ENVIRONMENTAL COMPLIANCE AND INDEMNITY AGREEMENT
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This Environmental Compliance and Indemnity Agreement (hereinafter, the
"Environmental Indemnity" or "Agreement") is given pursuant to the terms and
conditions of a certain Loan Agreement (hereinafter, the "Loan Agreement") dated
January 30, 2004 by and among CEDAR SHOPPING CENTERS PARTNERSHIP, L.P., a
Delaware limited partnership having an address at 44 South Bayles Avenue, Port
Washington, New York 11050 (hereinafter, the "Borrower"), Fleet National Bank
and the other lending institutions which are or become parties to the Loan
Agreement (Fleet National Bank and the other lending institutions which are or
become parties to the Loan Agreement are collectively referred to as the
"Lenders" and individually as the "Lender"), and Fleet National Bank, a national
banking association having an address at 100 Federal Street, 8th Floor, Boston,
Massachusetts 02110, as Agent (hereinafter, together with any successors and
assigns thereof, the "Agent"). Capitalized terms used herein which are not
otherwise specifically defined shall have the same meaning herein as in the Loan
Agreement.
As used herein:
A. The term "Environmental Legal Requirements" shall mean all
applicable present or future federal, state, county and local laws, by-laws,
rules, regulations, codes and ordinances, or any judicial or administrative
interpretations thereof, and the requirements of any governmental agency or
authority having or claiming jurisdiction with respect thereto, applicable to
the regulation or protection of the environment, the health and safety of
persons and property and all other environmental matters and shall include, but
not be limited to, all orders, decrees, judgments and rulings imposed through
any public or private enforcement proceedings, relating to Hazardous Materials
or the existence, use, discharge, release, containment, transportation,
generation, storage, management or disposal thereof, or otherwise regulating or
providing for the protection of the environment applicable to the Property and
relating to Hazardous Materials, or to the existence, use, discharge, release or
disposal thereof. Environmental Legal Requirements presently include, but are
not limited to, the following laws: Comprehensive Environmental Response
Compensation and Liability Act (42 U.S.C. 59601 et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. 51801 et seq.), the Public Health
Service Act (42 U.S.C. 5300(f) et seq.), the Pollution Prevention Act (42
U.S.C. 513101 et seq.), the Federal Insecticide, Fungicide and Rodenticide Act
(7 U.S.C. 5136 et seq.), the Resource Conservation and Recovery Act (42 U.S.C.
ss.6901 et seq.), the Federal Clean Water Act (33 U.S.C. ss.1251 et seq.), The
Federal Clean Air Act (42 U.S.C. 57401 et seq.), the Pennsylvania Solid Waste
Management Act, 35 P.S. ss.6018.101 et seq. and/or Pa. Code ss.75.260 and
75.261, the Pennsylvania Hazardous Sites Cleanup Act, 35 P.S. ss.6020.101 et
seq., the Clean Streams Law, 35 P.S. ss.691.1 et seq., and the Storage Tank and
Spill Prevention Act, 35 P.S. ss.6021.101 et seq.
B. The term "Hazardous Materials" shall mean asbestos, mold, flammable
materials, explosives, radioactive or nuclear substances, polychlorinated
biphenyls, other carcinogens, oil and other petroleum products, radon gas, urea
formaldehyde, chemicals, gases, solvents, pollutants, contaminants, and any
other hazardous or toxic materials, wastes and substances which are defined,
determined or identified as such in any present or future federal, state or
local laws, by-laws, rules, regulations, codes or ordinances or any judicial or
administrative interpretation thereof.
C. The term "Property" shall mean the land located at the intersection
of Route 255 and Commons Drive, Sandy Township, Clearfield County, Pennsylvania.
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D. The term "Surrounding Property" shall mean any property located
within one hundred (100) feet of the perimeter of the Property.
E. The term "Guarantor" shall mean, jointly and severally, Cedar
Dubois, LLC, and Cedar Shopping Centers, Inc.
