Release dated the date hereof by and among Lender, Original Borrower,
Indemnitors and others (collectively, the "Assumption Documents"), subject,
however, to Indemnitors' execution and delivery of this Agreement.
As used
herein, the term "Loan Documents" shall mean the Original Loan Documents, the
Assumption Documents and any other documents, instruments and agreements given
by Borrower, Original Borrower or others and accepted by Lender or Original
Lender for the purposes of the Transfer or of evidencing, securing, or
guaranteeing the Loan.
WHEREAS, as a condition to Lender's consent to the Transfer, Lender has required
that Indemnitors indemnify Lender with respect to hazardous wastes on, in, under
or affecting the Property as herein set forth.
NOW, THEREFORE, to induce Lender to consent to the Transfer 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 Lender, as follows:
1.
INDEMNITY.
INDEMNITORS HEREBY ASSUME LIABILITY FOR, AND HEREBY AGREE TO
PAY, PROTECT, DEFEND (AT TRIAL AND APPELLATE HAZARDOUS SUBSTANCES INDEMNITY
AGREEMENT (ANTHONY JON SHERMAN) - LEVELS) AND WITH ATTORNEYS, CONSULTANTS AND
EXPERTS ACCEPTABLE TO LENDER, AND SAVE LENDER HARMLESS FROM AND AGAINST, AND
HEREBY INDEMNIFY LENDER FROM AND AGAINST ANY AND ALL LIENS, DAMAGES, LOSSES,
LIABILITIES, OBLIGATIONS, SETTLEMENT PAYMENTS, PENALTIES, ASSESSMENTS,
CITATIONS, DIRECTIVES, CLAIMS, LITIGATION, DEMANDS, DEFENSES, JUDGMENTS, SUITS,
PROCEEDINGS, COSTS, DISBURSEMENTS AND EXPENSES OF ANY KIND OR OF ANY NATURE
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS', CONSULTANTS'
AND EXPERTS' FEES AND DISBURSEMENTS ACTUALLY INCURRED IN INVESTIGATING,
DEFENDING, SETTLING OR PROSECUTING ANY CLAIM, LITIGATION OR PROCEEDING)
(COLLECTIVELY "COSTS") WHICH MAY AT ANY TIME BE IMPOSED UPON, INCURRED BY OR
ASSERTED OR AWARDED AGAINST LENDER OR THE PROPERTY, AND ARISING DIRECTLY OR
INDIRECTLY FROM OR OUT OF: (I) THE VIOLATION OF ANY LOCAL, STATE OR FEDERAL LAW,
RULE OR REGULATION PERTAINING TO ENVIRONMENTAL REGULATION, CONTAMINATION,
REMEDIATION OR HUMAN HEALTH AND SAFETY (COLLECTIVELY, "ENVIRONMENTAL LAWS"),
INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT OF 1980 (42 U.S.C. §9601 ET SEQ. AND 40 CFR
§302.1 ET SEQ.), THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976 (42 U.S.C.
§6901 ET SEQ.), THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. §1251 ET SEQ.
AND 40 CFR §116.1 ET SEQ.), AND THE HAZARDOUS MATERIALS TRANSPORTATION ACT (49
U.S.C. §5101 ET SEQ.), AND THE REGULATIONS PROMULGATED PURSUANT TO SAID LAWS,
ALL AS AMENDED, RELATING TO OR AFFECTING THE PROPERTY, WHETHER OR NOT CAUSED BY
OR WITHIN THE CONTROL OF INDEMNITORS; (II) THE PRESENCE, RELEASE OR THREAT OF
RELEASE OF
2
ANY HAZARDOUS, TOXIC OR HARMFUL SUBSTANCES, WASTES, MATERIALS, POLLUTANTS OR
CONTAMINANTS (INCLUDING, WITHOUT LIMITATION, ASBESTOS, POLYCHLORINATED
BIPHENYLS, PETROLEUM PRODUCTS, RADON, LEAD-BASED PAINT, FLAMMABLE EXPLOSIVES,
RADIOACTIVE MATERIALS, INFECTIOUS SUBSTANCES OR RAW MATERIALS WHICH INCLUDE
HAZARDOUS CONSTITUENTS) OR ANY OTHER SUBSTANCES OR MATERIALS WHICH ARE INCLUDED
UNDER OR REGULATED BY ENVIRONMENTAL LAWS (COLLECTIVELY, "HAZARDOUS SUBSTANCES"),
ON, IN, UNDER OR AFFECTING OR THREATENING TO AFFECT ALL OR ANY PORTION OF THE
PROPERTY OR ANY SURROUNDING AREAS, REGARDLESS OF