EXHIBIT 10.135
ENVIRONMENTAL INDEMNITY
AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT
(the " Agreement ") is dated as of September 29th ,
2006 among Fourth Quarter Properties 124, LLC, a Georgia limited
liability company (" Borrower "), and STANLEY E. THOMAS and
THOMAS ENTERPRISES, INC. (collectively, the " Guarantor ")
(Borrower and Guarantor are individually and collectively referred
to as " Indemnitors ") for the benefit of IA Orlando Sand,
L.L.C., a Delaware limited liability company (" Lender
").
RECITALS
A.
Borrower is, or is about to become, the
present legal owner of the real property legally described on
Exhibit "A" attached hereto (the " Property
");
B.
Borrower has executed and delivered to
Lender a certain Promissory Note (the " Note ") dated of
even date herewith in the principal sum of $41,477,062.84, secured
by a First Mortgage and Security Agreement (" Mortgage ") on
the Property;
C.
Guarantor has executed a Loan Guaranty
Agreement guaranteeing payment of the Note;
D.
The assumption by each Indemnitor of the
obligations under this Agreement will result in a financial benefit
to the Borrower and in a financial benefit to the Guarantor,
thereby enhancing each Indemnitor's financial interest in the
Property; and
E.
As a condition precedent to the execution
of the Lender's funding of the Loan evidenced by the Note, Lender
requires the execution of this Agreement.
NOW, THEREFORE, in order to induce Lender
to fund the Loan evidenced by the Note, and in consideration of the
matters described in the foregoing Recitals, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1.
Recitals
. The Recitals are incorporated
herein by this reference.
2.
Definitions
. For purposes of this Agreement, "
Hazardous Materials " means and includes those substances,
including without limitation, asbestos or any substance containing
asbestos and deemed hazardous under any Hazardous Material Law
(defined below), petroleum or petroleum derived products, the group
of organic compounds known as polychlorinated biphenyls, flammable
explosives, radioactive materials, chemicals known to cause cancer
or reproductive toxicity, pollutants, effluents, contaminants,
emissions or related materials and any items included in the
definition of hazardous or toxic waste, materials or substances
under any Hazardous Material Law. " Hazardous Material
Laws " collectively means and includes any present and future
local, state and federal law relating to
the environment and environmental
conditions, including without limitation, the Resource Conservation
and Recovery Act of 1976 ("RCRA"), 42 U.S.C. 6901 et seq., the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA"), 42 U.S.C. 9601-9657, as amended by
the Superfund Amendments and Reauthorization Act of 1986 ("SARA"),
the Hazardous Materials Transportation Act, 49 U.S.C. 6901, et
seq., the Federal Water Pollution Control Act, 33 U.S.C. 1251 et
seq., the Clean Air Act, 42 U.S.C. 7401 et seq., the Clean Water
Act, 33 U.S.C. 7401 et seq., the Toxic Substances Control Act, 15
U.S.C. 2601-2629, the Safe Drinking Water Act, 42 U.S.C. 300f-300j
et seq., and all the regulations, order, decrees now or thereafter
promulgated thereunder.
3.
Indemnities .
(a)
Indemnitors hereby jointly and severally
agree to unconditionally indemnify, defend, and hold Lender
harmless against any loss, liability, damage, expense or claim
arising under any Hazardous Material Law, and any other loss,
liability, damage, expense or claim which may be incurred by or
asserted against Lender directly or indirectly resulting from the
presence of Hazardous Material on the Property (" Indemnity or
Indemnities ").
(b)
Indemnitors shall pay any such loss,
liability, damage, expense or claim prior to the entry of any final
judgments or penalties against Lender which have been indemnified
under this Agreement. In the event that such payment is not
made, Lender, at its sole discretion, may proceed to file suit
against Indemnitors to compel such payment.
