Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept free from Hazardous Material (except those materials used by Borrower, Manager or Tenants in the ordinary course of their business, in compliance with applicable Environmental Laws), (iii) not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Property, (iv) expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material by all future Tenants and Managers (except those substances used by such Tenants or Managers in the ordinary course of their business in compliance with all applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenants, Managers and other permitted occupants of the Property from taking any such actions, (v) in any event, not install on the Property or permit to be installed on the Property PCB's, urea formaldehyde insulation, asbestos or any substance containing asbestos or any material containing lead-based paint, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws on, at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Property. (b) Indemnitors shall promptly notify Lender in writing should any Indemnitor become aware of (i) any release, disposal or discharge of Hazardous Material in violation of applicable Environmental Laws, or other material actual environmental problem or liability, with respect to or affecting the Property, (ii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and arising under any applicable Environmental Law, (iii) the institution of any investigation, inquiry or proceeding concerning Borrowers or the Property pursuant to any applicable Environmental Law or otherwise relating to Hazardous Material affecting the Property, (iv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery, (v) any remedial action taken by Indemnitors or, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity of the Property that would reasonably be expected to cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shall, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit to Lender copies of any and all material citations, orders, notices and all other communications sent or received by any Borrower relating to any of the foregoing provisions of this paragraph. (c) Regardless of the source of contamination, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws for the clean-up of the Property and other property affected by contamination in, on, under or at the Property, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor shall further pay or cause to be paid, at no expense to any Indemnified Party, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitors fail to do so, or following an Event of Default, Lender may, at its sole election, cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, or otherwise be brought into compliance with applicable Environmental Laws, and any cost incurred in connection therewith shall be included in Costs. Borrowers hereby grant to Lender access to the Property and an irrevocable license to remove any Hazardous Material and to do all things necessary to bring the Property into compliance in all material respects with applicable Environmental Laws. However, Lender shall have no obligation to inspect or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property. (d) Upon the request of Lender, at any time (i) after the occurrence of an Event of Default or (ii) Lender has reasonable grounds to believe that (A) Hazardous Material is or has been released, stored or disposed of, or existing, on or around the Property at a level in excess of that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable Environmental Laws, Indemnitors shall cause an investigation or audit of the Property to be undertaken by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any Hazardous Material is located on, at, beneath, or near the Property and/or whether the Property is in compliance in all material respects with Environmental Laws. The scope of any investigation or audit shall be approved by Lender in Lender's reasonable discretion. If Indemnitors fail to provide reports of such investigation or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, order the same. Borrowers hereby grant to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation or audit provided that such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(c) hereof. (e) In the event that a Lien is filed against the Property pursuant to any applicable Environmental Law, Indemnitors shall, within ten (10) Business Days from the date that any Borrower receives notice of such Lien (but in any event ten (10) days prior to the date of any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, (A) a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant to any Lien. (f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan to be repaid in full. The enforcement of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the Property.
Appears in 6 contracts
Samples: Environmental Indemnity (Lodgian Inc), Environmental Indemnity (Lodgian Inc), Environmental Indemnity (Lodgian Inc)
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants tenants of the Property to: (i) comply with all applicable Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept free from Hazardous Material Substances (except those materials substances used by Borrower, Manager Borrower or Tenants tenants of the Property in the ordinary course of their business), in compliance with applicable with, and not likely to give rise to liability under Environmental Laws), (iii) not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material Substances on the Property, (iv) expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers tenants of the Property (except those substances used by such Tenants or Managers tenants in the ordinary course of their business business, in compliance with all applicable with, and not likely to give rise to liability under, Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenants, Managers tenants and other permitted occupants of the Property from taking any such actions, (v) in any event, not install on the Property or permit to be installed on the Property PCB's, urea formaldehyde insulation, asbestos or any substance containing asbestos or any material containing lead-based paint, and (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws Substances on, at or at, beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on near the Property.
(b) Indemnitors immediately shall promptly notify Lender in writing should any Indemnitor become aware of (i) any release, disposal or discharge release of Hazardous Material in violation of applicable Environmental LawsSubstances, or other material actual or potential environmental problem or liability, with respect to or affecting the Property, (ii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and Borrower arising under any applicable Environmental Law, (iii) the institution of any investigation, inquiry or proceeding concerning Borrowers Borrower or the Property pursuant to any applicable Environmental Law or otherwise relating to Hazardous Material affecting the PropertySubstances, or (iv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery, (v) any remedial action taken by Indemnitors or, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity of the Property that would reasonably be expected to cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shall, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit to Lender copies of any and all material citations, orders, notices and all or, upon written request of Lender, other communications sent or received by any Borrower relating to any of the foregoing provisions of this paragraph.
(c) Regardless of the source of contamination, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws necessary or advisable for the clean-up of the Property and other property affected by contamination in, on, under or at the Property, including, without limitation, all investigative, monitoring, removal, containment and remedial actions required of Borrower in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor shall further pay or cause to be paid, at no expense to any Indemnified Party, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitors fail to do so, or following an Event of Default, Lender may, at its sole election, cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, Substances or otherwise be brought into compliance with applicable Environmental Laws, Laws and any cost incurred in connection therewith shall be included in Costs. Borrowers Borrower hereby grant grants to Lender access to the Property and an irrevocable license to remove any items deemed by Lender to be Hazardous Material Substances and to do all things Lender shall deem necessary to bring the Property into compliance in all material respects with applicable Environmental Laws. However, Lender shall have no obligation to inspect or clean up any Hazardous MaterialSubstances. Lender shall not be deemed a generator of any Hazardous Material Substances removed from the Property.
(d) Upon the request of Lender, at any time (i) after the occurrence of a default under this Agreement or an Event of Default or (ii) Lender has reasonable grounds to believe that (Ax) Hazardous Material is Substances are or has have been released, stored or disposed of, or existing, of on or around the Property at a level in excess of that allowed by applicable Environmental Laws or (By) the Property may be in material violation of applicable Environmental Laws, Indemnitors shall cause an investigation or audit of the Property to be undertaken by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any Hazardous Material is Substances are located on, at, beneath, or near the Property and/or whether the Property is in compliance in all material respects with Environmental Laws. The scope of any investigation or audit shall be approved by Lender in Lender's reasonable discretion. If Indemnitors fail to provide reports of such investigation or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, order the same. Borrowers Borrower hereby grant grants to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation or audit provided that such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Propertyaudit. All reasonable costs of any such investigation or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph Paragraph 5(c) hereof.
(e) In the event that a Lien is filed against the Property pursuant to any applicable Environmental Law, Indemnitors shall, within ten thirty (1030) Business Days days from the date that any Borrower receives notice of such Lien (but in any event ten (10) days prior to the date of any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, furnish (A) a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant to any Lien.
(f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan to be repaid in full. The enforcement of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale under the Security InstrumentMortgage, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the Property.
Appears in 4 contracts
Samples: Environmental Indemnity (Wilshire Oil Co of Texas), Environmental Indemnity (Wilshire Oil Co of Texas), Environmental Indemnity (Wilshire Oil Co of Texas)
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all applicable Environmental Laws applicable to the Property, (ii) Laws. Indemnitors shall keep or cause the Property to be kept free from Hazardous Material Substances (except those materials substances used by Borrower, Manager or Tenants Borrower in the ordinary course of their its business, in compliance with applicable all Environmental Laws and where such could not reasonably be expected to give rise to liability under Environmental Laws)) and except in compliance with all Environmental Laws, (iii) Indemnitors shall not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Property, (iv) storage tanks. Indemnitors shall expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers (except those substances used by such Tenants or Managers tenants of space in the ordinary course of their business Improvements in compliance with all quantities or conditions that would violate or give rise to any obligation to take remedial or other action under any applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenants, Managers and other permitted occupants . Without limiting the generality of the Property from taking any such actionsforegoing, (v) in any eventduring the term of this Agreement, Indemnitors shall not install on in the Property Improvements or permit to be installed on in the Property PCB's, urea formaldehyde insulation, asbestos Improvements any materials containing more than 1% asbestos. Indemnitors further acknowledge and agree that Lender has no duty to provide Indemnitors with any information regarding the Environmental Laws or any substance containing asbestos or any material containing lead-based paint, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws on, at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Propertyinterpretation thereof.
(b) Indemnitors shall promptly immediately notify Lender in writing should any Indemnitor Indemnitors, or either of them, become aware of (i) the actual or potential existence of any releaseHazardous Substances on the Property, disposal other than those occurring in the ordinary course of Borrower's business and which do not violate, or discharge of Hazardous Material in violation of applicable would not otherwise give rise to liability under Environmental Laws, (ii) any violation of, or other material actual environmental problem or liabilityexposure to liability under, with respect to or affecting the Propertyany Environmental Laws, (iiiii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and arising Borrower resulting from any violation or alleged violation of or liability or alleged liability under any applicable Environmental LawLaws, (iiiiv) the institution of any investigation, inquiry or proceeding concerning Borrowers Borrower or the Property pursuant to any applicable Environmental Law Laws or otherwise relating to Hazardous Material affecting the PropertySubstances, or (ivv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Immediately upon receipt of same, (v) any remedial action taken by Indemnitors orIndemnitors, if actually known by Indemnitoror either of them, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity of the Property that would reasonably be expected to cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shall, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit deliver to Lender copies of any and all material requests for information, complaints, citations, summonses, orders, notices and all notices, reports or other communications sent communications, documents or received by instruments in any Borrower way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the foregoing provisions Property or to Borrower. Indemnitors shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental Laws) any violation of this paragraph.
(c) Regardless of Environmental Laws or any condition that could give rise to liability under Environmental Laws. Without limiting the source of contaminationforegoing, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws Laws, for the clean-up of any and all portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor , and shall further pay or cause to be paid, at no expense to any Indemnified PartyLender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against Indemnitors or the Property. In .
(c) Upon the event Indemnitors fail to do so, or request of Lender following the occurrence and continuance of an Event of DefaultDefault or at such other time as Lender has reasonable grounds to believe that Hazardous Substances are or have been released, Lender may, at its sole election, cause stored or disposed of on or around the Property or other affected property that the Property may be in violation of the Environmental Laws, Indemnitors shall perform or cause to be freed from any performed, at Indemnitors' sole expense and in scope, form and substance satisfactory to Lender, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Lender indicating the presence or absence of Hazardous Material located Substances on the Property, the compliance or non-compliance status of the Property and the operations conducted thereon at a level in excess of that allowed by with applicable Environmental Laws, or otherwise be brought into compliance with applicable Environmental Lawsan inspection or audit of the Property prepared by an engineering or consulting firm approved by Lender indicating the presence or absence of friable asbestos or substances containing in excess of 1% asbestos or lead or substances containing lead on the Property. If Indemnitors fail to provide reports of such inspection or audit within thirty (30) days after such request, Lender may order the same, and any cost incurred in connection therewith shall be included in Costs. Borrowers Indemnitors hereby grant to Lender access to the Property and an irrevocable license to remove any Hazardous Material and to do all things necessary to bring the Property into compliance in all material respects with applicable Environmental Laws. However, Lender shall have no obligation to inspect undertake such inspection or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(d) Upon the request of Lender, at any time (i) after the occurrence of an Event of Default or (ii) Lender has reasonable grounds to believe that (A) Hazardous Material is or has been released, stored or disposed of, or existing, on or around the Property at a level in excess of that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable Environmental Laws, Indemnitors shall cause an investigation or audit of the Property to be undertaken by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any Hazardous Material is located on, at, beneath, or near the Property and/or whether the Property is in compliance in all material respects with Environmental Lawsaudit. The scope of any investigation or audit shall be approved by Lender in Lender's reasonable discretion. If Indemnitors fail to provide reports cost of such investigation or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, order the same. Borrowers hereby grant to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation or audit provided that such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation inspection or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(cSection 4(c) hereof.
(d) If, prior to the date hereof, it was determined that the Property contains Lead Based Paint, the assessment report describing the location and condition of the Lead Based Paint (a "Lead Based Paint Report") is attached hereto and made a part hereof as Exhibit A. If, at any time hereafter, Lead Based Paint is suspected of being present on the Property, Indemnitors agree, at their sole cost and expense and within sixty (60) days thereafter, to cause to be prepared a Lead Based Paint Report prepared by an expert, and in form, scope and substance, acceptable to Lender.
(e) In the event Indemnitors agree that a Lien is filed against if it has been, or if at any time hereafter it is, determined that the Property pursuant contains Lead Based Paint, on or before thirty (30) days following (i) the date hereof, if such determination was made prior to any applicable Environmental Lawthe date hereof or (ii) such determination, if such determination is hereafter made, as applicable, Indemnitors shall, within ten at their sole cost and expenses, develop and implement, and thereafter diligently and continuously carry out (10) Business Days from or cause to be developed and implemented and thereafter diligently and continually to be carried out), an operations, abatement and maintenance plan for the date that Lead Based Paint on the Property, which plan shall be prepared by an expert, and be in form, scope and substance, acceptable to Lender (together with any Borrower receives notice of such Lien plan attached hereto as Exhibit B, the "O&M Plan"). (but in any event ten (10) days If an O&M Plan has been prepared prior to the date of any contemplated sale pursuant to such Lien)hereof, either (i) pay the claim same is attached hereto and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, (A) made a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (part hereof as Exhibit B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant agree to any Lien.
diligently and continually carry out (f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan or cause to be repaid in full. The enforcement carried out) the provisions thereof.) Compliance with the O&M Plan shall require or be deemed to require, without limitation, the proper preparation and maintenance of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale all records, papers and forms required under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the PropertyEnvironmental Laws.
Appears in 3 contracts
Samples: Environmental Indemnity Agreement (Cornerstone Realty Income Trust Inc), Environmental Indemnity Agreement (Cornerstone Realty Income Trust Inc), Environmental Indemnity Agreement (Apple Suites Inc)
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept free from Hazardous Material (except those materials used by Borrower, Manager or Tenants in the ordinary course of their business, Substances and in compliance with applicable all Environmental Laws), (iii) shall not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Propertystorage tanks, (iv) shall expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers tenants (except those substances used maintained by such Tenants or Managers in the ordinary course of their business residential tenants and in compliance with all applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenantsof space in the improvements, Managers and other permitted occupants and, without limiting the generality of the Property from taking any such actionsforegoing, (v) in any eventduring the term of this Agreement, shall not install on in the Property improvements or permit to be installed on in the Property PCB's, urea formaldehyde insulation, improvements asbestos or any substance containing asbestos asbestos. Indemnitors acknowledge their responsibility to be aware of, and fully versed in, all Environmental Laws in effect during the term of the Loan. Indemnitors further acknowledge and agree that Lender has no duty to provide Indemnitors with any information regarding the Environmental Laws or any material containing lead-based paint, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws on, at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Propertyinterpretation thereof.
(b) Indemnitors shall promptly immediately notify Lender in writing should any Indemnitor Indemnitors, or either of them, become aware of (i) any release, disposal or discharge of Hazardous Material in violation of applicable Environmental LawsSubstances, or other material actual potential environmental problem or liability, with respect to or affecting the Property, (ii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and arising under Assumptor resulting from any applicable violation or alleged violation of the Environmental LawLaws, (iii) the institution of any investigation, inquiry or proceeding concerning Borrowers Assumptor or the Property pursuant to any applicable Environmental Law or otherwise relating to Hazardous Material affecting the PropertySubstances, or (iv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Indemnitors shall, (v) any remedial action taken by Indemnitors or, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity promptly and when and as required and regardless of the Property that would reasonably be expected to cause source of the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shallcontamination, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit to Lender copies of any and all material citations, orders, notices and all other communications sent or received by any Borrower relating to any of the foregoing provisions of this paragraph.
(c) Regardless of the source of contamination, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws as shall be necessary or advisable for the clean-up of any and all portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor , and shall further pay or cause to be paid, at no expense to any Indemnified PartyLender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitors fail to do so, or following an Event of Default, Lender may, at its sole election, may cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, Substances or otherwise be brought into compliance conformance with applicable Environmental Laws, Laws and any cost incurred in connection therewith shall be included in CostsCosts and shall be paid by Indemnitors in accordance with the terms of Paragraph 4(c) hereof. Borrowers In furtherance of the foregoing, Indemnitors hereby grant to Lender access to the Property and an irrevocable license to remove any items deemed by Lender to be Hazardous Material Substances and to do all things Lender shall deem necessary to bring the Property into compliance in all material respects conformance with applicable Environmental Laws. However, Lender shall have no obligation to inspect or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(dc) Upon the request of Lender, at any time (i) and from time to time after the occurrence of an Event of Default a default under this Agreement or (ii) the Loan Documents or at such other time as Lender has reasonable grounds to believe that (A) Hazardous Material is Substances are or has have been released, stored or disposed of, or existing, of on or around the Property at a level in excess of or that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable the Environmental Laws, Indemnitors shall cause provide, at Indemnitors' sole expense, an investigation inspection or audit of the Property to be undertaken prepared by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any indicating the presence or absence of Hazardous Material is located on, at, beneath, or near Substances on the Property and/or whether or an inspection or audit of the improvements located on the Property is in compliance in all material respects with Environmental Laws. The scope of any investigation prepared by an engineering or audit shall be consulting firm approved by Lender in Lender's reasonable discretionindicating the presence or absence of friable asbestos or substances containing asbestos on the Property. If Indemnitors fail to provide reports of such investigation inspection or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, may order the same. Borrowers , and Indemnitors hereby grant to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation inspection or audit provided that audit. The cost of such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation inspection or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(cParagraph 4(c) hereof.
(e) In the event that a Lien is filed against the Property pursuant to any applicable Environmental Law, Indemnitors shall, within ten (10) Business Days from the date that any Borrower receives notice of such Lien (but in any event ten (10) days prior to the date of any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, (A) a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant to any Lien.
(f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan to be repaid in full. The enforcement of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the Property.
Appears in 1 contract
Samples: Hazardous Substances Indemnity Agreement (Inland Diversified Real Estate Trust, Inc.)
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept free from Hazardous Material Materials (except for those materials substances used by Borrower, Manager or Tenants Indemnitors at the Property in the ordinary course of their businessbusinesses and for the maintenance of the Property, all in material compliance with applicable Environmental Laws), (iii) not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Property, (iv) expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material by all future Tenants and Managers (except those substances used by such Tenants or Managers in the ordinary course of their business in compliance with all applicable Environmental Laws) , except where the failure to do so, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, and all permits and authorizations required under applicable Environmental Laws, shall not install or use any underground storage tanks, shall not engage in and shall expressly prohibit the on-site storage, treatment and disposal of Hazardous Materials at the Property except, in each case, in compliance with all commercially reasonable efforts to prevent existing Tenantsapplicable Environmental Laws and all permits and authorizations required under applicable Environmental Laws, Managers and other permitted occupants and, without limiting the generality of the Property from taking any such actionsforegoing, (v) in any eventduring the term of this Agreement, shall not install on in the Property or permit to be installed on in the Property PCB's, urea formaldehyde insulation, asbestos or any substance containing asbestos or any material containing lead-based paint, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws on, at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Propertyasbestos.
(b) Indemnitors shall promptly notify Lender Administrative Agent within seven (7) “Business Days” (as defined in writing should any Indemnitor the Credit Agreement) after Indemnitors, or either of them, become aware of (i) any releaserelease of, disposal threatened release of, or discharge of environmental contamination involving Hazardous Material in violation of applicable Environmental LawsMaterials, or other material actual potential environmental problem or liability, with respect to or affecting the Property, in violation of applicable Environmental Laws or the terms and conditions of any permit (ii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and arising under Indemnitors, or either of them, resulting from any applicable violation or alleged violation of the Environmental Law, (iii) the institution of any investigation, inquiry investigation or proceeding (A) concerning Borrowers either Indemnitor or the Property pursuant to any applicable Environmental Law or otherwise relating to Hazardous Materials and (B) as to which there is a reasonable possibility of an adverse determination that would reasonably be expected to have a Material affecting the PropertyAdverse Effect, or (iv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Further, within seven (v7) any remedial action taken by Indemnitors orBusiness Days after the receipt of same, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity of the Property that would reasonably be expected to cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental LawsIndemnitors, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a releaseeach of them, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action deliver to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shall, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit to Lender Administrative Agent copies of any and all material citations, orders, notices notices, permits, applications, reports and all other communications sent written communications, documents or received by any Borrower relating instruments pertaining to any the subject of the foregoing provisions notice required to be delivered to Administrative Agent under the first sentence of this paragraph.
Section 2(b), including, without limitation, the actual, alleged or potential presence or existence of any Hazardous Substance at, on, about, under, within, near or in connection with the Property (c) Regardless except for those substances used by Indemnitors at the Property in the ordinary course of their businesses and for the maintenance of the Property, all in material compliance with applicable Environmental Laws). Indemnitors, and each of them jointly and severally, shall promptly, and when and as required, and regardless of the source of the contamination, Indemnitors shall, at their own sole cost and expense, promptly take or cause to be taken and diligently prosecute all actions as shall be necessary or required by under applicable Environmental Laws by any governmental or regulatory entity or agency for the clean-up of any and all portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority terms of this Agreement and reasonably satisfactory to Lender). Indemnitor shall further pay or cause to be paid, at no expense to any Indemnified PartyBeneficiary, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the PropertyProperty under applicable Environmental Laws. In the event Indemnitors fail to do so, or following an Event of Default, Lender Beneficiary may, at its sole electionbut shall have no obligation to, cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, or otherwise be brought into compliance conformance with applicable Environmental Laws, Laws and any cost incurred in connection therewith shall be included in CostsCosts and shall be paid by Indemnitors in accordance with the terms of Section 4(c) hereof. Borrowers hereby grant to Lender access to Nothing herein shall preclude Indemnitors from defending against or challenging, using all lawful means, the Property and an irrevocable license to remove any Hazardous Material and to do all things necessary to bring the Property into compliance in all material respects with applicable Environmental Laws. However, Lender shall have no obligation to inspect imposition (or clean up any Hazardous Material. Lender shall not be deemed a generator intended imposition) of any Hazardous Material removed from the Propertygovernmental directives or requirements or of any liability on Indemnitors by any Governmental Authority or other Person.
(dc) Upon the written request (or telephonic request promptly confirmed in writing) of LenderAdministrative Agent, at any time time, but no more frequently than once every twelve months, unless there is (i) after the an occurrence of a default under this Agreement, (ii) an occurrence or existence of an Event of Default under the Loan Documents or (iiiii) Lender Beneficiary has reasonable grounds to believe that (A) Hazardous Material is Materials are or has have been released, stored or disposed of, or existing, of on or around the Property at a level in excess violation of that allowed by the applicable Environmental Laws or (B) that the Property may otherwise be in material violation of the applicable Environmental Laws, Indemnitors shall cause provide, at Indemnitors’ sole cost and expense, an investigation inspection or audit of the Property to be undertaken prepared by a hydrogeologist or environmental engineer or other appropriate environmental consultant reasonably approved by Lender acceptable to determine whether any Administrative Agent indicating the presence or absence of Hazardous Material is located on, at, beneath, or near Materials on the Property and/or whether or an inspection or audit of the improvements located on the Property is in compliance in all material respects with Environmental Laws. The scope prepared by an engineering or consulting firm reasonably acceptable to Administrative Agent indicating the presence or absence of any investigation friable asbestos or audit shall be approved by Lender in Lender's reasonable discretionsubstances containing asbestos on the Property. If Indemnitors fail to provide reports of such investigation inspection or audit within thirty (30) days Business Days after such written or telephonic request, Lender Beneficiary may, but shall have has no obligation to, to order the same. Borrowers , and Indemnitors hereby grant to Lender and Lender's contractors Beneficiary access to the Property and an irrevocable license to undertake such investigation inspection or audit provided that audit. The cost of such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation inspection or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(cSection 4(c) hereof.
(e) In the event that a Lien is filed against the Property pursuant to any applicable Environmental Law, Indemnitors shall, within ten (10) Business Days from the date that any Borrower receives notice of such Lien (but in any event ten (10) days prior to the date of any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, (A) a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant to any Lien.
(f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan to be repaid in full. The enforcement of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the Property.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (United Industrial Corp /De/)
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept free from Hazardous Material Substances (except those materials substances used by Borrower, Manager or Tenants Borrower in the ordinary course of their business, its business and in compliance with applicable all Environmental Laws)) and in compliance with all Environmental Laws, (iii) shall not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Propertystorage tanks, (iv) shall expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers (except those substances used by such Tenants or Managers tenants of space in the ordinary course of their business in compliance with all applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenantsimprovements, Managers and other permitted occupants and, without limiting the generality of the Property from taking any such actionsforegoing, (v) in any eventduring the term of this Agreement, shall not install on in the Property improvements or permit to be installed on in the Property PCB's, urea formaldehyde insulation, improvements asbestos or any substance containing asbestos asbestos. Indernnitors acknowledge their responsibility to be aware of, and fully versed in, all Environmental Laws in effect during the term of the Loan. Indemnitors further acknowledge and agree that Lender has no duty to provide Indemnitors with any information regarding the Environmental Laws or any material containing lead-based paint, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws on, at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Propertyinterpretation thereof.
(b) Indemnitors shall promptly immediately notify Lender in writing should any Indemnitor Indemnitors, or either of them, become aware of (i) any release, disposal or discharge of Hazardous Material in violation of applicable Environmental LawsSubstances, or other material actual potential environmental problem or liability, with respect to or affecting the Property, (ii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and arising under Borrower resulting from any applicable violation or alleged violation of the Environmental LawLaws, (iii) the institution of any investigation, inquiry or proceeding concerning Borrowers Borrower or the Property pursuant to any applicable Environmental Law or otherwise relating to Hazardous Material affecting the PropertySubstances, or (iv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Indemnitors shall, (v) any remedial action taken by Indemnitors or, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity promptly and when and as required and regardless of the Property that would reasonably be expected to cause source of the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shallcontamination, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit to Lender copies of any and all material citations, orders, notices and all other communications sent or received by any Borrower relating to any of the foregoing provisions of this paragraph.
(c) Regardless of the source of contamination, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws as shall be necessary or advisable for the clean-up of any and all portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor , and shall further pay or cause to be paid, at no expense to any Indemnified PartyLender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitors fail to do so, or following an Event of Default, Lender may, at its sole election, may cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, Substances or otherwise be brought into compliance conformance with applicable Environmental Laws, Laws and any cost incurred in connection therewith shall be included in CostsCosts and shall be paid by Indemnitors in accordance with the terms of Paragraph 4(c) hereof. Borrowers In furtherance of the foregoing, Indemnitors hereby grant to Lender access to the Property and an irrevocable license to remove any items deemed by Lender to be Hazardous Material Substances and to do all things Lender shall deem necessary to bring the Property into compliance in all material respects conformance with applicable Environmental Laws. However, Lender shall have no obligation to inspect or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(dc) Upon the request of Lender, at any time (i) and from time to time after the occurrence of an Event of Default a default under this Agreement or (ii) the Loan Documents or at such other time as Lender has reasonable grounds to believe that (A) Hazardous Material is Substances are or has have been released, stored or disposed of, or existing, of on or around the Property at a level in excess of or that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable the Environmental Laws, Indemnitors shall cause provide, at Indemnitors’ sole expense, an investigation inspection or audit of the Property to be undertaken prepared by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any indicating the presence or absence of Hazardous Material is located on, at, beneath, or near Substances on the Property and/or whether or an inspection or audit of the improvements located on the Property is in compliance in all material respects with Environmental Laws. The scope of any investigation prepared by an engineering or audit shall be consulting firm approved by Lender in Lender's reasonable discretionindicating the presence or absence of friable asbestos or substances containing asbestos on the Property. If Indemnitors fail to provide reports of such investigation inspection or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, may order the same. Borrowers , and Indemnitors hereby grant to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation inspection or audit provided that audit. The cost of such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation inspection or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(cParagraph 4(c) hereof.
(d) If prior to the date hereof, it was determined that the Property contains Lead Based Paint, Borrower had prepared an assessment report describing the location and condition of the Lead Based Paint (a “Lead Based Paint Report”). If at any time hereafter Lead Based Paint is suspected of being present on the Property, Indemnitors agree, at their sole cost and expense and within twenty (20) days thereafter, to cause to be prepared a Lead Based Paint Report prepared by an expert, and in form, scope and substance, acceptable to Lender.
(e) In the event Indemnitors agree that a Lien is filed against if it has been, or if at any time hereafter it is, determined that the Property pursuant contains Lead Based Paint, on or before thirty (30) days following (i) the date hereof, if such determination was made prior to any applicable Environmental Lawthe date hereof or (ii) such determination, if such determination is hereafter made, as applicable, Indemnitors shall, within ten at their sole cost and expense, develop and implement, and thereafter diligently and continuously carry out (10) Business Days from or cause to be developed and implemented and thereafter diligently and continually to be carried out), an operations, abatement and maintenance plan for the date that Lead Based Paint on the Property, which plan shall be prepared by an expert, and be in form, scope and substance, acceptable to Lender (together with any Borrower receives notice of such Lien Lead Based Paint Report, the “O&M Plan”). (but in any event ten (10) days If an O&M Plan has been prepared prior to the date of any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, (A) a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoinghereof, Indemnitors shall prevent a sale pursuant agree to any Lien.
diligently and continually carry out (f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan or cause to be repaid in full. The enforcement carried out) the provisions thereof.) Compliance with the O&M Plan shall require or be deemed to require, without limitation, the proper preparation and maintenance of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale all records, papers and forms required under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the PropertyEnvironmental Laws.
Appears in 1 contract
Samples: Indemnity Agreement (Secured Investment Resources Fund Lp Ii)
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants tenants of the Property to: (i) comply with all applicable Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept free from Hazardous Material Substances (except those materials substances used by Borrower, Manager Borrower or Tenants tenants of the Property in the ordinary course of their business), in compliance with applicable with, and not likely to give rise to liability under Environmental Laws), (iii) not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material Substances on the Property, (iv) expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers tenants of the Property (except those substances used by such Tenants or Managers tenants in the ordinary course of their business business, in compliance with all applicable with, and not likely to give rise to liability under, Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenants, Managers tenants and other permitted occupants of the Property from taking any such actions, (v) in any event, not install on the Property or permit to be installed on the Property PCB's, urea formaldehyde insulation, asbestos or any substance containing asbestos or any material containing lead-based paint, and (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws Substances on, at or at, beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on near the Property.
(b) Indemnitors immediately shall promptly notify Lender in writing should any Indemnitor become aware of (i) any release, disposal or discharge release of Hazardous Material in violation of applicable Environmental LawsSubstances, or other material actual or potential environmental problem or liability, with respect to or affecting the Property, (ii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and Borrower arising under any applicable Environmental Law, (iii) the institution of any investigation, inquiry or proceeding concerning Borrowers Borrower or the Property pursuant to any applicable Environmental Law or otherwise relating to Hazardous Material affecting the PropertySubstances, or (iv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery, (v) any remedial action taken by Indemnitors or, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity of the Property that would reasonably be expected to cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shall, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit to Lender copies of any and all material citations, orders, notices and all or, upon written request of Lender, other communications sent or received by any Borrower relating to any of the foregoing provisions of this paragraph.
(c) Regardless of the source of contamination, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws necessary or advisable for the clean-up of the Property and other property affected by contamination in, on, under or at the Property, including, without limitation, all investigative, monitoring, removal, containment and remedial actions required of Borrower in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor shall further pay or cause to be paid, at no expense to any Indemnified Party, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitors fail to do so, or following an Event of Default, Lender may, at its sole election, cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, Substances or otherwise be brought into compliance with applicable Environmental Laws, Laws and any cost incurred in connection therewith shall be included in Costs. Borrowers Borrower hereby grant grants to Lender access to the Property and an irrevocable license to remove any items deemed by Lender to be Hazardous Material Substances and to do all things Lender shall deem necessary to bring the Property into compliance in all material respects with applicable Environmental Laws. However, Lender shall have no obligation to inspect or clean up any Hazardous MaterialSubstances. Lender shall not be deemed a generator of any Hazardous Material Substances removed from the Property.
(d) Upon the request of Lender, at any time (i) after the occurrence of a default under this Agreement or an Event of Default or (ii) Lender has reasonable grounds to believe that (Ax) Hazardous Material is Substances are or has have been released, stored or disposed of, or existing, of on or around the Property at a level in excess of that allowed by applicable Environmental Laws or (By) the Property may be in material violation of applicable Environmental Laws, Indemnitors shall cause an investigation or audit of the Property to be undertaken by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any Hazardous Material is Substances are located on, at, beneath, or near the Property and/or whether the Property is in compliance in all material respects with Environmental Laws. The audit or investigation shall, to the maximum extent permitted by law, comply with the requirements of the Texas Environmental Health and Safety Audit Privilege Act, Texas Revised Civil Statutes Xxx. Article 4447 cc. The scope of any investigation or audit shall be approved by Lender in Lender's reasonable discretion. If Indemnitors fail to provide reports of such investigation or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, order the same. Borrowers Borrower hereby grant grants to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation or audit provided that such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Propertyaudit. All reasonable costs of any such investigation or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph Paragraph 5(c) hereof.
(e) In the event that a Lien is filed against the Property pursuant to any applicable Environmental Law, Indemnitors shall, within ten thirty (1030) Business Days days from the date that any Borrower receives notice of such Lien (but in any event ten (10) days prior to the date of any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, furnish (A) a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant to any Lien.
(f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan to be repaid in full. The enforcement of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale under the Security InstrumentMortgage, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the Property.
Appears in 1 contract
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept free from Hazardous Material Substances (except those materials substances used by Borrower, Manager or Tenants its agents, employees and contractors, and the tenants of the Property in the ordinary course of their business, its business and in compliance with applicable all Environmental Laws)) and in compliance with all Environmental Laws, (iii) shall not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Propertystorage tanks, (iv) shall expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers tenants (except those substances used by such Tenants or Managers Borrower, its agents, employees and contractors, and tenants in the ordinary course of their business activities and in compliance with all applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenants), Managers and other permitted occupants and, without limiting the generality of the Property from taking any such actionsforegoing, (v) in any eventduring the term of this Agreement, shall not install on in the Property Improvements or permit to be installed on in the Property PCB's, urea formaldehyde insulation, Improvements asbestos or any substance containing asbestos asbestos. If required by Lender or under any material containing Environmental Law, Indemnitors shall maintain an Operations and Maintenance Program (“O&M Program”) for the management of asbestos, lead-based paint, (vi) prohibit the disposal and/or release of radon or any other Hazardous Material in violation of applicable Environmental Laws on, Substances at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Property.
(b) Indemnitors Indenmitors shall promptly notify Lender in writing should any Indemnitor Indenmitors, or either of them, become aware of (i) any release, disposal Release (as defined in Paragraph (1) herein) or discharge threatened Release of Hazardous Material in violation of applicable Environmental LawsSubstances at, on, under, or from the Property, or other material actual potential environmental problem or liability, with respect to or affecting the Property, (ii) any lien of filing of a lien, action or notice of violation affecting or potential liability affecting otherwise threatening to affect the Property or Borrowers and arising under Borrower resulting from any applicable violation or alleged violation of the Environmental LawLaws, (iii) the institution of any investigation, inquiry or proceeding concerning Borrowers Borrower or the Property pursuant to any applicable Environmental Law Laws or otherwise relating to Hazardous Material affecting the PropertySubstances, or (iv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Further, (v) any remedial action taken by Indemnitors or, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity immediately upon receipt of the Property that would reasonably be expected to cause the Property or any part thereof to be subject to any restrictions on the ownershipsame, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shall, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit deliver to Lender copies of any and all material citations, orders, notices notices, permits, applications, reports, and other communications, documents and instruments pertaining to the actual, alleged or potential non-compliance with any Environmental Laws in connection with the Property or presence or existence of any Hazardous Substances at, on, about, under, within, near or in connection with the Property (except those substances used by Borrower, its agents, employees and contractors, and tenants in the ordinary course of their business activities and in compliance with all Environmental Laws). Indenmitors shall, promptly and when and as required, at Indemnities’ sole cost and expense, take all actions as shall be necessary or advisable for compliance with the terms of this Agreement or for the remediation of any and all other communications sent or received by any Borrower relating to any of the foregoing provisions of this paragraph.
(c) Regardless of the source of contamination, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws for the clean-up portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment containment, remedial and remedial response actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor , and shall further pay or cause to be paid, at no expense to any Indemnified PartyLender, all clean-upremediation, response, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitors Indemnities fail to do so, Lender may take or following an Event cause to be taken, but shall have no obligation to take or cause to be taken, steps to remove, contain or remediate any Release (as defined in paragraph (1) herein) or threatened Release of Default, Lender may, Hazardous Substances at its sole election, cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, or otherwise be to have the Property brought into compliance conformance with applicable Environmental Laws, and any reasonable cost incurred in connection therewith shall be included in CostsCosts and shall be paid by Indemnities in accordance with the terms of Section 4(c) hereof. Borrowers In furtherance of the foregoing, Indemnities hereby grant to Lender access to the Property and an irrevocable license to remove any items deemed by Lender to be Hazardous Material Substances (except as expressly permitted herein) and to do all things Lender shall reasonably deem necessary to bring the Property into compliance in all material respects conformance with applicable Environmental Laws. However, Lender shall have no obligation to inspect or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(dc) Upon the request of Lender, at any time (i) and from time to time after the occurrence of an Event of Default a default under this Agreement or (ii) the Loan Documents beyond any grace period applicable to such default or at such other time as Lender has reasonable grounds to believe that Hazardous Substances are or have been Released (Aas defined in paragraph (1) Hazardous Material is or has been releasedherein), stored or disposed of, or existing, of on or around the Property at a level in excess of (except as expressly permitted herein) or that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable the Environmental Laws, Indemnitors Indemnities shall cause provide, at Indemnities’ sole expense, an investigation environmental site assessment or environmental compliance audit of the Property to be undertaken prepared by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any there has been a Release or threatened Release of Hazardous Material is located Substances at, on, at, beneath, under or near from the Property and/or whether onto adjoining Property and if the Property is in full compliance in all material respects with Environmental Laws. The scope of any investigation Laws (including asbestos containing materials or audit shall be approved by Lender in Lender's reasonable discretionlead based paint). If Indemnitors Indemnities fail to provide reports of such investigation assessment or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, may order the same. Borrowers , and Indemnities hereby grant to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation assessment or audit provided that audit. The cost of such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation assessment or audit shall be included in Costs and shall be paid by Indemnitors Indemnities in accordance with the terms of paragraph 5(cSection 4(c) hereof.
(e) In the event that a Lien is filed against the Property pursuant to any applicable Environmental Law, Indemnitors shall, within ten (10) Business Days from the date that any Borrower receives notice of such Lien (but in any event ten (10) days prior to the date of any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, (A) a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant to any Lien.
(f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan to be repaid in full. The enforcement of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the Property.
Appears in 1 contract
Samples: Hazardous Substances Indemnity Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all applicable Environmental Laws applicable to the Property, (ii) Laws. Indemnitors shall keep or cause the Property to be kept free from Hazardous Material Substances (except those materials substances used by Borrower, Manager or Tenants Borrower in the ordinary course of their its business, in compliance with applicable all Environmental Laws and where such could not reasonably be expected to give rise to liability under Environmental Laws)) and except in compliance with all Environmental Laws, (iii) Indemnitors shall not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Property, (iv) storage tanks. Indemnitors shall expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers (except those substances used by such Tenants or Managers tenants of space in the ordinary course of their business Improvements in compliance with all quantities or conditions that would violate or give rise to any obligation to take remedial or other action under any applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenants, Managers and other permitted occupants . Without limiting the generality of the Property from taking any such actionsforegoing, (v) in any eventduring the term of this Agreement, Indemnitors shall not install on in the Property Improvements or permit to be installed on in the Property PCB's, urea formaldehyde insulation, asbestos Improvements any materials containing more than 1% asbestos. Indemnitors further acknowledge and agree that Lender has no duty to provide Indemnitors with any information regarding the Environmental Laws or any substance containing asbestos or any material containing lead-based paint, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws on, at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Propertyinterpretation thereof.
(b) Indemnitors shall promptly immediately notify Lender in writing should any Indemnitor Indemnitors, or either of them, become aware of (i) the actual or potential existence of any releaseHazardous Substances on the Property, disposal other than those occurring in the ordinary course of Borrower's business and which do not violate, or discharge of Hazardous Material in violation of applicable would not otherwise give rise to liability under Environmental Laws, (ii) any violation of, or other material actual environmental problem or liabilityexposure to liability under, with respect to or affecting the Propertyany Environmental Laws, (iiiii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and arising Borrower resulting from any violation or alleged violation of or liability or alleged liability under any applicable Environmental LawLaws, (iiiiv) the institution of any investigation, inquiry or proceeding concerning Borrowers Borrower or the Property pursuant to any applicable Environmental Law Laws or otherwise relating to Hazardous Material affecting the PropertySubstances, or (ivv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Immediately upon receipt of same, (v) any remedial action taken by Indemnitors orIndemnitors, if actually known by Indemnitoror either of them, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity of the Property that would reasonably be expected to cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shall, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit deliver to Lender copies of any and all material requests for information, complaints, citations, summonses, orders, notices and all notices, reports or other communications sent communications, documents or received by instruments in any Borrower way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the foregoing provisions Property or to Borrower. Indemnitors shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental Laws) any violation of this paragraph.
(c) Regardless of Environmental Laws or any condition that could give rise to liability under Environmental Laws. Without limiting the source of contaminationforegoing, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws Laws, for the clean-up of any and all portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor , and shall further pay or cause to be paid, at no expense to any Indemnified PartyLender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against Indemnitors or the Property. In .
(c) Upon the event Indemnitors fail to do so, or request of Lender following the occurrence and continuance of an Event of DefaultDefault or at such other time as Lender has reasonable grounds to believe that Hazardous Substances are or have been released, Lender may, at its sole election, cause stored or disposed of on or around the Property or other affected property that the Property may be in violation of the Environmental Laws, Indemnitors shall perform or cause to be freed from any performed, at Indemnitors' sole expense and in scope, form and substance satisfactory to Lender, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Lender indicating the presence or absence of Hazardous Material located Substances on the Property, the compliance or non-compliance status of the Property and the operations conducted thereon at a level in excess of that allowed by with applicable Environmental Laws, or otherwise be brought into compliance with applicable Environmental Lawsan inspection or audit of the Property prepared by an engineering or consulting firm approved by Lender indicating the presence or absence of friable asbestos or substances containing in excess of 1% asbestos or lead or substances containing lead on the Property. If Indemnitors fail to provide reports of such inspection or audit within thirty (30) days after such request, Lender may order the same, and any cost incurred in connection therewith shall be included in Costs. Borrowers Indemnitors hereby grant to Lender access to the Property and an irrevocable license to remove any Hazardous Material and to do all things necessary to bring the Property into compliance in all material respects with applicable Environmental Laws. However, Lender shall have no obligation to inspect undertake such inspection or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(d) Upon the request of Lender, at any time (i) after the occurrence of an Event of Default or (ii) Lender has reasonable grounds to believe that (A) Hazardous Material is or has been released, stored or disposed of, or existing, on or around the Property at a level in excess of that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable Environmental Laws, Indemnitors shall cause an investigation or audit of the Property to be undertaken by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any Hazardous Material is located on, at, beneath, or near the Property and/or whether the Property is in compliance in all material respects with Environmental Lawsaudit. The scope of any investigation or audit shall be approved by Lender in Lender's reasonable discretion. If Indemnitors fail to provide reports cost of such investigation or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, order the same. Borrowers hereby grant to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation or audit provided that such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation inspection or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(cSection 4(c) hereof. -----------
(d) If, prior to the date hereof, it was determined that the Property contains Lead Based Paint, the assessment report describing the location and condition of the Lead Based Paint (a "Lead Based Paint Report") is attached ----------------------- hereto and made a part hereof as Exhibit A. If, at any time hereafter, Lead --------- Based Paint is suspected of being present on the Property, Indemnitors agree, at their sole cost and expense and within sixty (60) days thereafter, to cause to be prepared a Lead Based Paint Report prepared by an expert, and in form, scope and substance, acceptable to Lender.
(e) In the event Indemnitors agree that a Lien is filed against if it has been, or if at any time hereafter it is, determined that the Property pursuant contains Lead Based Paint, on or before thirty (30) days following (i) the date hereof, if such determination was made prior to any applicable Environmental Lawthe date hereof or (ii) such determination, if such determination is hereafter made, as applicable, Indemnitors shall, within ten at their sole cost and expenses, develop and implement, and thereafter diligently and continuously carry out (10) Business Days from the date that any Borrower receives notice of such Lien (but in any event ten (10) days prior or cause to the date of any contemplated sale pursuant be developed and implemented and thereafter diligently and continually to such Lienbe carried out), either (i) pay an operations, abatement and maintenance plan for the claim and remove the Lien from Lead Based Paint on the Property, or (ii) furnishwhich plan shall be prepared by an expert, at Indemnitor's optionand be in form, (A) a bond satisfactory scope and substance, acceptable to Lender in (together with any plan attached hereto as Exhibit B, the amount of "O&M Plan"). (If an O&M Plan has been prepared prior to --------- -------- the claim out of which the Lien arisesdate hereof, (same is attached hereto and made a part hereof as Exhibit B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant agree to any Lien.
diligently and continually carry out (f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan or cause to be repaid in full. The enforcement carried out) the provisions thereof.) Compliance with the O&M Plan shall require or be deemed to require, without limitation, the proper preparation and maintenance of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale all records, papers and forms required under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the PropertyEnvironmental Laws.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (Cornerstone Realty Income Trust Inc)
Covenants of Indemnitors. (a1) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept free from Hazardous Material Substances (except those materials substances used by Borrower, Manager New Borrower or Tenants Tenant in the ordinary course of their business, its business and in compliance with applicable all Environmental Laws)) and in compliance with all Environmental Laws, (iii) shall not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Propertystorage tanks, (iv) shall expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers (except those substances used by such Tenants tenants or Managers subtenants of space in the ordinary course of their business in compliance with all applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing TenantsImprovements, Managers and other permitted occupants and, without limiting the generality of the Property from taking any such actionsforegoing, (v) in any eventduring the term of this Agreement, shall not install on in the Property Improvements or permit to to, be installed on in the Property PCB's, urea formaldehyde insulation, Improvements asbestos or any substance containing asbestos or any material containing lead-based paint, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws on, at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Propertyasbestos.
(b2) Indemnitors shall promptly immediately notify Lender in writing should Indemnitors, or any Indemnitor of them, become aware of (i) any release, disposal or discharge of Hazardous Material in violation of applicable Environmental LawsSubstances, or other material actual potential environmental problem or liability, with respect to or affecting the Property, ; (ii) any lien, action or notice of affecting the Property, New Borrower or Tenant resulting from any violation or potential liability affecting alleged violation of the Property or Borrowers and arising under any applicable Environmental Law, ; (iii) the institution of any investigation, inquiry or proceeding concerning Borrowers New Borrower, Tenant or the Property pursuant to any applicable Environmental Law or otherwise relating to Hazardous Material affecting the Property, Substances; or (iv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Indemnitors shall, (v) any remedial action taken by Indemnitors or, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity promptly and when and as required and regardless of the Property that would reasonably be expected to cause source of the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shallcontamination, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit to Lender copies of any and all material citations, orders, notices and all other communications sent or received by any Borrower relating to any of the foregoing provisions of this paragraph.
(c) Regardless of the source of contamination, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws as shall be necessary or advisable for the clean-up of any and all portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor , and shall further pay or cause to be paid, at no expense to any Indemnified PartyLender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitors fail to do so, or following an Event of Default, Lender may, at its sole election, may cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, Substances or otherwise be brought into compliance conformance with applicable Environmental Laws, Laws and any cost incurred in connection therewith shall be included in CostsCosts and shall be paid by Indemnitors in accordance with the terms of Paragraph 4(c) hereof. Borrowers In furtherance of the foregoing, Indemnitors hereby grant to Lender access to the Property and an irrevocable license to remove any items deemed by Lender to be Hazardous Material Substances and to do all things Lender shall deem necessary to bring the Property into compliance in all material respects conformance with applicable Environmental Laws. However, Lender shall have no obligation to inspect or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(d3) Upon the request of Lender, at any time (i) and from time to time after the occurrence of an Event of Default a default under this Agreement or (ii) the Loan Documents or at such other time as Lender has reasonable grounds to believe that (A) Hazardous Material is Substances are or has have been released, stored or disposed of, or existing, of on or around the Property at a level in excess of or that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable the Environmental Laws, Indemnitors shall cause provide, at Indemnitors' sole expense, an investigation inspection or audit of the Property to be undertaken prepared by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any indicating the presence or absence of Hazardous Material is located on, at, beneath, or near Substances on the Property and/or whether or an inspection or audit of the improvements located on the Property is in compliance in all material respects with Environmental Laws. The scope of any investigation prepared by an engineering or audit shall be consulting firm approved by Lender in Lender's reasonable discretionindicating the presence or absence of friable asbestos or substances containing asbestos on the Property. If Indemnitors fail to provide reports of such investigation inspection or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, may order the same. Borrowers , and Indemnitors hereby grant to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation inspection or audit provided that audit. The cost of such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation inspection or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(cParagraph 4(c) hereof.
(e) In the event that a Lien is filed against the Property pursuant to any applicable Environmental Law, Indemnitors shall, within ten (10) Business Days from the date that any Borrower receives notice of such Lien (but in any event ten (10) days prior to the date of any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, (A) a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant to any Lien.
(f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan to be repaid in full. The enforcement of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the Property.
Appears in 1 contract
Samples: Hazardous Substances Indemnity Agreement (Brookdale Living Communities Inc)
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all applicable Environmental Laws applicable to the Property, (ii) Laws. Indemnitors shall keep or cause the Property to be kept free from Hazardous Material Substances (except those materials substances used by Borrower, Manager or Tenants Borrower in the ordinary course of their its business, in compliance with applicable all Environmental Laws and where such could not reasonably be expected to give rise to liability under Environmental Laws)) and except in compliance with all Environmental Laws, (iii) Indemnitors shall not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Property, (iv) storage tanks. Indemnitors shall expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers (except those substances used by such Tenants or Managers tenants of space in the ordinary course of their business Improvements in compliance with all quantities or conditions that would violate or give rise to any obligation to take remedial or other action under any applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenants, Managers and other permitted occupants . Without limiting the generality of the Property from taking any such actionsforegoing, (v) in any eventduring the term of this Agreement, Indemnitors shall not install on in the Property Improvements or permit to be installed on in the Property PCB's, urea formaldehyde insulation, asbestos Improvements any materials containing more than 1% asbestos. Indemnitors further acknowledge and agree that Lender has no duty to provide Indemnitors with any information regarding the Environmental Laws or any substance containing asbestos or any material containing lead-based paint, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws on, at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Propertyinterpretation thereof.
(b) Indemnitors shall promptly immediately notify Lender in writing should any Indemnitor Indemnitors, or either of them, become aware of (i) the actual or potential existence of any releaseHazardous Substances on the Property, disposal other than those occurring in the ordinary course of Borrower's business and which do not violate, or discharge of Hazardous Material in violation of applicable would not otherwise give rise to liability under Environmental Laws, (ii) any violation of, or other material actual environmental problem or liabilityexposure to liability under, with respect to or affecting the Propertyany Environmental Laws, (iiiii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and arising Borrower resulting from any violation or alleged violation of or liability or alleged liability under any applicable Environmental LawLaws, (iiiiv) the institution of any investigation, inquiry or proceeding concerning Borrowers Borrower or the Property pursuant to any applicable Environmental Law Laws or otherwise relating to Hazardous Material affecting the PropertySubstances, or (ivv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Immediately upon receipt of same, (v) any remedial action taken by Indemnitors orIndemnitors, if actually known by Indemnitoror either of them, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity of the Property that would reasonably be expected to cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shall, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit deliver to Lender copies of any and all material requests for information, complaints, citations, summonses, orders, notices and all notices, reports or other communications sent communications, documents or received by instruments in any Borrower way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the foregoing provisions Property or to Borrower. Indemnitors shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental Laws) any violation of this paragraph.
(c) Regardless of Environmental Laws or any condition that could give rise to liability under Environmental Laws. Without limiting the source of contaminationforegoing, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws Laws, for the clean-up of any and all portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor , and shall further pay or cause to be paid, at no expense to any Indemnified PartyLender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against Indemnitors or the Property. In .
(c) Upon the event Indemnitors fail to do so, or request of Lender following the occurrence and continuance of an Event of DefaultDefault or at such other time as Lender has reasonable grounds to believe that Hazardous Substances are or have been released, Lender may, at its sole election, cause stored or disposed of on or around the Property or other affected property that the Property may be in violation of the Environmental Laws, Indemnitors shall perform or cause to be freed from any performed, at Indemnitors' sole expense and in scope, form and substance satisfactory to Lender, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Lender indicating the presence or absence of Hazardous Material located Substances on the Property, the compliance or non-compliance status of the Property and the operations conducted thereon at a level in excess of that allowed by with applicable Environmental Laws, or otherwise be brought into compliance with applicable Environmental Lawsan inspection or audit of the Property prepared by an engineering or consulting firm approved by Lender indicating the presence or absence of friable asbestos or substances containing in excess of 1% asbestos or lead or substances containing lead on the Property. If Indemnitors fail to provide reports of such inspection or audit within thirty (30) days after such request, Lender may order the same, and any cost incurred in connection therewith shall be included in Costs. Borrowers Indemnitors hereby grant to Lender access to the Property and an irrevocable license to remove any Hazardous Material and to do all things necessary to bring the Property into compliance in all material respects with applicable Environmental Laws. However, Lender shall have no obligation to inspect undertake such inspection or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(d) Upon the request of Lender, at any time (i) after the occurrence of an Event of Default or (ii) Lender has reasonable grounds to believe that (A) Hazardous Material is or has been released, stored or disposed of, or existing, on or around the Property at a level in excess of that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable Environmental Laws, Indemnitors shall cause an investigation or audit of the Property to be undertaken by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any Hazardous Material is located on, at, beneath, or near the Property and/or whether the Property is in compliance in all material respects with Environmental Lawsaudit. The scope of any investigation or audit shall be approved by Lender in Lender's reasonable discretion. If Indemnitors fail to provide reports cost of such investigation or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, order the same. Borrowers hereby grant to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation or audit provided that such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation inspection or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(cSection 4(c) hereof. ------------
(d) If, prior to the date hereof, it was determined that the Property contains Lead Based Paint, the assessment report describing the location and condition of the Lead Based Paint (a "Lead Based Paint Report") is attached ----------------------- hereto and made a part hereof as Exhibit A. If, at any time hereafter, Lead --------- Based Paint is suspected of being present on the Property, Indemnitors agree, at their sole cost and expense and within sixty (60) days thereafter, to cause to be prepared a Lead Based Paint Report prepared by an expert, and in form, scope and substance, acceptable to Lender.
(e) In the event Indemnitors agree that a Lien is filed against if it has been, or if at any time hereafter it is, determined that the Property pursuant contains Lead Based Paint, on or before thirty (30) days following (i) the date hereof, if such determination was made prior to any applicable Environmental Lawthe date hereof or (ii) such determination, if such determination is hereafter made, as applicable, Indemnitors shall, within ten at their sole cost and expenses, develop and implement, and thereafter diligently and continuously carry out (10) Business Days from or cause to be developed and implemented and thereafter diligently and continually to be carried out), an operations, abatement and maintenance plan for the date that Lead Based Paint on the Property, which plan shall be prepared by an expert, and be in form, scope and substance, acceptable to Lender (together with any Borrower receives notice of such Lien plan attached hereto as Exhibit B, the "O&M Plan"). (but in any event ten (10) days If an O&M Plan has been prepared prior to the date of any contemplated sale pursuant to such Lien)--------- -------- hereof, either (i) pay the claim same is attached hereto and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, (A) made a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (part hereof as Exhibit B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant agree to any Lien.
diligently and continually carry out (f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan or cause to be repaid in full. The enforcement carried out) the provisions thereof.) Compliance with the O&M Plan shall require or be deemed to require, without limitation, the proper preparation and maintenance of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale all records, papers and forms required under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the PropertyEnvironmental Laws.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (Apple Suites Inc)
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept free from Hazardous Material Substances (except those materials substances used by Borrower, Manager Borrower or Tenants any tenants at the Property in the ordinary course of their business, its business and in compliance with applicable all Environmental Laws)) and in compliance with all Environmental Laws, (iii) shall not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Propertystorage tanks, (iv) shall expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers tenants of space in the improvements (except those substances used by such Tenants or Managers in the ordinary course of their such tenant's business and in compliance with all applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenants), Managers and other permitted occupants and, without limiting the generality of the Property from taking any such actionsforegoing, (v) in any eventduring the term of this Agreement, shall not install on in the Property improvements or permit to be installed on in the Property PCB's, urea formaldehyde insulation, improvements any asbestos or any substance asbestos-containing asbestos or any material containing lead-based paintmaterials (collectively, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of "asbestos"). Indemnitors acknowledge their responsibility to be aware of, and fully advised concerning, all applicable Environmental Laws on, at or beneath, in effect during the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 term of the Loan Agreement, Loan. Indemnitors further acknowledge and (ix) not permit agree that Holder has no duty to provide Indemnitors with any Lien imposed pursuant to information regarding the Environmental Laws or any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Propertyinterpretation thereof.
(b) Indemnitors shall promptly immediately notify Lender in writing Holder should any Indemnitor Indemnitors, or either of them, become aware of (i) any release, disposal or discharge of Hazardous Material in violation of applicable Environmental LawsSubstances, or other material actual potential environmental problem or liability, with respect to or affecting the Property, except to the extent such Hazardous Substances, or other potential environmental problem or liability is disclosed in the Environmental Report, (ii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and arising under Borrower resulting from any applicable violation or alleged violation of the Environmental LawLaws, except to the extent such lien, action or notice is disclosed in the Environmental Report, (iii) the institution of any investigation, inquiry or proceeding concerning Borrowers Borrower or the Property pursuant to any applicable Environmental Law or otherwise relating to Hazardous Material affecting Substances, except to the Propertyextent such investigation, inquiry or proceeding is disclosed in the Environmental Report, or (iv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Indemnitors shall, (v) any remedial action taken by Indemnitors or, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity promptly and when and as required and regardless of the Property that would reasonably be expected to cause source of the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shallcontamination, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit to Lender copies of any and all material citations, orders, notices and all other communications sent or received by any Borrower relating to any of the foregoing provisions of this paragraph.
(c) Regardless of the source of contamination, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws as shall be necessary or advisable for the clean-up of any and all portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to LenderHolder). Indemnitor , and shall further pay or cause to be paid, at no expense to any Indemnified PartyHolder, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitors fail to do so, or following an Event of Default, Lender may, at its sole election, Holder may cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, Substances or otherwise be brought into compliance conformance with applicable Environmental Laws, Laws and any cost incurred in connection therewith shall be included in CostsCosts and shall be paid by Indemnitors in accordance with the terms of Paragraph 4(c) hereof. Borrowers In furtherance of the foregoing, Indemnitors hereby grant to Lender Holder access to the Property and an irrevocable license to remove any items deemed by Holder to be Hazardous Material Substances and to do all things Holder shall deem necessary to bring the Property into compliance in all material respects conformance with applicable Environmental Laws. However, Lender shall have no obligation to inspect or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(dc) Upon the request of LenderHolder, at any time (i) and from time to time after the occurrence of an Event of Default a default under this Agreement or (ii) Lender the Loan Documents or at such other time as Holder has reasonable grounds to believe that (A) Hazardous Material is Substances are or has have been released, stored or disposed of, or existing, of on or around the Property at a level in excess of or that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable the Environmental Laws, Indemnitors shall cause provide, at Indemnitors' sole expense, an investigation inspection or audit of the Property to be undertaken prepared by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any Holder indicating the presence or absence of Hazardous Material is located on, at, beneath, or near Substances on the Property and/or whether or an inspection or audit of the improvements located on the Property is in compliance in all material respects with Environmental Laws. The scope of any investigation prepared by an engineering or audit shall be consulting firm approved by Lender in Lender's reasonable discretionHolder indicating the presence or absence of asbestos on the Property. If Indemnitors fail to provide reports of such investigation inspection or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, Holder may order the same. Borrowers , and Indemnitors hereby grant to Lender and Lender's contractors Holder access to the Property and an irrevocable license to undertake such investigation inspection or audit provided that audit. The cost of such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation inspection or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(cParagraph 4(c) hereof.
(ed) In the event that a Lien is filed against the Property pursuant to any applicable Environmental Law, Indemnitors shall, within ten (10) Business Days from the date that any Borrower receives notice of such Lien (but in any event ten (10) days If prior to the date hereof, it was determined that the Property contains Lead Based Paint, Borrower had prepared an assessment report describing the location and condition of the Lead Based Paint (a "Lead Based Paint Report"). If at any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from time hereafter Lead Based Paint is suspected of being present on the Property, or (ii) furnishIndemnitors agree, at Indemnitor's optiontheir sole cost and expense and within twenty (20) days thereafter, to cause to be prepared a Lead Based Paint Report prepared by an expert, and in form, scope and substance, acceptable to Holder.
(Ae) a bond satisfactory If prior to Lender in the amount date hereof, it was determined that the Property contains asbestos, Borrower had prepared an assessment report describing the location and condition of the claim out asbestos (an "Asbestos Report"). If at any time hereafter asbestos is suspected of which being present on the Lien arisesProperty, Indemnitors agree, at their sole cost and expense and within twenty (B20) a cash deposit in the amount of the claim out of which the Lien arisesdays thereafter, (C) other security reasonably satisfactory to Lender in cause to be prepared an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other orderAsbestos Report prepared by an expert, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoingin form, Indemnitors shall prevent a sale pursuant scope and substance, acceptable to any LienHolder.
(f) The amount of Indemnitors' liability hereunder is unrelated Indemnitors agree that if it has been, or if at any time hereafter it is, determined that the Property contains Lead Based Paint or asbestos, on or before thirty (30) days following (i) the date hereof, if such determination was made prior to the amount date hereof or (ii) such determination, if such determination is hereafter made, as applicable, Indemnitors shall, at their 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 to monitor, maintain and remediate any such Lead Based Paint and/or asbestos(as applicable) affecting the Property, which plan shall be prepared by an expert, and be in form, scope and substance, acceptable to Holder and sufficient to cause the Property to comply with any applicable law and recommendations contained in such plan (such plan, together with any Lead Based Paint Report and/or Asbestos Report, as applicable, the "O&M Plan"). If an O&M Plan has been prepared prior to the date hereof, Indemnitors agree to diligently and continually carry out (or cause to be carried out) the provisions thereof. Compliance with the 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.
(g) Indemnitors agree 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 Loan 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 thirty (30) days 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, Indemnitors shall, at their sole cost and any failure of the Loan expense, develop and implement, and thereafter diligently and continuously carry out (or cause to be repaid 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 Trust Property, which plan shall be prepared by an expert, and be in fullform, scope and substance acceptable to Holder 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. The enforcement of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating If a Mold O&M Plan has been prepared prior to the failure of the Loan date hereof, Indemnitors agree to diligently and continually carry out (or cause to be repaid in fullcarried out) the provisions thereof. Indemnitors acknowledge that they may have liability hereunder even if Compliance with the Loan is repaid in full by reason of a full credit bid at any foreclosure sale under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the Property.Mold O&M Plan shall
Appears in 1 contract
Samples: Hazardous Substances Indemnity Agreement (Charming Shoppes Inc)
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept free from Hazardous Material Substances (except those materials substances used by Borrower, Manager Borrower or Tenants President Mississippi in the ordinary course of their business, its business and in compliance with applicable all Environmental Laws)) and in compliance with all Environmental Laws, (iii) shall not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Propertystorage tanks, (iv) shall expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers (except those substances used by such Tenants or Managers tenants of space in the ordinary course of their business in compliance with all applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing TenantsImprovements, Managers and other permitted occupants and, without limiting the generality of the Property from taking any such actionsforegoing, (v) in any eventduring the term of this Agreement, shall not install on in the Property Improvements or permit to be installed on in the Property PCB's, urea formaldehyde insulation, Improvements asbestos or any substance containing asbestos or any material containing lead-based paint, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws on, at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Propertyasbestos.
(b) Indemnitors shall promptly immediately notify Lender in writing should Indemnitors, or any Indemnitor of them, become aware of (i) any release, disposal or discharge of Hazardous Material in violation of applicable Environmental LawsSubstances, or other material actual potential environmental problem or liability, with respect to or affecting the Property, (ii) any lien, action or notice of affecting the Property, Borrower or President Mississippi resulting from any violation or potential liability affecting the Property or Borrowers and arising under alleged violation of any applicable Environmental Law, (iii) the institution of any investigation, inquiry or proceeding concerning Borrowers or Borrower, the Property or President Mississippi pursuant to any applicable Environmental Law or otherwise relating to Hazardous Material affecting the PropertySubstances, or (iv) the iv)the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Indemnitors shall, (v) any remedial action taken by Indemnitors or, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity promptly and when and as required and regardless of the Property that would reasonably be expected to cause source of the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shallcontamination, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit to Lender copies of any and all material citations, orders, notices and all other communications sent or received by any Borrower relating to any of the foregoing provisions of this paragraph.
(c) Regardless of the source of contamination, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws as shall be necessary or advisable for the clean-up of any and all portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor , and shall further pay or cause to be paid, at no expense to any Indemnified PartyLender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitors fail to do so, or following an Event of Default, Lender may, may (at its sole electionoption, and with no obligation to do so) cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, Substances or otherwise be brought into compliance conformance with applicable Environmental Laws, Laws and any cost incurred in connection therewith shall be included in CostsCosts and shall be paid by Indemnitors in accordance with the terms of Section 4(c) hereof. Borrowers In furtherance of the foregoing, Indemnitors hereby grant to Lender access to the Property and an irrevocable license to remove any items deemed by Lender to be Hazardous Material Substances and to do all things Lender shall deem necessary to bring the Property into compliance in all material respects conformance with applicable Environmental Laws. However, Lender shall have no obligation to inspect or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(dc) Upon the request of Lender, at any time (i) and from time to time after the occurrence of an Event of Default a default under this Agreement or (ii) the Loan Documents or at such other time as Lender has reasonable grounds to believe that (A) Hazardous Material is Substances are or has have been released, stored or disposed of, or existing, of on or around the Property at a level in excess of or that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable the Environmental Laws, Indemnitors shall cause provide, at Indemnitors' sole expense, an investigation inspection or audit of the Property to be undertaken prepared by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any indicating the presence or absence of Hazardous Material is located on, at, beneath, or near Substances on the Property and/or whether or an inspection or audit of the improvements located on the Property is in compliance in all material respects with Environmental Laws. The scope of any investigation prepared by an engineering or audit shall be consulting firm approved by Lender in Lender's reasonable discretionindicating the presence or absence of friable asbestos or substances containing asbestos on the Property. If Indemnitors fail to provide reports of such investigation inspection or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, may order the same. Borrowers , and Indemnitors hereby grant to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation inspection or audit provided that audit. The cost of such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation inspection or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(cSection 4(c) hereof.
(e) In the event that a Lien is filed against the Property pursuant to any applicable Environmental Law, Indemnitors shall, within ten (10) Business Days from the date that any Borrower receives notice of such Lien (but in any event ten (10) days prior to the date of any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, (A) a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant to any Lien.
(f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan to be repaid in full. The enforcement of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the Property.
Appears in 1 contract
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all applicable Environmental Laws applicable to the Property, (ii) Laws. Indemnitors shall keep or cause the Property to be kept free from Hazardous Material Substances (except those materials substances used by Borrower, Manager or Tenants Borrower in the ordinary course of their its business, in compliance with applicable all Environmental Laws and where such could not reasonably be expected to give rise to liability under Environmental Laws)) and except in compliance with all Environmental Laws, (iii) Indemnitors shall not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Property, (iv) storage tanks. Indemnitors shall expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers (except those substances used by such Tenants or Managers tenants of space in the ordinary course of their business Improvements in compliance with all quantities or conditions that would violate or give rise to any obligation to take remedial or other action under any applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenants, Managers and other permitted occupants . Without limiting the generality of the Property from taking any such actionsforegoing, (v) in any eventduring the term of this Agreement, Indemnitors shall not install on in the Property Improvements or permit to be installed on in the Property PCB's, urea formaldehyde insulation, asbestos Improvements any materials containing more than 1% asbestos. Indemnitors further acknowledge and agree that Lender has no duty to provide Indemnitors with any information regarding the Environmental Laws or any substance containing asbestos or any material containing lead-based paint, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws on, at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Propertyinterpretation thereof.
(b) Indemnitors shall promptly immediately notify Lender in writing should any Indemnitor Indemnitors, or either of them, become aware of (i) the actual or potential existence of any releaseHazardous Substances on the Property, disposal other than those occurring in the ordinary course of Borrower’s business and which do not violate, or discharge of Hazardous Material in violation of applicable would not otherwise give rise to liability under Environmental Laws, (ii) any violation of, or other material actual environmental problem or liabilityexposure to liability under, with respect to or affecting the Propertyany Environmental Laws, (iiiii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and arising Borrower resulting from any violation or alleged violation of or liability or alleged liability under any applicable Environmental LawLaws, (iiiiv) the institution of any investigation, inquiry or proceeding concerning Borrowers Borrower or the Property pursuant to any applicable Environmental Law Laws or otherwise relating to Hazardous Material affecting the PropertySubstances, or (ivv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Immediately upon receipt of same, (v) any remedial action taken by Indemnitors orIndemnitors, if actually known by Indemnitoror either of them, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity of the Property that would reasonably be expected to cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shall, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit deliver to Lender copies of any and all material requests for information, complaints, citations, summonses, orders, notices and all notices, reports or other communications sent communications, documents or received by instruments in any Borrower way relating to any actual, alleged or potential violation or liability of any nature whatsoever arising under Environmental Laws and relating to the foregoing provisions Property or to Borrower. Indemnitors shall remedy or cause to be remedied in a timely manner (and in any event within the time period permitted by applicable Environmental Laws) any violation of this paragraph.
(c) Regardless of Environmental Laws or any condition that could give rise to liability under Environmental Laws. Without limiting the source of contaminationforegoing, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws Laws, for the clean-up of any and all portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor , and shall further pay or cause to be paid, at no expense to any Indemnified PartyLender, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against Indemnitors or the Property. In .
(c) Upon the event Indemnitors fail to do so, or request of Lender following the occurrence and continuance of an Event of DefaultDefault or at such other time as Lender has reasonable grounds to believe that Hazardous Substances are or have been released, Lender may, at its sole election, cause stored or disposed of on or around the Property or other affected property that the Property may be in violation of the Environmental Laws, Indemnitors shall perform or cause to be freed from any performed, at Indemnitors’ sole expense and in scope, form and substance satisfactory to Lender, an inspection or audit of the Property prepared by a hydrogeologist or environmental engineer or other appropriate consultant approved by Lender indicating the presence or absence of Hazardous Material located Substances on the Property, the compliance or non-compliance status of the Property and the operations conducted thereon at a level in excess of that allowed by with applicable Environmental Laws, or otherwise be brought into compliance with applicable Environmental Lawsan inspection or audit of the Property prepared by an engineering or consulting firm approved by Lender indicating the presence or absence of friable asbestos or substances containing in excess of 1% asbestos or lead or substances containing lead on the Property. If Indemnitors fail to provide reports of such inspection or audit within thirty (30) days after such request, Lender may order the same, and any cost incurred in connection therewith shall be included in Costs. Borrowers Indemnitors hereby grant to Lender access to the Property and an irrevocable license to remove any Hazardous Material and to do all things necessary to bring the Property into compliance in all material respects with applicable Environmental Laws. However, Lender shall have no obligation to inspect undertake such inspection or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(d) Upon the request of Lender, at any time (i) after the occurrence of an Event of Default or (ii) Lender has reasonable grounds to believe that (A) Hazardous Material is or has been released, stored or disposed of, or existing, on or around the Property at a level in excess of that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable Environmental Laws, Indemnitors shall cause an investigation or audit of the Property to be undertaken by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any Hazardous Material is located on, at, beneath, or near the Property and/or whether the Property is in compliance in all material respects with Environmental Lawsaudit. The scope of any investigation or audit shall be approved by Lender in Lender's reasonable discretion. If Indemnitors fail to provide reports cost of such investigation or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, order the same. Borrowers hereby grant to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation or audit provided that such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation inspection or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(cSection 4(c) hereof.
(d) If, prior to the date hereof, it was determined that the Property contains Lead Based Paint, the assessment report describing the location and condition of the Lead Based Paint (a “Lead Based Paint Report”) is attached hereto and made a part hereof as Exhibit B. If, at any time hereafter, Lead Based Paint is suspected of being present on the Property, Indemnitors agree, at their sole cost and expense and within sixty (60) days thereafter, to cause to be prepared a Lead Based Paint Report prepared by an expert, and in form, scope and substance, acceptable to Lender.
(e) In the event Indemnitors agree that a Lien is filed against if it has been, or if at any time hereafter it is, determined that the Property pursuant contains Lead Based Paint, on or before thirty (30) days following (i) the date hereof, if such determination was made prior to any applicable Environmental Lawthe date hereof or (ii) such determination, if such determination is hereafter made, as applicable, Indemnitors shall, within ten at their sole cost and expenses, develop and implement, and thereafter diligently and continuously carry out (10) Business Days from or cause to be developed and implemented and thereafter diligently and continually to be carried out), an operations, abatement and maintenance plan for the date that Lead Based Paint on the Property, which plan shall be prepared by an expert, and be in form, scope and substance, acceptable to Lender (together with any Borrower receives notice of such Lien plan attached hereto as Exhibit C, the “O&M Plan”). (but in any event ten (10) days If an O&M Plan has been prepared prior to the date of any contemplated sale pursuant to such Lien)hereof, either (i) pay the claim same is attached hereto and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, (A) made a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (part hereof as Exhibit C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant agree to any Lien.
diligently and continually carry out (f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan or cause to be repaid in full. The enforcement carried out) the provisions thereof.) Compliance with the O&M Plan shall require or be deemed to require, without limitation, the proper preparation and maintenance of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale all records, papers and forms required under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the PropertyEnvironmental Laws.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (Apple Hospitality Two Inc)
Covenants of Indemnitors. (a) So long as any Borrower or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept in full compliance with all Environmental Laws and free from Hazardous Material Substances (except those materials substances used or stored by Borrower, Manager or Tenants Borrower in the ordinary course of their business, its business and in compliance with applicable all Environmental Laws), (iii) shall not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Propertystorage tanks, (iv) shall expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material Substances by all future Tenants and Managers tenants of space in the Improvements (except those substances used by such Tenants tenants in the ordinary course of their activities and in compliance with all Environmental Laws), invitees and trespassers, and, without limiting the generality of the foregoing, during the term of this Agreement, shall not install in the Improvements or Managers permit to be installed in the Improvements asbestos or any substance containing asbestos. If required by Lender (including if recommended in any third-party environmental report delivered to Lender) or under any Environmental Law, Borrower shall maintain an Operations and Maintenance Program (“O&M Program”) for the management of asbestos, lead-based paint, radon or any other Hazardous Substances at the Property.
(b) Indernnitors shall promptly notify Lender should Indemnitors, or any of them, become aware of (i) any Hazardous Substances at, on, under, affecting or threatening to affect the Property (except those substances used by Borrower or its tenants in the ordinary course of their business or activities, respectively, and in compliance with all applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenants, Managers and other permitted occupants of the Property from taking any such actions, (v) in any event, not install on the Property or permit to be installed on the Property PCB's, urea formaldehyde insulation, asbestos or any substance containing asbestos or any material containing lead-based paint, (vi) prohibit the disposal and/or release of any Hazardous Material in violation of applicable Environmental Laws on, at or beneath, the Property, (vii) operate and maintain, or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Property.
(b) Indemnitors shall promptly notify Lender in writing should any Indemnitor become aware of (i) any release, disposal or discharge of Hazardous Material in violation of applicable Environmental Laws, or other material actual environmental problem or liability, with respect to or affecting the Property), (ii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and arising under Borrower resulting from any applicable violation or alleged violation of the Environmental Law, (iii) the institution of any investigation, inquiry or proceeding concerning Borrowers Borrower or the Property pursuant to any applicable Environmental Law or otherwise relating to Hazardous Material affecting the PropertySubstances, or (iv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery. Indemnitors shall, (v) any remedial action taken by Indemnitors or, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity promptly and when and as required and regardless of the Property that would reasonably be expected to cause source of the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shallcontamination, at their own expense, provide copies take all actions as shall be necessary or advisable for the compliance with the terms of such documents this Section 3(b) or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit to Lender copies for the remediation of any and all material citations, orders, notices and all other communications sent or received by any Borrower relating to any of the foregoing provisions of this paragraph.
(c) Regardless of the source of contamination, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws for the clean-up portions of the Property and or other property affected by contamination in, on, under or at the Propertyproperty, including, without limitation, all investigative, monitoring, removal, containment and remedial and response actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender), and, to the extent applicable in accordance with Remedy Standard A [30 TEX. Indemnitor ADMIN. CODE, Chapter 350] to the extent required by the Texas Commission on Environmental Quality, and shall further pay or cause to be paid, at no expense to any Indemnified PartyLender, all clean-upremediation, response, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitors fail to do so, or following an Event of Default, Lender may, at its sole election, may cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, Substances or otherwise be brought into compliance conformance with applicable Environmental Laws, Laws (including Remedy Standard A) and any cost incurred in connection therewith shall be included in CostsCosts and shall be paid by Indemnitors in accordance with the terms of Section 4(c) hereof. Borrowers In furtherance of the foregoing, Indemnitors hereby grant to Lender access to the Property and an irrevocable license to remove any items deemed by Lender to be Hazardous Material Substances and to do all things Lender shall deem necessary to bring the Property into compliance in all material respects conformance with applicable Environmental Laws. However, Lender shall have no obligation to inspect or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(dc) Upon the request of Lender, at any time (i) and from time to time after the occurrence of a default under this Agreement or an Event of Default under any of the other Loan Documents or (ii) at such other time as Lender has reasonable grounds to believe that (A) Hazardous Material is Substances are or has have been releasedhandled, stored generated, stored, processed, transported to or from, or Released or discharged from or disposed of, or existing, of on or around the Property at a level (other than in excess the normal course of Borrower’s or the tenants’ business or activities, respectively, and in compliance with all Environmental Laws) or that allowed by applicable Environmental Laws Borrower, any tenant or (B) the Property may be in material violation of applicable the Environmental Laws, Indemnitors shall cause provide, at Indemnitors’ sole expense, an investigation inspection or audit of the Property to be undertaken prepared by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any indicating the presence or absence of Hazardous Material is located on, at, beneath, or near Substances on the Property and/or whether the Property is in compliance in all (including asbestos-containing material respects with Environmental Laws. The scope of any investigation or audit shall be approved by Lender in Lender's reasonable discretionlead-based paint). If Indemnitors fail to provide reports of such investigation inspection or audit within thirty (30) days after such request, Lender may, but shall have no obligation to, may order the same. Borrowers , and Indemnitors hereby grant to Lender and Lender's contractors its employees and agents access to the Property and an irrevocable license to undertake such investigation inspection or audit provided that audit. The cost of such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Property. All reasonable costs of any such investigation inspection or audit shall be included in Costs and shall be paid by Indemnitors in accordance with the terms of paragraph 5(cSection 4(c) hereof.
(e) In the event that a Lien is filed against the Property pursuant to any applicable Environmental Law, Indemnitors shall, within ten (10) Business Days from the date that any Borrower receives notice of such Lien (but in any event ten (10) days prior to the date of any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from the Property, or (ii) furnish, at Indemnitor's option, (A) a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant to any Lien.
(f) The amount of Indemnitors' liability hereunder is unrelated to the amount of the Loan and any failure of the Loan to be repaid in full. The enforcement of this Agreement by the Indemnified Parties shall not be construed by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full by reason of a full credit bid at any foreclosure sale under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the Property.
Appears in 1 contract
Samples: Hazardous Substances Indemnity Agreement (Moody National REIT I, Inc.)
Covenants of Indemnitors. From the date of this Agreement until the earlier of the full release of the lien of the Deeds of Trust, a complete foreclosure, or the delivery of a deed in lieu of foreclosure, Indemnitors covenant and agree jointly and severally as follows:
(a) So long as In the event that at any Borrower time any investigation, site monitoring, containment, clean up, removal, restoration or Affiliate thereof owns or is in possession of the Property, Indemnitors shall, and shall use commercially reasonable efforts to cause all property managers, agents, employees and Tenants to: (i) comply with all Environmental Laws applicable to the Property, (ii) keep or cause the Property to be kept free from Hazardous Material (except those materials used by Borrower, Manager or Tenants in the ordinary course of their business, in compliance with applicable Environmental Laws), (iii) not install or use, or permit the installation or use of, any underground receptacles containing Hazardous Material on the Property, (iv) expressly prohibit the use, generation, handling, storage, production, release, processing and disposal of Hazardous Material by all future Tenants and Managers (except those substances used by such Tenants or Managers in the ordinary course of their business in compliance with all applicable Environmental Laws) and use all commercially reasonable efforts to prevent existing Tenants, Managers and other permitted occupants of the Property from taking any such actions, (v) in any event, not install on the Property or permit to be installed on the Property PCB's, urea formaldehyde insulation, asbestos or any substance containing asbestos or any material containing lead-based paint, (vi) prohibit the disposal and/or release response action of any Hazardous Material in violation of applicable Environmental Laws on, at kind or beneath, nature (collectively the Property, (vii“Remedial Work”) operate and maintain, is necessary or cause to be operated and maintained, the HVAC systems at the Property in accordance with standards for operation of similar systems located at properties that are similar (including, without limitation, the manner, class of operation, and/or Franchisor standards) to the Property, (viii) cause the Required Capital Improvements which relate to mold to be completed in accordance with the standards and time frames set forth in Section 6.5 of the Loan Agreement, and (ix) not permit any Lien imposed pursuant to any applicable Environmental Law to be imposed or, subject to Section 4(c) below, to remain on the Property.
(b) Indemnitors shall promptly notify Lender in writing should any Indemnitor become aware of (i) any release, disposal or discharge of Hazardous Material in violation of applicable Environmental Laws, or other material actual environmental problem or liability, with respect to or affecting the Property, (ii) any lien, action or notice of violation or potential liability affecting the Property or Borrowers and arising desirable under any applicable Environmental Law, (iii) the institution of any investigationjudicial order, inquiry or proceeding concerning Borrowers or the Property pursuant to any applicable Environmental Law or otherwise relating to Hazardous Material affecting the Property, (iv) the discovery of any occurrence, condition or state of facts which would render any representation or warranty contained in this Agreement incorrect or incomplete in any material respect if made at the time of such discovery, (v) any remedial action taken by Indemnitors or, if actually known by Indemnitor, any other Person in response to any Hazardous Material on, under or at the Property, (vi) the discovery by Indemnitors of any occurrence or condition on any real property adjoining or in the vicinity of the Property that would reasonably be expected to cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use thereof under any applicable Environmental Laws, and (vii) any request for information from any governmental agency that indicates such agency is investigating whether Indemnitors may be potentially responsible for a release, disposal or discharge of Hazardous Material. Borrowers shall promptly notify Lender of any proposed action to be taken pertaining in any way to the Property to commence any operations that could reasonably be expected to subject any Borrower or the Property to additional obligations or liabilities under applicable Environmental Laws, including laws, rules and regulations requiring additional or amended environmental permits or licenses which could reasonably be expected to subject any Borrower to any material obligations or requirements under any applicable Environmental Laws. Borrowers shall, at their own expense, provide copies of such documents or information as Lender may reasonably request in relation to any matters disclosed pursuant to this Section. Indemnitor shall promptly transmit to Lender copies of any and all material citations, orders, notices and all other communications sent or received by any Borrower relating to any of the foregoing provisions of this paragraph.
(c) Regardless of the source of contamination, Indemnitors shall, at their own expense, promptly take or cause to be taken and diligently prosecute all actions required by applicable Environmental Laws for the clean-up of the Property and other property affected by contamination in, on, under or at the Property, including, without limitation, all investigative, monitoring, removal, containment and remedial actions in accordance with and required by all applicable Environmental Laws (and in all events in a manner satisfactory to the applicable Governmental Authority and reasonably satisfactory to Lender). Indemnitor shall further pay or cause to be paid, at no expense to any Indemnified Party, all clean-up, administrative and enforcement costs of applicable governmental agencies which may be asserted against the Property. In the event Indemnitors fail to do so, or following an Event of Default, Lender may, at its sole election, cause the Property or other affected property to be freed from any Hazardous Material located thereon at a level in excess of that allowed by applicable Environmental Laws, or otherwise be brought into compliance with applicable Environmental Laws, and any cost incurred in connection therewith shall be included in Costs. Borrowers hereby grant to Lender access to the Property and an irrevocable license to remove any Hazardous Material and to do all things necessary to bring the Property into compliance in all material respects with applicable Environmental Laws. However, Lender shall have no obligation to inspect or clean up any Hazardous Material. Lender shall not be deemed a generator of any Hazardous Material removed from the Property.
(d) Upon the request of Lender, at any time (i) after the occurrence of an Event of Default or (ii) Lender has reasonable grounds to believe that (A) Hazardous Material is or has been released, stored or disposed entity because of, or existingin connection with any Disposal, on Violation or around the Property at a level in excess of that allowed by applicable Environmental Laws or (B) the Property may be in material violation of applicable Environmental LawsLitigation, Indemnitors shall cause an investigation or audit of the Property to be undertaken by a hydrogeologist or environmental engineer or other appropriate consultant reasonably approved by Lender to determine whether any Hazardous Material is located on, at, beneath, or near the Property and/or whether the Property is in compliance in all material respects with Environmental Laws. The scope of any investigation or audit shall be approved by Lender in Lender's reasonable discretion. If Indemnitors fail to provide reports of such investigation or audit within thirty (30) days after written demand for performance thereof by Beneficiary (or such requestshorter period of time as may be required under any applicable law, Lender may, but shall have no obligation toregulation, order the same. Borrowers hereby grant or agreement), commence and thereafter diligently perform and complete all such Remedial Work and respond to Lender and Lender's contractors access to the Property and an irrevocable license to undertake such investigation or audit provided that such investigation is conducted in a manner so as not to unreasonably affect Borrowers' operations at the Propertydefend against any Indemnified Event. All reasonable Remedial Work will be performed by contractors approved in advance by Beneficiary, which approval shall not be unreasonably withhold or delayed, and under the supervision of a consulting engineer approved by Beneficiary, which approval shall not be unreasonably withhold or delayed. All costs and expenses of any such investigation or audit shall be included in Costs and Remedial Work shall be paid by Indemnitors including, without limitation, Beneficiary’s Attorney’s Fees incurred in accordance connection with monitoring or review of such Remedial Work. In the event Indemnitors shall fail to timely perform and complete such Remedial Work as provided in Section 4(a), Beneficiary may, but shall not be required to, cause such Remedial Work to be performed, and the Indemnity provided in Section 2 of this Agreement shall cover all such costs and expenses thereof, or incurred in connection therewith, and shall be payable by Indemnitors upon demand. Further, Beneficiary may, at its option, add all such costs and expenses thereof, or incurred in connection therewith, to the Indebtedness as defined in the Deeds of Trust without affecting the liability of Indemnitors hereunder;
(b) Indemnitors shall not permit or allow any Disposal that requires further investigation or response action under Environmental Law, or any Violation of the Environmental Laws, to occur or continue to exist, and should any of the Indemnitors discover or be apprised of any such Disposal or Violation, Indemnitors shall cure or cause to be cured such a Disposal or Violation pursuant to the terms of paragraph 5(cSection 4(a) hereofhereinabove. Indemnitors also covenant to possess and maintain all licenses, permits, authorizations and variances required by Environmental Law for any Borrower to own and operate the Property and to perform any Remedial Work at the Property in compliance with Environmental Laws; and
(c) Indemnitors shall investigate, monitor and inspect the Property for any Disposal or suspected Disposal and which relate to an Indemnified Event or could reasonably be expected to give rise to an Indemnified Event as reasonably required upon notice from Beneficiary describing the basis for Beneficiary’s belief that such Disposal or suspected Disposal is at a concentration or in a condition that could reasonably be expected to give rise to an Indemnified Event. Except as already disclosed in the Environmental Reports (as hereinafter defined), Indemnitors shall also provide Beneficiary with prompt written notice in reasonable detail of (i) any Disposal or threatened Disposal at, on, under or from the Property of which any of the Indemnitors becomes aware which could reasonably be expected to give rise to an Indemnified Event; (ii) any notice received by any Indemnitor from any federal, state, municipal or other governmental agency or authority in connection with any Disposal located at, on, in, or under, or emanating from, the Property; and (iii) any knowledge of any incurrence of expense by any governmental agency or authority in connection with the assessment, containment or removal of any Hazardous Materials located at, on, in, or under, or emanating from the Property. Indemnitors shall also promptly provide Beneficiary with a copy of any future environmental reports, investigations, studies, audits, tests or other technical analyses relating to the Property that are obtained by Indemnitors.
(d) Indemnitors shall execute such documents as Beneficiary deems reasonably necessary, to make such applications as Beneficiary reasonably requires, and to cooperate with Beneficiary, including granting Beneficiary access to the Property, upon reasonable advance notice except in the event of an emergency, to ensure that the Property complies with all Environmental Laws. Indemnitors shall promptly provide Beneficiary with copies of all correspondence, reports, notices, orders, findings, declarations and other materials regarding Indemnitors’ compliance with the requirements of applicable Environmental Laws as they are issued to or received by Indemnitors. The foregoing undertakings shall survive any termination or expiration of this Agreement, as well as any assignment of the Property by Beneficiary, as and to the extent set forth in Section 2.
(e) In the event that a Lien is filed against Indemnitors shall provide full cooperation, assistance, and access to the Property pursuant by Beneficiary or its representatives upon reasonable prior notice during reasonable hours that are authorized to conduct response actions or natural resource restoration at the Property (including without limitation the cooperation and access necessary for the installation, integrity, operation, and maintenance of any applicable Environmental Lawcomplete or partial response action or natural resource restoration at the Property); not impede the effectiveness or integrity of any institutional control employed in connection with a response action; and provide all legally required notices with respect to the discovery or release of any Hazardous Material at, Indemnitors shallon, from, affecting, within ten (10) Business Days from the date that any Borrower receives notice of such Lien (but or in any event ten (10) days prior to the date of any contemplated sale pursuant to such Lien), either (i) pay the claim and remove the Lien from connection with the Property, or (ii) furnish, at Indemnitor's option, (A) a bond satisfactory to Lender in the amount of the claim out of which the Lien arises, (B) a cash deposit in the amount of the claim out of which the Lien arises, (C) other security reasonably satisfactory to Lender in an amount sufficient to discharge the claim out of which the Lien arises, or (D) security in a form and amount satisfactory to the applicable Governmental Authority pursuant to a valid consent or other order, and Indemnitors shall promptly arrange for the removal of the Lien. Notwithstanding the foregoing, Indemnitors shall prevent a sale pursuant to any Lien.
(f) The amount If a written program of Indemnitors' liability hereunder operations and maintenance is unrelated required to be followed by any Borrower with respect to Hazardous Materials (“O&M Program”), such Borrower shall establish such O&M Program and comply in a timely manner with, and cause all tenants, operators, managers, employees, agents, and contractors of such Borrower and any other persons present on the amount Property to comply with the O&M Program. All costs of performance of such Borrower’s obligations under any O&M Program shall be paid by such Borrower, and Beneficiary’s out-of-pocket costs incurred in connection with the monitoring and review of the Loan O&M Program and any failure of the Loan to such Borrower’s performance shall be repaid in full. The enforcement of this Agreement by the Indemnified Parties shall not be construed paid by Indemnitors as an indirect attempt to recover any Loan deficiency or loss relating to the failure of the Loan to be repaid in full. Indemnitors acknowledge that they may have liability hereunder even if the Loan is repaid in full upon demand by reason of a full credit bid at any foreclosure sale under the Security Instrument, and that the amount of Indemnitor's liability hereunder could exceed the entire amount paid by Borrower for the PropertyBeneficiary.
Appears in 1 contract
Samples: Environmental Indemnification Agreement (Grubb & Ellis Healthcare REIT II, Inc.)
