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EXHIBIT 10.1(d)
INDEMNITY AGREEMENT
This Indemnity Agreement ("Agreement") is made as of August 6, 1997,
by PACIFIC UNITED, L.P., a Texas limited partnership ("Indemnitor"), in favor
of BANK OF AMERICA TEXAS, N.A. ("Bank").
FACTUAL BACKGROUND
A. Indemnitor is executing this Agreement to induce Bank to make
a term loan (the "Loan") to Indemnitor in the principal amount of Three Million
Six Hundred Seventy-Five Thousand and No/100 Dollars ($3,675,000.00).
B. The Loan is evidenced by a promissory note of even date
herewith (the "Note") made payable to Bank in the principal amount of the Loan.
The Loan is secured by, among other things, a deed of trust covering the real
property located in Dallas County, Texas, described in Exhibit A attached
hereto ("Deed of Trust").
C. Because Bank is making the Loan and obtaining the Deed of
Trust, Bank may potentially become subject to certain costs, risks and
liabilities. Among other things, Bank may become subject to liabilities or
alleged liabilities relating to environmental conditions as an "owner" or
"operator" under applicable environmental law. These costs and liabilities may
arise before or after repayment of the Loan, and before or after foreclosure
under the Deed of Trust. Because these costs and liabilities, if they occur,
will be the result of Bank's agreement to make the Loan, and in consideration
of that agreement, Bank and Indemnitor have agreed as set forth below.
I. DEFINITIONS
In addition to any terms defined elsewhere in this Agreement, as used
in this Agreement:
1.1 "Hazardous Substance" means any substance, material or waste
(including petroleum and petroleum products) which is or becomes designated,
classified or regulated as being "toxic" or "hazardous" or a "pollutants" or
which is or becomes similarly designated, classified or regulated, under any
federal, state or local law, regulation or ordinance.
1.2 "Indemnified Costs" means all actual or threatened
liabilities, claims, actions, causes of action, judgments, orders, damages
(including foreseeable and unforeseeable consequential damages), costs,
expenses, fines, penalties and losses (including sums paid in settlement of
claims and all consultant, expert and legal fees and expenses of Bank's
counsel), including those incurred in connection with any investigation of site
conditions or any clean-up, remedial, removal or restoration work (whether of
the Property, as defined below, or any other property), or any resulting
damages, harm or injuries to the person or property of any third parties or to
any natural resources.
1.3 "Indemnified Parties" means and includes Bank, its parent,
subsidiary and affiliated companies, assignees of any of Bank's interest in the
Loan or the Loan Documents,
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owners of participation or other interests in the Loan or the Loan Documents,
or any of its affiliates, and the officers, directors, employees and agents of
each of them.
1.4 "Loan Documents" means the Note, the Deed of Trust, this
Agreement, and the other documents executed in connection therewith.
1.5 "Property" means all property that is or was at any time
encumbered by the Deed of Trust, which may later include any and all property
previously released from it.
1.6 "Reference-based Rate" means the rate of interest defined as
such in the Note.
II. INDEMNITY AGREEMENT.
2.1 INDEMNITY REGARDING HAZARDOUS SUBSTANCES. Indemnitor
indemnifies, defends and holds the Indemnified Parties harmless from and
against any and all Indemnified Costs directly or indirectly arising out of or
resulting from any Hazardous Substance being present or released in, on or
around any part of the Property, or in the soil, groundwater or soil vapor on
or under the Property, including:
(a) any claim for such Indemnified Costs asserted by any
federal, state or local governmental agency, including the United States
Environmental Protection Agency and the Texas Natural Resource Conservation
Commission, and including any claim that any Indemnified Party is liable for
any such Indemnified Costs as an "owner" or "operator" of the Property under
any law relating to Hazardous Substances; and
(b) any such Indemnified Costs claimed against any
Indemnified Party by any person other than a governmental agency, including any
person who may purchase or lease all or any portion of the Property from
Indemnitor, from any Indemnified Party, or from any other purchaser or lessee;
any person who may at any time have any interest in an or any portion of the
Property; any person who may at any time be responsible for any clean-up costs
or other Indemnified Costs relating to the Property; and any person claiming to
have been injured in any way as a result of exposure to any Hazardous
Substance; and
(c) any such Indemnified Costs which any Indemnified
Party reasonably believes at any time must be incurred to comply with any law,
judgment, order, regulation or regulatory directive relating to Hazardous
Substances, or which any Indemnified Party reasonably believes at any time must
be incurred to protect the public health or safety; and
(d) any such Indemnified Costs resulting from currently
existing conditions in, on or around the Property, whether known or unknown by
Indemnitor or the Indemnified Parties at the time this Agreement is executed,
and any such Indemnified Costs resulting from the activities of Indemnitor,
Indemnitor's tenants, or any other person in, on or around the Property.