(c)
Promptly following completion of any
actions imposed upon Indemnitors under any Hazardous Material Law,
Indemnitors shall obtain and deliver to Lender, an environmental
report in form and substance acceptable to Lender from an
environmental consultant acceptable to Lender, stating that all
required action has been taken, and that upon completion of such
action, the Property is, to the knowledge of such professional,
then in compliance with the applicable Hazardous Material
Laws.
4.
Duration of Indemnity
. The duration of the Indemnities
hereunder shall be indefinite; provided however, that Indemnitors
shall not indemnify Lender for any losses, liabilities, damages,
injuries, expenses or costs related to or involving Hazardous
Materials placed or disposed of on the Property after Lender
acquires title to the Property through foreclosure or deed-in-lieu
of foreclosure; so long as (a) in the case of payment of the
Note, Borrower delivers to Lender, after payment of the
principal, interest and all other amounts due under the Note,
an environmental report in form and substance acceptable to Lender
from an environmental consultant acceptable to Lender showing no
violation of Hazardous Material Laws or the presence of any
Hazardous Materials on the Property or (b) in the case of a
default under the Note and the foreclosure of the mortgage or a
deed by the Borrower in lieu of foreclosure, no notice of
any
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violation of the Hazardous Material Laws or the
presence of any Hazardous Materials on the Property has been
received by the Borrower from Lender within five years after such
foreclosure or transfer (the " Cut-off Date "); provided
that, if prior to the Cut-off Date, Lender has notified Indemnitors
of any claim or demand which Lender has determined is or could
become the subject of indemnification of Lender under the
Agreement, then, to the maximum extent permitted by law, the
Indemnities under this Agreement shall survive the Cut-off Date
only as to such claim or demand of which Indemnitors have been so
notified. Notwithstanding the above, the further liability of
Indemnitors under this Agreement shall be limited to those
Indemnities occurring during or prior to the Borrower's ownership
of the Property and shall not be construed to impose liability on
the Indemnitors for damages occurring after the date of foreclosure
or sale or such earlier date if the Lender becomes a mortgagee in
possession.
5.
Notices from Borrower
.
Indemnitors shall promptly after obtaining knowledge thereof
advise Lender in writing of (a) any governmental or regulatory
actions instituted or threatened in writing under any Hazardous
Material Law affecting the Property or any Indemnitor hereunder
including, without limitation, any notice of inspection, abatement
or noncompliance, (b) all claims made or threatened in writing by
any third party against Borrower, any Indemnitors or the Property
relating to any Hazardous Material or a violation of a Hazardous
Material Law, and (c) Indemnitors' real property adjoining or in
the vicinity of the Property which could subject Borrower or the
Property to a claim under any Hazardous Material Law, or to any
restrictions on ownership, occupancy, transferability or use of the
Property under any Hazardous Material Law. Indemnitors shall
deliver to Lender any documentation or records as Lender may
reasonably request and which are susceptible of being obtained by
Indemnitors without undue cost or expense and without the necessity
for initiating legal proceedings to obtain the
same.
6.
Notice of Claims Against Lender
.
Lender agrees that it shall provide Indemnitors with written
notice of any claim or demand which Lender has determined could
give rise to a right of indemnification under this Agreement.
Such notice shall be given within a reasonable time after
Lender becomes, aware of facts and shall specify, to the best of
Lender's knowledge, the facts giving rise to the alleged claim, and
the amount to the extent determinable, of liability for which
indemnity is asserted. Each Indemnitor agrees that in any
action, suit or proceeding brought against Lender, Lender may be
represented by counsel of its choice without affecting or otherwise
impairing the Indemnities and, to the extent fees and disbursements
of Lender's counsel are incurred in protecting Lender's interest,
to pay such fees and disbursements. Lender agrees that
it will not settle or otherwise compromise any such actions, suit
or proceeding without the prior written consent of Indemnitors
which consent shall not be unreasonably withheld. If, without
obtaining the prior written consent in writing of all Indemnitors,
Lender compromises or otherwise settle claims against which Lender
is indemnified pursuant to this Agreement, whether or not legal
proceedings have been commenced, any such compromise or settlement
without the consent of all
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Indemnitors shall not be binding upon Indemnitors;
provided, however such compromise or settlement shall not vitiate
or invalidate this Agreement. The Indemnitors also agree that
they will not settle or compromise such action, suit or proceeding
without Lender's prior written consent which consent shall not be
unreasonably withheld.
