Contract analysis

Section 1.1 — Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the Mezzanine Loan Agreement. (a) "Agreement" means this Environmental Indemnity Agreement, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance

Section 1.2 — Rules of Construction. The rules of construction set forth in the Mezzanine Loan Agreement are hereby incorporated by reference into this Agreement, mutatis mutandis, as if set forth herein in their entirety. In addition, and without limiting the generality of the foregoing: (a) The singular shall include the plural, and the plural shall include the singular, as the context may require. (b) The word "in

ARTICLE 2 — REPRESENTATIONS AND WARRANTIES

Section 2.1 — Environmental Representations. Indemnitor and Guarantor, jointly and severally, hereby represent and warrant to Indemnitee as of the date hereof, and such representations and warranties shall be deemed remade as of each date that Indemnitor delivers an environmental compliance certificate to Indemnitee pursuant to the Mezzanine Loan Agreement, as follows: (a) Except as specifically disclosed in the Phas

Section 2.2 — Survival of Representations and Warranties. All representations and warranties made by Indemnitor and Guarantor in this Article 2 shall survive the closing of the Mezzanine Loan and the execution and delivery of the Mezzanine Loan Documents and shall continue in full force and effect until the Survival Termination Date as defined in Section 7.2 hereof, subject to the provisions of Section 7.2 regarding

Section 3.1 — Compliance with Environmental Laws. Indemnitor and Guarantor shall cause Mortgage Borrower and any lessee, sublessee, tenant, subtenant, licensee, operator, or occupant of the Property to comply with all applicable Environmental Laws in all material respects at all times during the term of the Mezzanine Loan and thereafter until the Survival Termination Date. Without limiting the generality of the foreg

Section 3.2 — Prohibition on Hazardous Materials. Indemnitor shall not, and shall cause Mortgage Borrower and each tenant, subtenant, licensee, operator, manager, and occupant of the Property not to, cause or permit any Hazardous Materials to be generated, manufactured, produced, refined, used, stored, treated, handled, transported, released, discharged, emitted, or disposed of on, under, in, or about the Property or

Section 3.3 — Notice of Environmental Conditions. Indemnitor and Guarantor shall promptly, and in no event later than five (5) business days after obtaining knowledge thereof, notify Indemnitee in writing of any of the following: (a) The discovery of any Hazardous Materials on, at, in, under, or about the Property that were not previously disclosed to Indemnitee in the Phase I ESA, in Exhibit C hereto, or in any prio

Section 3.4 — Remediation Obligations. If any Release of Hazardous Materials occurs at, on, under, from, or migrating to or from the Property, or if any violation of Environmental Laws exists or occurs with respect to the Property, Indemnitor and Guarantor shall, at their sole cost and expense, promptly commence and diligently prosecute to completion all Remediation necessary to (a) restore the Property to full compl

Section 3.5 — No Environmental Liens. Indemnitor shall not permit any Environmental Liens to be filed, recorded, or otherwise imposed against the Property or any portion thereof. If any Environmental Lien is filed, recorded, or otherwise imposed against the Property, Indemnitor shall, at its sole cost and expense, cause such Environmental Lien to be fully discharged, released, bonded over, or otherwise removed from t

Section 3.6 — Access for Environmental Inspections. Indemnitor and Guarantor shall provide Indemnitee and its agents, representatives, consultants, and contractors with access to the Property for the purpose of conducting environmental inspections, assessments, sampling, testing, monitoring, and investigations at any reasonable time during normal business hours upon not less than three (3) business days' prior writte

Section 3.7 — Additional Assessments. Indemnitee shall have the right, at any time and from time to time, to engage environmental consultants selected by Indemnitee to perform additional environmental assessments, investigations, and analyses with respect to the Property, including, without limitation, Phase II Environmental Site Assessments, soil and groundwater sampling, vapor intrusion assessments, and indoor air