2.2 INDEMNITY REGARDING CONSTRUCTION AND OTHER RISKS. Indemnitor
indemnifies, defends and holds the Indemnified Parties harmless from and
against any and all Indemnified Costs directly or indirectly arising out of or
resulting from construction of any improvements on
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the Property, including any defective workmanship or materials; or any failure
to satisfy any requirements of any laws, regulations, ordinances, governmental
policies or standards, reports, subdivision maps or development agreements that
apply or pertain to the Property; or breach of any material representation or
warranty made or given by Indemnitor to any of the Indemnified Parties or to
any prospective or actual buyer of all or any portion of the Property; or any
claim or cause of action of any kind by any party that any Indemnified Party is
liable for any act or omission of Indemnitor or any other person or entity in
connection with the ownership, sale, operation or development of the Property.
2.3 DEFENSE OF INDEMNIFIED PARTIES. Upon demand by any
Indemnified Party, Indemnitor shall defend any investigation, action or
proceeding involving any Indemnified Costs which is brought or commenced
against any Indemnified Party, whether alone or together with Indemnitor or any
other in the person, all at Indemnitor's own cost and by counsel to be approved
by the Indemnified Party exercise of its reasonable judgment. In the
alternative, any Indemnified Party may elect to conduct its own defense at the
reasonable expense of Indemnitor.
2.4 REPRESENTATION AND WARRANTY REGARDING HAZARDOUS SUBSTANCES.
Before signing this Agreement, Indemnitor researched and inquired into the
previous uses and owners of the Property. Based on that due diligence,
Indemnitor represents and warrants that to the best of its knowledge, no
Hazardous Substance has been disposed of or released, or otherwise now exists,
in, on, under or around the Property, except as Indemnitor has disclosed to
Bank in writing, as set forth in that certain Phase I Environmental Site
Assessment delivered to Bank by Indemnitor.
2.5 COMPLIANCE REGARDING HAZARDOUS SUBSTANCES. Indemnitor has
complied, and shall comply and use its best efforts to cause all tenants and
any other persons who may come upon the Property to comply, with all laws,
regulations and ordinances governing or applicable to Hazardous Substances,
including those requiring disclosures to prospective and actual buyers of all
or any portion of the Property. Indemnitor also has complied and shall comply
with the recommendations of any qualified environmental engineer or other
expert which apply or pertain to the Property.
2.6 NOTICES REGARDING HAZARDOUS SUBSTANCES. Indemnitor shall
promptly notify Bank if it knows, suspects or believes there may be any
Hazardous Substance in or around the Property, or in the soil, groundwater or
soil vapor on or under the Property, or that Indemnitor or the Property may be
subject to any threatened or pending investigation by any governmental agency
under any law, regulation or ordinance pertaining to any Hazardous Substance.
2.7 SITE VISITS, OBSERVATIONS AND TESTING. The Indemnified
Parties and their agents and representatives shall have the right at any
reasonable time to enter and visit the Property for the purposes of observing
the Property, taking and removing soil or groundwater samples, and conducting
tests on any part of the Property. The Indemnified Parties have no duty,
however, to visit or observe the Property or to conduct tests, and no site
visit, observation or testing by any Indemnified Party shall impose any
liability on any Indemnified Party. In no event shall any site visit,
observation or testing by any Indemnified Party be a representation that
Hazardous Substances are or are not present in, on or under the Property, or
that there has been or shall be compliance with any law, regulation or
ordinance pertaining to Hazardous Substances or any
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other applicable governmental law. Neither Indemnitor nor any other party is
entitled to rely on any site visit, observation or testing by any Indemnified
Party. The Indemnified Parties owe no duty of care to protect Indemnitor or
any other party against, or to inform Indemnitor or any other party of, any
Hazardous Substances or any other adverse condition affecting the Property.
Any Indemnified Party shall give Indemnitor reasonable notice before entering
the Property. The Indemnified Party shall make reasonable efforts to avoid
interfering with Indemnitor's use of the Property in exercising any rights
provided in this Section.