7.
Payment of Lender's Expenses
.
If Lender retains counsel or consultants for advice or other
representation in any litigation, contest, dispute, suit or
proceeding (whether instituted by Lender, Indemnitors, or any other
party, including any governmental agency charged with enforcement
of any Hazardous Material Law) in any way relating to this
Agreement and the Indemnities described herein, or to enforce the
Indemnities hereunder, then all of the reasonable attorneys fees
arising from such services and all related expenses and court costs
shall be payable by Indemnitors within 30 days of
demand.
8.
Obligations Absolute and Waivers
.
(a)
The obligations of Indemnitors hereunder shall remain
in full force without regard to, and shall not be impaired by the
following, any of which may be taken in such manner, upon such
terms and at such time as Lender, in its sole discretion, deems
advisable without the consent of, or notice to, Indemnitors, nor
shall any of the following give Indemnitors any recourse or right
of action against Lender: (i) any express or implied
amendment, modification, renewal, addition, supplement, extension
or acceleration of or to the Note, the Mortgage, all of the loan
documents executed by Borrower or any other party in connection
with the Loan and all environmental indemnity agreements executed
by Borrower or any other party, including without limitation this
Agreement (collectively the " Documents "); (ii) any
exercise or non-exercise by Lender of any right or privilege under
any of the Documents, (iii) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation
or other like proceeding relating to any Indemnitors or Borrower,
or any affiliate of Borrower or any guarantor, or any action taken
with respect to this Agreement by any trustee or receiver, or by
any court, in any such proceeding, whether or not Indemnitors shall
have had notice or knowledge of any of the foregoing; (iv) any
release, waiver or discharge of the Borrower or any endorser or
guarantor from liability under any of the Documents or an
Indemnitor's grant to Lender of a security, interest, lien or
encumbrance in any of the Indemnitor's property; (v) any
subordination, compromise, settlement, release (by operation of law
or otherwise), discharge, compound, collection, or liquidation of
any of the Documents or any collateral described in any of the
Documents or otherwise, or any substitution with respect thereto;
(vi) any assignment or other transfer of any of the Documents, in
whole or in part; (vii) any acceptance of partial performance of
any of the obligations of Borrower under the Documents; (viii) any
consent to the transfer of any collateral
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described in the Documents or otherwise; and (ix) any
bid or purchase at any sale of the collateral described in the
Documents or otherwise.
(b)
Indemnitors unconditionally waive any defense to the
enforcement of this Agreement including, without limitation; (i)
all presentments, demands, demands for performance, notices of
nonperformance, protests, notices of protest, dishonor, nonpayment,
partial payment, default and protest, notices of acceptance of this
Agreement and all other notices and formalities to which the
Indemnitor may be entitled, except as set forth herein; (ii) any
right to require Lender to proceed against Borrower or any
guarantor or to proceed against or exhaust any collateral described
in the Documents or to pursue any other remedy whatsoever; (iii)
the defense of any statute of limitations affecting the liability
of Indemnitors hereunder, the liability of Borrower or any
guarantor under the Documents, or the enforcement hereof, to the
extent permitted by law; (iv) any defense arising by reason of any
invalidity or unenforceability of any of the Documents or any
disability of Borrower or any guarantor or of the manner in which
Lender has exercised its remedies under the Documents; (v) any
defense based upon an election of remedies by Lender including,
without limitation any election to proceed by judicial or non
judicial foreclosure of any security, whether real property or
personal prope