Section 3.8 — Construction Period Environmental Compliance. During the construction of improvements on the Property (the "Construction Period"), Indemnitor shall, and shall cause Mortgage Borrower and the general contractor for the construction project, Cobalt Construction Group, Inc. (the "General Contractor"), and all subcontractors, material suppliers, and other persons performing work at the Property to: (a) Comp

Section 3.9 — Environmental Insurance. Indemnitor shall maintain, or cause to be maintained, environmental impairment liability insurance and/or pollution legal liability insurance, in such amounts, with such coverages, deductibles, retentions, and from such insurers, as required under the Mezzanine Loan Agreement. Such insurance policies shall name Indemnitee as an additional insured and/or loss payee, as applicable

Section 4.1 — General Indemnification. Indemnitor and Guarantor, jointly and severally, shall indemnify, defend (with counsel reasonably acceptable to Indemnitee), protect, and hold harmless each of the Indemnified Parties from and against any and all Losses arising out of, relating to, resulting from, or in any way connected with any of the following: (a) The presence, Release, threatened Release, generation, use, s

Section 4.2 — Full Recourse; Not Limited by Mezzanine Loan Documents. THE OBLIGATIONS OF INDEMNITOR AND GUARANTOR UNDER THIS AGREEMENT ARE FULL RECOURSE, PERSONAL, AND UNLIMITED OBLIGATIONS OF EACH OF INDEMNITOR AND GUARANTOR. Such obligations are not limited to, collateralized by, or payable solely from the Pledged Collateral, the Property, or any other collateral securing the Mezzanine Loan. The obligations of Inde

Section 4.3 — Independent Obligations. The obligations of Indemnitor and Guarantor under this Agreement are independent of, separate from, and in addition to any obligations of Indemnitor, Guarantor, or Mortgage Borrower under the Mezzanine Loan Agreement, the Pledge Agreement, any guaranty (including any non-recourse carve-out guaranty or payment guaranty), or any other Mezzanine Loan Document. Indemnitee may pursue

Section 4.4 — Defense of Environmental Claims. (a) If any Indemnified Party receives notice of any Environmental Claim or any threatened Environmental Claim, Indemnitee shall give Indemnitor and Guarantor prompt written notice thereof; provided, however, that the failure or delay by Indemnitee to give such notice shall not relieve Indemnitor or Guarantor of any obligation hereunder except to the extent that Indemnito

Section 4.5 — Subrogation. Following the full and indefeasible satisfaction of all of Indemnitor's and Guarantor's obligations under this Agreement with respect to any particular Environmental Claim or Losses, Indemnitor and Guarantor shall, to the extent permitted by applicable law, be subrogated to any rights of the Indemnified Parties to seek recovery, contribution, or reimbursement from any third parties responsi

Section 4.6 — Duty to Mitigate. Indemnitee shall use commercially reasonable efforts to mitigate Losses incurred in connection with any Environmental Claim or any condition giving rise to indemnification obligations under this Agreement; provided, however, that (a) no failure by Indemnitee to mitigate Losses shall reduce, eliminate, or otherwise affect the obligations of Indemnitor and Guarantor under this Agreement,

ARTICLE 5 — GUARANTOR PROVISIONS

Section 5.1 — Guarantor's Obligation. Guarantor's obligations under this Agreement are primary and not secondary. Guarantor is a direct obligor and not merely a surety, and Guarantor is jointly and severally liable with Indemnitor for all obligations arising under this Agreement. Indemnitee may proceed directly against Guarantor without first proceeding against Indemnitor or any other party, and without first resorti

Section 5.2 — Waivers by Guarantor. Guarantor hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law: (a) Notice of acceptance of this Agreement by Indemnitee or any Indemnified Party; (b) Presentment, demand for payment or performance, protest, notice of protest, notice of dishonor, notice of nonpayment or nonperformance, and all other notices and demands of any kind whatsoe

