Hazardous
Substances or Remediation (defined below) thereof, or possible liability of any
person 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; 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. Covenants.
(a) Indemnitor covenants and agrees that at all times that it or an
affiliate of Indemnitor is the owner of the Property or a tenant or user of the
Property: (a) all uses and operations on or of the Property, whether by
Indemnitor or any other person, shall be in compliance with all Environmental
Laws and permits issued pursuant thereto; (b) there shall be no Releases of
Hazardous Substances in, on, under or from the Property; (c) there shall be no
Hazardous Substances in, on, or under the Property, except those that are both
(i) in compliance with all Environmental Laws and with permits issued pursuant
thereto and (ii) fully disclosed to Indemnitee in writing; (d) 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 (the "Environmental Liens"); (e) Indemnitor
shall, at its sole cost and expense, fully and expeditiously cooperate in all
activities pursuant to Paragraph 3 of this Agreement, including but not limited
to providing all relevant information and making knowledgeable persons available
for interviews; (f) Indemnitor shall, at its sole cost and expense, perform any
environmental site assessment or other investigation of environmental conditions
in connection with the Property, pursuant to any reasonable written request of
Indemnitee (including but not limited to sampling, testing and analysis of soil,
water, air, building materials, and other materials and substances whether
solid, liquid or gas), and share with Indemnitee the reports and other results
thereof, and Indemnitee and the other Indemnified Parties shall be entitled to
rely on such reports and other results thereof; (g) Indemnitor shall, at its
sole cost and expense, comply with all reasonable written requests of Indemnitee
to (i) effectuate Remediation of any condition (including but not limited to a
Release of a Hazardous Substance) in, on, under or from the Property; (ii)
comply with any Environmental Law; (iii) comply with any directive from any
governmental authority; and (iv) take any other reasonable action necessary or
appropriate for protection of human health or the environment; (h) 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 (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
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Property; and (i) Indemnitor shall immediately notify Indemnitee in writing of
(A) any presence or Releases or threatened Releases of Hazardous Substances in,
on, under, from or migrating towards the Property; (B) any non-compliance with
any Environmental Laws related in any way to the Property; (C) any actual or
potential Environmental Lien; (D) any required or proposed Remediation of
environmental conditions relating to the Property; and (E) any written or oral
notice or other communication of which any 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 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.
(b) Indemnitor covenants and agrees that at all times that it or an
affiliate of Indemnitor is the owner of the Property or a tenant or user of the
Property: (a) the Property shall at all times comply with all requirements of
the ADA with respect to similar properties for similar use, (b) Indemnitor
shall, at its sole cost and expense, comply with all reasonable written requests
of Indemnitee to (i) effectuate compliance with the ADA and (ii) comply with any
directive from any governmental authority relating to ADA compliance and (c)
Indemnitor shall immediately notify Indemnitee in writing of (i) any
non-compliance with the ADA related in any way to the Property and (ii) 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 the ADA or compliance therewith, possible liability of
any person pursuant to the ADA, or any actual or potential administrative or
judicial proceedings in connection with anything referred to in this Agreement.
3. Indemnified Rights/Cooperation and Access.
(a) In the event the Indemnified Parties have a reasonable basis to
believe that an environmental hazard exists on the Property that does not, in
the reasonable discretion of the Indemnified Parties, endanger any tenants or
other occupants of the Property or their guests or the general public or
materially and adversely affects the value of the Property, upon reasonable
notice from the Indemnitee, Indemnitor shall, at Indemnitor's expense, promptly
cause an engineer or consultant reasonably satisfactory to the Indemnified
Parties to conduct any environmental assessment or audit (the scope of which
shall be determined in the sole and absolute discretion of the Indemnified
Parties exercising commercially reasonable judgment) and take any samples of
soil, groundwater or other water, air, or building materials or any other
invasive testing reasonably requested by Indemnitee and promptly deliver the
results of any such assessment, audit, sampling or other testing; provided,
however, if such results are not delivered to the Indemnified Parties within a
reasonable period or if the Indemnified Parties have a reasonable basis to
believe that an environmental hazard exists on the Property that, in the
reasonable judgment of the Indemnified Parties, endangers any tenant or other
occupant of the Property or their guests or the general public or may materially
and adversely affect the value of the Property, upon reasonable notice to
Indemnitor, the Indemnified Parties and any other person designated by the
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 to assess any and all aspects of the environmental condition of
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the Property and its use, including but not limited to conducting any
environmental assessment or audit (the scope of which shall be determined in the
sole and absolute discretion of the Indemnified Parties exercising commercially
reasonable judgment) and taking samples of soil, groundwater or other water,
air, or building materials, and reasonably conducting other invasive testing.
