CERTIFICATE AND INDEMNITY AGREEMENT
REGARDING HAZARDOUS SUBSTANCES
(Oregon)
In connection with and as partial consideration for the making of a loan (the "Loan") in
the amount of $_______________, by ______________________________, a
_______________ ("Lender"), to ______________________________ ("Borrower"), which
loan is guaranteed by ______________________________ ("Guarantors"), Borrower and
Guarantors hereby certify to Lender and agree as follows:
1.
Borrower and Guarantors have no knowledge after due investigation of (a) the
presence of any "Hazardous Substances" (as defined below) on that certain real property situated
in _______________ County, Oregon, legally described in Exhibit A attached hereto (the
"Property"), or (b) any spills, releases, discharges or disposal of Hazardous Substances that have
occurred or are presently occurring on or onto the Property or any Other Property. As used in
this Certificate and Indemnity, "Other Property" means any property which becomes
contaminated with Hazardous Substances as a result of construction, operations or other
activities on, or the contamination of, the Property.
2.
In connection with the construction on or operation and use of the Property,
Borrower and Guarantors represent for themselves, their contractors, and any other of their
agents, that, as of the date of this Certificate and Indemnity, they have no knowledge after due
investigation of any failure to comply with all applicable local, state and federal environmental
laws, regulations, ordinances and administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal of any Hazardous Substances.
3.
Borrower and Guarantors represent and warrant to Lender that they have duly
investigated the present and past uses of the Property and have made due inquiry of the
appropriate governmental agencies and offices having jurisdiction over the Property and the laws
regulating the environment, as to whether the Property or any property in the immediate vicinity
of the Property is or has been the site of storage of or contamination by any Hazardous
Substances. Upon Lender's request, Borrower and Guarantors will provide Lender with a
summary of their investigations and copies of all inquiries and responses.
4.
Borrower and Guarantors represent and warrant to Lender that they have given no
release or waiver of liability that would waive or impair any claim based on Hazardous
Substances to a previous owner of the Property or to any party who may be potentially
responsible for the presence of Hazardous Substances on the Property, and that they have made
no promises of indemnification regarding Hazardous Substances to any party.
KOLER & FITZSIMMONS, P.S.
Law Offices
www.kflawoffices.org
Seattle, WA
(206) 621-6440
rand@kfwlaw.com
Los Angeles, CA
(310) 455-7878
eve@kfwlaw.com
5.
Borrower and Guarantors agree immediately to notify Lender if Borrower or
Guarantors become aware of (a) any Hazardous Substances or other environmental problem or
liability with respect to the Property or any Other Property, or (b) any lien, action or notice
resulting from violation of any of the laws, regulations, ordinances or orders described in
Paragraph 2 above. At their own cost, Borrower and Guarantors will take all actions which are
necessary or desirable to clean up any Hazardous Substances affecting the Property, including
removal, containment or any other remedial action required by applicable governmental
authorities.
6.
Borrower and Guarantors shall indemnify and hold Lender harmless from and
against any and all claims, demands, damages, losses, liens, liabilities, penalties, fines, lawsuits
and other proceedings and costs and expenses (including attorney fees and disbursements),
which accrue to or are incurred by Lender on or after transfer of the Property pursuant to
foreclosure proceedings, a deed in lieu of foreclosure, or otherwise, and arise directly or
indirectly from or out of, or are in any way connected with (a) the inaccuracy of the certifications
contained herein, (b) any activities on the Property during Borrower's or Guarantors' ownership,
possession or control of the Property which directly or indirectly result in the Property or any
Other Property becoming contaminated with Hazardous Substances and (c) the discovery and/or
cleanup of Hazardous Substances which were deposited on or were existing on the Property or
any Other Property prior to such a transfer. Borrower and Guarantors will be solely responsible
for all costs and expenses relating to the cleanup of Hazardous Substances from the Property or
from any Other Property as between Borrower, Guarantors and Lender.
7.
Borrower's and Guarantors' obligations under this Certificate and Indemnity are
unconditional and shall not be limited by any nonrecourse or other limitations of liability
provided for in any document relating to the Loan ("Loan Documents"). The representations,
warranties and covenants of Borrower and Guarantors set forth in this Certificate and Indemnity
(including without limitation the indemnity provided for in Paragraph 6 above) are (a) separate
and distinct obligations from Borrower's and Guarantors' obligations under the Loan and the
other Loan Documents evidencing and securing the Loan, (b) not secured by the deed of trust
and other security documents securing the Loan and shall not be discharged or satisfied by any
foreclosure of the liens created by such deed of trust or other security documents, and (c) shall
continue in effect after any transfer of the Property, including without limitation transfers
pursuant to foreclosure proceedings (whether judicial or nonjudicial) or by deed in lieu of
foreclosure.
8.
As used in this Certificate and Indemnity, "Hazardous Substances" shall mean:
any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic
material, a hazardous, toxic or radioactive substance, or other similar term, by any federal, state
or local statute, regulation, or ordinance presently in effect or that may be promulgated in the
future, as such statutes, regulations and ordinances may be amended from time to time, including
but not limited to the statutes listed below:
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Federal Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et
seq.
Federal Comprehensive Environmental Response, Compensation, and Liability Act of
1980, 42 U.S.C. Section 9601 et seq.
Federal Clean Air Act, 42 U.S.C. Sections 7401-7626.
Federal Water Pollution Control Act, Federal Clean Water Act of 1977, 33 U.S.C.
Section 1251 et seq.
Federal Insecticide, Fungicide, and Rodenticide Act, Federal Pesticide Act of 1978, 7
U.S.C. Section 13 et seq.
Federal Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.
Federal Safe Drinking Water Act, 42 U.S.C. Section 300(f) et seq.
Hazardous Substances, Radiation Sources, ORS §§453.01 et seq.
Solid Waste Control, ORS §§459.005 et seq.
Hazardous Waste and Hazardous Materials, ORS §§ 466.005 et seq.
Pollution Control, ORS §§ 468.005 et seq.
Oregon Drinking Water Quality Act, ORS §§ 448.115 et seq.
Ground Water Act of 1955, ORS §§ 537.505 et seq.
9.
This Certificate and Indemnity shall be binding upon and inure to the benefit of
Lender, Borrower and Guarantors and their respective heirs, representatives, successors and
assigns. In any suit, action or appeal therefrom to enforce or interpret this Certificate and
Indemnity, the prevailing party shall be entitled to recover its costs incurred therein, including
attorney fees and disbursements.
10.
Oregon law shall control as to the rights, duties, liabilities and obligations of the
parties under this Certificate and Indemnity. Federal law shall control as to federal
environmental laws and regulations affecting the Property. The rights, duties, liabilities, and
obligations of the parties with respect to the Property shall be governed by Oregon law. It is the
intent of the parties that, to the fullest extent allowable by law, the laws of the State of Oregon
shall apply to the transaction of which this Certificate and Indemnity is a part.
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11.
This Certificate and Indemnity may be executed in counterparts, each of which
shall be deemed an original, and all of which when executed and delivered shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, Borrower and Guarantors have executed this Certificate and
Indemnity as of this _____ day of _______________, 20__.
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