Section 5.3 — Consents of Guarantor. Guarantor hereby consents and agrees that Indemnitee may, at any time and from time to time, without notice to, demand upon, or consent of Guarantor, and without affecting, impairing, or releasing the liability of Guarantor under this Agreement: (a) modify, amend, supplement, extend, renew, restate, replace, or waive compliance with any term, provision, or condition of this Agreem

Section 5.4 — Guarantor Financial Condition and Independent Investigation. Guarantor represents and warrants to Indemnitee that (a) Guarantor has independently and without reliance upon Indemnitee or any of its agents, representatives, or advisors, conducted its own investigation of, and is fully familiar with, the environmental condition of the Property, and Guarantor has not relied upon Indemnitee's evaluation or a

Section 5.5 — Reinstatement. If at any time any payment or performance made by Indemnitor, Guarantor, or any other party in respect of any obligation under this Agreement is rescinded, avoided, set aside, invalidated, declared to be fraudulent or preferential, or must be returned, refunded, or disgorged for any reason whatsoever, including, without limitation, by reason of any judgment, order, or decree of any court

ARTICLE 6 — RELATIONSHIP TO SENIOR ENVIRONMENTAL INDEMNITY

Section 6.1 — Acknowledgment of Senior Environmental Indemnity. Indemnitor and Guarantor acknowledge the existence of the Senior Environmental Indemnity of even date herewith, executed and delivered by Mortgage Borrower and Guarantor in favor of Ironclad National Bank, N.A., as Senior Agent, in connection with the Senior Mortgage Loan. Indemnitor and Guarantor acknowledge and agree that the obligations of Indemnitor

Section 6.2 — No Double Recovery. Notwithstanding any provision of this Agreement to the contrary, Indemnitee shall not be entitled to recover any amount under this Agreement to the extent that such amount constitutes a duplication of recovery for the same Losses that have been actually and irrevocably recovered by Indemnitee from the same Indemnitor and/or Guarantor under the Senior Environmental Indemnity or any ot

Section 6.3 — Intercreditor Agreement. The rights of Indemnitee under this Agreement are subject to the terms and provisions of the Intercreditor Agreement of even date herewith among Indemnitee, Ironclad National Bank, N.A., as Senior Agent, and such other parties as may be signatories thereto. Indemnitee's rights under this Agreement may be affected by the terms and provisions of the Intercreditor Agreement, includ

ARTICLE 7 — SURVIVAL; TERMINATION

Section 7.1 — Survival. The obligations of Indemnitor and Guarantor under this Agreement, including, without limitation, all indemnification, defense, and hold-harmless obligations set forth in Article 4, all obligations with respect to representations and warranties set forth in Article 2, and all covenants set forth in Article 3, shall survive and continue in full force and effect notwithstanding: (a) The repayment

Section 7.2 — Survival Termination Date. The obligations of Indemnitor and Guarantor under this Agreement shall survive until the date (the "Survival Termination Date") that is the later of: (a) the date that is three (3) years after the date of the indefeasible repayment and satisfaction in full of all amounts owing under the Mezzanine Loan and all other Mezzanine Loan Documents; and (b) the expiration of the applic

Section 8.1 — Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any conflicts-of-law principles that would result in the application of the laws of any other jurisdiction; provided, however, that Sections 5-1401 and 5-1402 of the New York General Obligations Law (and any successor provisions thereto) shall apply to this Agreement.

Section 8.2 — Jurisdiction; Venue. Each of Indemnitor and Guarantor hereby irrevocably and unconditionally submits to the exclusive jurisdiction of (a) the courts of the State of New York sitting in the County of New York (including the Supreme Court of the State of New York, New York County, and the Appellate Division of the Supreme Court of the State of New York, First Department) and (b) the United States District

Section 8.3 — Waiver of Jury Trial. EACH OF INDEMNITOR, GUARANTOR, AND INDEMNITEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT T