Preview
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NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/17/2020
HAZARDOUS MATERIALS
INDEMNITY AGREEMENT
THIS HAZARDOUS MATERIALS INDEMNITY AGREEMENT (this
“Agreement”), is made as of August 3, 2018 is by 564 ST. JOHNS ACQUISITION LLC, a
New York limited liability company (“Borrower”), whose address is c/o Heritage Equity
Partners, 679 Driggs Avenue, Brooklyn, New York 11211, and by TOBY MOSKOVITS, a
natural person, residing in Queens County, New York (“Moskovits”), YECHIEL MICHAEL
LICHTENSTEIN, a natural person, residing in Kings County, New York (“Lichtenstein”) and
SHAUL KOPELOWITZ, a natural person, residing in Rockland County, New York
(“Kopelowitz”) (collectively, “Guarantor”; and Borrower and Guarantor, jointly and severally,
being referred to herein, individually or collectively as the context may require, as
“Indemnitor”), joint and severally, in favor of and ARBOR REALTY SR, INC., a Maryland
corporation, having an address is 333 Earle Ovington Boulevard, Suite 900, Uniondale, New
York 11553 (together with its successors and assigns, collectively, “Lender”).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Loan Agreement of even date herewith (the “Loan
Agreement”) between Lender and Borrower, Lender has extended to Borrower a loan in the
principal amount of NINETY SEVEN MILLION TWO HUNDRED FIFTY THOUSAND and
00/100 DOLLARS ($97,250,000.00) (the “Loan”); and
WHEREAS, the Loan is evidenced by that certain Amended, Restated and Consolidated
Promissory Note dated of even date herewith (the “Note”), executed by Borrower and payable to
the order of Lender in the stated principal amount of NINETY SEVEN MILLION TWO
HUNDRED FIFTY THOUSAND and 00/100 DOLLARS ($97,250,000.00) and is secured by
that certain Amended, Restated and Consolidated Mortgage, Assignment of Leases and Rents,
Security Agreement and Fixture Filing of even date herewith from Borrower for the benefit of
Lender (the “Security Instrument”), encumbering that certain real property known as 564 St.
Johns Place, Brooklyn, New York and located at City of New York, County of Kings and State
of New York, as is more particularly described on Exhibit A attached hereto and incorporated
herein by this reference, together with the buildings, structures and other improvements now or
hereafter located thereon (said real property, buildings, structures and other improvements being
hereinafter collectively referred to as the “Property”) and by other documents and instruments
(the Loan Agreement, the Note, the Security Instrument and such other documents and
instruments, as the same may from time to time be amended, consolidated, renewed or replaced,
being collectively referred to herein as the “Loan Documents”); and
WHEREAS, as a condition to making the Loan, Lender has required that Indemnitor
indemnify Lender with respect to hazardous wastes on, in, under or affecting the Property as
herein set forth.
NOW, THEREFORE, to induce Lender to extend the Loan to Borrower and in
consideration of the foregoing premises and for other good and valuable consideration, the
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receipt and sufficiency of which are hereby acknowledged, Indemnitor hereby covenants and
agrees for the benefit of Lender, as follows:
1. Definitions. All capitalized terms used herein and not otherwise defined
shall have the meaning ascribed thereto in the Loan Agreement. As used in this Agreement, the
following terms shall have the following meanings:
“Affiliate” means as to any Person, any other Person which directly or indirectly controls,
or is controlled by, or is under common control with such Person. The term “control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by contract or
otherwise.
“Environmental Laws” has the meaning specified in the Loan Agreement.
“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
“Hazardous Materials” has the meaning specified in the Loan Agreement.
“Indemnified Parties” means (a) Lender, (b) each Person who has been, is or will be
involved in the origination of the Loan, (c) each Person who is or will be involved in the
servicing of the Loan, (d) each Person in whose name the security interest created by the
Security Instrument is or will be recorded, (e) each Person who holds or acquires or will hold or
acquire a full or partial interest in the Loan, including investors or prospective investors in the
Loan, (f) each custodian, trustee and other fiduciary who has held, holds or will hold a full or
partial interest in the Loan for the benefit of third parties, (g) each director, officer, shareholder,
member, partner, employee, agent, servant, representative, contractor, subcontractor, Affiliate,
subsidiary, participant, successor and assign of any and all of the foregoing Persons, including
any other Person who holds or acquires or will hold a participation or other full or partial interest
in such Loan, whether during the term of the Loan or as a part of or following a foreclosure of
the Loan, and (h) each successor and assign of each of the parties specified above in this
definition, including any successors or assigns by merger, consolidation or acquisition of all or
substantially all of the assets or business of any such party.
“Losses” means any and all losses, costs and expenses incurred by Lender in respect of or
as a result of any or all claims, suits, liabilities (including strict liabilities), actions, demands,
proceedings, obligations, debts, damages (including punitive and consequential damages), fines,
trials, penalties, charges, diminution of property value, injury to a person, property or natural
resources, Remedial Work, fees, judgments, accounts, orders, adjudications, awards, Liens,
injunctive relief, causes of action or amounts paid in settlement of whatever kind or nature,
including reasonable attorneys’ fees and all fees of experts, including engineers and
environmental consultants, and other costs of defense or otherwise related thereto.
“Mold” has the meaning specified in the Loan Agreement.
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“Person” means an individual, partnership (including a limited liability partnership),
corporation, limited liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever nature.
“Release” has the meaning specified in the Loan Agreement.
“Remedial Work” means investigation, inspection, site monitoring, containment, clean-
up, removal, response, corrective action, mitigation, restoration or other remedial work of any
kind or nature because of, or in connection with, the current or future presence, suspected
presence, Release or threatened Release in or about the air, soil, ground water, surface water or
soil vapor at, on, about, under or within all or any portion of the Property of any Hazardous
Materials, including any action to comply with any Environmental Laws or directives of any
Governmental Authority with regard to any Environmental Laws.