Indemnitor shall cooperate with and provide the Indemnified Parties and any such
person designated by the Indemnified Parties with access to the Property.
(b) In the event the Indemnified Parties have a reasonable basis to
believe that the Property is not in compliance with the ADA, upon reasonable
notice from the Indemnitee, Indemnitor shall, at Indemnitor's expense, promptly
cause an engineer or consultant reasonably satisfactory to the Indemnified
Parties to conduct any ADA assessment reasonably required by Indemnitee (the
scope of which shall be determined in the sole and absolute discretion of the
Indemnified Parties exercising commercially reasonable judgment) and promptly
deliver the results of any such assessment. Indemnitor shall cooperate with and
provide the Indemnified Parties and any such person designated by the
Indemnified Parties with access to the Property.
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: (a) any presence of any Hazardous Substances in, on, above, or under
the Property; (b) any past, present or threatened Release of Hazardous
Substances in, on, above, under or from the Property; (c) any activity by
Indemnitor, any person affiliated with Indemnitor, and any tenant or other user
of the Property in connection with any actual, proposed or threatened use,
treatment, storage, holding, existence, disposition or other Release,
generation, production, manufacturing, processing, refining, control,
management, abatement, removal, handling, transfer or transportation to or from
the Property of any Hazardous Substances at any time located in, under, on or
above the Property; (d) any activity by Indemnitor, any person affiliated with
Indemnitor, and any tenant or other user of the Property in connection with any
actual or proposed Remediation of any Hazardous Substances at any time located
in, under, on or above the Property, whether or not such Remediation is
voluntary or pursuant to court or administrative order, including but not
limited to any removal, remedial or corrective action; (e) 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, including but not limited to any failure by Indemnitor, any
person affiliated with Indemnitor, and any tenant or other user of the Property
to comply with any order of any governmental authority in connection with any
Environmental Laws; (f) the imposition, recording or filing or the threatened
imposition, recording or filing of any Environmental Lien encumbering the
Property; (g) any administrative processes or proceedings or judicial
proceedings in any way connected with any matter addressed in this Agreement;
(h) any past, present or threatened injury to, destruction of or loss of natural
resources in any way connected with the Property, including but not limited to
costs to investigate and assess such injury, destruction or loss; (i) any acts
of Indemnitor, any person affiliated with Indemnitor, and any tenant or other
user of the Property in arranging for disposal or treatment, or arranging with a
transporter for transport for disposal or treatment, of Hazardous Substances at
any facility or incineration vessel containing such or similar Hazardous
Substances; (j) any acts of Indemnitor, any person affiliated with any
Indemnitor, and any tenant or other user of the Property in accepting any
Hazardous Substances for transport to disposal or treatment facilities,
incineration vessels or sites from which there is a Release, or a threatened
Release of any Hazardous Substance which causes the incurrence of costs for
Remediation; (k) any personal injury, wrongful death, or property or other
damage arising under any statutory or common law or tort law theory, including
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but not limited to damages assessed for private or public nuisance or for the
conducting of an abnormally dangerous activity on or near the Property; (l) any
past, present or future non-compliance with the ADA; and (m) misrepresentation
or inaccuracy in any material representation or warranty or material breach or
failure to perform any covenants or other obligations pursuant to this Agreement
or the Mortgage; provided, however, that nothing contained in this Section 4
shall impose liability upon Indemnitor with respect to conditions or
circumstances which did not exist prior to, and arise solely out of actions,
conditions or events occurring after, any sale of the Property by foreclosure of
the Mortgage or deed-in-lieu thereof.
