Environmental Covenants. The Borrower covenants and agrees that: (i) all uses and operations on or of each Project, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project; (iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws; (v) Reserved; (vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”); (vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project; (viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and (ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtained.
Appears in 7 contracts
Samples: Loan Agreement (Douglas Emmett Inc), Loan Agreement (Douglas Emmett Inc), Loan Agreement (Douglas Emmett Inc)
Environmental Covenants. The Borrower covenants and agrees that:
: (ia) Borrower shall use commercially reasonable efforts to ensure that all uses and operations on or of each Project, whether by the Borrower or any other Person, Property shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release use commercially reasonable efforts to prevent any Releases of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) the Borrower shall not knowingly permit any Hazardous Substances in, on, or under any Projectthe Property, except those that are (i) in compliance with all Environmental Laws and of types and in quantities customarily used with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (ii) de-minimis amounts necessary to operate the Property for the purposes set forth in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used Loan Agreement which will not result in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be an environmental condition in, on, on or under any Project, the Property and shall operate, maintain, repair which are otherwise permitted under and replace any such underground storage tank so disclosed used in compliance with all Applicable Laws;
Environmental Law and (viii) Reserved;
fully disclosed to Lender in writing; (vid) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”the "ENVIRONMENTAL LIENS");
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofSECTION 8.3 below, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Borrower shall, at its sole cost and (B) promptly upon requestexpense, copies of all perform any environmental investigations, studies, audits, reviews site assessment or other analyses conducted by or that are investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender made in the possession event that Lender has reason to believe that an environmental hazard exists on the Property (including but not limited to sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or control of gas), and share with Lender the Borrower in relation reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to any Project, whether heretofore or hereafter obtained.rely on such reports and other results thereof;
Appears in 6 contracts
Samples: Deed of Trust and Security Agreement (Behringer Harvard Reit I Inc), Deed of Trust and Security Agreement (Behringer Harvard Reit I Inc), Deed to Secure Debt, Assignment of Leases and Rents and Security Agreement (Behringer Harvard Reit I Inc)
Environmental Covenants. The Borrower covenants and agrees that:
(a) For purposes of this Agreement, the following terms will have the following meanings: (i) all uses "HAZARDOUS MATERIAL" or "HAZARDOUS MATERIALS" means and operations includes petroleum products, flammable explosives, radioactive materials, asbestos or any material containing asbestos, polychlorinated biphenyls, or any hazardous, toxic or dangerous waste, substance or material defined as such or defined as a hazardous substance or any similar term, by, in or for the purposes of the Environmental Laws, including, without limitation Section 101(14) of CERCLA (hereinafter defined); provided, that the term "HAZARDOUS MATERIALS" will exclude quantities of materials or substances maintained by Lessor, Sprint Collocator, its Affiliates, Lessee and Tower Subtenants on or about any Site (including Tower and Improvements on such Site) in the ordinary course of each Projectbusiness, whether by so long as such materials are maintained in accordance with the Borrower applicable Environmental Laws: (ii) "RELEASE" will have the meaning given such term, or any similar term, in the Environmental Laws, including, without limitation Section 101(22) of CERCLA; and (iii) "ENVIRONMENTAL LAW" or "ENVIRONMENTAL LAWS" will mean any "SUPER FUND" or "SUPER LIEN" Law, or any other Personfederal, shall state or local statute, Law, ordinance, code, rule, regulation, order or decree, regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Materials as may now or at any time hereafter be in compliance with all Environmental Laws and permits issued pursuant thereto;
(ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionseffect, including, but not limited towithout limitation, providing the following, as same may be amended or replaced from time to time, and all relevant information regulations promulgated under or in connection with: the Superfund Amendments and making knowledgeable persons available for interviews Reauthorization Act of 1986; The Comprehensive Environmental Response, Compensation and (B) promptly upon requestLiability Act of 1980; The Clean Air Act; The Clean Water Act; The Toxic Substances Control Act; The Solid Waste Disposal Act, copies as amended by the Resource Conversation and Recovery Act; The Hazardous Materials Transportation Act; and The Occupational Safety and Health Act of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtained1970.
Appears in 5 contracts
Samples: Master Lease and Sublease (Global Signal Inc), Master Lease and Sublease (Global Signal Inc), Master Lease and Sublease (Global Signal Inc)
Environmental Covenants. The Borrower (a) Except as would not reasonably be expected to give rise to material liabilities under Environmental Laws, Issuer and, with respect to itself and the Properties it owns, each Guarantor, covenants and agrees that:
that so long as the Note is outstanding, and until payment in full of all Obligations and termination of the Secured Note Documents: (i) all uses and operations on or of each Projectthe Properties, whether by such Issuer, Guarantor, or to the Borrower or extent commercially reasonable any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
Laws; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances inMaterials at, on, under or from any Project;
of the Properties at concentrations exceeding those allowed by Environmental Law; (iii) the Borrower shall not knowingly permit Hazardous Substances inMaterials at, on, or under any Project, except those that are of the Properties for which investigation or remediation is required by a Governmental Authority shall be investigated and remediated in compliance with all Environmental Laws Laws; and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 for environmental deed restrictions, institutional controls and access agreements required by agency order or as specifically described in the Environmental Reportsa voluntary remedial action, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, Issuer and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower each Guarantor shall keep each Project the Properties free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Issuer any Guarantor or any other Person (collectively, the “Environmental Liens”);.
(viib) notwithstanding clause (iii) aboveIssuer and, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located itself and the Properties it owns, each Guarantor, shall (i) promptly and reasonably cooperate, at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Projectits sole cost and expense, in accordance with this Agreement and applicable Environmental Laws subject all reasonable activities pursuant to the right to contest such Remediation in accordance with Section 7(a2.3(c) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agentbelow, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant material, non-privileged information and making knowledgeable persons reasonably available for interviews interviews; (ii) perform any environmental compliance or site assessment or other investigation of environmental conditions in connection with any of the Properties, at its sole cost and expense, pursuant to any reasonable written request of the Noteholder, upon the Noteholder’s reasonable belief that conditions at a Collateral Property not in compliance with Environmental Law and could result in material liability under Environmental Laws or that a Release of Hazardous Materials at, on, under or from or migrating to any Collateral Property could result in material liabilities under Environmental Laws, and share with the Noteholder the reports and other results thereof, and the Noteholder shall be entitled to rely on such reports and other results thereof; (iii) comply with all reasonable written requests of the Noteholder, at its sole cost and expense, to reasonably effectuate investigation or remediation of any Hazardous Materials Released at, on, under, from or migrating to any Collateral Property that the Noteholder reasonably believes could result in material liabilities under Environmental Laws; (iv) use commercially reasonable efforts to cause all tenants and other users of any of the Properties to materially comply with all Environmental Laws; and (v) except for those events and conditions disclosed to the Noteholder prior to the date hereof and except for those which would not reasonably be expected to give rise to material liabilities under Environmental Laws, within ten (10) Business Days notify the Noteholder in writing after a Responsible Environmental Person has become aware of (A) any Release of Hazardous Materials at, on, under, from or migrating towards any of the Properties; (B) promptly upon requestany non-compliance with any Environmental Laws related to any of the Properties; (C) any actual Environmental Lien imposed on any Collateral Property; (D) any required or proposed investigation or remediation relating to a Release of Hazardous Materials at, copies on, under, from or migrating to any of all environmental investigations, studies, audits, reviews the Properties; and (E) any written notice or other analyses conducted communication of which any Responsible Environmental Person receives from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Releases of Hazardous Materials at, on, under or from any Collateral Property.
(c) Upon (i)(A) the occurrence and during the continuance of an Event of Default or (B) the Noteholder’s reasonable belief that a Collateral Property is not in compliance with all Environmental Laws and such noncompliance would reasonably be expected to result in material liabilities under Environmental Laws, or (C) the Noteholder’s reasonable belief that a Release of Hazardous Materials at, on, under or from or migrating to any of the Collateral Properties has occurred or is occurring and would reasonably be expected to result in Issuer or any Guarantor incurring material liabilities under Environmental Law and (ii) reasonable notice to the Issuer and any Guarantor that owns the Collateral Property at issue, the Noteholder and any other Person designated by the Noteholder, including but not limited to any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon such Collateral Property at all reasonable times, subject to the terms of any applicable lease in place for a Collateral Property, to assess any and all aspects of the environmental condition of such Collateral Property and its use, including but not limited to conducting any environmental assessment or that are audit (the scope of which shall be determined in the possession or control Noteholder’s reasonable discretion taking into account the perceived environmental risk and the magnitude of the Borrower in relation potential liability) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Each Issuer or Guarantor shall cooperate with and provide reasonable access to the Noteholder and any Projectsuch Person or entity designated by the Noteholder. Upon prior written request to the Noteholder, whether heretofore the Issuer and Guarantors shall be entitled at their sole cost and expense to take split samples of any samples collected by the Noteholder or hereafter obtainedits designees.
Appears in 4 contracts
Samples: Secured Note Agreement (General Motors Co), Secured Note Agreement (General Motors Co), Secured Note Agreement (General Motors Co)
Environmental Covenants. The So long as Borrower covenants and agrees that:
owns or is in possession of the Property, Borrower (i) all uses and operations on shall keep or of each Project, whether by cause the Borrower or any other Person, shall Property to be kept free from Hazardous Substances except those in compliance with all Environmental Laws and or any permits issued pursuant with respect thereto;
, (ii) except for Releases incidental to the Use shall promptly notify Lender if Borrower shall become aware of any release of Hazardous Substances permitted by clause on the Property and/or if Borrower shall become aware that the Property is in violation of any Environmental Laws and/or if Borrower shall become aware of any condition on the Property which shall pose a threat to the health, safety or welfare of humans, and (iii) below shall remove or remediate such Hazardous Substances and/or cure such violations and/or remove or remediate such threats, as applicable, as required by law (or as shall be reasonably required by Lender in the case of removal or remediation which is not required by law, but in response to the opinion of a licensed hydrogeologist, licensed environmental engineer or other qualified consultant engaged by Lender (“Lender’s Consultant”) provided that such removal, remediation or cure is reasonably necessary to eliminate imminent danger to the health, safety or welfare of humans and would customarily be performed by prudent owners of properties similar to the Property in compliance with all Applicable Lawssimilar circumstances), promptly after Borrower becomes aware of same, at Borrower’s sole expense, without prejudice to any rights Borrower may have against any responsible parties. Notwithstanding anything to the Borrower shall not permit a Release contrary in this Section 5.8.1, Borrower, Manager and/or tenants on the Property may use and store ordinary amounts of Hazardous Substances inat the Property if such use or storage is in connection with business supplies used by Borrower, on, under a tenant in accordance with the terms of its Lease or from by Manager pursuant to the Management Agreement or is in connection with the ordinary cleaning and maintenance of the Property so long as such use and storage (A) does not violate any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance with all applicable Environmental Laws and (B) is not the subject of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described any specific recommendations in the Environmental ReportsReports that would prohibit such use or storage. Nothing herein shall prevent Borrower from recovering such expenses from any other party that may be liable for such removal or cure. The obligations and liabilities of Borrower under this Section 5.8.1 shall survive any termination, satisfaction, or assignment of the Mortgage and the exercise by Lender of any of its rights or remedies hereunder, including, without limitation, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission acquisition of the Borrower Property by foreclosure or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain a conveyance in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation lieu of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspectionforeclosure; provided that such inspections obligations and liabilities of Borrower shall not unreasonably interfere with survive after the operation of such Project date Lender or the tenants or occupants thereof, and shall be subject its Affiliates take title to the rights Property pursuant to foreclosure or a conveyance in lieu of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedforeclosure.
Appears in 4 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Environmental Covenants. The (a) Borrower covenants and agrees that:
that so long as the Loan is outstanding (i) all uses and operations on or of each ProjectIndividual Property, whether by the Mortgage Borrower or any other Person, shall be in compliance in all material respects with all applicable Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
of the Properties in violation of any Environmental Law; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances Materials in, on, or under any ProjectIndividual Property, except those that are in compliance with all applicable Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
extent required; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks cause Mortgage Borrower to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project Individual Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental LawLaw applicable to such Individual Property, whether due to any act or omission of the Mortgage Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times (during normal business hoursits sole cost and expense, cause Mortgage Borrower to fully and expeditiously cooperate in all activities pursuant to Section 5.1.19(b) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, cause Mortgage Borrower to perform any environmental site assessment or other investigation of environmental conditions in connection with any Individual Property, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that such Individual Property is not in compliance in all material respects with all applicable Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, cause Mortgage Borrower to comply with all reasonable written requests of Lender to (A) reasonably effectuate remediation of any Hazardous Materials in, on, under or from such Individual Property; and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews comply with any Environmental Law applicable to such Individual Property; (viii) Borrower shall not knowingly cause or permit Mortgage Borrower to allow any tenant or other analyses conducted user of any Individual Property to violate any Environmental Law applicable to such Individual Property; and (ix) Borrower shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Releases of Hazardous Materials in, on, under, from or migrating towards any Individual Property in violation of any Environmental Law; (B) any material non-compliance with any Environmental Laws related in any way to any Individual Property; (C) any actual or potential Environmental Lien; (D) any required or proposed remediation of environmental conditions relating to any Individual Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials in, on, under, from or migrating towards any Individual Property.
(b) In the event that Lender shall reasonably believe that any Individual Property is not in compliance in all material respects with all Environmental Laws applicable to such Individual Property, Lender and any other Person designated by Lender, including but not limited to any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon such Individual Property at all reasonable times and after reasonable prior written notice (and subject to the rights of tenants under their respective Leases), to assess any and all aspects of the environmental condition of such Individual Property and its use, including but not limited to conducting any environmental assessment or that are audit (the scope of which shall be determined by Lender in the possession exercise of its good faith business judgment) and taking samples of soil, groundwater or control other water, air, or building materials, and conducting other invasive testing. Borrower shall cause Mortgage Borrower to cooperate in all reasonable respects with and provide access to Lender and any such Person designated by Lender at all reasonable times and after reasonable prior written notice (and subject to the rights of the Borrower in relation to any Project, whether heretofore or hereafter obtainedtenants under their respective Leases).
Appears in 4 contracts
Samples: Mezzanine Loan Agreement (Archstone Smith Operating Trust), Mezzanine Loan Agreement (Archstone Smith Operating Trust), Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Environmental Covenants. The Borrower Each Issuer covenants and agrees that:
that so long as such Issuer owns, manages, is in possession of, or otherwise controls a Mortgaged Property: (ia) all uses and operations on or of each Projectsuch Mortgaged Property, whether by the Borrower such Issuer or any other Personperson or entity, shall be in material compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Environmental Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
such Mortgaged Property in material violation of Environmental Laws; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances Materials present at, in, on, or under any Projectsuch Mortgaged Property or generated, managed, stored, treated, transported or disposed in connection with the use and operation of such Mortgaged Property, except those that are both (i) in material compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Projectextent required, and shall operate, maintain, repair and replace any (ii) in amounts necessary to operate such underground storage tank so disclosed in compliance with all Applicable Laws;
Mortgaged Property; (vd) Reserved;
(vi) the Borrower such Issuer shall keep each Project the Mortgaged Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Issuer or any other Person person or entity (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeIssuer shall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofSection 10.08, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) such Issuer shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with such Mortgaged Property, pursuant to any reasonable written request of the Property Manager in accordance with the Property Management Agreement and share with the Indenture Trustee the reports and other results thereof, and the Indenture Trustee shall be entitled to rely on such reports and other results thereof; (g) such Issuer shall, at its sole cost and expense, comply with all reasonable written requests of the Property Manager in accordance with the Property Management Agreement to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from such Mortgaged Property associated with an Environmental Release and (ii) comply with any Environmental Law; (h) such Issuer shall not knowingly permit any Borrower, Tenant or other user of the Mortgaged Property to violate any Environmental Law in any material respect; and (i) such Issuer shall immediately notify the Property Manager in writing after it has become aware of (A) any presence or Environmental Release or threatened Environmental Releases of Hazardous Materials in, on, under, from or migrating towards such Mortgaged Property in violation of any Environmental Law, (B) promptly upon requestany non-compliance with any Environmental Laws related in any way to such Mortgaged Property, copies of all environmental investigations(C) any actual or potential Environmental Lien, studies(D) any required or proposed governmental agency investigation, audits, reviews remediation or other analyses conducted by response to environmental conditions relating to such Mortgaged Property, and (E) any written or that are oral notice or other communication of which such Issuer becomes aware from any source whatsoever (including but not limited to a governmental agency) relating in the possession or control any way to Hazardous Materials at such Mortgaged Property in violation of the Borrower in relation to any Project, whether heretofore or hereafter obtainedEnvironmental Law.
Appears in 3 contracts
Samples: Master Indenture (Spirit Realty Capital, Inc.), Master Indenture (Spirit Finance Corp), Master Indenture (Spirit Finance Corp)
Environmental Covenants. The (a) Borrower covenants and agrees that:
that so long as the Loan is outstanding (i) all uses and operations on or of each Projectthe Properties, whether by the Borrower or any other Person, shall be in compliance in all material respects with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not cause or permit a Release any Releases of Hazardous Substances in, on, under or from any Project;
of the Properties; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectof the Properties, except those that are both (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects extent required, and (i.e., materials used B) (1) in cleaning amounts not in excess of that necessary to operate the applicable Individual Property or (2) fully disclosed to and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
approved by Lender in writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Properties free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to paragraph (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with any of the Properties, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that an Individual Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (A) reasonably effectuate remediation of any Hazardous Substances in, on, under or from any Individual Property to the extent required by Environmental Laws; and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews comply with any Environmental Law; (viii) Borrower shall not allow any tenant or other analyses conducted by or that are in the possession or control user of any of the Properties to violate any Environmental Law; and (ix) Borrower shall immediately notify Lender in relation writing after it has become aware of: (A) any presence or Release or threatened Releases of Hazardous Substances in, on, under, from or migrating towards any of the Properties if it would reasonably be expected to result in a Material Adverse Effect; (B) any non compliance with any Environmental Laws related in any way to any Projectof the Properties if it would reasonably be expected to result in a Material Adverse Effect; (C) any actual or potential Environmental Lien; (D) any required or proposed remediation of environmental conditions relating to any of the Properties; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Substances.
(b) Lender and any other Person designated by Lender, whether heretofore including but not limited to any representative of a Governmental Authority, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon any Individual Property at all reasonable times upon reasonable notice to Borrower to assess any and all aspects of the environmental condition of any Individual Property and its use, including but not limited to conducting any environmental assessment or hereafter obtainedaudit (the scope and need of which shall be determined in Lender’s reasonable discretion based upon its good-faith belief that any Individual Property is not in full compliance with all Environmental Laws) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing reasonably necessary to assess the environmental condition of such Individual Property. Borrower shall cooperate with and provide access to Lender and any such Person or entity designated by Lender and Lender shall take reasonable steps to minimize any disruption to Borrower’s use and operation of such Individual Property.
Appears in 3 contracts
Samples: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower Indemnitor or any other Person, shall be in material compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower Indemnitor shall not permit a Release cause, or permit, there to be any material Releases of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto and (ii) disclosed to Indemnitee in quantities customarily used in the ownership, operation and maintenance of buildings similar writing; (d) Indemnitor shall use good faith efforts to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 keep or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks cause to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) kept the Borrower shall keep each Project Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeIndemnitor shall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion Paragraph 3 of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofthis Agreement, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons Persons available for interviews interviews; (f) in the event the Indemnified Parties have a good faith reason to believe there exists a Release or imminent threat of Release of Hazardous Substances or any other environmental condition involving Hazardous Substances at the Property in violation of Environmental Law, Indemnitor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Indemnitee (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Indemnitor shall, at its sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) effectuate Remediation of any environmental condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the Property to the extent that such Remediation is required by applicable Environmental Law; (ii) comply with any directive from any governmental authority with respect to compliance with any Environmental Law applicable to the Property; and (iii) take any other reasonable action necessary or appropriate for protection of human health or the environment with respect to compliance with any Environmental Law applicable to the Property; (h) Indemnitor shall not do or allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment in violation of Environmental Laws applicable to the Property, poses an unreasonable risk of harm to any Person in violation of Environmental Laws applicable to the Property; (i) Indemnitor shall promptly notify Indemnitee in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property in violation of, or which would reasonably be expected to result in liability by Indemnitor pursuant to, applicable Environmental Laws; (B) promptly upon requestany non-compliance with any Environmental Laws applicable to the Property; (C) any actual or expected Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Property; and (E) any written notice that any Indemnitor receives from any source whatsoever (including but not limited to a governmental entity) relating in any way to the presence, copies release, or threatened release of all environmental investigationsHazardous Substances or Remediation thereof, studies, audits, reviews or other analyses conducted by or that are in the possession or control possible liability of the Borrower in relation Indemnitor pursuant to any ProjectEnvironmental Law applicable to the Property, whether heretofore other environmental conditions in connection with the Property in violation of Environmental Law, or hereafter obtainedany actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement; and (j) Indemnitor shall comply in all material respects with any and all applicable local, state or federal laws, legislation, guidelines or statutes at any time in effect with respect to Microbial Matter.
Appears in 3 contracts
Samples: Environmental Indemnity Agreement, Environmental Indemnity Agreement (American Realty Capital New York City REIT, Inc.), Environmental Indemnity Agreement (American Realty Capital New York City REIT, Inc.)
Environmental Covenants. The Borrower Each Indemnitor covenants and agrees that:
that (ia) all uses and operations on or of each ProjectIndividual Property, whether by any of the Borrower Indemnitors or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
Individual Property (iiiexcept in compliance with all applicable Environmental Laws and with permits issued pursuant thereto); (c) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, on or under any ProjectIndividual Property, except those that are both (i) in compliance with all applicable Environmental Laws and of types with any necessary permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsd) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Indemnitors shall keep each Project Individual Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of any of the Borrower Indemnitors or any other Person (collectively, the “Environmental Liens”);
(vii) notwithstanding clause (iii) above; provided, that after prior notice to Indemnitee, Indemnitors, at their own expense, may contest by appropriate legal proceeding, conducted in good faith and with due diligence, the Borrower amount or validity of any Environmental Liens, provided that (1) no Event of Default has occurred and remains uncured, (2) such proceeding shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, be permitted under and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, be conducted in accordance with this Agreement all applicable statutes, laws and applicable ordinances, (3) no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost, (4) Indemnitors shall promptly upon final determination thereof pay the amount of any such Environmental Laws subject Liens, together with all costs, interest and penalties which may be payable in connection therewith, (5) to insure the right payment of such Environmental Liens, Indemnitors shall deliver to contest such Remediation Indemnitee either (A) cash, or other security as may be approved by Indemnitee, in accordance with Section 7(aan amount equal to one hundred ten percent (110%) of the contested amount if such contested amount will be less than one million dollars ($1,000,000) or one hundred twenty five percent (125%) of such contested amount if such contested amount will be equal to or greater than ($1,000,000), or (B) a payment and performance bond in an amount equal to one hundred percent (100%) of the contested amount from a surety acceptable to Indemnitee in its reasonable discretion, (6) failure to pay such Environmental Indemnity; and
Liens will not subject Indemnitee to any civil or criminal liability, (ix7) such contest shall not affect the Borrower shall provide the Administrative Agentownership, the Lenders use or occupancy of any Individual Property, and their representatives (A) with access8) Indemnitors shall, upon prior reasonable noticerequest by Indemnitee, give Indemnitee prompt notice of the status of such proceedings and/or confirmation of the continuing satisfaction of the conditions set forth in clauses (1) through (7) of this Section 2(d); (e) Indemnitors shall, at reasonable times (during normal business hours) their sole cost and expense, fully and in a timely manner cooperate in all activities pursuant to all or any portion Section 3 of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsthis Agreement, including, but not limited to, providing all relevant information and making knowledgeable persons Persons available for interviews upon reasonable advance written request and at reasonable times and places; (f) Indemnitors shall, at their sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with any Individual Property, pursuant to any reasonable written request of Indemnitee made in consideration of any environmental event or condition reasonably believed by Indemnitee to have occurred or to exist at any Individual Property (which request shall briefly describe the basis for Indemnitee’s belief) (including, but not limited to, sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas, such assessment or investigation to be in scope and nature appropriate to the suspected event or condition) that would be reasonably expected to have an adverse effect on any Individual Property or on the business or condition (financial or otherwise) of Borrower, and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Indemnitors shall, at their sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) effectuate any required Remediation of any condition (including, but not limited to, a Release of a Hazardous Substance) in, on, under or from any Individual Property; (ii) comply with any applicable Environmental Law; and/or (iii) comply with any directive from any Governmental Authority having jurisdiction over the applicable Individual Property requiring any action relating to any environmental condition in, on, under, from or migrating toward such Individual Property; provided, that with respect to clauses (g)(ii) and (iii), after notice to Indemnitee, Indemnitors, at their own expense, may suspend, or cause to be suspended, such compliance and contest, or cause to be contested by appropriate legal proceeding, conducted in good faith and with due diligence, the applicability of any Environmental Law, provided that (1) no Event of Default has occurred and remains uncured, (2) such proceeding shall be permitted under and be conducted in accordance with all applicable statutes, laws and ordinances, (3) no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost, (4) Indemnitors shall promptly upon final determination thereof take all acts then necessary to comply with such Environmental Law, together with the payment of all costs, interest and penalties which may be payable in connection therewith, (5) to insure the performance of such legal obligations and the payment of all related costs, Indemnitors shall deliver to Indemnitee either (A) cash, or other security as may be approved by Indemnitee, in an amount equal to one hundred ten percent (110%) of the maximum costs and expenses that are reasonably expected to be incurred in connection with such proceeding, including costs of compliance if Indemnitors are required to do so (collectively, the “Maximum Cost”) if such Maximum Cost is less than one million dollars ($1,000,000) or one hundred twenty five percent (125%) of the Maximum Cost if such Maximum Cost is equal to or greater than one million dollars ($1,000,000), or (B) promptly a payment and performance bond in an amount equal to one hundred percent (100%) of the Maximum Cost from a surety acceptable to Indemnitee in its reasonable discretion, (6) failure to comply with such Environmental Laws will not subject Indemnitee to any civil or criminal liability, (7) such contest shall not affect the ownership, use or occupancy of any Individual Property, and (8) Indemnitors shall, upon requestrequest by Indemnitee, copies give Indemnitee prompt notice of the status of such proceedings and/or confirmation of the continuing satisfaction of the conditions set forth in clauses (1) through (7) of this Section 2(g); (h) none of the Indemnitors shall do or knowingly allow any tenant or other user of any Individual Property to do any act that is in non-compliance with any applicable Environmental Law, impairs or may impair the value of any Individual Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste or violates any covenant, condition, agreement or easement applicable to any Individual Property; (i) if following the date hereof, it is determined that any Individual Property contains paint containing more than 0.5% lead by dry weight (“Lead Based Paint”), present in violation of any Environmental Law and not previously disclosed in the Environmental Reports, Indemnitors agree, at their sole cost and expense and within forty-five (45) days thereafter, to cause to be prepared an assessment report describing the location and condition of the Lead Based Paint (a “Lead Based Paint Report”), prepared by an expert, and in form, scope and substance, acceptable to Indemnitee; (j) if following the date hereof, it is determined that any Individual Property contains asbestos or asbestos-containing material (“Asbestos”) present in violation of any Environmental Law and not previously disclosed in the Environmental Reports, Borrower shall at their sole cost and expense and within forty-five (45) days thereafter, to cause to be prepared an assessment report describing the location and condition of the Asbestos (an “Asbestos Report”), prepared by an expert, and in form, scope and substance, acceptable to Indemnitee; (k) if a Lead Based Paint Report or Asbestos Report is required to be prepared pursuant to clauses (i) or (j) of this Section 2, on or before thirty (30) days following the preparation of such report, Indemnitors shall, at their sole cost and expense, develop and implement an operations and maintenance plan to manage such condition(s) on the applicable Individual Property, which plan shall be prepared by an expert, and be in form, scope and substance, acceptable to Indemnitee (together with any Lead Based Paint Report and/or Asbestos Report, as applicable, the “O&M Plan”), and 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, it being understood and agreed that 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; (l) in the event that any inspection or audit reveals the presence of Toxic Mold in the indoor air of any Individual Property at concentrations for which any Legal Requirement applicable to such Individual Property requires removal thereof by remediation professionals, Indemnitors shall promptly remediate the Toxic Mold and perform post-remedial clearance sampling in accordance with said Legal Requirement and applicable Environmental Law, following which abatement of the Toxic Mold, Indemnitors shall prepare and implement an Operations and Maintenance Plan for Toxic Mold and Moisture reasonably acceptable to Indemnitee and in accordance with the guidelines issued by the National Multi Housing Council; and (m) Indemnitors shall promptly notify Indemnitee in writing of (A) any presence or Release or threatened Release of Hazardous Substances in, on, under, from or migrating towards any Individual Property in material violation of, or as might be reasonably expected to result in material liability under, any Environmental Law; (B) material non-compliance with any Environmental Laws related in any way to any Individual Property; (C) any actual or threatened Environmental Lien; (D) any required or proposed Remediation of environmental investigations, studies, audits, reviews conditions relating to any Individual Property; and/or (E) any written or oral notice or other analyses conducted by communication of which any Indemnitor becomes aware from any source whatsoever (including, but not limited to, any Governmental Authority) relating to a material or that are in the possession unlawful Release, or control threatened Release, of the Borrower in relation Hazardous Substances or Remediation thereof, possible liability of any Person pursuant to any ProjectEnvironmental Law concerning any Individual Property or the Property, whether heretofore other environmental conditions in connection with any Individual Property or hereafter obtained.any actual or threatened administrative or judicial proceedings in connection with any environmental matters referred to in this Agreement. -3- Environmental Indemnity Agreement
Appears in 3 contracts
Samples: Environmental Indemnity Agreement (Hospitality Investors Trust, Inc.), Environmental Indemnity Agreement (Hospitality Investors Trust, Inc.), Environmental Indemnity Agreement (Hospitality Investors Trust, Inc.)
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower Indemnitor or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsd) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Indemnitor shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeIndemnitor shall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion Paragraph 3 of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofthis Agreement, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons Persons available for interviews interviews; (f) Indemnitor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, by an environmental consultant approved by Indemnitee pursuant to any reasonable written request of Indemnitee (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Indemnitor shall, at its sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) effectuate Remediation or obtain a no further action letter for any condition (including but not limited to a Release of any Hazardous Substances) in, on, under or from the Property in full compliance with Environmental Laws or reasonably required by Indemnitee based upon recommendations and observations of an independent environmental consultant approved by Indemnitee; (ii) comply with any Environmental Law; (iii) comply with any directive from any Governmental Authority; and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Indemnitor shall not do or allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; (i) Indemnitor shall use commercially reasonable efforts to enforce the applicable provisions of the Leases in order to prevent tenants or other users of the Property from taking any action that violates any applicable Environmental Law, impairs or may impair the value of the Property, as contrary to any requirement of any Issuer, constitutes a public or private nuisance, constitutes waste or violates any covenant, condition, agreement or easement applicable to the Property; and (j) Indemnitor shall immediately notify Indemnitee in writing after becoming aware of (A) any presence or Release or threatened Release of Hazardous Substances in, on, under, from or migrating towards the Property; (B) promptly upon request, copies any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential imposition of all an Environmental Lien; (D) any required or proposed Remediation of environmental investigations, studies, audits, reviews conditions relating to the Property; and/or (E) any written notice or other analyses conducted by written communication of which any Indemnitor becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Substances or that are in the possession or control Remediation thereof, possible liability of the Borrower in relation any Person pursuant to any ProjectEnvironmental Law, whether heretofore other environmental conditions in connection with the Property, or hereafter obtainedany actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement.
Appears in 3 contracts
Samples: Environmental Indemnity Agreement (Moody National REIT I, Inc.), Environmental Indemnity Agreement (Moody National REIT I, Inc.), Environmental Indemnity Agreement (Moody National REIT I, Inc.)
Environmental Covenants. The Borrower covenants and agrees that:
: (ia) Borrower shall use commercially reasonable efforts to ensure that all uses and operations on or of each Project, whether by the Borrower or any other Person, Property shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release use commercially reasonable efforts to prevent any Releases of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) the Borrower shall not knowingly permit any Hazardous Substances in, on, or under any Projectthe Property, except those that are (i) in compliance with all Environmental Laws and of types and in quantities customarily used with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (ii) de-minimis amounts necessary to operate the Property for the purposes set forth in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used Loan Agreement which will not result in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be an environmental condition in, on, on or under any Project, the Property and shall operate, maintain, repair which are otherwise permitted under and replace any such underground storage tank so disclosed used in compliance with all Applicable Laws;
Environmental Law and (viii) Reserved;
fully disclosed to Lender in writing; (vid) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofSection 8.3 below, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender made in the event that Lender has reason to believe that an environmental hazard exists on the Property (including but not limited to sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made in the event that Lender has reason to believe that an environmental hazard exists on the Property to (i) reasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the Property; (ii) comply with any Environmental Law; (iii) comply with any directive from any Governmental Authority; and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Borrower shall not do or allow any tenant or other user of the Property to do any act with respect to Hazardous Substances that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; (i) Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) promptly upon request, copies any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of all environmental investigations, studies, audits, reviews conditions relating to the Property; and (E) any written notice or other analyses conducted by written communication of which Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or that are in the possession or control Remediation thereof, possible liability of the Borrower in relation any Person pursuant to any ProjectEnvironmental Law, whether heretofore other environmental conditions in connection with the Property, or hereafter obtainedany actual or potential administrative or judicial proceedings in connection with anything referred to in this Article 8; and (j) to the extent possible using commercially reasonable efforts, the Property shall be maintained in such a manner as to prevent excess humidity or accumulation of moisture that may promote the growth of molds or other fungi and other microorganisms.
Appears in 3 contracts
Samples: Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Behringer Harvard Reit I Inc), Fee and Leasehold Deed to Secure Debt and Security Agreement (Behringer Harvard Reit I Inc), Open End Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Behringer Harvard Reit I Inc)
Environmental Covenants. The Borrower Each Indemnitor covenants and agrees that:
that it: (ia) all uses and operations on shall keep or of each Project, whether cause the Property to be kept free from Hazardous Substances (except those substances used by the Borrower Borrower, priority owner or tenants under leases at the Property in the ordinary course of their businesses and in compliance with all Environmental Laws); (b) shall not install or use any other Personunderground storage tanks except in compliance with all Environmental Laws, shall be not itself engage in and shall expressly prohibit all tenants of space in the Improvements from engaging in the use, generation, handling, storage, production, processing or management of Hazardous Substances in violation of applicable Environmental Laws, except in the ordinary course of their businesses and in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iic) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a itself cause or knowingly allow and shall expressly prohibit the Release of Hazardous Substances inin violation of applicable Environmental Laws at, on, under under, or from any Project;
(iii) the Borrower Property; shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) cause property owner and shall undertake expressly require property owner to supervise require all tenants and inspect activities occurring on any other persons who may come upon the Projects as may be reasonably prudent Property to comply with all applicable Environmental Laws; (d) shall cause property owner to keep the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the property owner, the Borrower or any other Person person or entity (collectively, “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, without limiting the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) generality of the Environmental Indemnity; and
(ix) foregoing, during the Borrower shall provide the Administrative Agentterm of this Agreement, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject permit property owner to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are use any construction materials which contain asbestos nor install in the possession Improvements on the Property or control of permit to be installed in the Borrower in relation to Improvements on the Property, any Project, whether heretofore or hereafter obtainedmaterials which contain asbestos.
Appears in 3 contracts
Samples: Environmental Indemnity Agreement (Grubb & Ellis Healthcare REIT, Inc.), Environmental Indemnity Agreement (Grubb & Ellis Healthcare REIT, Inc.), Environmental Indemnity Agreement (Grubb & Ellis Healthcare REIT, Inc.)
Environmental Covenants. The So long as Borrower covenants and agrees that:
owns or is in possession of the Property, Borrower (i) all uses and operations on shall keep or of each Project, whether by cause the Borrower or any other Person, shall Property to be kept free from Hazardous Substances except those in compliance with all Environmental Laws and or any permits issued pursuant with respect thereto;
, (ii) except for Releases incidental to the Use shall promptly notify Lender if Borrower shall become aware of any release of Hazardous Substances permitted by clause on the Property and/or if Borrower shall become aware that the Property is in violation of any Environmental Laws and/or if Borrower shall become aware of any condition on the Property which shall pose a threat to the health, safety or welfare of humans, and (iii) below shall remove or remediate such Hazardous Substances and/or cure such violations and/or remove or remediate such threats, as applicable, as required by law (or as shall be reasonably required by Lender in the case of removal or remediation which is not required by law, but in response to the opinion of a licensed hydrogeologist, licensed environmental engineer or other qualified consultant engaged by Lender ("Lender's Consultant") provided that such removal, remediation or cure is reasonably necessary to eliminate imminent danger to the health, safety or welfare of humans and would customarily be performed by prudent owners of properties similar to the Property in compliance with all Applicable Lawssimilar circumstances), promptly after Borrower becomes aware of same, at Borrower's sole expense, without prejudice to any rights Borrower may have against any responsible parties. Notwithstanding anything to the Borrower shall not permit a Release contrary in this Section, Borrower, Manager and/or tenants on the Property may use and store ordinary amounts of Hazardous Substances inat the Property if such use or storage is in connection with business supplies used by Borrower, on, under a tenant in accordance with the terms of its Lease or from by Manager pursuant to the Management Agreement or is in connection with the ordinary cleaning and maintenance of the Property so long as such use and storage (A) does not violate any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance with all applicable Environmental Laws and (B) is not the subject of types and in quantities customarily used any specific recommendations in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and Phase I Reports that would prohibit such use or storage. Nothing herein shall prevent Borrower from recovering such expenses from any other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as party that may be reasonably prudent to comply with liable for such removal or cure. The obligations and liabilities of Borrower under this Section 5.8.1 shall survive any termination, satisfaction, or assignment of the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 Mortgage and the exercise by Lender of any of its rights or as specifically described in the Environmental Reportsremedies hereunder, including, without limitation, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission acquisition of the Borrower Property by foreclosure or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain a conveyance in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation lieu of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspectionforeclosure; provided that such inspections obligations and liabilities of Borrower shall not unreasonably interfere with survive after the operation of such Project date Lender or the tenants or occupants thereof, and shall be subject its Affiliates take title to the rights Property pursuant to foreclosure or a conveyance in lieu of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedforeclosure.
Appears in 3 contracts
Samples: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (B) de-minimis amounts necessary to operate the Property for the purposes set forth in this Agreement which will not result in an environmental condition in, on or under the Property and in quantities customarily which are otherwise permitted under and used in the ownership, operation compliance with Environmental Law and maintenance of buildings similar (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, including providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, ,perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender made in the event that Lender has reason to believe that an environmental hazard or noncompliance with or liability under Environmental Laws exists on the Property as provided more fully in subsection (b) below; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made if Lender has reason to believe that an environmental hazard or noncompliance with or liability under Environmental Laws exists on the Property in order to: (A) reasonably effectuate Remediation of any condition (including a Release of a Hazardous Substance) in, on, under or from the Property; (B) promptly upon request, copies comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (viii) Borrower shall not do or allow any Tenant or other analyses conducted by user of the Property to do any act that materially increases the dangers to human health or that are the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property and, in any event, neither Borrower, nor any other Person, shall install or use any underground storage tanks at the Property for any purpose; (ix) Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including a governmental entity) relating in any way to noncompliance with or liability under any Environmental Laws or the Release or potential release of Hazardous Substances or Remediation thereof, in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section 5.1.19; (x) Borrower shall not install, use, generate, manufacture, store, treat, release or dispose of, nor permit the installation, use, generation, storage, treatment, release or disposal of, any Hazardous Substances (except de-minimis amounts necessary to operate the Property for the purposes set forth in the possession Loan Agreement which will not result in an environmental condition in, on or under the Property and which are otherwise permitted under and used in compliance with Environmental Law) on, under or about the Property, and all uses and operations on or of the Property, whether by Borrower or any other person or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (xi) Borrower shall not make any change in the use or condition of the Property which (A) might lead to the presence on, under or about the Property of any Hazardous Substances which is not in accordance with any applicable Environmental Laws, or (B) would require, under any applicable Environmental Laws, notice be given to or approval be obtained from any governmental agency in the event of a transfer of ownership or control of the Property, in each case without the prior written consent of Lender; (xii) Borrower shall not allow any Institutional Control on or to affect the Property; and (xiii) Borrower shall take all acts necessary to preserve its status, if applicable, as an “innocent landowner,” “contiguous property owner,” or “prospective purchaser” as to the Property and as those terms are defined in relation CERCLA; provided, however, that this covenant does not limit or modify any of Borrower's other duties or obligations under this Agreement.
(b) If Lender has reason to believe that an environmental hazard or noncompliance with or liability under Environmental Laws exists on the Property, upon reasonable notice from Lender, Borrower shall, at Borrower’s expense, promptly cause an engineer or consultant satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined by Lender in its discretion) and take any Projectsamples of soil, whether heretofore groundwater or hereafter obtainedother water, air, or building materials or any other invasive testing requested by Lender and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period or if Lender has reason to believe that an environmental hazard or noncompliance with or liability under Environmental Laws exists on the Property that, in Lender’s sole judgment, endangers any Tenant or other occupant of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon reasonable notice to Borrower, Lender and any other Person designated by Lender, including any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, at Borrower's expense, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including conducting any environmental assessment or audit (the scope of which shall be determined by Lender in its discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Borrower shall cooperate with and provide Lender and any such Person designated by Lender with access to the Property.
(c) Borrower shall promptly perform all remedial work required by Environmental Laws and Lender in its discretion in response to the presence of any Hazardous Substances on the Property, any violation of any Environmental Laws, or any claims or requirements made by any Governmental Authority. All such work shall be conducted by licensed and reputable contractors pursuant to written plans approved by such Governmental Authority in question (if applicable), under proper permits and licenses (if applicable) with such insurance coverage as is customarily maintained by prudent property owners in similar situations. If the cost of the work exceeds $100,000.00, then Lender shall have the right of prior approval over the environmental contractor and plans, which shall not be unreasonably withheld or delayed. All costs and expenses of the remedial work shall be promptly paid by Borrower. In the event Borrower fails to undertake the remedial work, or fails to complete the same within a reasonable time period after the same is undertaken, and if Lender is of the good faith opinion that Lender’s security in the Property is jeopardized thereby, then Lender shall have the right to undertake or complete the remedial work itself. In such event, all costs of Lender in doing so, including all fees and expenses of environmental consultants, engineers, attorneys, accountants and other professional advisors, shall become a part of the Loan and shall be due and payable from Borrower upon demand. Such amount shall be secured by the Loan Documents, and failure to pay the same shall be an Event of Default under the Loan Documents. In the event any Hazardous Substances are removed from the Property, either by Borrower or Lender, such disposal manifests and other records shall be prepared in the name of the Borrower and reflect Borrower as the responsible party, with Borrower assuming any and all liability for such removed Hazardous Substances.
Appears in 3 contracts
Samples: Commercial Loan Agreement (Red Oak Capital Fund IV, LLC), Commercial Loan Agreement (Red Oak Capital Fund IV, LLC), Commercial Loan Agreement (Red Oak Capital Fund IV, LLC)
Environmental Covenants. The (a) Each Individual Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectits applicable Individual Property, whether by the such Individual Borrower or any other Personperson or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the applicable Individual Property; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe applicable Individual Property, except those that are both (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, (B) in de-minimis amounts necessary to operate the applicable Individual Property for the purposes set forth in the Loan Agreement which will not result in an environmental condition in, on or under such Individual Property and in quantities customarily which are otherwise permitted under and used in the ownershipcompliance with Environmental Law, operation and maintenance of buildings similar (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reportssubject to a right to contest under applicable environmental law, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace provided any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) contest stays any enforcement proceeding by the applicable authority, such Individual Borrower shall keep each Project its applicable Individual Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the such Individual Borrower or any other Person person or entity (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the such Individual Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) such Individual Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with its applicable Individual Property, pursuant to any reasonable written request of Lender made in the event that Lender has a good faith reason to believe based upon credible evidence or information that an environmental hazard exists on or affects the applicable Individual Property (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) such Individual Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made in the event that Lender has a good faith reason to believe based on credible evidence or information that an environmental hazard exists on or affects its applicable Individual Property to (A) reasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the applicable Individual Property; (B) promptly upon request, copies comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (viii) such Individual Borrower shall not do or allow any tenant or other analyses conducted user of its applicable Individual Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off such Individual Property), impairs or may impair the value of such Individual Property, is contrary to any requirement of any insurer, involves Hazardous Substances or an environmental condition and constitutes a public or private nuisance, involves Hazardous Substances or an environmental condition and constitutes waste, or involves Hazardous Substances or an environmental condition and constitutes and violates any covenant, condition, agreement or easement applicable to such Individual Property; and (ix) such Individual Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards its applicable Individual Property; (B) any non-compliance with any Environmental Laws related in any way to such Individual Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to such Individual Property; and (E) any written or oral notice or other communication of which any Individual Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or Remediation thereof, possible liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with such Individual Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section.
(b) In the event that Lender has reason to believe that an environmental hazard exists on any Individual Property that may, in Lender’s sole discretion, endanger any Tenants or other occupants of such Individual Property or their guests or the general public, or may materially and adversely affect the value of such Individual Property, upon reasonable notice from Lender, the applicable Individual Borrower shall, at such Individual Borrower’s expense, promptly cause an engineer or consultant satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Lender and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period or if Lender has reason to believe that are an environmental hazard exists on such Individual Property that, in Lender’s sole judgment, endangers any Tenant or other occupant of such Individual Property or their guests or the possession general public or control may materially and adversely affect the value of such Individual Property, upon reasonable notice to Borrower, Lender and any other Person designated by Lender, including but not limited to any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon such Individual Property at all reasonable times to assess any and all aspects of the environmental condition of such Individual Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Each Individual Borrower in relation shall cooperate with and provide Lender and any such Person designated by Lender with access to any Project, whether heretofore or hereafter obtainedits Individual Property.
Appears in 3 contracts
Samples: Loan Agreement (Inland Real Estate Income Trust, Inc.), Loan Agreement (Inland Real Estate Income Trust, Inc.), Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Environmental Covenants. The Borrower Each Indemnitor covenants and agrees that:
that (ia) all uses and operations on or of each ProjectIndividual Property, whether by any of the Borrower Indemnitors, any of the Mortgage Borrowers or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
Individual Property (iiiexcept in compliance with all applicable Environmental Laws and with permits issued pursuant thereto); (c) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, on or under any ProjectIndividual Property, except those that are both (i) in compliance with all applicable Environmental Laws and of types with any necessary permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsd) and Indemnitors shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Projectkeep, and shall operatecause each Mortgage Borrower to keep, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project Individual Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of any of the Borrower Indemnitors or any other Person (collectively, the “Environmental Liens”);
; provided, that after prior notice to Indemnitee, Indemnitors may contest, or may cause any Mortgage Borrower to contest, at Indemnitors’ or such Mortgage Borrower’s sole cost and expense, by appropriate legal proceeding, conducted in good faith and with due diligence, the amount or validity of any Environmental Liens, provided that (vii1) notwithstanding no Event of Default has occurred and remains uncured, (2) such proceeding shall be permitted under and be conducted in accordance with all applicable statutes, laws and ordinances, (3) no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost, (4) Indemnitors shall, or shall cause the applicable Mortgage Borrower to, promptly upon final determination thereof pay the amount of any such Environmental Liens, together with all costs, interest and penalties which may be payable in connection therewith, (5) to insure the payment of such Environmental Liens, Indemnitors shall deliver, or shall cause the applicable Mortgage Borrower to deliver, to Indemnitee either (A) cash, or other security as may be approved by Indemnitee, in an amount equal to one hundred ten percent (110%) of the contested amount if such contested amount will be less than one million dollars ($1,000,000) or one hundred twenty five percent (125%) of such contested amount if such contested amount will be equal to or greater than ($1,000,000), or (B) a payment and performance bond in an amount equal to one hundred percent (100%) of the contested amount from a surety acceptable to Indemnitee in its reasonable discretion, provided, however, Indemnitor shall not be required to deliver any security pursuant to this clause (iii5) above, the if Mortgage Borrower shall nothave delivered security in respect of the relevant matter to the Mortgage Lender, (6) failure to pay such Environmental Liens will not subject Indemnitee to any civil or knowingly permit criminal liability, (7) such contest shall not affect the ownership, use or occupancy of any other Person toIndividual Property, install any asbestos or asbestos containing materials on any Projectand (8) Indemnitors shall, upon request by Indemnitee, give Indemnitee prompt notice of the status of such proceedings and/or confirmation of the continuing satisfaction of the conditions set forth in clauses (1) through (7) of this Section 2(d); (e) Indemnitors shall, at their sole cost and expense, fully and in a timely manner cooperate, and shall upon cause each Mortgage Borrower to fully and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Projecta timely manner cooperate, in accordance with all activities pursuant to Section 3 of this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsAgreement, including, but not limited to, providing all relevant information and making knowledgeable persons Persons available for interviews upon reasonable advance written request and at reasonable times and places; (Bf) promptly upon requestIndemnitors shall perform, copies of all and shall cause each Mortgage Borrower to perform, at Indemnitors’ or such Mortgage Borrower’s, sole cost and expense, any environmental investigations, studies, audits, reviews site assessment or other analyses conducted by or that are investigation of environmental conditions in the possession or control of the Borrower in relation connection with any Individual Property, pursuant to any Projectreasonable written request of Indemnitee made in consideration of any environmental event or condition reasonably believed by Indemnitee to have occurred or to exist at any Individual Property (which request shall briefly describe the basis for Indemnitee’s belief) (including, but not limited to, sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether heretofore solid, liquid or hereafter obtained.gas, such assessment or investigation to be in scope and nature appropriate to the suspected event or condition) that would be reasonably expected to have an adverse effect on any Individual Property or on the business or condition (financial or otherwise) of Borrower, and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (
Appears in 2 contracts
Samples: Environmental Indemnity Agreement (Hospitality Investors Trust, Inc.), Environmental Indemnity Agreement (Hospitality Investors Trust, Inc.)
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any of its Affiliates shall be, and Borrower shall use commercially reasonable efforts to cause all uses and operations of the Property by CPLV Tenant and any other PersonPerson to be, shall be in compliance compliance, in all material respects, with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property except for such Releases that are both (x) in compliance, in all material respects, with all Environmental Laws and with permits issued pursuant thereto (to the extent such permits are required by Environmental Law) and (y) either (A) in amounts not in excess of that necessary to operate the Property for the purposes set forth in this Agreement which would not reasonably be expected to result in an environmental condition in, on or under the Property or (B) fully disclosed to Lender in writing or in the Environmental Report; (iii) the Borrower shall not, and shall take commercially reasonable measures to ensure that all other Persons, including CPLV Tenant, occupying or operating the Property, shall not knowingly permit store any Hazardous Substances in, on, or under any Projectthe Property, except those that are both (x) in compliance in all material respects with all Environmental Laws and with permits issued pursuant thereto (to the extent such permits are required by Environmental Law and (y) either (A) in amounts not in excess of types and that necessary to operate the Property for the purposes set forth in quantities customarily used this Agreement which would not reasonably be expected to result in an environmental condition in, on or under the Property or (B) fully disclosed to Lender in writing or in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
Environmental Report; (iv) except as disclosed in Schedule 8.11 Borrower shall keep, or as specifically described in the Environmental Reportsshall cause to be kept, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtained.whether
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Vici Properties Inc.)
Environmental Covenants. The Borrower covenants and agrees that:
: (i) all uses and operations on or of each Project, whether off the Project by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
thereto (ii) except for Releases incidental and that Borrower will use commercially reasonable efforts to cause any other Person who uses the Use of Hazardous Substances permitted by clause (iii) below and Project to do so in compliance with all Applicable LawsEnvironmental Laws and permits issued pursuant thereto), except where the failure to comply with such laws and permits is not reasonably likely to result in a Material Adverse Environmental Effect; (ii) Borrower shall not permit a Release of Hazardous Substances in, on, under or from any the Project;
, which release results in a Material Adverse Environmental Effect; (iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any the Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as matters disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
; (viv) Reserved;
(vi) the Borrower shall keep each the Project free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “"Environmental Liens”");
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any the Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
; (viiivi) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any the Project, or migrating onto or into any the Project, in accordance with and to the extent required by this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtained.Laws;
Appears in 2 contracts
Samples: Construction Loan Agreement (Vail Resorts Inc), Construction Loan Agreement (Vail Resorts Inc)
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower Indemnitor or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Projectpermits issued pursuant thereto, and shall operate, maintain, repair and replace any such underground storage tank so (ii) fully disclosed to Indemnitee in compliance with all Applicable Laws;
writing or are required for cleaning and/or the customary day-to-day operation of the Property; (vd) Reserved;
(vi) the Borrower Indemnitor shall keep each Project the Property free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person (collectively, “the "Environmental Liens”");
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeIndemnitor shall, at reasonable times (during normal business hours) to all its sole cost and expense, perform any environmental site assessment or any portion other investigation of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives environmental conditions in connection with such inspectionsthe Property, pursuant to any reasonable written request of Indemnitee (including, but not limited to, providing sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (f) Indemnitor shall, at its sole cost and expense, comply with all relevant information reasonable written requests of Indemnitee to (i) effectuate Remediation of any condition (including, but not limited to, a Release of a Hazardous Substance) in, on, under or from the Property; (ii) comply with any Environmental Law; (iii) comply with any directive from any Governmental Authority; and making knowledgeable persons available (iv) take any other reasonable action necessary or appropriate for interviews protection of human health or the environment; (g) Indemnitor shall not do or allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity, impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property in connection with any environmental matter applicable to the Property; and (h) Indemnitor upon obtaining knowledge thereof shall immediately notify Indemnitee in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) promptly upon request, copies any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of all environmental investigations, studies, audits, reviews conditions relating to the Property; and (E) any written or oral notice or other analyses conducted by communication of which Indemnitor becomes aware from any source whatsoever (including, but not limited to, a governmental entity) relating in any way to Hazardous Substances or that are in the possession or control Remediation thereof, possible liability of the Borrower in relation any Person pursuant to any ProjectEnvironmental Law, whether heretofore other environmental conditions in connection with the Property, or hereafter obtainedany actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Smith & Wollensky Restaurant Group Inc), Loan Agreement (New York Restaurant Group Inc)
Environmental Covenants. The Borrower covenants and agrees that:
(i) all uses and operations on or of each Project, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
(ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtained. Nothing contained in this Section 8.11 shall limit the rights of the Administrative Agent or any Lender for indemnification under the terms of the Environmental Indemnity Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Douglas Emmett Inc), Loan Agreement (Douglas Emmett Inc)
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower Indemnitor or any other Personperson or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
(ii) , except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below any non-compliance which, individually and in compliance with all Applicable Lawsthe aggregate, the Borrower could not reasonably be expected to have a Material Adverse Effect; (b) there shall not permit a Release be no Releases of Hazardous Substances in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances inProperty by Indemnitor or anyone controlled by, on, controlling or under any Projectcommon control with Indemnitor, except those that are in any non-compliance with all Environmental Laws and of types which, individually and in quantities customarily used in the ownershipaggregate, operation and maintenance of buildings similar could not reasonably be expected to the Projects have a Material Adverse Effect; (i.e., materials used in cleaning and other building operationsc) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Indemnitor shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person person or entity (collectively, the “Environmental Liens”);
; (viid) notwithstanding clause Indemnitor, at its sole cost and expense, shall (iiii) aboveperform or cause to be performed any reasonably scoped environmental site assessment or other investigation of environmental conditions in connection with the Property, the Borrower shall notpursuant to any written request of Indemnitee (provided that such request is made based upon Indemnitee’s reasonable belief that there are Hazardous Substances in, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Projectunder the Property which are not in compliance with Environmental Laws and that the basis of such belief has first been described in writing to Indemnitor), and (ii) provide Indemnitee with copies of reports and other results thereof, on which reports and results Indemnitee and other Indemnified Parties shall upon be entitled to rely; (e) Indemnitor shall, at its sole cost and following the Closing Date implementexpense, comply with and maintain in effect an operations and maintenance program with respect all reasonable written requests of Indemnitee to any existing asbestos or asbestos containing materials located at any Project;
(viiii) the Borrower shall cause the reasonably effectuate Remediation of such any condition (including but not limited to a Release of a Hazardous Substances present Substance) in, on, under or emanating from the Property where such action is also required by, or necessary to comply with or avoid liability under, any Environmental Law, or is required by, or necessary to comply with or to avoid liability under, any permits issued pursuant thereto, or any directive from any Projectgovernmental authority or is otherwise necessary to avoid liability to third parties; (ii) comply with any Environmental Law; (iii) comply with any lawful directive from any governmental authority, except any non-compliance which, individually and in the aggregate, could not reasonably be expected to have a Material Adverse Effect; and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (f) Indemnitor shall not do or allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; and (g) except as to matters, conditions or circumstances described or referenced in the Environmental Report already provided to Indemnitee, Indemnitor shall promptly notify Indemnitee in writing of (i) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating onto or into towards the Property; (ii) any Projectnoncompliance, except any non-compliance which, individually and in accordance the aggregate, could not reasonably be expected to have a Material Adverse Effect, with this Agreement and applicable any Environmental Laws subject related in any way to the right Property; (iii) any Environmental Lien known to contest such Indemnitor to exist or to be threatened; (iv) any required or proposed Remediation of environmental conditions relating to the Property; and (v) any written or oral notice or other communication of which Indemnitor becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agentany way to Hazardous Substances or Remediation thereof, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion possible liability of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project person or the tenants or occupants thereofentity pursuant to any Environmental Law, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives other environmental conditions in connection with such inspectionsthe Property, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by any actual or that are potential administrative or judicial proceedings in the possession or control of the Borrower connection with anything referred to in relation to any Project, whether heretofore or hereafter obtainedthis Agreement.
Appears in 2 contracts
Samples: Environmental Indemnity Agreement (Penn Octane Corp), Environmental Indemnity Agreement (Rio Vista Energy Partners Lp)
Environmental Covenants. The Borrower In order to induce Lessor to enter into this Lease, Lessee covenants and agrees thatduring the term of this Lease:
(a) to comply in all material respects and to cause all assignees, tenants, subtenants and other Persons occupying or conducting operations on the Leased Property to comply in all material respects with all Environmental Laws now or hereafter applicable to the Leased Property or any operation thereon or to Lessee and its subtenants, assignees, tenants and other Persons occupying or conducting operations on the Leased Property, except where failure to comply is in the process of being investigated, remediated or otherwise addressed, remedied or cured in compliance with applicable Environmental Laws and would not have a material adverse effect on the ability of Lessee (taking into account the Guarantee) to perform its obligations hereunder and under the other Operative Agreements;
(b) to have sole responsibility for any and all costs and expenses of compliance with applicable Environmental Laws, including any such compliance directed to each Participant, Indenture Trustee or Lessor or to which any of the foregoing may become subject;
(c) not to generate, use, treat, store, Release or dispose of, or permit the generation, use, treatment, storage, Release or disposal of Hazardous Materials on the Leased Property, or transport or permit the transportation of Hazardous Materials to or from the Leased Property in any quantity or manner which would violate in any material respect, or give rise to material liability under, any applicable Environmental Laws; provided that Lessee shall not be in breach of this covenant if it is complying with reasonable promptness and diligence, including by way of investigation or remediation, with applicable Environmental Laws in response to such generation, use, treatment, storage, Release or disposal;
(d) to conduct or cause to be conducted any investigation, study, sampling and testing and undertake any Remedial Action with respect to Hazardous Materials on or from the Leased Property as required by and in accordance with the requirements of the applicable Environmental Laws; provided, however, that if such Remedial Action would include the use of institutional controls or land use restrictions that would have a material adverse effect on the Fair Market Value of such Leased Property or that would preclude the use of such Leased Property in a manner which is substantially similar to its then current or intended use, Lessor's consent shall be required (which consent shall not be unreasonably withheld); provided further, however, that no such consent shall be required for any institutional controls or use limitations (x) that may apply in the future to the Leased Property if so identified in Part B of Schedule 4 to the Participation Agreement, so long as such limitations and controls are not materially more restrictive than the limitations and controls currently in effect for the Other Leased Property as identified in Part A of Schedule 4 to the Participation Agreement (taking into account differences in applicable state law), or (y) currently in effect for the Leased Property as identified in Part A of Schedule 4 to the Participation Agreement;
(i) Lessee shall promptly notify Lessor, Owner Participant and Indenture Trustee of (A) any fact, circumstance, condition, occurrence or Release of Hazardous Materials occurring at or from the Leased Property relating to any underground storage tank or otherwise that may be reasonably expected to result in an expense in excess of $5,000,000 relating to or as a result of noncompliance with any applicable Environmental Law, such notice to be given no later than THIRTY (30) days after the condition is discovered by Lessee or such Release or occurrence takes place, whichever is later, and (B) any pending or threatened Environmental Claim that may reasonably be expected to result in an expense in excess of $5,000,000 against Lessee relating to the Leased Property, such notice to be given no later than TEN (10) Business Days after Lessee receives written notice that such Environmental Claim is commenced or threatened. To the extent possible, all uses such notices shall describe in reasonable detail the nature of the Environmental Claim, investigation, condition, incident or occurrence and operations on or of each Project, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant Lessee's response thereto;.
(ii) except for Releases incidental Upon the written request of Lessor, Owner Participant or Indenture Trustee, Lessee shall provide Owner Participant, Lessor and Indenture Trustee (so long as the Notes remain outstanding) with copies of all written, non-privileged communications with any Governmental Authority or third party, or other documents reasonably requested by the foregoing Persons, relating to the Use subject of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, any notice required under or from any Project;Section 8.3(e)(i).
(iii) the Borrower Lessee shall not knowingly permit Hazardous Substances in, on, or under provide reports relating to any Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar Claim relating to the Projects (i.e., materials used subject of any notice required under Section 8.3(e)(i) in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects such detail as may reasonably requested by Owner Participant, Lessor or Indenture Trustee. In addition, if any Release or other condition occurs at the Leased Property that relates to any underground storage tank or otherwise that may reasonably be expected to result in an expense in excess of $5,000,000 relating to or as a result of noncompliance with any applicable Environmental Law or Environmental Claim, Owner Participant or Lessor may require with respect to the Leased Property that is the subject of the claim at Lessee's sole cost and expense, the undertaking of a Phase I environmental audit and, if such Phase I environmental audit discloses any environmental condition or conditions that reasonably prudent require a Phase II environmental audit, a Phase II environmental audit for the Leased Property. All audits pursuant to comply with this provision shall be prepared by a consultant that is, and the foregoing obligation;scope of the audit shall be, reasonably acceptable to the requesting Person.
(iv) except as disclosed in Schedule 8.11 or as specifically described Subject to the terms of Article 17 (other than the timing limits contained in the Environmental Reportslast sentence of the first paragraph thereof), the Borrower shall not permit any underground storage tanks to be inLessor, onOwner Participant, or under their respective agents, employees, contractors or representatives shall have the right, but not the duty, at its own cost and expense (unless an Event of Default is continuing in which case such inspection will be at Lessee's cost and expense), to enter upon the Leased Property during reasonable times and upon reasonable notice to monitor and inspect any Project, and shall operate, maintain, repair and replace any such Release of Hazardous Materials thereon that relates to an underground storage tank so disclosed or otherwise that may result in an expense in excess of $5,000,000 relating to or as a result of or any violation of an applicable Environmental Law, if after being required by applicable Environmental Law to do so, Lessee fails to (i) contest the allegations surrounding such violations in accordance with the terms hereof or (ii) commence such investigation, response, removal, corrective action or remediation to the extent required by applicable Environmental Law promptly thereafter and to continue diligently to effect such action or contest. In exercising its rights herein, each such party shall use reasonable efforts to minimize interference with the Lessee's business but any such entry shall not constitute an eviction of Lessee, in whole or in part. If any Governmental Authority shall ever require testing to ascertain whether there has been a Release or violation of applicable Environmental Laws, then the costs thereof shall be paid by Lessee;
(f) Lessee acknowledges that asbestos and asbestos-containing materials may have been used in the construction of the Leased Property. Lessee shall maintain the Leased Property and cause alterations to be performed to the Leased Property in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant Environmental Law applicable to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnityasbestos; and
(ixg) Lessee agrees to undertake, promptly and at its own expense, appropriate Remedial Action regarding the Borrower items described in Schedule VIII hereof; provided, however, that if such Remedial Action would include the use of institutional controls or land use restrictions that would have a material adverse effect on the Fair Market Value of such Leased Property or which would preclude the use of such Leased Property in a manner which is substantially similar to its then current or intended use, Lessor's consent shall provide the Administrative Agent, the Lenders and their representatives be required (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspectionwhich consent shall not be unreasonably withheld); provided further, however, that no such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and consent shall be subject required for any institutional controls or use limitations (x) that may apply in the future to the rights Leased Property if so identified in Part B of tenants under their LeasesSchedule 4 to the Participation Agreement, so long as such limitations and controls are not materially more restrictive than the Borrower shall cooperate with limitations and controls currently in effect for the Administrative AgentOther Leased Property as identified in Part A of Schedule 4 to the Participation Agreement (taking into account differences in applicable state law), or (y) currently in effect for the Lenders and their representatives Leased Property as identified in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies Part A of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in Schedule 4 to the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedParticipation Agreement.
Appears in 2 contracts
Samples: Lease Agreement (Royal Ahold), Lease Agreement (Royal Ahold)
Environmental Covenants. The Subject to pre-existing matters described in the Phase I Environmental Report for the Property delivered to Lender prior to the date hereof, if any (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Personperson or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, and (B) in quantities customarily de minimis amounts necessary to operate the Property for the purposes set forth in the Loan Agreement which will not result in an environmental condition in, on or under the Property and which are otherwise permitted under and used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply compliance with the foregoing obligation;
Environmental Law; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reportssubject to a right to contest under applicable environmental law, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace provided any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) contest stays any enforcement proceeding by the applicable authority, Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person person or entity (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender made in the event that Lender has a good faith reason to believe based upon credible evidence or information that an environmental hazard exists on or affects the Property (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made in the event that Lender has a good faith reason to believe based on credible evidence or information that an environmental hazard exists on or affects the Property to (A) reasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the Property pursuant to and in accordance with the applicable law; (B) promptly upon requestcomply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of human health or the environment as a result of or relating to an environmental hazard at the Property, copies of all environmental investigations, studies, audits, reviews pursuant to and in accordance with applicable law; (viii) Borrower shall not do or knowingly allow any tenant or other analyses conducted by user of the Property to do any act that materially increases the dangers to human health or that are the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, involves Hazardous Substances or an environmental condition and constitutes a public or private nuisance, involves Hazardous Substances or an environmental condition and constitutes waste, or involves Hazardous Substances or an environmental condition and constitutes and violates any covenant, condition, agreement or easement applicable to the Property; (ix) upon actual knowledge of the same, Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which any Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or Remediation thereof, possible liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section; (x) Borrower shall not install, use, generate, manufacture, store, treat, release or dispose of, nor knowingly permit the installation, use, generation, storage, treatment, release or disposal of, any Hazardous Substances (except de minimis amounts necessary to operate the Property for the purposes set forth in the possession Loan Agreement which will not result in an environmental condition in, on or under the Property and which are otherwise permitted under and used in compliance with Environmental Law) on, under or about the Property, and all uses and operations on or of the Property, whether by Borrower or any other person or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (xi) Borrower shall not make any change in the use or condition of the Property which (A) might lead to the presence on, under or about the Property of any Hazardous Substances which is not in accordance with any applicable Environmental Law, or (B) would require, under any applicable Environmental Law, notice be given to or approval be obtained from any governmental agency in the event of a transfer of ownership or control of the Property, in each case without the prior written consent of Lender; (xii) Borrower shall not consent to or otherwise allow any Institutional Control on or to affect the Property without Lender’s prior written consent; and (xiii) Borrower shall take all acts necessary to preserve its status, if applicable, as an “innocent landowner,” “contiguous property owner,” or “prospective purchaser” as to the Property and as those terms are defined in relation to CERCLA; provided, however, that this covenant does not limit or modify any Project, whether heretofore of Borrower’s other duties or hereafter obtainedobligations under this Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.)
Environmental Covenants. The Borrower Each Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Projecteither Property, whether by the Borrower Indemnitors or any other Person, including each Mortgage Borrower, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
either Property, except those that are both (iiii) the Borrower in compliance with all Environmental Laws and (ii) where required, with permits issued pursuant thereto; (c) there shall not knowingly permit be no Hazardous Substances in, on, or under any Projecteither Property, except those that are both (i) in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership(ii) where required, operation and maintenance of buildings similar to the Projects with permits issued pursuant thereto; (i.e., materials used in cleaning and other building operationsd) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any ProjectIndemnitors shall, and shall operatecause each Mortgage Borrower to, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower any Indemnitor or any other Person (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any ProjectIndemnitors shall, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeMortgage Borrowers to, at reasonable times (during normal business hours) Indemnitors’ sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion Paragraph 3 of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsthis Agreement, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Indemnitors shall, and shall cause Mortgage Borrowers to, at Indemnitors’ sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the applicable Property, pursuant to any reasonable written request of Indemnitee (including, but not limited to, sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Indemnitors shall, at their sole cost and expense, comply, and shall cause Mortgage Borrowers to comply, with all reasonable written requests of Indemnitee to (i) effectuate Remediation of any condition (including, but not limited to, a Release of a Hazardous Substance) in, on, under or from either Property, (ii) comply with any Environmental Law affecting either Property, (iii) comply with any directive from any Governmental Authority related to either Property, and (iv) with respect to each Property, take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Indemnitors shall not do, or allow either Mortgage Borrower or any tenant or other user of either Property to do, any act with respect to each Property that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off either Property), impairs or may impair the value of either Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to such Property; (i) in the event that any inspection or audit reveals the presence of Mold in the indoor air of either Property at concentrations exceeding ambient air levels or visible Mold on any building materials or surfaces at either Property for which any Legal Requirement applicable to such Property recommends or requires removal thereof by remediation professionals, Indemnitors shall, and shall cause Mortgage Borrowers to, at Indemnitors’ sole cost and expense, within thirty (30) days of determining the same, remediate the Mold and perform post-remedial clearance sampling in accordance with said Legal Requirement. Following abatement of the Mold, Indemnitors shall, or shall cause Mortgage Borrowers to, prepare and implement an operations and maintenance plan for Mold and moisture reasonably acceptable to Indemnitee and in accordance with the guidelines issued by the National Multi Housing Council; and (j) Indemnitors shall, and shall cause Mortgage Borrowers to, immediately notify Indemnitee in writing of (A) any presence or Release or threatened Release of Hazardous Substances in, on, under, from or migrating towards either Property; (B) promptly upon request, copies any non-compliance with any Environmental Laws related in any way to either Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of all environmental investigations, studies, audits, reviews conditions relating to either Property; and/or (E) any written or oral notice or other analyses conducted by communication of which any Indemnitor becomes aware from any source whatsoever (including, but not limited to, a Governmental Authority) relating in any way to Hazardous Substances or that are in the possession or control Remediation thereof, possible liability of the Borrower in relation any Person, including each Mortgage Borrower, pursuant to any ProjectEnvironmental Law, whether heretofore other environmental conditions in connection with either Property, or hereafter obtainedany actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement. These covenants shall, however, be without prejudice to Borrowers’ or Indemnitors’ rights and remedies against responsible parties and any applicable defenses to liability.
Appears in 2 contracts
Samples: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Environmental Covenants. The Borrower covenants (a) Borrowers covenant and agrees that:
agree that so long as any Obligations remain outstanding (i) all uses and operations on or of each Projectthe Collateral Properties, whether by the a Borrower or any other Person, shall be in compliance in all material respects with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
of the Collateral Properties; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances Materials stored or located in, on, or under any Projectof the Collateral Properties, except those that are both (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects extent required, and (i.e.B) (1) in amounts not in excess of that necessary to operate, materials used clean, repair and maintain the applicable Collateral Property as a hotel or (2) fully disclosed to and approved by Administrative Agent in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Borrowers shall keep each Project the Collateral Properties free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Borrowers or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeBorrowers shall, at reasonable times their sole cost and expense, fully and expeditiously cooperate in all activities pursuant to paragraph (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrowers shall, at their sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with any of the Collateral Properties, pursuant to any reasonable written request of Administrative Agent, upon Administrative Agent’s reasonable belief that a Collateral Property is not in full compliance with all Environmental Laws or has been the subject of any Release of Hazardous Materials, and deliver to Administrative Agent and the Lenders full and complete copies of the reports and other results thereof, and Administrative Agent, the Lenders and any other Indemnitees shall be entitled to rely on such reports and other results thereof; (vii) Borrowers shall, at their sole cost and expense (A) promptly and reasonably effectuate remediation of any Hazardous Materials in, on, under or from any Collateral Property in strict compliance with all requirements of Environmental Law; and (B) promptly upon requestcomply with any Environmental Law, copies of all environmental investigations, studies, audits, reviews in either case whether or not requested to do so by Administrative Agent; (viii) Borrowers shall not allow any tenant or other analyses conducted by or that are in the possession or control user of any of the Borrower in relation Collateral Properties to violate any Project, whether heretofore or hereafter obtained.Environmental Law; and
Appears in 2 contracts
Samples: Revolving Credit Agreement (FelCor Lodging Trust Inc), Term Loan Agreement (FelCor Lodging Trust Inc)
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower Indemnitor or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
thereto in all material respects; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from the Property in violation of any Project;
Environmental Law or any permits issued pursuant thereto (iiito the extent such permits are required pursuant to applicable Environmental Laws); (c) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar with permits issued pursuant thereto (to the Projects extent such permits are required pursuant to applicable Environmental Laws); (i.e., materials used in cleaning and other building operationsd) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Indemnitor shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause Indemnitor shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to Paragraph 3 of this Agreement, including but not limited to providing all relevant information and making knowledgeable Persons available for interviews; (iiif) above, the Borrower if (i) an Event of Default shall nothave occurred and is then continuing, or knowingly permit (ii) Lender reasonably suspects that any Release or Losses have occurred, then Indemnitor shall, at its sole cost and expense, perform any reasonable environmental site assessment or other Person toinvestigation of environmental conditions in connection with the Property, install by an environmental consultant reasonably approved by Lender pursuant to any asbestos or asbestos containing materials on any Projectreasonable written request of Indemnitee (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall upon be entitled to rely on such reports and following the Closing Date implementother results thereof; (g) Indemnitor shall, comply with at its sole cost and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
expense, (viiii) the Borrower shall cause the effectuate Remediation of such any condition in violation of any Environmental Laws (including but not limited to a Release of a Hazardous Substances present Substance) in, on, under or emanating from the Property in full compliance of Environmental Laws or reasonably required by Indemnitee to protect its security interest in the Property and based upon recommendations and observations of an independent environmental consultant reasonably approved by Lender; (ii) comply with any Environmental Law; (iii) ) comply with any directive from any Project, Governmental Authority having jurisdiction over Indemnitor or migrating onto the Property; (h) Indemnitor shall not do or into allow any Project, tenant or other user of the Property to do any act in accordance with this Agreement and applicable violation of any Environmental Laws subject to or that materially impairs the right to contest such Remediation in accordance with Section 7(a) value of the Environmental IndemnityProperty; and
and (ixi) the Borrower Indemnitor shall provide the Administrative Agent, the Lenders and their representatives immediately notify Indemnitee in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property of which Indemnitor becomes aware, other than those used by tenants under leases at the Property in the ordinary course of their businesses and in compliance with access, upon prior reasonable notice, at reasonable times Environmental Laws; (during normal business hoursB) to all or any portion of non-compliance with any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject Environmental Laws related in any way to the rights Property of tenants under their Leases, which Indemnitor becomes aware; (C) any Environmental Lien of which Indemnitor becomes aware; (D) any required Remediation of environmental conditions relating to the Property of which Indemnitor becomes aware; and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives (E) any written notice or other communication in connection with such inspections, writing of which any Indemnitor becomes aware from any reliable source (including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (Ba Governmental Authority having jurisdiction over Indemnitor or the Property) promptly upon requestrelating in any way to Hazardous Substances or Remediation thereof, copies of all other environmental investigationsconditions in connection with the Property, studies, audits, reviews or other analyses conducted by any administrative or that are judicial proceedings in the possession or control of the Borrower connection with anything referred to in relation to any Project, whether heretofore or hereafter obtainedthis Agreement.
Appears in 2 contracts
Samples: Environmental Indemnity Agreement (Ionis Pharmaceuticals Inc), Environmental Indemnity Agreement (Ionis Pharmaceuticals Inc)
Environmental Covenants. The Borrower In addition to and without restricting any other obligations or covenants and agrees thatherein, the Tenant covenants that it will:
(ia) comply in all uses and operations on or of each Project, whether by the Borrower or any other Person, shall be in compliance material respects with all Environmental Laws relating to the Leased Premises or the Property or the use of the Leased Premises or the Property by the Tenant. If the Tenant is in violation of any Environmental Law it undertakes to remedy such violation to the extent so required and permits issued pursuant theretowithin the time period set out in such Environmental Law. In the event that the Tenant does not remedy such violation in accordance with Environmental Law, the Landlord shall be authorized but not obligated to take any steps necessary to remedy the breach at the expense of the Tenant;
(iib) except for Releases incidental promptly notify the Landlord of any charges laid by any Authority or notice by any Authority alleging or concerning violation of any Environmental Laws relating to the Use Leased Premises or the Property or the operations therein of the Tenant or any person for whom it is in law responsible, and of any order made by any Authority against the Tenant. The Tenant shall also promptly notify the Landlord of any notice received by it from any other third party concerning any release or alleged release of any Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, from the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any ProjectLeased Premises and/or the Property;
(iiic) carry out at its own expense all lawfully required work if any Authority having jurisdiction shall lawfully require the Borrower investigation, monitoring or clean-up of any Hazardous Substance used, held, released, discharged, abandoned or placed upon the Leased Premises or the Building or released into the environment by the Tenant, a sub-tenant, an assignee or invitee of the Tenant, or any person for whom the Tenant is in law responsible, and provide to the Landlord full information with respect to all such work. The Tenant agrees that if the Tenant does not comply with this covenant, then the Landlord may but shall not knowingly permit Hazardous Substances in, on, be obligated to undertake such work or under any Project, except those that are in compliance with all Environmental Laws part thereof and of types the cost and in quantities customarily used in the ownership, operation expense thereof and maintenance of buildings similar will be paid to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects Landlord as may be reasonably prudent to comply with the foregoing obligation;Additional Rent.
(ivd) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks person to engage in any activity on the Leased Premises that may reasonably be in, on, anticipated to lead to a violation of any Environmental Laws or the imposition or assertion of liability or responsibility under any Project, and shall operate, maintain, repair and replace any Environmental Laws on such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) aboveperson, the Borrower shall notTenant or the Landlord, or knowingly permit any other Person toincluding without limitation, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect issuance of an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnityorder; and
(ixe) the Borrower shall provide the Administrative Agentmaintain all environmental and operating documents and records, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited toto permits relating to the operations at the Leased Premises of the Tenant or any person for whom it is in law responsible, providing all relevant information and making knowledgeable persons which may be made available for interviews and review by the Landlord at any time during the Term on twenty-four (B24) promptly upon requesthours prior notice (excepting emergencies, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedwhich case no prior notice shall be required).
Appears in 2 contracts
Samples: Lease (PointClickCare Corp.), Lease (PointClickCare Corp.)
Environmental Covenants. The Borrower covenants and agrees with the Bank that, until the Obligations have been fully satisfied and paid and the Commitment has been terminated, the Borrower shall:
(ia) Comply with, and shall cause its Subsidiaries, all uses operators, tenants, subtenants, licensees and operations on or occupants of each Project, whether by the Borrower or any other Person, shall be in compliance Improvements to comply with all applicable Environmental Laws and permits issued pursuant thereto;shall obtain and comply with, and shall cause all operators, tenants, subtenants, licensees and occupants of the Improvements to obtain and comply with, all Environmental Permits.
(b) Not cause or permit any change to be made in the present or intended use of the Improvements which would (i) violate any applicable Environmental Law, (ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause constitute non-compliance with any Environmental Permit or (iii) below and in compliance with all Applicable Laws, materially increase the Borrower shall not permit risk of a Release of any Hazardous Substances in, on, under or from any Project;Substance.
(iiic) Promptly provide the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance Bank with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear a copy of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act notifications which it gives or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program receives with respect to any existing asbestos past or asbestos containing materials located present Release or the threat of a Release of any Hazardous Substance on, at or from the improvements or any Project;property adjacent to the Improvements.
(viiid) the Borrower shall cause the Remediation of such Undertake and complete all investigations, studies, sampling and testing and all removal and other remedial actions required by law to contain, remove and clean up all Hazardous Substances that are determined to be present on, under or emanating from any Project, or migrating onto or into any Project, at the Improvements in accordance with this Agreement and all applicable Environmental Laws subject and all Environmental Permits.
(e) At all times upon prior notice, allow the Bank and its officers, employees, agents, representatives, contractors and subcontractors access to the right to contest such Remediation in accordance with Section 7(a) of Improvements for the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsascertaining site conditions, including, but not limited to, providing all relevant subsurface conditions.
(f) Deliver promptly to the Bank: (i) copies of any documents received from the United States Environmental Protection Agency, or any state, county or municipal environmental or health agency concerning a Borrower's or its Subsidiaries' operations or the Improvements; and (ii) copies of any documents submitted by Borrower or its Subsidiaries to the United States Environmental Protection Agency or any state, county or municipal environmental or health agency concerning its operations or the Improvements.
(g) If at any time the Bank obtains any reasonable evidence or information which suggests that a material potential environmental problem may exist at the improvements, the Bank may require that a kill or supplemental environmental inspection and making knowledgeable persons available for audit report with respect to the Improvements of a scope and level of detail satisfactory to the Bank be prepared by an environmental engineer or other qualified person acceptable to the Bank at the Borrower's expense. Such audit may include a physical inspection of the Improvements, a visual inspection of any property adjacent to or within the immediate vicinity of the Improvements, personnel interviews and (B) promptly upon request, copies a review of all environmental investigationsEnvironmental Permits. If the Bank requires, studiessuch inspection shall also include a records search and/or subsurface testing for the presence of Hazardous Substances in the soil, auditssubsoil, reviews bedrock, surface water and/or groundwater. If such audit report indicates the presence of any Hazardous Substance or a Release or the threat of a Release of any Hazardous Substance on, at or from the Improvements, the Borrower and its Subsidiaries shall promptly undertake and diligently pursue to completion all necessary, appropriate and legally authorized investigative, containment, removal, clean up and other remedial actions, using methods recommended by the engineer or other analyses conducted by person who prepared said audit report and acceptable to the appropriate federal, state and local agencies or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedauthorities.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Phoenix Footwear Group Inc), Revolving Credit and Term Loan Agreement (Phoenix Footwear Group Inc)
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower there shall not permit a Release be no releases of Hazardous Substances in, on, under or from any Project;
the Property; (iii) except for those Hazardous Materials otherwise disclosed in the Borrower Environmental Report for the Property, there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (B) de-minimis amounts necessary to operate the Property for the purposes set forth in the Loan Agreement which will not result in an environmental condition in, on or under the Property and in quantities customarily which are otherwise permitted under and used in the ownership, operation compliance with Environmental Law and maintenance of buildings similar (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, (A) comply with all reasonable written requests of Xxxxxx made in the event that Lender has reason to believe that an environmental hazard exists on the Property to reasonably effectuate Remediation of any condition (including but not limited to a release of a Hazardous Substance) in, on, under or from the Property; (B) comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of human health or the environment; (vii) Borrower shall not do or allow any Tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; and (viii) Borrower shall immediately notify Lender in writing of (A) any presence or releases or threatened releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to the release or potential release of Hazardous Substances or Remediation thereof, likely to result in liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section.
(b) In the event that Lender has reason to believe that an environmental hazard exists on the Property that may, in Lender’s sole reasonable discretion, endanger any Tenants or other occupants of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon reasonable notice from Lender, Borrower shall, at Borrower’s expense, promptly cause an engineer or consultant satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Xxxxxx and promptly deliver the results of any such 156506983 assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period or if Lender has reason to believe that an environmental hazard exists on the Property that, in Lender’s sole judgment, endangers any Tenant or other occupant of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon requestreasonable notice to Borrower, Lender and any other Person designated by Lender, including but not limited to any receiver, any representative of a Governmental Authority, and any environmental consultant, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Borrower shall cooperate with and provide Lender and any such Person designated by Lender with access to the Property.
(i) Borrower hereby represents and warrants that attached hereto as Exhibit C are true and complete copies of all environmental investigationsthe operations and maintenance plans for the Individual Properties located as Franklinton Square, studiesGrove Park Shopping Center, auditsRiverbridge Shopping Center and Sunshine Plaza (collectively, reviews or other analyses conducted by or that are in the possession or control “O&M Program”), and (ii) Borrower has as of the date hereof complied in all respects with the O&M Program. Borrower hereby covenants and agrees that, during the term of the Loan, including any extension or renewal thereof, Borrower shall comply in relation to any Project, whether heretofore or hereafter obtainedall respects with the terms and conditions the O&M Program.
ARTICLE 2 ARTICLE 3
Section 1.2 Section 1.3
Appears in 2 contracts
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.), Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Environmental Covenants. The Borrower covenants and agrees that:
(i) all uses and operations on Tenant shall not use the Premises for the production, sale or storage of each Projectany toxic or hazardous chemicals, whether by the Borrower wastes, materials or substances, or any pollutants or contaminants, as those terms are defined in any applicable federal, state, local or other Persongovernmental law, statute, ordinance, code, rule or regulation (“Hazardous Substances”), shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
(ii) except for Releases incidental to the Use of not use any Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used Substance in the ownershipPremises, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks Hazardous Substance to be indisposed of from, onin or on the Premises, unless said Hazardous Substances are of the type normally used in the ordinary course of operating and maintaining Tenant’s office and laboratory facilities, and are stored, used and disposed of in strict accordance with all such laws, statutes, ordinances, codes, rules and regulations which are applicable to the Premises (“Environmental Regulations”). Tenant shall not permit any Hazardous Substance to be emitted, discharged, released, spilled or under any Projectdeposited from, in or on the Premises other than in the ordinary course of operating and maintaining Tenant’s office and laboratory facilities as may be permitted by law or applicable permit held by Tenant. Tenant shall obtain and maintain all licenses and permits, and shall operatemaintain all material safety data sheets, maintainwith respect to such Hazardous Substances, repair and replace which are required by any such underground storage tank so disclosed in Environmental Regulation. Landlord shall have the right to enter the Premises to inspect the same for compliance with all Applicable Laws;
the provisions of this Section 29; provided that: (vi) Reserved;
entrance to the Premises shall not be denied to Tenant; (viii) the Borrower business of Tenant shall keep each Project free not be interfered with unreasonably; and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, Landlord shall comply with Tenant’s safety and other reasonable rules governing activities within the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any ProjectPremises. Tenant agrees to indemnify Landlord against, and shall upon to hold Landlord harmless from, any and following the Closing Date implementall claims, comply with demands, judgments, fines, penalties, costs, damages and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating expenses resulting from any Projectviolation by Tenant of this Section 29 or of any Environmental Regulation, including court costs and attorneys, fees in any suit, action administrative proceeding or migrating onto or into any Projectnegotiations resulting therefrom, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) including costs of remediation, clean-up and detoxification of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, Premises and the Borrower environment unless caused by the willful misconduct or gross negligence of Landlord. Tenant’s obligations and liabilities under this Section 29 shall cooperate with survive the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies termination of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedthis Lease.
Appears in 2 contracts
Samples: Sublease, Sublease (Novavax Inc)
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (B) de-minimis amounts necessary to operate the Property for the purposes set forth in this Agreement which will not result in an environmental condition in, on or under the Property and in quantities customarily which are otherwise permitted under and used in the ownership, operation compliance with Environmental Law and maintenance of buildings similar (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental LawLaw (except for Permitted Exceptions), whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, including providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, ,perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender made in the event that Lender has reason to believe that an environmental hazard or noncompliance with or liability under Environmental Laws exists on the Property as provided more fully in subsection (b) below; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made if Lender has reason to believe that an environmental hazard or noncompliance with or liability under Environmental Laws exists on the Property in order to: (A) reasonably effectuate Remediation of any condition (including a Release of a Hazardous Substance) in, on, under or from the Property; (B) promptly upon request, copies comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (viii) Borrower shall not do or allow any Tenant or other analyses conducted user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property and, in any event, neither Borrower, nor any other Person, shall install or use any underground storage tanks at the Property for any purpose; (ix) Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including a governmental entity) relating in any way to noncompliance with or liability under any Environmental Laws or the Release or potential release of Hazardous Substances or Remediation thereof, in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section 5.1.19; (x) Borrower shall not install, use, generate, manufacture, store, treat, release or dispose of, nor permit the installation, use, generation, storage, treatment, release or disposal of, any Hazardous Substances (except de-minimis amounts necessary to operate the Property for the purposes set forth in this Loan Agreement which will not result in an environmental condition in, on or under the Property and which are otherwise permitted under and used in compliance with Environmental Law) on, under or about the Property, and all uses and operations on or of the Property, whether by Borrower or that are any other person or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (xi) Borrower shall not make any change in the possession use or condition of the Property which (A) might lead to the presence on, under or about the Property of any Hazardous Substances which is not in accordance with any applicable Environmental Laws, or (B) would require, under any applicable Environmental Laws, notice be given to or approval be obtained from any governmental agency in the event of a transfer of ownership or control of the Property, in each case without the prior written consent of Lender; (xii) Borrower shall not allow any Institutional Control on or to affect the Property; and (xiii) Borrower shall take all acts necessary to preserve its status, if applicable, as an “innocent landowner,” “contiguous property owner,” or “prospective purchaser” as to the Property and as those terms are defined in relation CERCLA; provided, however, that this covenant does not limit or modify any of Borrower's other duties or obligations under this Agreement.
(b) If Lender has reason to believe that an environmental hazard or noncompliance with or liability under Environmental Laws exists on the Property, upon reasonable notice from Lender, Borrower shall, at Borrower’s expense, promptly cause an engineer or consultant satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined by Lender in its discretion) and take any Projectsamples of soil, whether heretofore groundwater or hereafter obtainedother water, air, or building materials or any other invasive testing requested by Lender and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period or if Lender has reason to believe that an environmental hazard or noncompliance with or liability under Environmental Laws exists on the Property that, in Lender’s sole judgment, endangers any Tenant or other occupant of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon reasonable notice to Borrower, Lender and any other Person designated by Lender, including any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, at Borrower's expense, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including conducting any environmental assessment or audit (the scope of which shall be determined by Lender in its discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Borrower shall cooperate with and provide Lender and any such Person designated by Lender with access to the Property.
(c) Borrower shall promptly perform all remedial work required by Environmental Laws and Lender in its discretion in response to the presence of any Hazardous Substances on the Property, any violation of any Environmental Laws, or any claims or requirements made by any Governmental Authority. All such work shall be conducted by licensed and reputable contractors pursuant to written plans approved by such Governmental Authority in question (if applicable), under proper permits and licenses (if applicable) with such insurance coverage as is customarily maintained by prudent property owners in similar situations. If the cost of the work exceeds $100,000.00, then Lender shall have the right of prior approval over the environmental contractor and plans, which shall not be unreasonably withheld or delayed. All costs and expenses of the remedial work shall be promptly paid by Borrower. In the event Borrower fails to undertake the remedial work, or fails to complete the same within a reasonable time period after the same is undertaken, and if Lender is of the good faith opinion that Lender’s security in the Property is jeopardized thereby, then Lender shall have the right to undertake or complete the remedial work itself. In such event, all costs of Lender in doing so, including all fees and expenses of environmental consultants, engineers, attorneys, accountants and other professional advisors, shall become a part of the Loan and shall be due and payable from Borrower upon demand. Such amount shall be secured by the Loan Documents, and failure to pay the same shall be an Event of Default under the Loan Documents. In the event any Hazardous Substances are removed from the Property, either by Borrower or Lender, such disposal manifests and other records shall be prepared in the name of the Borrower and reflect Borrower as the responsible party, with Borrower assuming any and all liability for such removed Hazardous Substances.
Appears in 2 contracts
Samples: Commercial Loan Agreement (Red Oak Capital Fund V, LLC), Commercial Loan Agreement (Red Oak Capital Fund V, LLC)
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower Indemnitor or any other Person, shall be in compliance with all Environmental Laws Law and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws Law and of types with permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in quantities customarily used in the ownershipwriting; (d) subject to a right to contest under applicable environmental law, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace provided any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) contest stays any enforcement proceeding by the Borrower applicable authority, Indemnitor shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeIndemnitor shall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofSection 3 hereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Indemnitor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Indemnitee made in the event that Indemnitee has a good faith reason to believe based upon credible evidence or information that an environmental hazard exists on or affects the Property (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Indemnitor shall, at its sole cost and expense, comply with all reasonable written requests of Indemnitee made in the event that Indemnitee has a good faith reason to believe based on credible evidence or information that an environmental hazard exists on or affects the Property to (i) effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the Property; (ii) comply with any Environmental Law; (iii) comply with any directive from any Governmental Authority; and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Indemnitor shall not do or allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; and (i) Indemnitor shall immediately notify Indemnitee in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) promptly upon request, copies any non-compliance with any Environmental Law related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of all environmental investigations, studies, audits, reviews conditions relating to the Property; and (E) any written or oral notice or other analyses conducted by communication of which any Indemnitor becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or that are in the possession or control Remediation thereof, possible liability of the Borrower in relation any Person pursuant to any ProjectEnvironmental Law, whether heretofore other environmental conditions in connection with the Property, or hereafter obtainedany actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement.
Appears in 2 contracts
Samples: Environmental Indemnity Agreement (Inland Diversified Real Estate Trust, Inc.), Environmental Indemnity Agreement (Inland Diversified Real Estate Trust, Inc.)
Environmental Covenants. The Borrower covenants (a) Each Loan Party, for themselves respectively, and agrees thatas applicable to each such Loan Party’s ownership, occupation or leasing of or conducting operations and activities at any Property, shall keep such Property free of Hazardous Materials and shall remove, or cause their lessees to remove, all Hazardous Materials which are now or at any time in the future in or on the Property, irrespective of the source thereof, except to the extent that such Hazardous Materials are present on or stored and/or used substantially in compliance with Environmental Laws; provided, that it shall not be deemed to be a violation of this Section 3(a) unless or until any failure to comply with any applicable Environmental Law would result in fines, penalties, remediation costs, other liabilities or injunctive relief which, considered either individually or in the aggregate could reasonably be expected to result in a Material Adverse Change. Each Loan Party, for themselves respectively, and as applicable to each such Loan Party’s ownership, occupation or leasing of or conducting operations and activities at any Property, shall not suffer or permit such Property to be used to generate, manufacture, refine, transport, treat, dispose of, transfer, produce or process Hazardous Materials in violation of Environmental Laws; provided, that it shall not be deemed to be a violation of this Section 3(a) unless or until any failure to comply with any applicable Environmental Law would result in fines, penalties, remediation costs, other similar liabilities or injunctive relief which, considered either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.
(b) Each Loan Party, for themselves respectively, and as applicable to each such Loan Party’s ownership, occupation or leasing of or conducting operations and activities at any Property, shall immediately, upon their respective Responsible Officer obtaining knowledge of any of the following, notify the Collateral Trustee for the benefit of the Secured Parties in writing upon the occurrence of:
(i) all uses and operations on the Release or threat of each ProjectRelease of any Hazardous Materials on, whether by at, under, from or affecting the Borrower or any other Person, shall be Property in compliance with all violation of Environmental Laws and permits issued pursuant theretothat could reasonably be expected to result in fines, penalties, remediation costs, other liabilities or injunctive relief which, considered either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change;
(ii) except for Releases incidental to any violation affecting the Use Property of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable any Environmental Laws, if such violation is reasonably likely to result in fines, penalties, remediation costs, other similar liabilities or injunctive relief which, considered either individually or in the Borrower shall not permit aggregate, could reasonably be expected to result in a Release of Hazardous Substances in, on, under or from any Project;Material Adverse Change; and
(iii) the Borrower shall not knowingly permit any Environmental Liability or any claim or claims relating to any Loan Party relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Substances in, Materials on, at, under, from or under any Projectaffecting the Property if such claim or series of claims, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used when considered either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.
(c) Except as otherwise disclosed in written reports delivered to the Collateral Trustee prior to the date hereof, the Loan Parties certify that, as of the date of this Agreement, to their knowledge, no report, analysis, study or other document prepared by or for any Person exists which identifies any Hazardous Materials on, at, under, emanating from or affecting the Property which, considered either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.
(d) The Loan Parties, at their sole expense and for themselves respectively, and as applicable to each such Loan Party’s ownership, operation occupation or leasing of or conducting operations and maintenance of buildings similar to the Projects (i.e.activities at any Property, materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, onshall, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) tenants of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited Property to, providing conduct and complete all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, auditssampling and testing and all removal and other actions necessary to clean up, reviews remove or otherwise address all Hazardous Materials on, at, under, from or affecting any of the Property in accordance with all Environmental Laws; provided, however that it shall not be deemed to be a violation of this Section 3(d) unless or until any failure to conduct and complete all investigations, studies, sampling and testing and all removal and other actions is reasonably likely to result in fines, penalties, remediation costs or other analyses conducted by liabilities which, considered either individually or that are in the possession or control of the Borrower aggregate, could reasonably be expected to result in relation to any Project, whether heretofore or hereafter obtaineda Material Adverse Change.
Appears in 2 contracts
Samples: Revolving Credit Facility (CONSOL Energy Inc), Revolving Credit Facility (CONSOL Energy Inc)
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each ProjectProperty, whether by the Borrower Indemnitor or any other Person, shall be in compliance in all material respects with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
Property, except those that are both (iiii) the Borrower in compliance in all material respects with all Environmental Laws and with permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in writing; (c) there shall not knowingly permit be no Hazardous Substances in, on, or under any ProjectProperty, except those that are both (i) in compliance in all material respects with all Environmental Laws and of types in compliance in all material respects with all permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in quantities customarily used in the ownershipwriting, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be than Hazardous Substances in, on, on or under any ProjectProperty in connection with uses by Tenants contemplated by their Leases, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
copies of which have been delivered to Indemnitee; (vd) Reserved;
(vi) the Borrower Indemnitor shall keep each Project Property free and clear of all Liens Environmental Liens; (e) Indemnitor shall, at its sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) effectuate Remediation of any condition existing in violation of Environmental Laws (including a Release) in, on, under or from any Property; (ii) comply with any Environmental Law; and (iii) comply with any directive from any Governmental Authority; (f) Indemnitor shall not do, or allow any Tenant or other encumbrances imposed user of any Property to do, any act that violates Environmental Laws and permits issued pursuant thereto which materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person (whether on or off such Property), materially and adversely impairs or may materially and adversely impair the value of any Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes material waste, violates in any material respect any covenant, condition, agreement or easement applicable to any Property; and (g) Indemnitor shall immediately notify Indemnitee in writing upon becoming aware of any of the following, to the extent not disclosed in any Environmental Report: (i) any Release or threatened Release in, on, under, from or migrating towards any Property; (ii) any non-compliance in any material respect with any Environmental Laws related in any way to any Property; (iii) any actual or potential Environmental Lien; (iv) any required or proposed Remediation relating to any Property; and (v) any written notice from a Governmental Authority relating in any way to (A) Hazardous Substances or Remediation thereof, (B) possible liability of any Person pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives Law in connection with such inspectionsany Property, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and or (BC) promptly upon request, copies of all environmental investigations, studies, audits, reviews any actual or other analyses conducted by potential administrative or that are judicial proceedings in the possession or control of the Borrower connection with anything referred to in relation to any Project, whether heretofore or hereafter obtainedthis Agreement.
Appears in 2 contracts
Samples: Environmental Indemnity Agreement (Mission West Properties Inc), Environmental Indemnity Agreement (Mission West Properties Inc)
Environmental Covenants. The Borrower Grantor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower Grantor or any other Personperson or entity, shall be in compliance in all material respects with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto and (ii) fully disclosed to Beneficiary in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsd) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Grantor shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Grantor or any other Person person or entity (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) aboveGrantor shall, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, at its sole cost and shall upon and following the Closing Date implementexpense, comply with and maintain in effect an operations and maintenance program with respect all reasonable written requests of Beneficiary to any existing asbestos or asbestos containing materials located at any Project;
(viiii) the Borrower shall cause the reasonably effectuate Remediation of such any condition (including but not limited to a Release of a Hazardous Substances present Substance) in, on, under or emanating from the Property; (ii) comply in all material respects with any Environmental Law; (iii) comply in all material respects with any directive from any Projectgovernmental authority; and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (f) Grantor shall not do or allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or migrating onto violates any covenant, condition, agreement or into any Project, in accordance with this Agreement and easement applicable Environmental Laws subject to the right to contest such Remediation Property; and (g) Grantor shall promptly notify Beneficiary in accordance with Section 7(a) writing of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) any non-compliance with accessany Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Grantor becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or Remediation thereof, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion possible liability of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project person or the tenants or occupants thereofentity pursuant to any Environmental Law, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives other environmental conditions in connection with such inspectionsthe Property, includingor any actual or potential administrative or judicial proceedings in connection with anything referred to in this Article 12. “Environmental Law” means any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, relating to protection of human health or the environment, relating to Hazardous Substances, relating to liability for or costs of Remediation or prevention of Releases of Hazardous Substances or relating to liability for or costs of other actual or threatened danger to human health or the environment. “Environmental Law” includes, but is not limited to, providing all relevant information the following statutes, as amended, any successor thereto, and making knowledgeable persons available for interviews any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (B) promptly upon requestincluding but not limited to Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in Fungicide and Rodenticide Act; the possession or control of Endangered Species Act; the Borrower in relation to any Project, whether heretofore or hereafter obtained.National Environmental Policy Act; and the River and Harbors
Appears in 2 contracts
Samples: Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Sirius Xm Radio Inc.), Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Sirius Xm Radio Inc.)
Environmental Covenants. The (a) Borrower covenants and agrees that:
that so long as the Loan is outstanding (i) all Borrower’s uses and operations on or of each Project, whether by the Borrower or any other Person, Property shall be in compliance with all applicable Environmental Laws and permits issued pursuant thereto;
thereto in all material respects; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted Materials by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property in violation of Environmental Law; (iii) the Borrower shall not knowingly permit use, generate, treat, store, dispose or transport Hazardous Substances Materials in, on, or under any Projectthe Property, except those that are both (A) in material compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (B) (1) in amounts not in excess of types and in quantities customarily used that necessary to operate the Property (including each tenant’s respective business at the Property), (2) fully disclosed in the ownership, operation Environmental Reports or otherwise disclosed to and maintenance of buildings similar approved by Lender in writing or (3) held by a tenant for sale to the Projects (i.e., materials used public in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
its ordinary course of business; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with provisions of Section 7(a5.2.1 hereof; (v) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to paragraph (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing access to the Property and all relevant information in its possession, custody or control and making knowledgeable persons available for interviews at reasonable times; (vi) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (A) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property, and (B) comply with Environmental Law; (vii) Borrower shall take all commercially reasonable measures to require that each tenant complies in all material respects with provisions (i) through (vi) of this Section 5.1.19(a);
(b) Borrower covenants and agrees that so long as the Loan is outstanding, Borrower shall promptly upon requestnotify Lender in writing after it has become aware of: (i) any presence or Release or threatened Releases of Hazardous Materials in, copies on, under, from or migrating towards the Property; (ii) any non-compliance with any Environmental Laws related in any way to the Property; (iii) any actual or potential Environmental Lien; (iv) any required or proposed remediation of all environmental investigations, studies, audits, reviews conditions relating to the Property; and (v) any written or oral notice or other analyses communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Borrower’s liability for any Hazardous Materials in material violation of any Environmental Laws.
(c) Lender and its designated agents or representatives, including but not limited to any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use. If Lender reasonably believes that Borrower has breached any environmental representation, warranty or covenant contained in Sections 4.1.39 or 5.1.19(a) and (b) hereof, Lender may request that Borrower undertake such tests and investigations of the environmental condition of the Property (or portions thereof) that are reasonably necessary under the circumstances to assess the alleged breach of the representation, warranty or covenant. Any such tests or investigations shall be conducted by a qualified environmental engineer or that are in consultant, reasonably acceptable to Lender, and if determined by the possession environmental engineer or control consultant to be reasonably necessary, may include invasive sampling (such as any sampling of the soil, groundwater, surface water, air or building materials). Borrower shall provide Lender with a copy of any reports of the results of such tests and investigations and Lender and other Indemnified Parties shall be entitled to rely on such reports. If an Event of Default has occurred and is continuing, or if Borrower has not diligently pursued such tests and investigations as are reasonably requested by Lender pursuant to this Section 5.1.19(c), then Lender may hire its own environmental engineer or consultant, at Borrower’s expense, to conduct such tests and investigations. Lender shall make all reasonable efforts to conduct any such tests and investigations so as to avoid interference with the operation of the Property.