2. Indemnity. Indemnitor covenants and agrees, at Indemnitor’s sole cost
and expense, to protect, indemnify, defend (at trial and appellate levels, and with attorneys,
consultants and experts reasonably acceptable to Lender), release and hold harmless each
Indemnified Party from and against any and all Losses which may at any time be imposed upon,
incurred by or asserted or awarded against such Indemnified Party or the Property, and arising
directly or indirectly from or out of, attributable to, relating to, which may accrue out of, or
which may result from: (i) the presence, release or threat of release of any Hazardous Materials
on, in, under, affecting or threatening to affect all or any portion of the Property or any
surrounding areas, regardless of whether or not caused by or within the control of Indemnitor;
(ii) the past, present or future violation of any Environmental Laws relating to, affecting or
threatening to affect the Property, whether or not caused by or within the control of Indemnitor;
(iii) the failure by Indemnitor to comply fully with the terms and conditions of this Agreement;
(iv) the breach of any representation or warranty contained in this Agreement; (v) the failure to
timely perform any Remedial Work; or (vi) the enforcement of this Agreement, including,
without limitation, the cost of assessment, containment and/or removal of any and all Hazardous
Materials on and/or from all or any portion of the Property or any surrounding areas, the cost of
any actions taken in response to the presence, Release or threat of Release of any Hazardous
Materials on, in, under or affecting any portion of the Property or any surrounding areas to
prevent or minimize such Release or threat of Release so that it does not migrate or otherwise
cause or threaten danger to present or future public health, safety, welfare or the environment,
and costs incurred to comply with the Environmental Laws in connection with all or any portion
of the Property or any surrounding areas. Each Indemnified Party’s rights under this Section
shall survive payment in full of the Obligations and shall be in addition to all other rights of such
Indemnified Party under this Agreement, the Security Instrument, the Note and the other Loan
Documents.
The foregoing indemnity shall specifically not include any such Losses relating to
Hazardous Materials which are initially placed on, in or under the property after foreclosure or
other taking of title to the Property by Lender.
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3. Representations Regarding Hazardous Materials. Subject to any
disclosures contained in that certain Phase I Environmental Site Assessment dated July 24, 2018
prepared by Nova Consulting Group, Inc. with respect to the Property, Indemnitor hereby
represents and warrants to and covenants and agrees with Lender, after due inquiry and
investigation, as follows:
(a) The Property is in full compliance with all Environmental Laws;
(b) No Hazardous Materials are located on or have been handled, generated,
stored, processed or disposed of on or released or discharged from the Property (including the
soil and groundwater beneath the Property) except for those substances used by Borrower in the
ordinary course of its business and in compliance with all Environmental Laws;
(c) The Property is not subject to any private or governmental Lien or judicial
or administrative notice or action relating to Hazardous Materials;
(d) There are no existing or closed underground storage tanks or other
underground storage receptacles for Hazardous Materials on the Property;
(e) Indemnitor has received no notice of, and to the best of Indemnitor’s
knowledge and belief, there exists no investigation, action, proceeding or claim by any agency,
authority or unit of government or by any third party which could result in any liability, penalty,
sanction or judgment under any Environmental Laws with respect to any condition, use or
operation of the Property nor does Indemnitor know of any basis for such a claim;
(f) Indemnitor has received no notice that, and to the best of Indemnitor’s
knowledge and belief, there has been no claim by any party that, any use, operation or condition
of the Property has caused any nuisance or any other liability or adverse condition on any other
property nor does Indemnitor know of any basis for such a claim; and
(g) There are no environmental investigations, studies, audits, reviews or
other analysis conducted by or in the possession of Borrower or any of its Affiliates which have
not been made available to Lender.
4. Representations. Indemnitor represents and warrants to Lender as follows:
(a) No Contravention. The execution, delivery and performance by
Indemnitor of this Agreement does not and will not (i) violate any provision of any law, order,
writ, judgment, injunction, decree, determination, or award presently in effect applicable to
Indemnitor, (ii) result in a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease, or instrument to which Indemnitor is a party or by
which Indemnitor or its properties may be bound or affected, or (iii)result in, or require, the
creation or imposition of any Lien upon or with respect to any of the properties now owned or
hereafter acquired by Indemnitor.
(b) Governmental Authority. No authorization, approval or other action by,
and no notice to or filing with, any Governmental Authority is required for the due execution,
delivery and performance by Indemnitor of this Agreement.
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(c) Legally Enforceable Agreement. This Agreement is the legal, valid and
binding obligation of Indemnitor, enforceable against Indemnitor in accordance with its terms,
except to the extent that such enforcement may be limited by (i) applicable bankruptcy,
insolvency, and other similar laws affecting creditors’ rights generally, or (ii)general equitable
principles, regardless of whether the issue of enforceability is considered in a proceeding in
equity or at law.
(d) Disclosure. Indemnitor has delivered to Lender any and all information
known to Indemnitor relating to the environmental condition of the Property, including all
Hazardous Materials in, on, within, under, from, near, affecting or emanating from the Property.
5. Covenants of Indemnitor.
(a) Indemnitor shall keep or cause the Property to be kept free from
Hazardous Materials (except those substances used by Borrower in the ordinary course of its
business and in compliance with all Environmental Laws) and in compliance with all
Environmental Laws, shall not install or use any underground storage tanks, shall expressly
prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous
Materials by all tenants of space in the Improvements, and, without limiting the generality of the
foregoing, during the term of this Agreement, shall not install in the Improvements or permit to
be installed in the Improvements asbestos or any substance containing asbestos. In addition,
Indemnitor (i) shall keep the Property free and clear of any Liens imposed pursuant to any
Environmental Law, and (ii) shall not permit or suffer any Release in violation of any applicable
Environmental Laws. Finally, if Indemnitor is aware that Remedial Work is required, whether as
a result of governmental inquiries, governmental audits or otherwise, Indemnitor shall, within
thirty (30) days of obtaining such knowledge, or such shorter period of time as may be required
under any applicable Environmental Law, commence and thereafter diligently prosecute to
completion all such Remedial Work.
(b) Indemnitor shall immediately notify Lender should Indemnitor become
aware of (A) any Release or threatened Release of Hazardous Materials at, on, under or from the
Property, or other potential environmental problem or liability, with respect to the Property,
(B) any Lien or filing of Lien, action or notice affecting the Property or Borrower resulting from
any violation or alleged violation of any Environmental Law, (C) the institution of any
investigation, inquiry or proceeding concerning Borrower or the Property pursuant to any
Environmental Law or otherwise relating to Hazardous Materials, or (D) the discovery of any
occurrence, condition or state of facts which would render any representation or warranty
contained in this Agreement incorrect in any respect if made at the time of such discovery.
Borrower shall also give prompt written notice to Lender: (i) if the Property is in violation of any
Environmental Law, (ii) of the presence of Hazardous Materials on or under the Property, except
for the use and storage of immaterial amounts of Hazardous Materials at the Property if such use
or storage is in connection with the ordinary cleaning and maintenance of the Property and such
use and storage is in compliance with all applicable Environmental Laws, (iii) any required or
proposed Remedial Work on the Property, (iv) of all claims made or threatened in writing by
any Person against Borrower or the Property relating to any loss or injury resulting from any
Hazardous Material, (v) of Borrower’s discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Property that could cause the Property to be subject to
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any investigation or cleanup pursuant to any Environmental Law, (vi) of Borrower’s receipt of
any notice from any Governmental Authority or any other Person relating or pertaining to any
Hazardous Materials located or Released in, on, upon, under, near or emanating from the
Property, (vii) of any Governmental Authority incurring any cost or expense in connection with
the assessment, containment, remediation or removal of any Hazardous Materials located or
Released in, on, upon, under, near or emanating from the Property, and (viii) any actual or
potential Lien on the Property pursuant to any Environmental Law.
Indemnitor shall, promptly and when and as required and regardless of the source of the
contamination, at its own expense, take all actions as shall be necessary or advisable for the
clean-up of any and all portions of the Property or other affected property, including, without
limitation, all investigative, monitoring, removal, containment and remedial actions in
accordance with all applicable Environmental Laws (and in all events in a manner satisfactory to
Lender), and shall further pay or cause to be paid, at no expense to Lender, all clean-up,
administrative and enforcement costs of applicable governmental agencies which may be
asserted against the Property. In the event Indemnitor fails to do so, Lender may take or cause to
be taken, but shall have no obligation to take or cause to be taken, steps to remove, contain or
remediate any Release or threatened Release of Hazardous Materials at the Property or other
affected property or otherwise to have the Property brought into conformance with
Environmental Laws and any cost incurred in connection therewith shall be included in Losses
and shall be paid by Indemnitor in accordance with the terms of Section 6(c) hereof. In
furtherance of the foregoing, Indemnitor hereby grants to Lender access to the Property and an
irrevocable license to remove any items deemed by Lender to be Hazardous Materials and to do
all things Lender shall deem necessary to bring the Property into conformance with
Environmental Laws.
(c) Upon the request of Lender, at any time and from time to time after the
occurrence of a default under this Agreement or the Loan Documents or at such other time as
Lender has reasonable grounds to believe that Hazardous Materials are or have been Released,
stored or disposed of on or around the Property or that the Property may be in violation of the
Environmental Laws, Indemnitor shall provide, at Indemnitor’s sole expense, an environmental
site assessment or environmental compliance audit of the Property prepared by a hydrogeologist
or environmental engineer or other appropriate consultant approved by Lender to determine
whether there has been a Release or threatened Release of Hazardous Materials at, on, under or
from the Property onto adjoining Property and if the Property is in full compliance with
Environmental Laws (including asbestos containing materials or lead based paint). If Indemnitor
fails to provide such assessment or audit within forty-five (45) days after such request, Lender
may order the same, and Indemnitor hereby grants to Lender access to the Property and an
irrevocable license to undertake such assessment or audit. The cost of such assessment or audit
shall be included in Losses and shall be paid by Indemnitor in accordance with the terms of
Section 6(c) hereof.
(d) Indemnitor agrees that if prior to the date hereof, or if at any time
hereafter, any inspection or audit reveals (or revealed, as applicable) the presence of Mold in the
indoor air of the Property at concentrations exceeding ambient air levels or visible Mold on any
building materials or surfaces at the Property for which the EPA Mold Guidelines recommends
or requires removal thereof by remediation professionals, then, on or before forty-five (45) days
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following (i) the date hereof, if such inspection or audit was made prior to the date hereof or (ii)
such inspection or audit, if such inspection or audit is hereafter made, as applicable, Indemnitor
shall, at its sole cost and expense, develop and implement, and thereafter diligently and
continuously carry out (or cause to be developed and implemented and thereafter diligently and
continually to be carried out), an operations, abatement and maintenance plan (the “Mold O&M
Plan”) to monitor, maintain and remediate any water filtration and Mold issues affecting the
Property, which plan shall be prepared by an expert, and be in form, scope and substance
acceptable to Lender and sufficient to cause the Property to comply with all applicable laws and
all EPA Mold Guidelines and in accordance with the Mold O&M Plan. If a Mold O&M Plan has
been prepared prior to the date hereof, Indemnitor agrees to diligently and continually carry out
(or cause to be carried out) the provisions thereof. Compliance with the Mold O&M Plan shall
require or be deemed to require, without limitation, the proper preparation and maintenance of all
records, papers and forms required under the Environmental Laws. For purposes hereof, “EPA
Mold Guidelines” shall mean the guidelines set forth in “Mold Remediation in Schools and
Commercial Buildings” prepared by the U.S. Environmental Protection Agency.
6. Indemnification Procedures.
(a) If any action shall be brought against any Indemnified Party based upon
any of the matters for which such Indemnified Party is indemnified hereunder, the applicable
Indemnified Party shall notify Indemnitor in writing thereof and Indemnitor shall promptly
assume the defense thereof, including, without limitation, the employment of counsel acceptable
to the applicable Indemnified Party and the negotiation of any settlement; provided, however,
that any failure of the applicable Indemnified Party to notify Indemnitor of such matter shall not
impair or reduce the obligations of Indemnitor hereunder. Indemnified Party shall have the right,
at the expense of Indemnitor (which expense shall be included in Losses), to employ separate
counsel in any such action and to participate in the defense thereof. In the event Indemnitor shall
fail to discharge or undertake to defend the applicable Indemnified Party against any claim, loss
or liability for which such Indemnified Party is indemnified hereunder, such Indemnified Party
may, at its sole option and election, defend or settle such claim, loss or liability. The liability of
Indemnitor to the applicable Indemnified Party hereunder shall be conclusively established by
such settlement, provided such settlement is made in good faith, the amount of such liability to
include both the settlement consideration and the costs and expenses, including, without
limitation reasonable attorneys’ fees and disbursements (together with appellate counsel fees, if
any), incurred by such Indemnified Party in effecting such settlement. In such event, such
settlement consideration, costs and expenses shall be included in Losses and Indemnitor shall
pay the same as hereinafter provided. The applicable Indemnified Party’s good faith in any such
settlement shall be conclusively established if the settlement is made on the advice of
independent legal counsel for such Indemnified Party.