F. The term "Indemnitors" shall mean Borrower and Guarantor.
G. The term "Indemnified Party" shall mean: (i) Agent and each of the
Lenders; (ii) all those claiming by, through or under Agent or any Lender,
including any subsequent holder of the Loan and any present or future owner of a
participation interest therein; (iii) any subsequent owner or tenant of all or
any portion of the Property following the exercise by Agent of its rights under
the Loan Agreement, the Guaranty, the Mortgage, the Assignment of Leases and
Rents or the other Loan Documents, including, but not limited to, a foreclosure
sale or deed in lieu thereof; and (iv) as to each of the foregoing, their
respective affiliate, parent and subsidiary corporations, and, as applicable,
the respective officers, directors, stockholders, agents, employees, accountants
and attorneys of any one or more of them, and any person, firm or entity which
controls, is controlled by, controlling, or under common control with, any one
or more of them.
H. The term "Environmental Enforcement Action" shall mean all actions,
orders, requirements or liens instituted, threatened in writing, required,
completed, imposed or placed by any governmental authority and all claims made
or threatened in writing by any other person against or with respect to the
Property, or any present or past owner or occupant thereof, arising out of or in
connection with any of the Environmental Legal Requirements, any environmental
condition, or the assessment, monitoring, clean-up, containment, remediation or
removal of, or damages caused or alleged to be caused by, any Hazardous
Materials (i) located on or under the Property, or (ii) emanating from the
Property.
I. The terms "generated," "stored," "transported," "utilized,"
"disposed," "managed," "released" and "threat of release," and all conjugates
thereof, shall have the meanings and definitions set forth in the Environmental
Legal Requirements.
J. The term "Environmental Reports" shall mean those written reports
with respect to environmental matters affecting the Property furnished to the
Agent prior to the execution of this Agreement.
FOR VALUE RECEIVED, and to induce Agent and the Lenders to grant the
Loan and extend credit to the Borrower as provided for in the Loan Agreement and
the other Loan Documents, Indemnitors hereby unconditionally agree as follows:
1. Compliance with Environmental Legal Requirements.
1.1 Compliance. Until the full satisfaction of the Borrower's
Obligations, and full satisfaction of the Guaranteed Obligations (as
defined in the Guaranty executed by the Guarantor), as applicable, the
Indemnitors hereby guaranty that the Indemnitors shall comply in all
materials respects with all Environmental Legal Requirements applicable
to the Property, and that the Indemnitors shall take all remedial
action necessary to avoid any liability of the Indemnitors or any
Indemnified Party, or any subsequent owner of the Property, and to
avoid the imposition of, or to discharge (by payment, bonding, or
otherwise), any liens on the Property, as a result of any failure to
comply with Environmental Legal Requirements applicable to the
Property.
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1.2 Prohibitions. Without limitation upon the generality of
foregoing, Indemnitors and each of them agree that they:
(a) shall not release or permit any release of any
Hazardous Materials on the Property;
(b) shall not generate or permit any Hazardous
Materials to be generated on the Property;
(c) shall not except in strict compliance with all
Environmental Legal Requirements, store, or utilize, or permit
any Hazardous Materials to be stored or utilized on the
Property;
(d) shall not dispose of or permit any Hazardous
Materials to be disposed of on the Property;
(e) shall not fail to operate, maintain, repair and
use the Property in accordance with all Environmental Legal
Requirements; or
(f) shall use commercially reasonable efforts not to
allow, permit or suffer any other person or entity to operate,
maintain, repair and use the Property except in accordance
with Environmental Legal Requirements.
2. Notice of Conditions. Indemnitors shall provide Agent with prompt
written notice, but in no event later than ten (10) Business Days after
obtaining any actual knowledge or actual notice thereof, of any of the
following conditions: (i) the presence, or any release or threat of
release, of any Hazardous Materials on, under or from the Property,
whether or not caused by any of the Indemnitors; (ii) any Environmental
Enforcement Action instituted or threatened with respect to the
Property; or (iii) any condition or occurrence on the Property that may
constitute a violation of any of the Environmental Legal Requirements
with respect to the Property.
