Fill and Sign the Environmental Indemnity Agreement Form

ENVIRONMENTAL INDEMNITY AGREEMENT THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "Agreement") dated as of the ____ day of ___________________, _____, made by, _________________________ a ____________________________________________, having an address at _______________________________________________________ ("Indemnitor"), to ______________________________________________, a _______________________________ having an address at _______________________________________________ ("Lender"). RECITALS: A. Lender has amended and restated a loan (the "Loan") to Indemnitor evidenced by that certain Amended Real Estate Note (the "Note") dated the date hereof made by Indemnitor and payable to Lender in the original principal amount of ______________________________________ ($ ) lawful money of the United States; B. This Agreement is being executed and delivered in connection with the Note and the following obligations (collectively, the "Indebtedness"): the full and prompt payment and performance of all of the indebtedness, obligations, covenants, agreements and liabilities of Indemnitor to Lender, together with all interest and other charges thereon, whether direct or indirect, existing, future, contingent or otherwise, due or to become due, under or arising out of or in connection with (1) the Note, this Agreement, the Amended and Restated Deed of Trust (the
Deed of Trust ), the Assignment of Leases, Rents, Income and Cash Collateral dated the date hereof from Indemnitor, as assignor, to Lender, as assignee (the "Assignment"), and any other instrument now or hereafter given to evidence, secure or guarantee Indemnitor's obligations hereunder or thereunder (the Note, the Deed of Trust, the Assignment, this Agreement and such other instruments are herein collectively called the "Loan Documents"), and (2) any and all modifications, extensions and renewals of any of the foregoing, and any and all expenses and costs incurred by Lender in the collection or enforcement of any of the foregoing, or in the exercise of any of the rights or remedies under the Loan Documents or applicable law, including, without limitation, attorneys' fees ; andC. It is a condition precedent to, and a material inducement for, the making of the Loan that Indemnitor shall have executed and delivered this Agreement.NOW, THEREFORE, in consideration of, and as a material inducement for, the making of the Loan, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Indemnitor agrees as follows:1. Definitions. All capitalized terms used in this Agreement not otherwise defined herein shall have the meanings ascribed to such terms in the Deed of Trust. The term "Lender" shall include ____________________ and any other person or entity which holds or which may hereafter hold an interest in any of the Loan Documents and any person or entity which acquires all or any part of the Secured Property by purchasing the Secured Property at a foreclosure sale or by acceptance of a deed in lieu of foreclosure. The Secured Property is described in Exhibits ______________ attached hereto. 2. Indemnification.(a) Indemnitor hereby unconditionally and irrevocably indemnifies and agrees to reimburse, defend, exonerate, pay and hold harmless Lender and its directors, officers, policyholders, shareholders, employees, successors, assigns, agents, contractors, subcontractors, experts, licensees, affiliates, lessees, mortgag ees, trustees and invitees, from and against any and all Environ mental Damages (as defined in subparagraph (b) of this Paragraph 2) arising from the presence of Hazardous Materials (as defined in subparagraph (d) of this Paragraph 2) in, upon, about or beneath the Secured Property or migrating to or from the Secured Property, or arising in any manner whatsoever out of the violation of any Environmental Requirements (as defined in subparagraph (c) of this Paragraph 2) pertaining to the Secured Property and the activities thereon, or the breach of any warranty or covenant or the inaccuracy of any representation of Indemnitor contained in the Loan Documents pertaining to Hazardous Materials or other environmental matters, including, without limitation, the covenants contained in Sections 1.5F(2), (3) and (5) and the warranties contained in Sections 1.5F(4) and 2.3C and D of the Deed of Trust. This obligation shall include, but not be limited to, the burden and expense of defending all claims, suits and adminis trative proceedings or investigations or any directives of any governmental or quasi-governmental agency, department, commission, board, bureau or instrumentality even if such claims, suits or proceedings are groundless, false or fraudulent and conducting all negotiations of any description, and paying and discharging, when and as the same become due, any and all judgments, penalties or other sums due against Lender.(b) "Environmental Damages" means all claims, judgments, damages (including, without limitation, punitive damages), losses, penalties, fines, liabilities (including strict liability), encumbrances, liens, costs and expenses, of whatever kind or nature, contingent or otherwise, matured or unmatured, foreseeable or unforeseeable, including, without limitation, attorneys' fees and disbursements and consultants' fees, which are incurred at any time as a result of the existence of any Hazardous Materials in, upon, about or beneath the Secured Property or migrating to or from the Secured Property, or the existence of a violation of Environmental Requirements pertaining to the Secured Property, and regardless of whether or not the existence of such Hazardous Materials or the violation of such Environmental Requirements arose prior to the present ownership or operation of the Secured Property or as a result of the acts or omissions of Indemnitor or any parties related to Indemnitor, including, without limitation: (i) claims, judgments, damages, losses, penalties, fines, liabilities, encumbrances, liens, costs and expenses of any investigation or defense of any claim, suit or administrative proceeding or inves tigation or any directive of any governmental or quasi-governmental agency, department, commission, board, bureau or instrumentality, whether or not such is ultimately defeated, and of any settlement or judgment;(ii) damages for personal injury, or injury to property or natural resources occurring in, upon, about or off of the Secured Property, foreseeable or unforeseeable, including, without limitation, lost profits, consequential damages, the cost of demolition and rebuilding of any im- provements on real property, interest and penal ties; 3 (iii) diminution in the value of the Secured Property, and damages for the loss of or restriction on the use of or adverse impact on the marketing of the Secured Property or any portion thereof;(iv) any loss resulting from a loss of prior ity of the Deed of Trust due to the imposition of a lien against the Secured Property; and (v) fees incurred for the services of attorneys, consultants, engineers, contractors, experts, laboratories and all other costs incurred in connection with the investigation, clean up or remediation of Hazardous Materials or any violation of Environmental Requirements including, but not limited to, the preparation of any feasibility studies or reports or the performance of any cleanup, remediation, removal, abatement, containment, closure, restoration or monitoring work required by any federal, state or local governmental agency or political subdivision, or reasonably necessary to make full economic use of the Secured Property or any other property or otherwise expended in connec tion with such conditions; and(vi) liability to any person or entity to indemnify such person or entity for costs expended in connection with the items referenced in this subparagraph 2(b). (c) "Environmental Requirements" means all applicable statutes, regulations, rules, ordinances, codes, licenses, permits, orders, approvals, plans, authorizations, guidelines, concessions, franchises and similar items (whether now existing or hereafter enacted or promulgated), of all governmental or quasi-governmental agencies, departments, commissions, boards, bureaus or instrumentalities of the United States, states, municipalities and political subdivisions of any of them and all applicable judicial and administrative and regulatory decrees, judgments and orders relating to the protection of human health or the environment, including without limitation:(i) all requirements, including, but not limited to, those pertaining to reporting, licensing, permitting, investigation, remediation and removal of emissions, discharges, releases or threatened releases of Hazardous Materials, chemi cal substances, pollutants, contaminants or hazardous or toxic substances, materials or wastes whether solid, liquid or gaseous in nature, into the air, surface water, groundwater or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, pollutants, contaminants or hazardous or toxic substances, materials or wastes, whether solid, liquid or gaseous in nature; and(ii) all requirements pertaining to the protection of the health and safety of employees or the public. 4 (d) "Hazardous Materials" means any substance:the presence of which requires notification, investigation or remediation under any Environmental Requirement; or(i) which is or becomes defined as "hazardous", "toxic", "noxious", "waste", "substance", "material", "pollutant" or "contaminant" or requires remediation under any present or future Environmental Requirement or amendments thereto including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq. ), Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), Federal Clean Air Act (42 U.S.C. Section 7401 et seq .), Federal Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq .), Federal Clean Water Act of 1977 (33 U.S.C. Section 1251 et seq.), Federal Insecticide, Fungicide, and Rodenticide Act, Federal Pesticide Act of 1978 (7 U.S.C. Section 136 et seq.), Federal Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), Federal Safe Drinking Water Act (42 U.S.C. Section 300(f) et seq.); and all regulations issued pursuant thereto and any so-called
Superfund or
Superlien law, or any other federal, ____________ or local statute, law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; or (ii) which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and is or becomes regulated by any governmental authority, agency, department, commission, board, agency or instrumentality of the United States, any state of the United States, or municipality or any political subdivision of any of them; or(iii) the presence of which on the Secured Property causes or threatens to cause a nuisance upon the Secured Property or to adjacent properties or poses or threatens to pose a hazard to the Secured Property or to the health or safety of Persons on or about the Secured Property; or(iv) which contains (a) asbestos; (b) gaso line, diesel fuel or other petroleum hydrocarbons or volatile organic compounds, or (c) polychlorinated biphenyls (PCBs) or urea formalde hyde foam insulation; or(v) which contains or emits radioactive particles, waves or material, including radon gas; or 5 (vi) which is or constitutes a part of an underground storage tank.3. Survival.(a) The obligations of Indemnitor under this Agreement shall survive (i) the repayment of all sums due under the Note; (ii) the release of the Secured Property or any portion thereof from the lien of the Deed of Trust; (iii) the reconveyance or foreclosure of the Secured Property under the Deed of Trust (notwithstanding that all or a portion of the obligations secured by the Deed of Trust shall have been discharged thereby); (iv) the acquisition of the Secured Property by Lender; and/or (v) the transfer of all of Lender's rights in and to the Note and/or the Secured Property; and shall continue to be the personal liability, obligation and indemnification of Indemnitor, binding upon Indemnitor, forever.(b) 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 any of the Loan Documents, (ii) any sale, assignment, or foreclosure of the Note or Deed of Trust or any sale or transfer of all or part of the Secured Property, (iii) any exculpatory provision contained in any of the Loan Documents limiting Lender's recourse to the Secured Property or to any other security, or limiting Lender's rights to a deficiency judgment against Indemnitor, (iv) the accuracy or inaccuracy of the representations and warranties made under any of the Loan Documents, (v) the release of Indemnitor or 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 Note or other Loan Documents or (vii) Lender's failure to record or file any Loan Document (or Lender's improper recording or filing of any such Loan Documents) or to otherwise perfect, protect, secure or insure any security interest or lien given as security for the Indebtedness; and, in any such case, whether with or without notice to Indemnitor and with or without consideration.(c) The obligations of Indemnitor hereunder (i) shall not be affected by any investigation by or on behalf of Lender or by any information which Lender may have obtained with respect to the matters indemnified against by the Indemnitor hereunder and (ii) are separate and distinct from its obligations under the Note, the Deed of Trust and the other Loan Documents.4. Inconsistent Provisions. The provisions of this Agreement shall govern and control over any inconsistent provision of the Note, the Deed of Trust and any other Loan Documents, including, without limitation, any exculpatory or non-recourse provisions contained in any of the Loan Documents, it being expressly understood and agreed that any exculpatory or non-recourse provisions contained in any Loan Document shall not apply to the obligations of Indemnitor under this Agreement. 6 5. Counsel . If at any time or times hereafter Lender employs counsel for advice or other representation (i) with respect to the enforcement of the terms and provisions of this Agreement against Indemnitor, (ii) to represent Lender in any litigation, contest, dispute, suit or proceeding (whether instituted by Lender, Indemnitor, or any other party) in any way or respect relating to this Agreement or the matters subject to this Agreement, or (iii) to enforce Indemnitor's obligations hereunder, then, in any of the foregoing events, all of the attorneys' fees and other expenses, costs and charges in any way or respect arising in connection therewith or relating thereto shall be paid by Indemnitor to Lender. 6. Indemnitor's Waivers. Indemnitor waives any right or claim of right to cause a marshaling of Indemnitor's assets or to cause Lender to proceed against any of the security for the Loan before proceeding under this Agreement against the Indemnitor; Indemnitor agrees that any payments required to be made hereunder shall become due immediately upon demand, and if such payment is not immediately made, interest shall accrue on such amount at the Increased Rate until such amount, plus interest, is paid in full. Indemnitor expressly waives 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 Lender. Indemnitor hereby agrees to postpone the exercise of any and all rights of subrogation to the rights of Lender against the Indemnitor hereunder and any rights of subrogation to any collateral securing the Loan until the Loan shall have been paid in full. 7. Required Notification.(a) Indemnitor shall notify Lender upon receipt of any written inquiry, notice, claim, charge, cause of action or demand or upon receipt of any verbal inquiry, notice, claim, charge, cause of action or demand of any governmental or quasi -governmental authority or any other type of verbal inquiry, notice, claim, charge, cause of action or demand pertaining to the matters indemnified hereunder, including, without limitation, any notice of inspection, abatement or noncompliance, stating the nature and basis of such inquiry or notification. Indemnitor shall immediately deliver to Lender any and all documentation or records as Lender may request in connection with such notice or inquiry, and shall keep Lender advised of any subsequent developments. (b) If any action shall be brought against Lender, then after Lender notifies Indemnitor thereof, Indemnitor shall be entitled to participate therein, and to assume the defense thereof at the expense of Indemnitor with counsel satisfactory to Lender to settle and compromise any such claim or action; provided, however, that Lender may elect to be represented by separate counsel, at Lender's expense, and in any event no settlement or compromise of any claim or action shall be effected without the consent of Lender. 7 8. Discharge. No dissolution, liquidation, insolvency, bankruptcy or other matter with respect to Indemnitor shall affect this Agreement or any of Indemnitor's obligations hereunder. 9. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement, or the application of any such provision to any person or circumstance, shall, to any extent, be held to be invalid, illegal or unenforceable under applicable law, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is invalid, illegal or unenforceable, shall not be affected thereby. 