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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
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