2.8 COSTS AND EXPENSES. Indemnitor agrees to pay all of the
Indemnified Parties' reasonable costs and expenses, including attorneys' fees,
which may be incurred in any effort to enforce any term of this Agreement,
including all such costs and expenses which may be incurred by any Indemnified
Party in any legal action or arbitration proceeding. From the time(s) incurred
until paid In full to the Indemnified Party, those sums shall bear interest at
the Reference-based Rate.
3. INDEMNITOR'S AGREEMENTS AND WAIVERS.
3.1 RIGHTS OF BANK. Indemnitor authorizes Bank to perform any or
all of the following acts at any time in its sole discretion, all without
notice to Indemnitor and without affecting Indemnitor's obligations under this
Agreement:
(a) [Intentionally omitted].
(b) Bank may take and hold security for the Loan or this
Agreement, accept additional or substituted security for either, and
subordinate, exchange, enforce, waive, release, compromise, and sell or
otherwise dispose of any such security.
(c) Bank may direct the order and manner of any sale of all or any
part of any security now or later to be held for the Loan or this Agreement,
and Bank may also bid at any such sale.
(d) Bank may apply any payments or recoveries from Borrower,
Indemnitor or any other source, and any proceeds of any security, to Borrower's
obligations under the Loan Documents in such manner, order and priority as Bank
may elect.
(e) Bank may release Borrower of its liability for the Loan or any
part of it.
(f) Bank may substitute, add or release any one or more guarantors
or endorsers.
(g) In addition to the Loan, Bank may extend other credit to
Borrower, and may take and hold security for the credit so extended, all
without affecting Indemnitor's liability under this Agreement.
Nothing in this Section 3.1 shall be construed to constitute a consent
by Borrower to any action by Bank not permitted under the terms of the other
Loan Documents or by applicable law.
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3.2 ABSOLUTE INDEMNITY. Indemnitor expressly agrees that until
the Loan is paid in full and all obligations of the Borrower under the Loan
Documents have been fully performed, Indemnitor shall not be released by or
because of:
(a) Any act or event which might otherwise discharge, reduce,
limit or modify Indemnitor's obligations under this Agreement;
(b) Any waiver, extension, modification, forbearance, delay or
other act or omission of Bank, or its failure to proceed promptly or otherwise
as against Borrower, Indemnitor or any security;
(c) Any action, omission or circumstance which might increase the
likelihood that Indemnitor may be called upon to perform under this Agreement
or which might affect the rights or remedies of Indemnitor as against Borrower;
or
(d) Any dealings occurring at any time between Borrower and Bank,
whether relating to the Loan or otherwise.
Indemnitor hereby expressly waives and surrenders an defense to their
liability under this Agreement based upon any of the foregoing acts, omissions,
agreements, waivers or matters. It is the purpose and intent of this Agreement
that the obligations of Indemnitor under it shall be absolute and unconditional
under any and all circumstances.
3.3 INDEMNITOR'S WAIVERS. INDEMNITOR HEREBY WAIVES:
(a) Any right it may have to require Bank to proceed against
Borrower, proceed against or exhaust any security held from Borrower, or pursue
any other remedy in Bank's power to pursue;
(b) Any defense based on any claim that Indemnitor's obligations
exceed or are more burdensome than those of Borrower;
(c) Any defense based on: (i) any legal disability of Borrower,
(ii) any release, discharge, modification, impairment or limitation of the
liability of Borrower to Bank from any cause, whether consented to by Bank or
arising by operation of law or from any bankruptcy or other voluntary or
involuntary proceeding, in or out of court, for the adjustment of
debtor-creditor relationships ("Insolvency Proceeding") and (iii) any rejection
or disaffirmance of the Loan, or any part of it, or any security held for it,
in any such Insolvency Proceeding;
(d) Any defense based on any action taken or omitted by Bank in
any Insolvency Proceeding involving Borrower, including any election to have
Bank's claim allowed as being secured, partially secured or unsecured, any
extension of credit by Bank to Borrower in any Insolvency Proceeding, and the
taking and holding by Bank of any security for any such extension of credit;
(e) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, notices of
intention to accelerate, notices of acceleration,
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notices of acceptance of this Agreement and of the existence, creation, or
incurring of new or additional indebtedness, and demands and notices of every
kind; and
(f) Any defense based on or arising out of any defense that
Borrower may have to the payment or performance of the Loan or any part of it.