3. Indemnitors' Agreement to take Remedial Actions.
3.1 Remedial Actions. Upon any of the Indemnitors becoming
aware of the violation of any Environmental Legal Requirement related
to the Property, or the presence, or any release or any threat of
release, of any Hazardous Materials on, under, or from the Property,
whether or not caused by any of the Indemnitors, Indemnitors shall,
subject to the rights to contest set forth in Section 6, immediately
take all actions to cure or eliminate any such violation of any such
Environmental Legal Requirement and, where required by any such
Environmental Legal Requirement, to arrange for the assessment,
monitoring, clean-up, containment, removal, remediation, or restoration
of the Property.
3.2 Security For Costs. If the potential costs associated with
the actions required in Section 3.1, the release of any lien against
the Property, and the release or other satisfaction of the liability,
if any, of any of the Indemnitors with respect to the Property arising
under or related to any of the Environmental Legal Requirements or any
Environmental Enforcement Action are determined by Agent, in good
faith, to exceed $500,000.00, Agent shall have the right to require the
Indemnitors to provide, and the Indemnitors shall provide, within
thirty (30) days after written request therefor, a bond, letter of
credit or other similar financial assurance, in form and substance
satisfactory to Agent, in its good faith judgment, evidencing to
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Agent's reasonable satisfaction that the necessary financial resources
will be unconditionally available to pay for all of the foregoing.
3.3 Environmental Assessments. Agent shall have the right to
require the Indemnitors, at their own cost and expense, to obtain a
professional environmental assessment of the Property in accordance
with Agent's then standard environmental assessment requirements and
sufficient in scope to comply with the requirements of Section 4 upon
the occurrence of any one or more of the following events: (i) an Event
of Default, or (ii) upon receipt of any notice of any of the conditions
specified in Section 2 of this Agreement.
4. Agent's Rights to Inspect the Property and Take Remedial Actions.
4.1 Agent's Rights. So long as any of the Loan Documents shall
remain in force and effect, Agent shall have the right, but not the
obligation, through such representatives or independent contractors as
it may designate, to enter upon the Property, at reasonable times and
upon reasonable notice to the Indemnitors and subject to the rights of
any tenants at the Property, and to expend funds to:
4.1.1 Assessments. Cause one (1) or more
environmental assessments of the Property to be undertaken, if
Agent in its reasonable discretion determines that any of the
conditions set forth in Section 2 exists. Such environmental
assessments may include, without limitation, (i) detailed
visual inspections of the Property, including without
limitation all storage areas, storage tanks, drains, drywells
and leaching areas; (ii) the taking of soils and surface and
sub-surface water samples; (iii) the performance of soils and
ground water analysis; and (iv) the performance of such other
investigations or analysis as are reasonably necessary and
consistent with sound professional environmental engineering
practice in order for Agent to obtain a complete assessment of
the compliance of the Property and the use thereof with all
Environmental Legal Requirements and to make a determination
as to whether or not any of the conditions set forth in
Section 2 exists;
4.1.2 Cure. Cure any breach of the representations,
warranties, covenants and conditions made by or imposed upon
Indemnitors under this Agreement including without limitation
any violation by any of Indemnitors, or by the Property, or by
any other occupant, prior occupant or prior owner thereof, of
any of the Environmental Legal Requirements applicable to the
Property;
4.1.3 Prevention and Precaution. Take all actions as
are necessary to (i) prevent the migration of Hazardous
Materials on, under, or from the Property to any other
property; (ii) clean-up, contain, remediate or remove any
Hazardous Materials on, under, or from any other property
which Hazardous Materials originated on, under, or from the
Property; or (iii) prevent the migration of any Hazardous
Materials on, under, or from any other property to the
Property;
4.1.4 Environmental Enforcement Actions. Comply with,
settle, or otherwise satisfy any Environmental Enforcement
Action including, but not limited to, the payment of any funds
or penalties imposed by any governmental authority and the
payment of all amounts required to remove any lien or threat
of lien on or affecting the Property; provided, however, that
the Agent shall not be permitted to take any such action so
long as (i) the Borrower, or any other Indemnitor, is
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exercising its rights under Section 6 of this Agreement, and
(ii) no Event of Default has occurred and is continuing; and
4.1.5 General. Comply with, settle, or otherwise
satisfy any Environmental Legal Requirement and correct or
abate any environmental condition on, or which threatens, the
Property and which could cause damage or injury to the
Property or to any person; provided, however, that the Agent
shall not be permitted to take any such action so long as (i)
the Borrower, or any other Indemnitor, is exercising its
rights under Section 6 of this Agreement, and (ii) no Event of
Default has occurred and is continuing.