5. Duty to Defend and Attorneys and Other Fees and Expenses. Upon
written request by any Indemnified Party, Indemnitor shall defend same (if
requested by any Indemnified Party, in the name of the Indemnified Party) by
attorneys and other professionals reasonably approved by the Indemnified
Parties. Notwithstanding the foregoing, any Indemnified Parties may, in their
sole discretion, engage their own attorneys and other professionals to defend or
assist them, and, at the option of Indemnified Parties, their attorneys shall
control the resolution of any claim or proceeding, providing that no compromise
or settlement shall be entered without Indemnitor's consent, which consent shall
not be unreasonably withheld. 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:
The term "ADA" means the Americans with Disabilities Act of 1990, as
amended and supplemented from time to time.
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 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, whether or not in connection with transfer of title to or interest
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in property; imposing conditions or requirements in connection with permits or
other authorization for lawful activity; relating to protection of human health
or the environment, relating to Hazardous Substances, relating to liability for
or costs of other actual or threatened danger to human health or the
environment, 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.
The term "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,
polychlorinated biphenyls, lead, radon, radioactive materials, flammables and
explosives, but excluding substances of kinds and in amounts ordinarily and
customarily used or stored in similar properties for the purposes of cleaning or
other maintenance or operations and otherwise in compliance with all
Environmental Laws.
The term "Indemnified Parties" includes Indemnitee, any person who
is or will have been involved in the origination of the Loan, any person who is
or will have been involved with the servicing of the Loan, any person in whose
name the encumbrance created by the Mortgage is or will have been recorded,
persons who may hold or acquire or will have held a full or partial interest in
the Loan as well as the respective directors, officers, shareholders, partners,
employees, agents, servants, representatives, contractors, subcontractors,
affiliates, subsidiaries, participants, successors and assigns of any and all of
the foregoing (including but not limited to any other person who holds or
acquires or will have held a participation or other full or partial interest in
the Loan or the Property, whether during the term of the Loan or as a part of or
following a foreclosure of the Loan and including, but not limited to, any
successors by merger, consolidation or acquisition of all or a substantial
portion of Indemnitee's assets and business); provided that Indemnified Parties
shall not include any person at or after a foreclosure sale or deed-in-lieu of
foreclosure other than Indemnitee or its affiliated designee.
The term "Legal Action" means any claim, suit or proceeding, whether
administrative or judicial in nature.
The term "Losses" includes any losses, damages (excluding
consequential 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, 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.
The term "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.
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The term "Remediation" includes but is not limited to 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.
The term "Property" means the Property listed on Exhibit A attached
hereto.
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 Mortgage or any other Loan Document to or with
Indemnitee by Indemnitor or any person who succeeds Indemnitor or any person as
owner of the Property. 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 Mortgage or any of the other Loan
Documents, (ii) any sale or transfer of all or part of the Property, (iii) any
exculpatory provision in the Note, the Mortgage, 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 Mortgage 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 Note, or (vii) Indemnitee'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 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 Note, the Mortgage, 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 Note, foreclosing, or exercising any power of sale under, the
Mortgage, or exercising any other rights and remedies thereunder. This Agreement
is not collateral or security for the debt of Indemnitor pursuant to the Loan,
unless Indemnitee expressly elects in writing to make this Agreement additional
collateral or security for the debt of Indemnitor pursuant to the Loan, which
Indemnitee is entitled to do in its sole and absolute discretion. It is not
necessary for an Event of Default to have occurred pursuant to and as defined in
the Mortgage for Indemnified Parties to exercise their rights pursuant to this
Agreement. Indemnitor is fully and personally liable for the obligations
pursuant to this Agreement and such liability is not limited to the original or
amortized principal balance of the Loan or the value of the Property.