(b) Indemnitor shall not, without the prior written consent of the applicable
Indemnified Party: (i) settle or compromise any action, suit, proceeding or claim or consent to
the entry of any judgment that does not include as an unconditional term thereof the delivery by
the claimant or plaintiff to such Indemnified Party of a full and complete written release of such
Indemnified Party (in form, scope and substance satisfactory to such Indemnified Party in its sole
discretion) from all liability in respect of such action, suit, proceeding or claim and a dismissal
with prejudice of such action, suit, proceeding or claim; or (ii) settle or compromise any action,
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suit, proceeding or claim in any manner that may adversely affect such Indemnified Party or
obligate such Indemnified Party to pay any sum or perform any obligation as determined by such
Indemnified Party in its sole discretion.
(c) All Losses shall be immediately reimbursable to the applicable
Indemnified Party when and as incurred and, in the event of any litigation, claim or other
proceeding, without any requirement of waiting for the ultimate outcome of such litigation, claim
or other proceeding, and Indemnitor shall pay to the applicable Indemnified Party any and all
Losses within ten (10) Business Days after written notice from the applicable Indemnified Party
itemizing the amounts thereof incurred to the date of such notice. In addition to any other
remedy available for the failure of Indemnitor to periodically pay such Losses, such Losses, if
not paid within said ten (10) Business Day period, shall bear interest at the Default Rate.
7. Reinstatement of Obligations. If at any time all or any part of any
payment made by Indemnitor or received by an Indemnified Party from Indemnitor under or with
respect to this Agreement is or must be rescinded or returned for any reason whatsoever
(including, but not limited to, the insolvency, bankruptcy or reorganization of either Indemnitor),
then the obligations of Indemnitor hereunder shall, to the extent of the payment rescinded or
returned, be deemed to have continued in existence, notwithstanding such previous payment
made by Indemnitor, or receipt of payment by such Indemnified Party, and the obligations of
Indemnitor hereunder shall continue to be effective or be reinstated, as the case may be, as to
such payment, all as though such previous payment by Indemnitor had never been made.
8. Waivers by Indemnitor. To the extent permitted by law, Indemnitor
hereby irrevocably and absolutely waives any and all defenses to the performance by Indemnitor
of its duties and obligations under this Agreement, including any defense based on any of the
following:
(a) Any right to require Lender to proceed against any other Person or to
proceed against or exhaust any security held by Lender at any time or to pursue any other
remedy in Lender’s power or under any other agreement before proceeding against Indemnitor
hereunder;
(b) Any defense to the payment of the obligations secured by the Security
Instrument or the Losses, including those that may arise by reason of the incapacity, lack of
authority, death or disability of any other Person or Persons or the failure of Lender to file or
enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any
other Person or Persons;
(c) Demand, presentment for payment, notice of nonpayment, protest, notice
of protest and all other notices of any kind, or the lack of any thereof, including, without limiting
the generality of the foregoing, notice of the existence, creation or incurring of any new or
additional indebtedness or obligation or of any action or non-action on the part of Lender, any
endorser or creditor of any Indemnitor or any other Person whomsoever under this or any other
instrument in connection with any obligation or evidence of indebtedness held by Lender;
(d) Any defense based upon an election of remedies by Lender;
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(e) Any right or claim of right to cause a marshaling of the assets of any
Indemnitor;
(f) Any principle or provision of law, statutory or otherwise, which is or
might be in conflict with the terms and provisions of this Agreement;
(g) Any duty on the part of Lender to disclose to Indemnitor any facts Lender
may now or hereafter know about Borrower or the Property, regardless of whether Lender has
reason to believe that any such facts materially increase the risk beyond that which Indemnitor
intends to assume or has reason to believe that such facts are unknown to Indemnitor or has a
reasonable opportunity to communicate such facts to Indemnitor, it being understood and agreed
that Indemnitor is fully responsible for being and keeping informed of the condition of Borrower
and the Property and of any and all circumstances bearing on the risk that liability may be
incurred by Indemnitor hereunder;
(h) Any lack of notice of disposition or of manner of disposition of any
collateral for the Loan;
(i) Any invalidity, irregularity or unenforceability, in whole or in part, of any
one or more of the Loan Documents;
(j) Any lack of commercial reasonableness in dealing with the collateral for
the Loan;
(k) Any deficiencies in the collateral for the Loan or any deficiency in the
ability of Lender to collect or to obtain performance from any Persons now or hereafter liable for
the payment and performance of any obligations under this Agreement;
(l) An assertion or claim that the automatic stay provided by 11 U.S.C. §362
(arising upon the voluntary or involuntary bankruptcy proceeding of Borrower) or any other stay
provided under any other debtor relief law (whether statutory, common law, case law or
otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become
applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability
of Lender to enforce any of its rights, whether now or hereafter required, which Lender may have
against Indemnitor or the collateral for the Loan;
(m) Any modifications of the Loan Documents or any obligation of Borrower
relating to the Loan by operation of law or by action of any court, whether pursuant to the
Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory,
common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect,
or otherwise; and
(n) Any action, occurrence, event or matter consented to by Indemnitor under
Section 8(h) hereof, under any other provision hereof, or otherwise.
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9. Waiver of Notices. Indemnitor hereby waives any and all notices
including (a) notice of or proof of reliance by any Indemnified Party upon this Agreement or
acceptance of this Agreement, (b) notice of any actions taken by Lender or Borrower or any
other Person under any Loan Document, and (c) notices of nonpayment or nonperformance,
protest, notices of protest and notices of dishonor.
10. General Provisions.
(a) Fully Recourse. All of the terms and provisions of this Agreement are
recourse obligations of Indemnitor and not restricted by any limitation on personal liability.
(b) Unsecured Obligations. Indemnitor hereby acknowledges that Lender’s
appraisal of the Property is such that Lender is not willing to accept the consequences of the
inclusion of Indemnitor’s indemnity set forth herein among the obligations secured by the
Security Instrument and the other Loan Documents and that Lender would not make the Loan
but for the unsecured personal liability undertaken by Indemnitor herein. Indemnitor further
hereby acknowledges that even though the representations, warranties, covenants or agreements
of Indemnitor contained herein may be identical or substantially similar to representations,
warranties, covenants or agreements of Borrower set forth in the Security Instrument and secured
thereby, the obligations of Indemnitor under this Agreement are not secured by the Lien of the
Security Instrument or the security interests or other collateral described in the Security
Instrument or the other Loan Documents, it being the intent of Lender to create separate
obligations of Indemnitor hereunder which can be enforced against Indemnitor without regard to
the existence of the Security Instrument or other Loan Documents or the Liens or security
interests created therein.
(c) Survival. This Agreement shall be deemed to be continuing in nature and
shall remain in full force and effect and shall survive the payment of the indebtedness evidenced
and secured by the Loan Documents and the exercise of any remedy by Lender under the Loan
Agreement, the Security Instrument or any of the other Loan Documents, including, without
limitation, any foreclosure or deed in lieu thereof, even if, as a part of such remedy, the Loan is
paid or satisfied in full.
Preview
FILED: KINGS COUNTY CLERK 01/17/2020 09:26 AM INDEX NO. 527036/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/17/2020 HAZARDOUS MATERIALS INDEMNITY AGREEMENT THIS HAZARDOUS MATERIALS INDEMNITY AGREEMENT (this “Agreement”), is made as of August 3, 2018 is by 564 ST. JOHNS ACQUISITION LLC, a New York limited liability company (“Borrower”), whose address is c/o Heritage Equity Partners, 679 Driggs Avenue, Brooklyn, New York 11211, and by TOBY MOSKOVITS, a natural person, residing in Queens County, New York (“Moskovits”), YECHIEL MICHAEL LICHTENSTEIN, a natural person, residing in Kings County, New York (“Lichtenstein”) and SHAUL KOPELOWITZ, a natural person, residing in Rockland County, New York (“Kopelowitz”) (collectively, “Guarantor”; and Borrower and Guarantor, jointly and severally, being referred to herein, individually or collectively as the context may require, as “Indemnitor”), joint and severally, in favor of and ARBOR REALTY SR, INC., a Maryland corporation, having an address is 333 Earle Ovington Boulevard, Suite 900, Uniondale, New York 11553 (together with its successors and assigns, collectively, “Lender”). W I T N E S S E T H: WHEREAS, pursuant to that certain Loan Agreement of even date herewith (the “Loan Agreement”) between Lender and Borrower, Lender has extended to Borrower a loan in the principal amount of NINETY SEVEN MILLION TWO HUNDRED FIFTY THOUSAND and 00/100 DOLLARS ($97,250,000.00) (the “Loan”); and WHEREAS, the Loan is evidenced by that certain Amended, Restated and Consolidated Promissory Note dated of even date herewith (the “Note”), executed by Borrower and payable to the order of Lender in the stated principal amount of NINETY SEVEN MILLION TWO HUNDRED FIFTY THOUSAND and 00/100 DOLLARS ($97,250,000.00) and is secured by that certain Amended, Restated and Consolidated Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing of even date herewith from Borrower for the benefit of Lender (the “Security Instrument”), encumbering that certain real property known as 564 St. Johns Place, Brooklyn, New York and located at City of New York, County of Kings and State of New York, as is more particularly described on Exhibit A attached hereto and incorporated herein by this reference, together with the buildings, structures and other improvements now or hereafter located thereon (said real property, buildings, structures and other improvements being hereinafter collectively referred to as the “Property”) and by other documents and instruments (the Loan Agreement, the Note, the Security Instrument and such other documents and instruments, as the same may from time to time be amended, consolidated, renewed or replaced, being collectively referred to herein as the “Loan Documents”); and WHEREAS, as a condition to making the Loan, Lender has required that Indemnitor indemnify Lender with respect to hazardous wastes on, in, under or affecting the Property as herein set forth. NOW, THEREFORE, to induce Lender to extend the Loan to Borrower and in consideration of the foregoing premises and for other good and valuable consideration, the 20942425-v4 FILED: KINGS COUNTY CLERK 01/17/2020 09:26 AM INDEX NO. 527036/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/17/2020 receipt and sufficiency of which are hereby acknowledged, Indemnitor hereby covenants and agrees for the benefit of Lender, as follows: 1. Definitions. All capitalized terms used herein and not otherwise defined shall have the meaning ascribed thereto in the Loan Agreement. As used in this Agreement, the following terms shall have the following meanings: “Affiliate” means as to any Person, any other Person which directly or indirectly controls, or is controlled by, or is under common control with such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. “Environmental Laws” has the meaning specified in the Loan Agreement. “Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. “Hazardous Materials” has the meaning specified in the Loan Agreement. “Indemnified Parties” means (a) Lender, (b) each Person who has been, is or will be involved in the origination of the Loan, (c) each Person who is or will be involved in the servicing of the Loan, (d) each Person in whose name the security interest created by the Security Instrument is or will be recorded, (e) each Person who holds or acquires or will hold or acquire a full or partial interest in the Loan, including investors or prospective investors in the Loan, (f) each custodian, trustee and other fiduciary who has held, holds or will hold a full or partial interest in the Loan for the benefit of third parties, (g) each director, officer, shareholder, member, partner, employee, agent, servant, representative, contractor, subcontractor, Affiliate, subsidiary, participant, successor and assign of any and all of the foregoing Persons, including any other Person who holds or acquires or will hold a participation or other full or partial interest in such Loan, whether during the term of the Loan or as a part of or following a foreclosure of the Loan, and (h) each successor and assign of each of the parties specified above in this definition, including any successors or assigns by merger, consolidation or acquisition of all or substantially all of the assets or business of any such party. “Losses” means any and all losses, costs and expenses incurred by Lender in respect of or as a result of any or all claims, suits, liabilities (including strict liabilities), actions, demands, proceedings, obligations, debts, damages (including punitive and consequential damages), fines, trials, penalties, charges, diminution of property value, injury to a person, property or natural resources, Remedial Work, fees, judgments, accounts, orders, adjudications, awards, Liens, injunctive relief, causes of action or amounts paid in settlement of whatever kind or nature, including reasonable attorneys’ fees and all fees of experts, including engineers and environmental consultants, and other costs of defense or otherwise related thereto. “Mold” has the meaning specified in the Loan Agreement. 2 20942425-v4 FILED: KINGS COUNTY CLERK 01/17/2020 09:26 AM INDEX NO. 527036/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/17/2020 “Person” means an individual, partnership (including a limited liability partnership), corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature. “Release” has the meaning specified in the Loan Agreement. “Remedial Work” means investigation, inspection, site monitoring, containment, clean- up, removal, response, corrective action, mitigation, restoration or other remedial work of any kind or nature because of, or in connection with, the current or future presence, suspected presence, Release or threatened Release in or about the air, soil, ground water, surface water or soil vapor at, on, about, under or within all or any portion of the Property of any Hazardous Materials, including any action to comply with any Environmental Laws or directives of any Governmental Authority with regard to any Environmental Laws. 2. Indemnity. Indemnitor covenants and agrees, at Indemnitor’s sole cost and expense, to protect, indemnify, defend (at trial and appellate levels, and with attorneys, consultants and experts reasonably acceptable to Lender), release and hold harmless each Indemnified Party from and against any and all Losses which may at any time be imposed upon, incurred by or asserted or awarded against such Indemnified Party or the Property, and arising directly or indirectly from or out of, attributable to, relating to, which may accrue out of, or which may result from: (i) the presence, release or threat of release of any Hazardous Materials on, in, under, affecting or threatening to affect all or any portion of the Property or any surrounding areas, regardless of whether or not caused by or within the control of Indemnitor; (ii) the past, present or future violation of any Environmental Laws relating to, affecting or threatening to affect the Property, whether or not caused by or within the control of Indemnitor; (iii) the failure by Indemnitor to comply fully with the terms and conditions of this Agreement; (iv) the breach of any representation or warranty contained in this Agreement; (v) the failure to timely perform any Remedial Work; or (vi) the enforcement of this Agreement, including, without limitation, the cost of assessment, containment and/or removal of any and all Hazardous Materials on and/or from all or any portion of the Property or any surrounding areas, the cost of any actions taken in response to the presence, Release or threat of Release of any Hazardous Materials on, in, under or affecting any portion of the Property or any surrounding areas to prevent or minimize such Release or threat of Release so that it does not migrate or otherwise cause or threaten danger to present or future public health, safety, welfare or the environment, and costs incurred to comply with the Environmental Laws in connection with all or any portion of the Property or any surrounding areas. Each Indemnified Party’s rights under this Section shall survive payment in full of the Obligations and shall be in addition to all other rights of such Indemnified Party under this Agreement, the Security Instrument, the Note and the other Loan Documents. The foregoing indemnity shall specifically not include any such Losses relating to Hazardous Materials which are initially placed on, in or under the property after foreclosure or other taking of title to the Property by Lender. 3 20942425-v4 FILED: KINGS COUNTY CLERK 01/17/2020 09:26 AM INDEX NO. 527036/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/17/2020 3. Representations Regarding Hazardous Materials. Subject to any disclosures contained in that certain Phase I Environmental Site Assessment dated July 24, 2018 prepared by Nova Consulting Group, Inc. with respect to the Property, Indemnitor hereby represents and warrants to and covenants and agrees with Lender, after due inquiry and investigation, as follows: (a) The Property is in full compliance with all Environmental Laws; (b) No Hazardous Materials are located on or have been handled, generated, stored, processed or disposed of on or released or discharged from the Property (including the soil and groundwater beneath the Property) except for those substances used by Borrower in the ordinary course of its business and in compliance with all Environmental Laws; (c) The Property is not subject to any private or governmental Lien or judicial or administrative notice or action relating to Hazardous Materials; (d) There are no existing or closed underground storage tanks or other underground storage receptacles for Hazardous Materials on the Property; (e) Indemnitor has received no notice of, and to the best of Indemnitor’s knowledge and belief, there exists no investigation, action, proceeding or claim by any agency, authority or unit of government or by any third party which could result in any liability, penalty, sanction or judgment under any Environmental Laws with respect to any condition, use or operation of the Property nor does Indemnitor know of any basis for such a claim; (f) Indemnitor has received no notice that, and to the best of Indemnitor’s knowledge and belief, there has been no claim by any party that, any use, operation or condition of the Property has caused any nuisance or any other liability or adverse condition on any other property nor does Indemnitor know of any basis for such a claim; and (g) There are no environmental investigations, studies, audits, reviews or other analysis conducted by or in the possession of Borrower or any of its Affiliates which have not been made available to Lender. 4. Representations. Indemnitor represents and warrants to Lender as follows: (a) No Contravention. The execution, delivery and performance by Indemnitor of this Agreement does not and will not (i) violate any provision of any law, order, writ, judgment, injunction, decree, determination, or award presently in effect applicable to Indemnitor, (ii) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other agreement, lease, or instrument to which Indemnitor is a party or by which Indemnitor or its properties may be bound or affected, or (iii)result in, or require, the creation or imposition of any Lien upon or with respect to any of the properties now owned or hereafter acquired by Indemnitor. (b) Governmental Authority. No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by Indemnitor of this Agreement. 4 20942425-v4 FILED: KINGS COUNTY CLERK 01/17/2020 09:26 AM INDEX NO. 527036/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/17/2020 (c) Legally Enforceable Agreement. This Agreement is the legal, valid and binding obligation of Indemnitor, enforceable against Indemnitor in accordance with its terms, except to the extent that such enforcement may be limited by (i) applicable bankruptcy, insolvency, and other similar laws affecting creditors’ rights generally, or (ii)general equitable principles, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law. (d) Disclosure. Indemnitor has delivered to Lender any and all information known to Indemnitor relating to the environmental condition of the Property, including all Hazardous Materials in, on, within, under, from, near, affecting or emanating from the Property. 5. Covenants of Indemnitor. (a) Indemnitor shall keep or cause the Property to be kept free from Hazardous Materials (except those substances used by Borrower in the ordinary course of its business and in compliance with all Environmental Laws) and in compliance with all Environmental Laws, shall not install or use any underground storage tanks, shall expressly prohibit the use, generation, handling, storage, production, processing and disposal of Hazardous Materials by all tenants of space in the Improvements, and, without limiting the generality of the foregoing, during the term of this Agreement, shall not install in the Improvements or permit to be installed in the Improvements asbestos or any substance containing asbestos. In addition, Indemnitor (i) shall keep the Property free and clear of any Liens imposed pursuant to any Environmental Law, and (ii) shall not permit or suffer any Release in violation of any applicable Environmental Laws. Finally, if Indemnitor is aware that Remedial Work is required, whether as a result of governmental inquiries, governmental audits or otherwise, Indemnitor shall, within thirty (30) days of obtaining such knowledge, or such shorter period of time as may be required under any applicable Environmental Law, commence and thereafter diligently prosecute to completion all such Remedial Work. (b) Indemnitor shall immediately notify Lender should Indemnitor become aware of (A) any Release or threatened Release of Hazardous Materials at, on, under or from the Property, or other potential environmental problem or liability, with respect to the Property, (B) any Lien or filing of Lien, action or notice affecting the Property or Borrower resulting from any violation or alleged violation of any Environmental Law, (C) the institution of any investigation, inquiry or proceeding concerning Borrower or the Property pursuant to any Environmental Law or otherwise relating to Hazardous Materials, or (D) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect in any respect if made at the time of such discovery. Borrower shall also give prompt written notice to Lender: (i) if the Property is in violation of any Environmental Law, (ii) of the presence of Hazardous Materials on or under the Property, except for the use and storage of immaterial amounts of Hazardous Materials at the Property