3.4 WAIVERS OF SUBROGATION AND OTHER RIGHTS.
(a) Upon a default by Borrower, Bank in its sole discretion,
without prior notice to or consent of Indemnitor, may elect to do any one or
more of the following: W foreclose either judicially or nonjudicially against
any real or personal property security it may hold for the Loan, (ii) accept a
transfer of any such security in lieu of foreclosure, (iii) compromise or
adjust the Loan or any part of it or make any other accommodation with Borrower
or one or more Indemnitor, and/or (iv) exercise any other remedy against
Borrower or any security. No such action by Bank shall release or limit the
liability of Indemnitor, who shall remain liable under this Agreement after the
action, even if the effect of the action is to deprive one or more Indemnitor
of any subrogation rights, rights of indemnity, or other rights to collect
reimbursement from Borrower for any sums paid to Bank, whether contractual or
arising by operation of law or otherwise. Indemnitor expressly agrees that
under no circumstances shall it be deemed to have any right, title, interest or
claim in or to any real or personal property to be held by Bank or any third
party after any foreclosure or transfer in lieu of foreclosure of any security
for the Loan.
(b) Regardless of whether Indemnitor may have made any payments to
Bank under this Agreement, until the Loan and all obligations under this
Agreement have been paid and performed in full, Indemnitor waives: G) all
rights of subrogation, all rights of indemnity, and any other rights to collect
reimbursement from Borrower for any sums paid to Bank under this Agreement,
whether contractual or arising by operation of law (including the United States
Bankruptcy Code or any successor or similar statute) or otherwise, Gi) all
rights to enforce any remedy that Bank may have against Borrower, and (iii) all
rights to participate in any security now or later to be held by Bank for the
Loan. Further, Indemnitor expressly waives each and every right, if any, to
which it may be entitled by virtue of the suretyship law of the State of Texas,
including without limitation, any rights pursuant to Rule 31, Texas Rules of
Civil Procedure, Articles 1986 and 1987, Revised Civil Statutes of Texas and
Chapter 34 of the Texas Business and Commerce Code.
3.5 REVIVAL AND REINSTATEMENT. If Bank is required to pay, return
or restore to Borrower or any other person any amounts previously paid on the
Loan because of any Insolvency Proceeding of Borrower, any stop notice or any
other reason, the obligations of each Indemnitor shall be reinstated and
revived and the rights of Bank shall continue with regard to such amounts, all
as though they had never been paid.
3.6 REPRESENTATION AND WARRANTY REGARDING HAZARDOUS SUBSTANCES.
Before signing this Agreement, Indemnitor researched and inquired into the
previous uses and owners of the Property. Based on that due diligence,
Indemnitor represents and warrants that to the best of its knowledge, no
Hazardous Substance has been disposed of or released, or otherwise now exists,
in, on, under or around the Property, except as Indemnitor has disclosed to
Bank in
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writing as set forth in that certain Phase I Environmental Site Assessment
delivered to Bank by Indemnitor.
3.7 COMPLIANCE REGARDING HAZARDOUS SUBSTANCES. Indemnitor has
complied, and shall comply and shall use its best efforts to cause all tenants
and any other persons who May come upon the Property to comply, with all laws,
regulations and ordinances governing or applicable to Hazardous Substances,
including those requiring disclosures to prospective and actual buyers of all
or any portion of the Property. Indemnitor also has complied and shall comply
with the recommendations of any qualified environmental engineer or other
expert which apply or pertain to the Property.
3.8 NOTICES REGARDING HAZARDOUS SUBSTANCES. Indemnitor shall
promptly notify Bank if it knows, suspects or believes there may be any
Hazardous Substance in or around the Property, or in the soil, groundwater or
soil vapor on or under the Property, or that Indemnitor or the Property may be
subject to any threatened or pending investigation by any governmental agency
under any law, regulation or ordinance pertaining to any Hazardous Substance.
3.9 SITE VISITS, OBSERVATIONS AND TESTING. The Indemnified
Parties and their agents and representatives shall have the right at any
reasonable time to enter and visit the Property for the purposes of observing
the Property, taking and removing soil or groundwater samples, and conducting
tests on any part of the Property. The Indemnified Parties have no duty,
however, to visit or observe the Property or to conduct tests, and no site
visit, observation or testing by any Indemnified Party shall impose any
liability on any Indemnified Party. In no event shall any site visit,
observation or testing by any Indemnified Party be a representation that
Hazardous Substances are or are not present in, on or under the Property, or
that there has been or shall be compliance with any law, regulation or
ordinance pertaining to Hazardous Substances or any other applicable
governmental law. Neither Indemnitor nor any other party is entitled to rely
on any site visit, observation or testing by any Indemnified Party. The
Indemnified Parties owe no duty of care to protect Indemnitor or any other
party against, or to inform Indemnitor or any other party of, any Hazardous
Substances or any other adverse condition affecting the Property. Any
Indemnified Party shall give Indemnitor reasonable notice before entering the
Property. The Indemnified Party shall make reasonable efforts to avoid
interfering with Indemnitor's use of the Property in exercising any rights
provided in this Section.
3.10 COSTS AND EXPENSES. Indemnitor agrees to pay all of the
Indemnified Parties' reasonable costs and expenses, including attorneys' fees,
which may be incurred in any effort to enforce any term of this Agreement,
including all such costs and expenses which may be incurred by any Indemnified
Party in any legal action or arbitration proceeding. From the time(s) incurred
until paid in full to the Indemnified Party, those sums shall bear interest at
the Reference-based Rate.
3.11 REPRESENTATIONS AND WARRANTIES. Indemnitor represents and
warrants that:
(a) All financial statements and other financial
information furnished or to be furnished to Bank are or will be true and
correct and do or will fairly represent the financial condition of such
Indemnitor (including all contingent liabilities);
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(b) All financial statements of Indemnitor were or will
be prepared in accordance with sound accounting principles, consistently
applied; and
(c) There has been no material adverse change in
Indemnitor's financial condition since the dates of the statements most
recently furnished to Bank.
3.12 ADDITIONAL AND INDEPENDENT OBLIGATIONS. Indemnitor's
obligations under this Agreement are in addition to Indemnitor's obligations
under any other existing or future agreements or guaranties, each of which
shall remain in full force and effect until it is expressly modified or
released in a writing signed by Bank. Indemnitor's obligations under this
Agreement are independent of any other indemnity obligations of Indemnitor
under the Loan Documents, and any indemnity agreements signed by Indemnitor as
Borrower. Bank may bring a separate action, or commence a separate arbitration
proceeding against Indemnitor without first proceeding against any other party
liable under the Loan Documents or any other person or any security that Bank
may hold, and without pursuing any other remedy. Bank's rights under this
Agreement shall not be exhausted by any action by Bank until the Loan has been
paid and performed in full.
3.13 NO RELEASE, SURVIVAL. Indemnitor shall not be released from
his or its obligations under this Agreement except by a writing signed by Bank.
Indemnitor's liability under this Agreement shall not terminate upon the
payment in full of the Loin or upon the release, foreclosure or other
termination of the Deed of Trust, but will survive the payment in full of the
indebtedness secured by the Deed of Trust, foreclosure of the Deed of Trust or
conveyance in lieu of foreclosure, the release or termination of the Deed of
Trust and any and all of the other Loan Documents, any bankruptcy or other
debtor relief proceeding, and any other event whatsoever.
3.14 CONSIDERATION. Indemnitor acknowledges that it expects to
benefit from Bank's extension of the Loan, and that Indemnitor is executing
this Agreement in consideration of that anticipated benefit.
IV. GENERAL PROVISIONS
4.1 EVENTS OF DEFAULT. Bank may declare Indemnitor to be in
default under this Agreement upon the occurrence of any of the following events
and ten (10) days period to cure ("Events of Default"):
(a) Indemnitor fails to perform any of its obligations
under this Agreement; or
(b) Indemnitor revokes this Agreement or this Agreement
becomes ineffective for any reason.
4.2 RESERVATION OF OTHER RIGHTS AND REMEDIES. Nothing in this
Agreement shall be construed to limit any claim or right which any Indemnified
Party may otherwise have at any time against Indemnitor or any other person
arising from any source other than this Agreement, including any claim for
fraud, misrepresentation, waste or breach of contract other than this
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Agreement, and any rights of contribution or indemnity under federal or state
environmental law or any other applicable law, regulation or ordinance.
4.3 DELAY; CUMULATIVE REMEDIES. If any Indemnified Party delays
in exercising or fails to exercise any right or remedy against Indemnitor, that
alone shall not be construed as a waiver of such right or remedy. All remedies
of any Indemnified Party against Indemnitor are cumulative.
4.4 RULES OF CONSTRUCTION. In this Agreement, the word "person"
includes any individual, company, trust or other legal entity of any kind. If
this Agreement is executed by more than one person, the word "Indemnitor"
includes all such persons. The word "include(s)" means "include(s), without
limitation," and the word "including" means "including, but not limited to."
When the context and construction so require, all words used in the singular
shall be deemed to have been used in the plural and vice versa. All headings
appearing in this Agreement are for convenience only and shall be disregarded
in construing this Agreement.
4.5 ARBITRATION
(a) MANDATORY ARBITRATION. Any controversy or claim
between or among the parties, including those arising out of or relating to
this Agreement or the Loan Documents and any claim based on or arising from an
alleged tort, shall at the request of any party be determined by arbitration.
THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE UNITED STATES
ARBITRATION ACT (TITLE 9, U.S. CODE), NOTWITHSTANDING ANY CHOICE OF LAW
PROVISION IN THIS AGREEMENT, AND UNDER THE COMMERCIAL RULES OF THE AMERICAN
ARBITRATION ASSOCIATION. The Arbitrator(s) shall give effect to statutes of
limitation in determining any claim. Any controversy concerning whether an
issue is arbitrable shall be determined by the arbitrators). Judgment upon the
arbitration award may be entered in any court having jurisdiction. The
institution and maintenance of an action for judicial relief or pursuit of a
provisional or ancillary remedy shall not constitute a waiver of the right of
any party, including the plaintiff, to submit the controversy or claim to
arbitration if any other party contests such action for judicial relief.
(b) PROVISIONAL REMEDIES, SELF-HELP AND FORECLOSURE. No
provision of this Section 4.5 shall limit the right of any party to this
Agreement to exercise self-help remedies such as setoff, foreclosure against or
sale of any real or personal property collateral or security, or to obtain
provisional or ancillary remedies from a court of competent jurisdiction
before, after, or during the pendency of any arbitration or other proceeding.
The exercise of a remedy does not waive the right of either party to resort to
arbitration. At Bank's option, foreclosure under a deed of trust or mortgage
may be accomplished either by exercise of power of sale under the deed of trust
or mortgage or by judicial foreclosure.
4.6 SEVERABILITY. Every provision of this Agreement is intended
to be severable. In the event any term, provision, section or subsection of
this Agreement is declared to be illegal or invalid, for any reason whatsoever,
by a court of competent jurisdiction, such illegality or invalidity shall not
affect the other terms, provisions, sections or subsections of this Agreement,
which shall remain binding and enforceable.
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4.7 IN-HOUSE COUNSEL FEES. Whenever Indemnitor is obligated to
pay or reimburse any Indemnified Party for any attorneys' fees which may be
incurred in enforcing and protecting Bank's rights or interests, those fees
shall include the reasonable allocated costs for services of in-house counsel.
4.8 MISCELLANEOUS. The provisions of this Agreement shall bind
and benefit the heirs, executors, administrators, legal representatives,
successors and assigns of Indemnitor and the Indemnified Parties; provided,
however, that Indemnitor may not assign this Agreement, or assign or delegate
any of its rights or obligations under this Agreement, without the prior
written consent of Bank in each instance. The liability of all persons who are
in any manner obligated under this Agreement shall be joint and several. Any
Indemnitor who is married agrees that any Indemnified Party may look to all of
his or her community property and separate property to satisfy his or her
obligations under this Agreement. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
4.9 INTEGRATION: MODIFICATIONS. The Loan Documents, including
this Agreement, (a) integrate all the terms and conditions mentioned in or
incidental to this Agreement, (b) supersede all oral negotiations and prior
writings with respect to their subject matter, and (c) are intended by the
parties as the final expression of the agreement with respect to the terms and
conditions set forth in the Loan Documents and as the complete and exclusive
statement of the terms agreed to by the parties. No representation,
understanding, promise or condition shall be enforceable against any party
unless it is contained in the Loan Documents. This Agreement may not be
modified except in a writing signed by both Bank and Indemnitor.
THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
INDEMNITOR:
PACIFIC UNITED, L.P.,
a Texas limited partnership
By: Pacific United Development Corp.,
a Nevada corporation,
its sole general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
President