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9. Survival. The obligations and liabilities of Indemnitor under
this Agreement 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 Mortgage;
provided, however, that nothing in this Section 9 shall impose liability upon
Indemnitor with respect to conditions or circumstances which did not exist prior
to, and arise solely out of actions, conditions or events occurring after, any
sale of the Property by foreclosure of the Mortgage or deed-in-lieu thereof.
Notwithstanding the foregoing, the obligations and liabilities of Indemnitor
under this Agreement shall not inure to the benefit of any purchaser or
transferee of the Property upon and after a sale of the Property by foreclosure
of the Mortgage or deed-in-lieu thereof unless such purchaser or transferee is
the holder of the Mortgage at the time of such foreclosure or deed-in-lieu
thereof or is an affiliate or nominee of such holder.
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 ten (10) days of such demand therefor, shall bear interest at the
Default Rate.
11. Waivers.
(a) Indemnitor hereby waives (i) any right or claim of right
to cause a marshaling of 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 indemnitors or guarantors,
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 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, AND BY ITS ACCEPTANCE HEREOF, INDEMNITEE, EACH
HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY,
AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT
SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE AGREEMENT, OR ANY CLAIM,
COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY INDEMNITOR AND
INDEMNITEE, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH
ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
INDEMNITOR AND INDEMNITEE ARE EACH HEREBY AUTHORIZED TO FILE A COPY OF THIS
PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.
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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) it has the full 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 action has been taken by Indemnitor to make this
Agreement valid and binding upon Indemnitor, enforceable in accordance with its
terms;
(b) its execution of, and compliance with, this Agreement is
in the ordinary course of business of Indemnitor and will not result in the
breach of any term or provision of the charter, by-laws, partnership or trust
agreement, or other governing instrument of 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 Indemnitor or the Property
is subject, or result in the violation of any law, rule, regulation, order,
judgment or decree to which Indemnitor or the Property is subject; to the best
of Indemnitor's knowledge, 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;
(c) 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;
(d) to the best of Indemnitor's knowledge, 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 which
has not been obtained; and
(e) this Agreement constitutes a valid, legal and binding
obligation of Indemnitor, enforceable against it in accordance with the terms
hereof.
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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 or the ADA
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 18 hereof.
16. [Intentionally Omitted].
17. [Intentionally Omitted].
18. Notices. All notices or other written communications hereunder
shall be made in accordance with the notice provisions of the Mortgage.
19. 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.
20. 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 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.
21. 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.
22. 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 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
Indemnitor may be assigned except with the written consent of 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.
10
23. 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.
24. Rights Cumulative. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies which Indemnitee has
under the Note, the Mortgage, or the other Loan Documents or would otherwise
have at law or in equity.
25. 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.
26. Governing Law. This Agreement shall be governed, construed,
applied and enforced in accordance with the laws of the State of New York
(without giving effect to New York's principles of conflicts law) and the
applicable laws of the United States of America.
27. Miscellaneous.
(a) Wherever pursuant to this Agreement (i) Indemnitee
exercises any right given to it 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.
(b) Wherever pursuant to this Agreement it is provided that
Indemnitor pay any costs and expenses, such costs and expenses shall include,
but not be limited to, reasonable attorneys' fees and disbursements of
Indemnitee.
(c) Capitalized terms used in this Agreement and not otherwise
defined in this Agreement shall have the respective meanings assigned to them in
the Mortgage.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, this Agreement has been executed by Indemnitor
and is effective as of the day and year first above written.
INDEMNITOR:
INTERPHARM, INC.
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx Xxxxxxx, Chief Financial Officer
With respect to Section 11(b):
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
acting through its Xxxxx Fargo Business
Credit operating division
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxx, Assistant Vice
President
00
XXXXXXXXXXXXXXX
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NASSAU )
On the 9th day of February, in the year 2006, before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxxxx Xxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
-------------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On the 9th day of February, in the year 2006, before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxxxxx Xxxxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
-------------------------------------
Notary Public
13
EXHIBIT A