if such use or storage is in connection with the ordinary cleaning and maintenance of the Property and such use and storage is in compliance with all applicable Environmental Laws, (iii) any required or proposed Remedial Work on the Property, (iv) of all claims made or threatened in writing by any Person against Borrower or the Property relating to any loss or injury resulting from any Hazardous Material, (v) of Borrower’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property to be subject to 5 20942425-v4 FILED: KINGS COUNTY CLERK 01/17/2020 09:26 AM INDEX NO. 527036/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/17/2020 any investigation or cleanup pursuant to any Environmental Law, (vi) of Borrower’s receipt of any notice from any Governmental Authority or any other Person relating or pertaining to any Hazardous Materials located or Released in, on, upon, under, near or emanating from the Property, (vii) of any Governmental Authority incurring any cost or expense in connection with the assessment, containment, remediation or removal of any Hazardous Materials located or Released in, on, upon, under, near or emanating from the Property, and (viii) any actual or potential Lien on the Property pursuant to any Environmental Law. Indemnitor shall, promptly and when and as required and regardless of the source of the contamination, at its own expense, take all actions as shall be necessary or advisable for the clean-up of any and all portions of the Property or other affected property, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with all applicable Environmental Laws (and in all events in a manner satisfactory to Lender), and shall further pay or cause to be paid, at no expense to Lender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitor fails to do so, Lender may take or cause to be taken, but shall have no obligation to take or cause to be taken, steps to remove, contain or remediate any Release or threatened Release of Hazardous Materials at the Property or other affected property or otherwise to have the Property brought into conformance with Environmental Laws and any cost incurred in connection therewith shall be included in Losses and shall be paid by Indemnitor in accordance with the terms of Section 6(c) hereof. In furtherance of the foregoing, Indemnitor hereby grants to Lender access to the Property and an irrevocable license to remove any items deemed by Lender to be Hazardous Materials and to do all things Lender shall deem necessary to bring the Property into conformance with Environmental Laws. (c) Upon the request of Lender, at any time and from time to time after the occurrence of a default under this Agreement or the Loan Documents or at such other time as Lender has reasonable grounds to believe that Hazardous Materials are or have been Released, stored or disposed of on or around the Property or that the Property may be in violation of the Environmental Laws, Indemnitor shall provide, at Indemnitor’s sole expense, an environmental site assessment or environmental compliance audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Lender to determine whether there has been a Release or threatened Release of Hazardous Materials at, on, under or from the Property onto adjoining Property and if the Property is in full compliance with Environmental Laws (including asbestos containing materials or lead based paint). If Indemnitor fails to provide such assessment or audit within forty-five (45) days after such request, Lender may order the same, and Indemnitor hereby grants to Lender access to the Property and an irrevocable license to undertake such assessment or audit. The cost of such assessment or audit shall be included in Losses and shall be paid by Indemnitor in accordance with the terms of Section 6(c) hereof. (d) Indemnitor agrees that if prior to the date hereof, or if at any time hereafter, any inspection or audit reveals (or revealed, as applicable) the presence of Mold in the indoor air of the Property at concentrations exceeding ambient air levels or visible Mold on any building materials or surfaces at the Property for which the EPA Mold Guidelines recommends or requires removal thereof by remediation professionals, then, on or before forty-five (45) days 6 20942425-v4 FILED: KINGS COUNTY CLERK 01/17/2020 09:26 AM INDEX NO. 527036/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/17/2020 following (i) the date hereof, if such inspection or audit was made prior to the date hereof or (ii) such inspection or audit, if such inspection or audit is hereafter made, as applicable, Indemnitor shall, at its sole cost and expense, develop and implement, and thereafter diligently and continuously carry out (or cause to be developed and implemented and thereafter diligently and continually to be carried out), an operations, abatement and maintenance plan (the “Mold O&M Plan”) to monitor, maintain and remediate any water filtration and Mold issues affecting the Property, which plan shall be prepared by an expert, and be in form, scope and substance acceptable to Lender and sufficient to cause the Property to comply with all applicable laws and all EPA Mold Guidelines and in accordance with the Mold O&M Plan. If a Mold O&M Plan has been prepared prior to the date hereof, Indemnitor agrees to diligently and continually carry out (or cause to be carried out) the provisions thereof. Compliance with the Mold O&M Plan shall require or be deemed to require, without limitation, the proper preparation and maintenance of all records, papers and forms required under the Environmental Laws. For purposes hereof, “EPA Mold Guidelines” shall mean the guidelines set forth in “Mold Remediation in Schools and Commercial Buildings” prepared by the U.S. Environmental Protection Agency. 6. Indemnification Procedures. (a) If any action shall be brought against any Indemnified Party based upon any of the matters for which such Indemnified Party is indemnified hereunder, the applicable Indemnified Party shall notify Indemnitor in writing thereof and Indemnitor shall promptly assume the defense thereof, including, without limitation, the employment of counsel acceptable to the applicable Indemnified Party and the negotiation of any settlement; provided, however, that any failure of the applicable Indemnified Party to notify Indemnitor of such matter shall not impair or reduce the obligations of Indemnitor hereunder. Indemnified Party shall have the right, at the expense of Indemnitor (which expense shall be included in Losses), to employ separate counsel in any such action and to participate in the defense thereof. In the event Indemnitor shall fail to discharge or undertake to defend the applicable Indemnified Party against any claim, loss or liability for which such Indemnified Party is indemnified hereunder, such Indemnified Party may, at its sole option and election, defend or settle such claim, loss or liability. The liability of Indemnitor to the applicable Indemnified Party hereunder shall be conclusively established by such settlement, provided such settlement is made in good faith, the amount of such liability to include both the settlement consideration and the costs and expenses, including, without limitation reasonable attorneys’ fees and disbursements (together with appellate counsel fees, if any), incurred by such Indemnified Party in effecting such settlement. In such event, such settlement consideration, costs and expenses shall be included in Losses and Indemnitor shall pay the same as hereinafter provided. The applicable Indemnified Party’s good faith in any such settlement shall be conclusively established if the settlement is made on the advice of independent legal counsel for such Indemnified Party. (b) Indemnitor shall not, without the prior written consent of the applicable Indemnified Party: (i) settle or compromise any action, suit, proceeding or claim or consent to the entry of any judgment that does not include as an unconditional term thereof the delivery by the claimant or plaintiff to such Indemnified Party of a full and