|
<br />,
<br />
<br />,
<br />'<.
<br />
<br />200707800
<br />
<br />Loan No: 801648
<br />
<br />HAZARDOUS SUBSTANCES AGREEMENT
<br />· ' {Continued}
<br />
<br />Page 2
<br />
<br />possession or. to which it has access relating to Hazardous Substances or Environmental Laws and the Property and the operations
<br />conducted on the Property, including without limitation results of laboratory analyses, site assessments or studies, environmental audit
<br />reports and other consultants' studies and reports.
<br />
<br />Inspections. Lender reserves the right to inspect and investigate the Property and operations on it at any time and from time to time,
<br />and Indemnitor shall cooperate fully with Lender in such inspection and investigations. If Lender at any time has reason to believe that
<br />Indemnitor or any Occupants of the Property are not complying with all applicable Environmental Laws or with the requirements of this
<br />Agreement or that a material spill, release or disposal of Hazardous Substances has occurred on or under the Property, Lender may
<br />require Indemnitor to furnish Lender at Indemnitor's expense an environmental audit or a site assessment with respect to the matters
<br />of concern to Lender. Such audit or assessment shall be performed by a Qualified consultant approved by Lender. Any inspe<;tions or
<br />tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part
<br />of Lender to any Indemnitor or to any other person.
<br />
<br />INDEMNITOR'S WAIVER AND INDEMNIFICATION. Indemnitor hereby agrees to and shall indemnify, defend, and hold harmless Lender and
<br />Lender's officers, directors, employees and agents, and Lender's successors and assigns and their officers, directors, employees and
<br />agents from and against any and all claims, demands, losses, liabilities, costs, fines, penalties and expenses (including without limitation
<br />attorneys' fees at trial and on any appeal or petition for review, consultants' fees, remedial action costs, natural resource damages and
<br />diminution in value) incurred by such person (a) arising out of or relating to any investigatory or remedial action involving the Property, the
<br />operetions conducted on the Property, or any other operations of Indemnitor or any Occupant and required by Environmental Laws or by
<br />orders of any governmental authority having jurisdiction under any Environmental Laws, including without limitation any natural resource
<br />damages, or (b) arising out of or related to any noncompliance with or violation of Environmental Laws or any applicable permits or
<br />approvals, or (c) on account of injury to Lender or any person whatsoever or damage to any property arising out of, in connection with, or
<br />in any way relating to 0) the breach of any covenent, representation or warranty contained in this Agreement, (ii) the violation of any
<br />Environmental Laws, permits, authorizations or approvals, (iii) the use, treatment, storage, generation, manufacture, transport, release,
<br />spill, disposal or other handling of Hazardous Substances on the Property, or (iv) the contamination of any of the Property by, or the
<br />presence, release or threatened release of, Hatardous Substances by any means whatsoever (explicitly including without limitation any
<br />presently existing contamination of the Property, whether or not previously disclosed to Lender), or (d) pursuant to this Agreement.
<br />Indemnitor's obligations under this section shall survive the termination of this Agreement and as set forth below in the Survival section. In
<br />addition to this indemnity, Indemnitor hereby releases and waives all present and future claims against Lender for indemnity or contribution
<br />in the event Indemnitor becomes liable for cleanup or other costs under any Environmental Laws.
<br />
<br />PAYMENT: FULL RECOURSE TO INDEMNITOR. Indemnitor intends that Lender shall have full recourse to Indemnitor for Indemnitor's
<br />obligations under this Agreement as they become due to Lender. Such liabilities, losses, claims, damages and expenses shall be
<br />reimbursable to Lender as Lender's obligations to make payments with respect thereto are incurred, without any requirement of waiting for
<br />the ultimate outcome of any litigation, claim or other proceeding, and Indemnitor shall pay such liability, losses, olaims, damages and
<br />expenses to Lender as so incurred within thirty (30) days after written notice from Lender. Lender's notice shall contain a brief itemization
<br />of the amounts inourred to the date of such notice. In addition to any remedy availabie for failure to pay periodically such amounts, such
<br />amounts shall thereafter bear interest at the Note default rate, or in the absence of a default rate, at the Note interest rate.
<br />
<br />SURVIVAL. The covenants contained in this Agreement shall survive (AI the repayment of the Indebtedness, (B) any foreclosure,
<br />whether judicial or nonjudicial, of the Property, and (C) any delivery of a deed in lieu of foreclosure to Lender or any successor of Lender.