4.2 Recovery of Costs. Any amounts paid or advanced by Agent
or any Lender and all costs and expenditures incurred in connection
with any action taken pursuant to the terms of this Agreement,
including but not limited to reasonable environmental consultants' and
experts' fees and expenses, reasonable attorneys' fees and expenses,
court costs and all costs of assessment monitoring clean-up,
containment, remediation, removal and restoration, with interest
thereon at the Default Rate, shall be a demand obligation of
Indemnitors to Agent and, to the extent not prohibited by law, and so
long as the Borrower's Obligations and the Guaranteed Obligations are
outstanding, shall be added to the obligations secured by the Mortgage
when paid by Agent or any Lender and shall be secured by the lien of
the Mortgage and the other Security Documents as fully and as
effectively and with the same priority as every other obligation
secured thereby.
4.3 Agent and the Lenders Not Responsible. The exercise by
Agent or any Lender of any one or more of the rights and remedies set
forth in this Section 4 shall not operate or be deemed (a) to place
upon Agent or any Lender any responsibility for the operation, control,
care, service, management, maintenance or repair of the Property, or
(b) make Agent or any Lender the "owner" or "operator" of the Property
or a "responsible party" within the meaning of any of the Environmental
Legal Requirements.
4.4 Agent's and the Lenders' Subrogation. Furthermore, Agent
and/or any Lender by making any such payment or incurring any such
costs shall be subrogated to all rights of each of Indemnitors or any
other occupant of the Property to seek reimbursement from any other
person including, without limitation, any predecessor, owner or
occupant of the Property who may be a "responsible party" under any of
the Environmental Legal Requirements in connection with the presence of
Hazardous Materials on or under or which emanated from, the Property.
4.5 Agent/Lender May Stop. Without limiting the generality of
the other provisions of this Agreement, any partial exercise by Agent
or any Lender of any one or more the rights and remedies set forth in
this Section 4 including, without limitation, any partial undertaking
on the part of Agent or any Lender to cure any failure by any of the
Indemnitors, or of the Property, or any other occupant, prior occupant
or prior owner thereof, to comply with any of the Environmental Legal
Requirements shall not obligate Agent or any Lender to complete such
actions taken or require Agent or any Lender to expend further sums to
cure such non-compliance.
5. Indemnification. At all times, both before and after the repayment of
the Loan, Indemnitors hereby jointly and severally agree that they
shall at their sole cost and expense indemnify, defend, exonerate,
protect and save harmless each Indemnified Party against and from any
and all damages, losses, liabilities, obligations, penalties, claims,
litigation, demands, defenses, judgment, suits, proceedings, costs,
disbursements or expenses of any kind or nature whatsoever, including,
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without limitation, reasonable attorneys' and experts' fees and
disbursements, which may at any time be imposed upon, incurred by or
asserted or awarded against any Indemnified Party and arising from or
out of:
5.1 Hazardous Materials. Any Hazardous Materials on, in,
under, affecting or emanating from all or any portion of the Property
on or before the date hereof, or which may hereafter affect all or any
portion of the Property, whenever discovered;
5.2 Environmental Legal Requirements. The violation of any
Environmental Legal Requirement by any Indemnitor, or with respect to
the Property, existing on or before the date hereof or which may so
exist in the future, whenever discovered;
5.3 Breach of Warranty, Representation or Covenant. Any breach
of warranty or representation or covenant made by any Indemnitor under
or pursuant to this Agreement; and
5.4 General. The enforcement of this Agreement or the
assertion by any Indemnitor of any defense to the obligations of any
Indemnitor hereunder, whether any of such matters arise before or after
foreclosure of the Mortgage or other taking of title to or possession
of all or any portion of the Property by Agent or any other Indemnified
Party, and specifically including therein, without limitation, the
following: (i) costs incurred for any of the matters set forth in
Section 4 of this Agreement; and (ii) costs and expenses incurred in
ascertaining the existence or extent of any asserted violation of any
Environmental Legal Requirements relating to the Property and any
remedial action taken on account thereof including, without limitation,
the reasonable costs, fees and expenses of engineers, geologists,
chemists, other scientists, attorneys, surveyors, and other
professionals, or testing and analyses performed in connection
therewith.
5.5 Limitation. Notwithstanding the foregoing provisions of
this Section 5, the obligation of the Indemnitors to indemnify, defend,
exonerate, protect and save harmless each Indemnified Party, as more
particularly set forth herein, shall not be applicable to any damages,
losses, liabilities, obligations, penalties, claims, litigation,
demands, defenses, judgments, suits, proceedings, costs, disbursements
or expenses of any kind which are a direct result of the willful
misconduct or gross negligence of any Indemnified Party.
6. Right to Contest. Borrower, or any other Indemnitor, may contest in
good faith any claim, demand, levy or assessment under any
Environmental Legal Requirements, including, but not limited to, any
claim with respect to Hazardous Materials, by any person or entity if:
6.1 Material Question In Good Faith. The contest is based upon
a material question of law or fact raised by Borrower or such other
Indemnitor in good faith;
6.2 Diligent Pursuit. Borrower or such other Indemnitor
properly commences and thereafter diligently pursues the contest;
6.3 No Impairment. The contest will not materially impair the
taking of any required remedial action with respect to such claim,
demand, levy or assessment;
6.4 Adequate Resources. Borrower, or such other Indemnitor,
demonstrates to Agent's reasonable satisfaction that Borrower, or such
other Indemnitor, has the financial capability to undertake and pay for
such contest and any remedial action then or thereafter necessary;
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6.5 Resolve By Maturity. There is no reason to believe that
the contest will not be resolved prior to the Maturity of the Loan; and
6.6 No Event Of Default. No Event of Default exists under the
Loan Documents.
7. Waivers. Until the full satisfaction of the Borrower's Obligations and
full satisfaction of the Guaranteed Obligations, Indemnitors each
hereby waive and relinquish to the fullest extent now or hereafter not
prohibited by applicable law:
7.1 Suretyship Defenses. All suretyship defenses and defenses
in the nature thereof;
7.2 Marshalling. Any right or claim of right to cause a
marshalling of any Indemnitor's assets or to cause Agent to proceed
against any of the Collateral for the Loan before proceeding under this
Agreement against any Indemnitor, or to require Agent to proceed
against Indemnitors in any particular order;
7.3 Contribution. All rights and remedies against any other
Indemnitor, including, but not limited to, any rights of subrogation,
contribution, reimbursement, exoneration or indemnification pursuant to
any express or implied agreement, or now or hereafter accorded by
applicable law to indemnitors, guarantors, sureties or accommodation
parties; provided, however, unless Agent otherwise expressly agrees in
writing, such waiver by any particular Indemnitor shall not be
effective to the extent that by virtue thereof such Indemnitor's
liability under this Indemnity Agreement or under any other Loan
Document is rendered invalid, voidable, or unenforceable under any
applicable state or federal law dealing with the recovery or avoidance
of so-called preferences or fraudulent transfers or conveyances or
otherwise;
7.4 Notice. Notice of the acceptance hereof, presentment,
demand for payment, protest, notice of protest, or any and all notice
of nonpayment, nonperformance, nonobservance or default or other proof
or notice of demand whereby to charge Indemnitors therefor;
7.5 Statute of Limitations. The pleading of any statute of
limitations as a defense to such Indemnitor's obligations hereunder;
and
7.6 Jury Trial. The right to a trial by jury in any matter
related to this Environmental Indemnity.
EACH INDEMNITOR, AGENT AND THE LENDERS HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT CONTEMPLATED TO BE EXECUTED
IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTIES; THIS
WAIVER BEING A MATERIAL INDUCEMENT FOR AGENT AND THE LENDERS TO ACCEPT
THIS AGREEMENT AND TO MAKE THE LOAN;
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8. Cumulative Rights. Agent's rights under this Agreement shall be in
addition to and not in limitation of all of the rights and remedies of
Agent under the other Loan Documents. All rights and remedies of Agent
shall be cumulative and may be exercised in such manner and combination
as Agent may determine.
9. No Impairment. The liability of Indemnitors hereunder shall in no way
be limited or impaired by, and each Indemnitor hereby assents to and
agrees to be bound by, any amendment or modification of the provisions
of the Loan Documents to or with Agent and the Lenders by Borrower or
any Indemnitor or any person who succeeds Borrower as owner of the
Property. In addition, the liability of Indemnitors under this
Agreement shall in no way be limited or impaired by:
9.1 Extensions. Any extensions of time for performance
required by any of the Loan Documents;
9.2 Amendments. Any amendment to or modification of any of the
Loan Documents;
9.3 Transfer. Any sale or assignment of the Loan, or any sale,
assignment or foreclosure of the Mortgage, or any sale or transfer of
all or part of the Property;
9.4 Exculpatory Language. Any exculpatory, or nonrecourse, or
limited recourse, provision in any of the Loan Documents limiting
Agent's or any Lenders' recourse to the Property encumbered by the
Mortgage or to any other property or limiting Agent's or any Lenders'
rights to a deficiency judgment against Borrower or any other party;
9.5 Inaccuracies. The accuracy or inaccuracy of any of the
representations or warranties made by or on behalf of any Indemnitor
under the Loan Documents or otherwise;
9.6 Release. The release of any Indemnitor, or of any other
person or entity, from performance or observance of any of the
agreements, covenants, terms or conditions contained in this Agreement
or any of the other Loan Documents by operation of law, Agent's or any
Lenders' voluntary act, or otherwise;
9.7 Bankruptcy or Reorganization. The filing of any bankruptcy
or reorganization proceeding by or against any Indemnitor, any general
partner or owner of any Indemnitor, or any subsequent owner of the
Property;
9.8 Substitution. The release or substitution in whole or part
of any collateral or security for the Loan;
9.9 Failure To Perfect. Agent's failure to record the Mortgage
or file any UCC financing statements (or Agent'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 Loan; or
9.10 Invalidity. The invalidity or unenforceability of all or
any portion of any of the Loan Documents as to any Indemnitor or to any
other person or entity.
Any of the foregoing may be accomplished with or without notice to Borrower or
any Indemnitor (except as otherwise required pursuant to the terms and
conditions of the Loan Agreement) or with or without consideration.
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10. Delay Not Waiver. No delay on Agent's part in exercising any right,
power or privilege hereunder or under any of the Loan Documents shall
operate as a waiver of any such privilege, power or right. No waiver by
Agent in any instance shall constitute a waiver in any other instance.
11. Warranties and Representations. The Indemnitors each represent and
warrant to Agent, the same to be true as of the date hereof and
throughout the period that any of the Loan Documents shall remain in
force and effect, that, except as set forth in the Environmental
Reports, and except as may be further updated in accordance with the
terms and conditions of Section 6.22 of the Loan Agreement:
11.1 No Hazardous Materials at Property. No Hazardous
Materials have been or are currently generated, stored, transported,
utilized, disposed of, managed, released or located on, under or from
the Property, whether or not in reportable quantities, or in any manner
introduced onto the Property including without limitation any septic,
sewage or other waste disposal systems servicing the Property;
11.2 No Violations Claimed Re Property or Indemnitors. None of
the Indemnitors has received any notice from the Pennsylvania
Department of Environmental Protection, the United States Environmental
Protection Agency or any other governmental authority claiming that (i)
the Property or any use thereof violates any of the Environmental Legal
Requirements or (ii) any of the Indemnitors or any of their respective
employees or agents have violated any of the Environmental Legal
Requirements with respect to the Property or any Surrounding Property;
11.3 No Liability to Governmental Authorities. None of the
Indemnitors has incurred any liability to the Commonwealth of
Pennsylvania or the City/Town of Sandy Township, the United States of
America or any other governmental authority under any of the
Environmental Legal Requirements;
11.4 No Lien on Property. No lien against the Property has
arisen under or related to any of the Environmental Legal Requirements;
11.5 No Enforcement Actions. There are no Environmental
Enforcement Actions pending, or to the best of the Indemnitors'
information, knowledge and belief after due inquiry, threatened in
writing;
11.6 No Knowledge of Hazardous Materials at Surrounding
Property. None of the Indemnitors has any knowledge, after due inquiry,
that any Hazardous Materials have been or are currently generated,
stored, transported, utilized, disposed of, managed, released or
located on, under or from the Surrounding Property in violation of or
allegedly in violation of any of the Environmental Legal Requirements;
11.7 No Knowledge of Violations Re Surrounding Property. None
of the Indemnitors has any knowledge, after due inquiry, of any action
or order instituted or threatened by any person or governmental
authority arising out of or in connection with the Environmental Legal
Requirements involving the assessment, monitoring, cleanup,
containment, remediation or removal of or damages caused or alleged to
be caused by any Hazardous Materials generated, stored, transported,
utilized, disposed of, managed, released or located on, under or from
any Surrounding Property;
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11.8 No Underground Storage Tanks. There are no underground
storage tanks on or under the Property;
11.9 No Dangerous Conditions. No environmental condition
exists on the Property which could cause any damage or injury to the
Property or to any person;
11.10 Valid and Binding. This Agreement constitutes the legal,
valid and binding obligation of each of the Indemnitors in accordance
with the respective terms hereof, subject to bankruptcy, insolvency and
similar laws of general application affecting the rights and remedies
of creditors, and with respect to the availability of the remedy of
specific enforcement subject to the discretion of the court before
which proceedings therefor may be brought;
11.11 Entity Matters. That each Indemnitor is a duly organized
validly existing entity in good standing under the laws of its
organization and has all requisite power and authority to conduct its
business and to own its properties as now conducted or owned;
11.12 No Violations. To the knowledge of the Indemnitors, the
performance of the obligations evidenced hereby will not constitute a
violation of any law, order, regulation, contract, organizational
document or agreement to which the Indemnitors or any of them is a
party or by which any one or more of them or their property is or may
be bound;
11.13 No Litigation. There is no material litigation or
administrative proceeding now pending or threatened against the
Indemnitors or any of them which if adversely decided could materially
impair the ability of any one or more of the Indemnitors to pay or
perform their respective obligations hereunder;
11.14 Material Economic Benefit. The granting of the Loan to
Borrower will constitute a material economic benefit to each
Indemnitor.
12. Multiple Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original. Each of the
counterparts shall constitute but one in the same instrument and shall
be binding upon each of the parties individually as fully and
completely as if all had signed but one instrument so that the joint
and several liability of each of the Indemnitors hereunder shall be
unaffected by the failure of any of the undersigned to execute any or
all of said counterparts.
13. Notices. Any notice or other communication in connection with this
Agreement shall be in writing and (i) deposited in the United States
mail, postage prepaid, by registered or certified mail, or (ii) hand
delivered by any commercially recognized courier service or overnight
delivery service, such as Federal Express, or (iii) sent by facsimile
transmission if a FAX Number in designated below, addressed as follows:
If to the Indemnitors:
Cedar Shopping Centers, Inc.
Cedar Shopping Centers Partnership, L.P.
Cedar Dubois, LLC
44 South Bayles Avenue
Port Washington, New York 11050
Attention: Leo S. Ullman
FAX No.: (516) 767-6497
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And
Attention: Thomas J. O'Keeffe
with copies by regular mail or such hand delivery or facsimile
transmission to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
Attention: Mark A. Levy, Esq.
FAX No.: (212) 806-6006
If to Agent:
Fleet National Bank
100 Federal Street
Boston, Massachusetts
Attention: James L. Keough, Director
FAX No.: (617) 434-6384
with copies by regular mail or such hand delivery or facsimile
transmission to:
Riemer & Braunstein LLP
Three Center Plaza
Boston, Massachusetts
Attention: Kevin J. Lyons, Esq.
FAX No.: (617) 880-3456
Any such addressee may change its address for such notices to any other address
in the United States as such addressee shall have specified by written notice
given as set forth above.
All periods of notice shall be measured from the deemed date of
delivery. A notice shall be deemed to have been given, delivered and received
upon the earliest of: (i) if sent by such certified or registered mail, on the
third Business Day following the date of postmark; or (ii) if hand delivered by
such courier or overnight delivery service, when so delivered or tendered for
delivery during customary business hours on a Business Day at the specified
address; or (iii) if so mailed, on the date of actual receipt (or tender of
delivery) as evidenced by the return receipt; or (iv) if so delivered, upon
actual receipt, or (v) if facsimile transmission is a permitted means of giving
notice, upon receipt as evidenced by confirmation.
14. No Oral Change. No provision of this Agreement may be changed, waived,
discharged, or terminated orally by telephone or by any other means
except by an instrument in writing signed by the party against whom
enforcement of the change, waiver or discharge or termination is
sought.
15. Parties Bound; Benefit. This Agreement shall be binding upon the
Indemnitors and their respective successors, assigns, heirs and
personal representatives and shall be for the benefit of Agent and the
Lenders, and of any subsequent holder of the Loan and of any owner of a
participation interest therein. In the event the Loan is sold or
transferred, then the liability of the Indemnitors to Agent and the
Lenders shall then be in favor of both Agent and the Lenders originally
named herein and each subsequent holder of the Loan and any of interest
therein.
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16. Joint and Several. The obligations of each of the Indemnitors and their
respective successors, assigns, heirs and personal representatives
shall be joint and several.
17. Partial Invalidity. Each of the provisions hereof shall be enforceable
against each Indemnitor to the fullest extent now or hereafter
permitted by law. The invalidity or unenforceability of any provision
hereof shall not limit the validity or enforceability of each other
provision hereof.
18. Governing Law and Consent to Jurisdiction. This Agreement and the
rights and obligations of the parties hereunder shall in all respects
be governed by and construed and enforced in accordance with the laws
of the Commonwealth of Massachusetts without giving effect to
Massachusetts principles of conflicts of law, except to the extent that
reference is made herein to other Loan Documents which are governed by
the laws of the Commonwealth of Pennsylvania, and insofar as
Environmental Legal Requirements are concerned, in accordance with
applicable federal law and Pennsylvania law as well, and except insofar
as formation of the parties hereunder under the law of the jurisdiction
of the formation of the parties hereunder requires such law of the
jurisdiction of the formation of the parties hereunder to apply with
respect to matters of authorization to enter into the transaction
contemplated by this Agreement. Notwithstanding the foregoing, for the
purpose of defining Hazardous Materials and for the purpose of
determining the nature and extent of Environmental Legal Requirements
applicable to the Property, applicable federal law and applicable law
of the Commonwealth of Pennsylvania shall govern and the internal laws
of the Commonwealth of Massachusetts shall have no effect for the
purposes of defining such terms. The parties further agree that Agent
may enforce its rights under this Agreement and the other Loan
Documents including, but not limited to, the rights to sue any
Indemnitor in accordance with applicable law. The Indemnitors hereby
irrevocably submit to the nonexclusive jurisdiction of any
Massachusetts State Court or any Federal Court sitting in Massachusetts
over any suit, action or proceeding arising out of or relating to this
Agreement.
19. Survival. The provisions of this Agreement shall continue in effect and
shall survive (among other events) any payment and satisfaction of the
Loan and the Obligations, any termination or discharge of the Mortgage
granted to the Agent on the Property, foreclosure, a deed-in-lieu
transaction, or release of the Property.
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Witness the execution and delivery hereof as an instrument under seal
as of the ____ day of March, 2004.
INDEMNITORS: CEDAR SHOPPING CENTERS, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
CEDAR SHOPPING CENTERS PARTNERSHIP, L.P.
By: Cedar Shopping Centers, Inc.
By: _______________________________
Name: _______________________________
Title:_______________________________
CEDAR DUBOIS, LLC
By: _______________________________
Name: _______________________________
Title:_______________________________
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