complete written release of such Indemnified Party (in form, scope and substance satisfactory to such Indemnified Party in its sole discretion) from all liability in respect of such action, suit, proceeding or claim and a dismissal with prejudice of such action, suit, proceeding or claim; or (ii) settle or compromise any action, 7 20942425-v4 FILED: KINGS COUNTY CLERK 01/17/2020 09:26 AM INDEX NO. 527036/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/17/2020 suit, proceeding or claim in any manner that may adversely affect such Indemnified Party or obligate such Indemnified Party to pay any sum or perform any obligation as determined by such Indemnified Party in its sole discretion. (c) All Losses shall be immediately reimbursable to the applicable Indemnified Party when and as incurred and, in the event of any litigation, claim or other proceeding, without any requirement of waiting for the ultimate outcome of such litigation, claim or other proceeding, and Indemnitor shall pay to the applicable Indemnified Party any and all Losses within ten (10) Business Days after written notice from the applicable Indemnified Party itemizing the amounts thereof incurred to the date of such notice. In addition to any other remedy available for the failure of Indemnitor to periodically pay such Losses, such Losses, if not paid within said ten (10) Business Day period, shall bear interest at the Default Rate. 7. Reinstatement of Obligations. If at any time all or any part of any payment made by Indemnitor or received by an Indemnified Party from Indemnitor under or with respect to this Agreement is or must be rescinded or returned for any reason whatsoever (including, but not limited to, the insolvency, bankruptcy or reorganization of either Indemnitor), then the obligations of Indemnitor hereunder shall, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous payment made by Indemnitor, or receipt of payment by such Indemnified Party, and the obligations of Indemnitor hereunder shall continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment by Indemnitor had never been made. 8. Waivers by Indemnitor. To the extent permitted by law, Indemnitor hereby irrevocably and absolutely waives any and all defenses to the performance by Indemnitor of its duties and obligations under this Agreement, including any defense based on any of the following: (a) Any right to require Lender to proceed against any other Person or to proceed against or exhaust any security held by Lender at any time or to pursue any other remedy in Lender’s power or under any other agreement before proceeding against Indemnitor hereunder; (b) Any defense to the payment of the obligations secured by the Security Instrument or the Losses, including those that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) Demand, presentment for payment, notice of nonpayment, protest, notice of protest and all other notices of any kind, or the lack of any thereof, including, without limiting the generality of the foregoing, notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of Lender, any endorser or creditor of any Indemnitor or any other Person whomsoever under this or any other instrument in connection with any obligation or evidence of indebtedness held by Lender; (d) Any defense based upon an election of remedies by Lender; 8 20942425-v4 FILED: KINGS COUNTY CLERK 01/17/2020 09:26 AM INDEX NO. 527036/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/17/2020 (e) Any right or claim of right to cause a marshaling of the assets of any Indemnitor; (f) Any principle or provision of law, statutory or otherwise, which is or might be in conflict with the terms and provisions of this Agreement; (g) Any duty on the part of Lender to disclose to Indemnitor any facts Lender may now or hereafter know about Borrower or the Property, regardless of whether Lender has reason to believe that any such facts materially increase the risk beyond that which Indemnitor intends to assume or has reason to believe that such facts are unknown to Indemnitor or has a reasonable opportunity to communicate such facts to Indemnitor, it being understood and agreed that Indemnitor is fully responsible for being and keeping informed of the condition of Borrower and the Property and of any and all circumstances bearing on the risk that liability may be incurred by Indemnitor hereunder; (h) Any lack of notice of disposition or of manner of disposition of any collateral for the Loan; (i) Any invalidity, irregularity or unenforceability, in whole or in part, of any one or more of the Loan Documents; (j) Any lack of commercial reasonableness in dealing with the collateral for the Loan; (k) Any deficiencies in the collateral for the Loan or any deficiency in the ability of Lender to collect or to obtain performance from any Persons now or hereafter liable for the payment and performance of any obligations under this Agreement; (l) An assertion or claim that the automatic stay provided by 11 U.S.C. §362 (arising upon the voluntary or involuntary bankruptcy proceeding of Borrower) or any other stay provided under any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of Lender to enforce any of its rights, whether now or hereafter required, which Lender may have against Indemnitor or the collateral for the Loan; (m) Any modifications of the Loan Documents or any obligation of Borrower relating to the Loan by operation of law or by action of any court, whether pursuant to the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or otherwise; and (n) Any action, occurrence, event or matter consented to by Indemnitor under Section 8(h) hereof, under any other provision hereof, or otherwise. 9 20942425-v4 FILED: KINGS COUNTY CLERK 01/17/2020 09:26 AM INDEX NO. 527036/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/17/2020 9. Waiver of Notices. Indemnitor hereby waives any and all notices including (a) notice of or proof of reliance by any Indemnified Party upon this Agreement or acceptance of this Agreement, (b) notice of any actions taken by Lender or Borrower or any other Person under any Loan Document, and (c) notices of nonpayment or nonperformance, protest, notices of protest and notices of dishonor. 10. General Provisions. (a) Fully Recourse. All of the terms and provisions of this Agreement are recourse obligations of Indemnitor and not restricted by any limitation on personal liability. (b) Unsecured Obligations. Indemnitor hereby acknowledges that Lender’s appraisal of the Property is such that Lender is not willing to accept the consequences of the inclusion of Indemnitor’s indemnity set forth herein among the obligations secured by the Security Instrument and the other Loan Documents and that Lender would not make the Loan but for the unsecured personal liability undertaken by Indemnitor herein. Indemnitor further hereby acknowledges that even though the representations, warranties, covenants or agreements of Indemnitor contained herein may be identical or substantially similar to representations, warranties, covenants or agreements of Borrower set forth in the Security Instrument and secured thereby, the obligations of Indemnitor under this Agreement are not secured by the Lien of the Security Instrument or the security interests or other collateral described in the Security Instrument or the other Loan Documents, it being the intent of Lender to create separate obligations of Indemnitor hereunder which can be enforced against Indemnitor without regard to the existence of the Security Instrument or other Loan Documents or the Liens or security interests created therein. (c) Survival. This Agreement shall be deemed to be continuing in nature and shall remain in full force and effect and shall survive the payment of the indebtedness evidenced and secured by the Loan Documents and the exercise of any remedy by Lender under the Loan Agreement, the Security Instrument or any of the other Loan Documents, including, without limitation, any foreclosure or deed in lieu thereof, even if, as a part of such remedy, the Loan is paid or satisfied in full.