<br />The covenants contained in this Agreement shall be for the benefit of Lender and any successor to Lender, as holder of any security
<br />interest in the Property or the indebtedness secured thereby, or as owner of the Property foliowing foreclosure or the delivery of a deed in
<br />lieu of foreclosure.
<br />
<br />MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement:
<br />
<br />Amendments. This Agreement, together with eny Related Documents, constitutes the entire understanding and agreement of the
<br />parties as to the matters set forth In this Agreement. No alteration of or amendment to this Agreement shall be effective unless given
<br />in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.
<br />
<br />Attorneys' Fees; Expenses. If Lender Institutes any suit or action to enforce any of the terms of this Agreement, Lender shall be
<br />entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeel. Whether or not any
<br />court action is involved, and to the extent not prohibited by law, ell reasonable expenses Lender incurs that in Lender's opinion are
<br />necessary at any time for the protection of its interest or the enforoement of its rights shall become a part of the Indebtedness payable
<br />on demand and shall beer interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph
<br />include, without limitation, however subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses,
<br />whether or not there is a lawsuit, including attorneys' fees end expenses for bankruptcy proceedings (including efforts to modify or
<br />vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching
<br />records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees and title insurance, to the extent
<br />permitted by applicable law. Indemnitor also will pay any court costs, in addition to ell other sums provided by law.
<br />
<br />Caption Headings. Caption headings in this Agreement are for convenience purposes only end are not to be used to interpret or define
<br />the provisions of this Agreement.
<br />
<br />Applicable Law. The Loan secured by this lien was made under a United States Small Business Administration (SBA) nationwide
<br />program which uses tax dollars to assist small business owners. If the United States is seeking to enforce this document, then under
<br />SBA regulations: (al When SBA is the holder of the Note, this document and all documents evidencing or securing this Loan will be
<br />construed in accordance with federal law. (b) Lender or SBA may use local or state procedures for purposes suoh as filing papers,
<br />recording documents, giving notice, foreclosing liens, and other purposes. By using these procedures, SBA does not waive any
<br />federal immunity from local or state control, penalty, tax or liability. No Borrower or Guarantor may claim or assert against SBA any
<br />local or state law to deny any obligation of Borrower, or defeat any claim of SBA with respect to this Loan. Any clause in this
<br />document requiring arbitration is not enforceable when SBA is the holder of the Note secured by this instrument.
<br />
<br />Choice of Venue: If there Is a lawsuit, Indemnitor agrees upon Lender's request to submit to the jurisdiction of the courts of Sarpy
<br />County, State of Nebraska.
<br />
<br />Joint and Several Liability. All obligations of Indemnitor under this Agreement shall be joint and several, and all references to
<br />Indemnitor shall mean each and every Indemnitor. This means that each Indemnitor signing below is responsible for all obligations in
<br />this Agreement.
<br />
<br />No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Agreement unless SUCh waiver is given in
<br />writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such
<br />right or eny other right. A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender's
<br />right otherwise to demand strict compiianoe with that provision or any other provision of this Agreement. No prior waiver by Lender,
<br />nor any course of dealing between Lender and Indemnitor, shall constitute a waiver of any of Lender's rights or of any of Indemnitor's
<br />obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, the granting of such
<br />consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and
<br />in ali cases such oonsent may be granted or withheld in the sole discretion of Lender. Indemnitor hereby waives notice of acceptance
<br />of this Agreement by Lender.
<br />
<br />Notices. Any notice required to be given under this Agreement shall be given in writing, and shall be effective when actually
<br />delivered, when actually reoeived by telefacsimile {unless otherwise required by law), when deposited with a nationally recognized
<br />overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid,
<br />directed to the addresses shown near the beginning of this Agreement. Any party may change its address for notices under this
<br />Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's
<br />address. For notice purposes, Indemnitor agrees to keep Lender informed at all times of Indemnitor's current address. Unless
<br />otherwise provided or required by law, if there is more than one Indemnitor, any notice given by Lender to any Indemnitor is deemed
<br />to be notice given to all indemnitors.
<br />
<br />Severability. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceabie as to any
<br />circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If
<br />
|