10. Notice to Parties. All notices and demands hereunder shall be in writing and shall be deemed to have been sufficiently given or served for all purposes when presented personally or sent by certified or registered mail with return receipt requested or generally recognized overnight delivery service, addressed to the parties at the addresses stated below, or at such other address as either party may hereafter notify the other in writing as aforesaid: Indemnitor:_________________________________________________________________________________Attn:___________________________ Lender:_________________________________________________________________________________Attn:___________________________ with a copy to: _________________________________________________________________________________Attn:___________________________Service of any such notice or demand so made shall be deemed effective on the day of actual delivery as shown by the addressee's return receipt or the expiration of ___________ ( ) hours after the date sent by generally recognized overnight delivery service or mailed, whichever is the earlier in time, except that service of any notice of default or notice of sale provided or required by law shall, if mailed, be deemed effective on the date of mailing. 11. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of ____________, without regard to principles of conflicts of law. 8 12. Headings. The headings of the paragraphs of this Agreement are for the convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof. 13. Changes and Modifications. This Agreement cannot be changed or modified except by a written instrument, signed by the party against whom enforcement of such change or modification is sought. 14. Legal Construction. This Agreement shall be given a fair and reasonable construction in accordance with the intentions of the parties and without regard for or aid from any canons requiring construction against the party drawing this Agreement. The terms "herein", "hereof" or "hereunder" or similar terms used in this Agreement refer to the entire instrument and not to the particular provision in which the term is used. Unless otherwise stated, all references herein to Articles, Sections or Paragraphs are references to Articles, Sections and Paragraphs of this Agreement. From and after the date hereof, the Loan Documents shall constitute the entire agreement between the parties with respect to the subject matter thereof, and all correspondence, memoranda, commitments or other documents delivered prior to the date hereof shall be of no further force or effect. 15. Successors and Assigns . The covenants, agreements and obligations of Indemnitor hereunder shall be binding upon Indemnitor and its respective legal representatives, successors and assigns, and the rights, remedies and benefits of Lender hereunder shall inure to the benefit of Lender and its legal representatives, successors and assigns. There are no parties who or which are intended to be a third party beneficiary of any benefit conferred under this Agreement, except for the legal representatives, successors and assigns of Lender. 16. Loan Document. This Agreement shall constitute a Loan Document for purposes of the Deed of Trust and the other Loan Documents. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first written above.INDEMNITOR:By:______________________________ Name:_________________________ 9 Title: _________________________By:______________________________ Name:_________________________ Title: _________________________By:______________________________ Name: _________________________ Title: __________________________STATE OF ____________COUNTY OF ______________Personally appeared before me, the undersigned authority in and for the said county and state, on this ______ day of __________________, _____, within my jurisdiction, the within named __________________________, who acknowledged that he is a ___________________ of ______________________________, a _____________________________, and that for and on behalf of the said ______________________ and as its act and deed he executed the above and foregoing instrument, after first having been duly authorized by said __________________ so to do.____________________________NOTARY PUBLICMy commission expires:_____________________(Affix notarial seal) 10 STATE OF ____________COUNTY OF _______________Personally appeared before me, the undersigned authority in and for the said county and state, on this ______ day of __________________, _____, within my jurisdiction, the within named __________________________, who acknowledged that he is a ___________________ of ______________________________, a _____________________________, and that for and on behalf of the said ______________________ and as its act and deed he executed the above and foregoing instrument, after first having been duly authorized by said __________________ so to do.____________________________NOTARY PUBLICMy commission expires:_____________________(Affix notarial seal)STATE OF ____________COUNTY OF ________________Personally appeared before me, the undersigned authority in and for the said county and state, on this ______ day of __________________, _____, within my jurisdiction, the within named __________________________, who acknowledged that he is a ___________________ of ______________________________, a _____________________________, and that for and on behalf of the said ______________________ and as its act and deed he executed the above and foregoing instrument, after first having been duly authorized by said __________________ so to do.____________________________NOTARY PUBLICMy commission expires:_____________________ 11 (Affix notarial seal)  EXHIBIT A-1 A tract of land situated in  EXHIBIT A-2 A utility, landscaping and access easement  EXHIBIT A-3 A certain parcel of land lying and being situated in EXHIBIT A-4 A tract of land situated in