(d) If counsel to Borrower reasonably determines that providing Lender with a document otherwise required to be provided pursuant to this Section 5.1.19 (or any other provision of this Agreement or any other Loan Document relating to environmental matters) would jeopardize an applicable attorney-client or work product privilege pertaining to such document, the Borrower shall not be obligated to provide such document to Lender but shall provide Lender with a notice identifying the author and recipient of such document and generally describing the content of the documents. Upon request of Lender, Borrower shall take all reasonable steps necessary to provide Lender with the factual information contained in relation to any Project, whether heretofore or hereafter obtainedsuch privileged documents. Nothing contained in this Section 5.1.19(d) shall in any way limit lender’s rights under Section 5.1.19(c) hereof.
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Environmental Covenants. The Borrower covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Personperson or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto and (ii) fully disclosed to Lender in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsd) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person person or entity (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsSection 11.3 below, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender (including, but not limited to, sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate Remediation of any condition (including, but not limited to, a Release of a Hazardous Substance) in, on, under or from the Property; (ii) comply with any Environmental Law; (iii) comply with any directive from any governmental authority; and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Borrower shall not do or allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; and (i) Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) promptly upon request, copies any noncompliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of all environmental investigations, studies, audits, reviews conditions relating to the Property; and (E) any written or oral notice or other analyses conducted by communication which Borrower becomes aware from any source whatsoever (including, but not limited to, a governmental entity) relating in any way to Hazardous Substances or that are in the possession Remediation thereof, possible liability of any person or control of the Borrower in relation entity pursuant to any ProjectEnvironmental Law, whether heretofore other environmental conditions in connection with the Property, or hereafter obtainedany actual or potential administrative or judicial proceedings in connection with anything referred to in this Article. Any failure of Borrower to perform its obligations pursuant to this Section 11.2 shall constitute bad faith waste with respect to the Property.
Appears in 2 contracts
Samples: Open End Mortgage and Security Agreement (Griffin Land & Nurseries Inc), Open End Mortgage and Security Agreement (Griffin Land & Nurseries Inc)
Environmental Covenants. (a) The Parent and the Borrower covenants will, and agrees thatwill cause each of their Subsidiaries, and will take commercially reasonable efforts to cause lessees and other Persons occupying any of the Real Property Assets of the Loan Parties or any of their Subsidiaries to:
(i) use and operate all uses and operations on or of each Project, whether by the Borrower or any other Person, shall be such properties in compliance with all Environmental Laws, keep all permits, approvals, certificates, licenses and other authorizations required under any Environmental Laws in effect and permits issued pursuant theretoremain in compliance therewith, and handle all Hazardous Materials in compliance with all applicable Environmental Laws, except where the failure to do any of the foregoing, either individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect;
(ii) except for Releases incidental take all such actions as are required by Governmental Authorities so that no liability with respect to the Use of Hazardous Substances permitted by clause (iii) below and Environmental Laws may arise which, either individually or in compliance with all Applicable Lawsthe aggregate, the Borrower shall not permit would reasonably be expected to have a Release of Hazardous Substances in, on, under or from any ProjectMaterial Adverse Effect;
(iii) promptly notify the Borrower shall not knowingly permit Hazardous Substances inAdministrative Agent and provide copies upon receipt of all material written claims, oncomplaints, notices or inquiries relating to the condition of its facilities and properties regarding compliance with, or under any Projectliability pursuant to, except those that are in compliance with all Environmental Laws from Governmental Authorities, and shall take all commercially reasonable actions necessary to cure and have dismissed with prejudice to the reasonable satisfaction of types the Administrative Agent any actions and in quantities customarily used proceedings regarding compliance with, or liability pursuant to, Environmental Laws which, with respect to the foregoing, either individually or in the ownershipaggregate, operation and maintenance of buildings similar would reasonably be expected to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligationhave a Material Adverse Effect;
(iv) except as disclosed in Schedule 8.11 promptly notify the Administrative Agent of any Releases of Hazardous Materials at, on or as specifically described under such properties which, either individually or in the Environmental Reportsaggregate, the Borrower shall not permit any underground storage tanks would reasonably be expected to be in, on, or under any Projecthave a Material Adverse Effect, and shall operate, maintain, repair and replace any promptly remediate all such underground storage tank so disclosed in compliance Releases to the extent required to comply with all Applicable applicable Environmental Laws;; and
(v) Reserved;provide any existing environmental documentation which the Administrative Agent may reasonably request from time to time to evidence compliance with this Section.
(vib) If any Loan Party breaches the Borrower shall keep each Project free and clear terms of all Liens and other encumbrances imposed pursuant Section 7.6(a) with respect to any Environmental Lawenvironmental matters, whether due promptly following a request therefor by the Administrative Agent to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) aboveBorrower, the Borrower shall notwill permit an environmental consultant selected by the Administrative Agent to perform an environmental assessment on all Real Property Assets that are the subject of such breach and limited in scope to the nature of such breach (including, without limitation, reviewing documents, interviewing knowledgeable persons, and, if necessary, sampling and analyzing soil, air, surface water, groundwater, and/or other media in or about property owned or leased by any Loan Party or any of their Subsidiaries, or knowingly permit on which operations of any other Person toLoan Party or any of its Subsidiaries otherwise take place). Such environmental assessment shall be in form, install any asbestos or asbestos containing materials on any Projectscope, and substance reasonably satisfactory to the Administrative Agent. The Loan Parties and each of their Subsidiaries shall reasonably cooperate in permitting the performance of such environmental assessment, and shall upon and following pay the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation reasonable costs of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide environmental assessment promptly following written demand therefore by the Administrative Agent, . The Administrative Agent shall have the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, includingright, but not limited tothe duty, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all to obtain such environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedreport.
Appears in 2 contracts
Samples: Credit Agreement (GrubHub Inc.), Credit Agreement (GrubHub Inc.)
Environmental Covenants. The (a) Borrower covenants and agrees that:
that so long as the Loan is outstanding (i) all Borrower’s uses and operations on or of each Project, whether by the Borrower or any other Person, Properties shall be in compliance with all applicable Environmental Laws and permits issued pursuant thereto;
thereto in all material respects; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted Materials by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
of the Properties in violation of Environmental Law; (iii) the Borrower shall not knowingly permit use, generate, treat, store, dispose or transport Hazardous Substances Materials in, on, or under any Projectof the Properties, except those that are both (A) in material compliance with all Environmental Laws and with permits issued pursuant thereto, if and to the extent required, and (B) (1) in amounts not in excess of types and in quantities customarily used that necessary to operate the applicable Individual Property (including each tenant’s respective business at such Property), (2) fully disclosed in the ownership, operation Environmental Reports or otherwise disclosed to and maintenance of buildings similar approved by Lender in writing or (3) held by a tenant for sale to the Projects (i.e., materials used public in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
its ordinary course of business; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Properties free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with provisions of Section 7(a5.2.1 hereof; (v) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to paragraph (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing access to the Individual Properties and all relevant information in its possession, custody or control and making knowledgeable persons available for interviews at reasonable times; (vi) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (A) reasonably effectuate remediation of any Hazardous Materials in, on, under or from any Individual Property, and (B) comply with Environmental Law; (vii) Borrower shall take all commercially reasonable measures to require that each tenant complies in all material respects with provisions (i) through (vi) of this Section 5.1.19(a);
(b) Borrower covenants and agrees that so long as the Loan is outstanding, Borrower shall promptly upon requestnotify Lender in writing after it has become aware of: (i) any presence or Release or threatened Releases of Hazardous Materials in, copies on, under, from or migrating towards any of all the Properties; (ii) any non-compliance with any Environmental Laws related in any way to any of the Properties; (iii) any actual or potential Environmental Lien; (iv) any required or proposed remediation of environmental investigations, studies, audits, reviews conditions relating to any of the Properties; and (v) any written or oral notice or other analyses conducted communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Borrower’s liability for any Hazardous Materials in material violation of any Environmental Laws.
(c) Lender and its designated agents or representatives, including but not limited to any environmental consultant, and any receiver appointed by or that are in any court of competent jurisdiction, shall have the possession or control right, but not the obligation, to enter upon any Individual Property at all reasonable times to assess any and all aspects of the environmental condition of any Individual Property and its use. If Lender reasonably believes that Borrower has breached any environmental representation, warranty or covenant contained in relation to any ProjectSections 4.1.39 or 5.1.19(a) and (b) hereof, whether heretofore or hereafter obtained.Lender may request
Appears in 2 contracts
Samples: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Environmental Covenants. The Borrower Each Issuer covenants and agrees that:
that so long as such Issuer owns, manages, is in possession of, or otherwise controls a Mortgaged Property: (ia) all uses and operations on or of each Projectsuch Mortgaged Property, whether by the Borrower such Issuer or any other Personperson or entity, shall be in material compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Environmental Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
such Mortgaged Property in material violation of Environmental Laws; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances Materials present at, in, on, or under any Projectsuch Mortgaged Property or generated, managed, stored, treated, transported or disposed in connection with the use and operation of such Mortgaged Property, except those that are both (i) in material compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Projectextent required, and shall operate, maintain, repair and replace any (ii) in amounts necessary to operate such underground storage tank so disclosed in compliance with all Applicable Laws;
Mortgaged Property; (vd) Reserved;
(vi) the Borrower such Issuer shall keep each Project the Mortgaged Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower an Issuer or any other Person person or entity (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeIssuer shall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofSection 10.08, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) such Issuer shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with such Mortgaged Property, pursuant to any reasonable written request of the Property Manager in accordance with the Property Management Agreement and share with the Indenture Trustee the reports and other results thereof, and the Indenture Trustee shall be entitled to rely on such reports and other results thereof; (g) such Issuer shall, at its sole cost and expense, comply with all reasonable written requests of the Property Manager in accordance with the Property Management Agreement to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from such Mortgaged Property associated with an Environmental Release and (ii) comply with any Environmental Law; (h) such Issuer shall not knowingly permit any Borrower, Tenant or other user of the Mortgaged Property to violate any Environmental Law in any material respect; and (i) such Issuer shall immediately notify the Property Manager in writing after it has become aware of (A) any presence or Environmental Release or threatened Environmental Releases of Hazardous Materials in, on, under, from or migrating towards such Mortgaged Property in violation of any Environmental Law, (B) promptly upon requestany non-compliance with any Environmental Laws related in any way to such Mortgaged Property, copies of all environmental investigations, studies, audits, reviews (C) any actual or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtained.potential Xxxxxxxxxxxxx Xxxx,
Appears in 2 contracts
Samples: Master Indenture, Master Indenture (Spirit MTA REIT)
Environmental Covenants. The Subject to pre-existing matters described in the Phase I Environmental Report for the Property delivered to Lender prior to the date hereof, if any (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Personperson or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, and (B) in quantities customarily de-minimis amounts necessary to operate the Property for the purposes set forth in the Loan Agreement which will not result in an environmental condition in, on or under the Property and which are otherwise permitted under and used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply compliance with the foregoing obligation;
Environmental Law; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reportssubject to a right to contest under applicable environmental law, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace provided any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) contest stays any enforcement proceeding by the applicable authority, Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person person or entity (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender made in the event that Lender has a good faith reason to believe based upon credible evidence or information that an environmental hazard exists on or affects the Property (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made in the event that Lender has a good faith reason to believe based on credible evidence or information that an environmental hazard exists on or affects the Property to (A) reasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the Property pursuant to and in accordance with the applicable law; (B) promptly upon requestcomply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of human health or the environment as a result of or relating to an environmental hazard at the Property, copies of all environmental investigations, studies, audits, reviews pursuant to and in accordance with applicable law; (viii) Borrower shall not do or knowingly allow any tenant or other analyses conducted by user of the Property to do any act that materially increases the dangers to human health or that are the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, involves Hazardous Substances or an environmental condition and constitutes a public or private nuisance, involves Hazardous Substances or an environmental condition and constitutes waste, or involves Hazardous Substances or an environmental condition and constitutes and violates any covenant, condition, agreement or easement applicable to the Property; (ix) upon actual knowledge of the same, Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which any Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or Remediation thereof, possible liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section; (x) Borrower shall not install, use, generate, manufacture, store, treat, release or dispose of, nor knowingly permit the installation, use, generation, storage, treatment, release or disposal of, any Hazardous Substances (except de-minimis amounts necessary to operate the Property for the purposes set forth in the possession Loan Agreement which will not result in an environmental condition in, on or under the Property and which are otherwise permitted under and used in compliance with Environmental Law) on, under or about the Property, and all uses and operations on or of the Property, whether by Borrower or any other person or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (xi) Borrower shall not make any change in the use or condition of the Property which (A) might lead to the presence on, under or about the Property of any Hazardous Substances which is not in accordance with any applicable Environmental Law, or (B) would require, under any applicable Environmental Law, notice be given to or approval be obtained from any governmental agency in the event of a transfer of ownership or control of the Property, in each case without the prior written consent of Lender; (xii) Borrower shall not consent to or otherwise allow any Institutional Control on or to affect the Property without Lender’s prior written consent; and (xiii) Borrower shall take all acts necessary to preserve its status, if applicable, as an “innocent landowner,” “contiguous property owner,” or “prospective purchaser” as to the Property and as those terms are defined in relation to CERCLA; provided, however, that this covenant does not limit or modify any Project, whether heretofore of Borrower’s other duties or hereafter obtainedobligations under this Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Rodin Global Property Trust, Inc.), Loan Agreement (Rodin Global Property Trust, Inc.)
Environmental Covenants. The Borrower covenants and agrees that:
that so long as Borrower owns, manages, is in possession of, or otherwise controls the operation of the Property: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Personperson or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
the Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances Materials in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Projectextent required, and shall operate, maintain, repair (ii) (A) in amounts not in excess of that necessary to operate the Property or (B) fully disclosed to and replace any such underground storage tank so disclosed approved by Lender in compliance with all Applicable Laws;
writing; (vd) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person person or entity (collectively, “the "Environmental Liens”");
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofSection 12.3 below, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon Lender's reasonable belief that the Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties (as defined in the Environmental Indemnity) shall be entitled to rely on such reports and other results thereof; (g) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with any Environmental Law; (h) Borrower shall not allow any tenant or other user of the Property to violate any Environmental Law; and (i) Borrower shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Releases of Hazardous Materials in, on, under, from or migrating towards the Property; (B) promptly upon request, copies any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed remediation of all environmental investigations, studies, audits, reviews conditions relating to the Property; and (E) any written or oral notice or other analyses conducted by or that are communication of which Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in the possession or control of the Borrower in relation any way to any Project, whether heretofore or hereafter obtainedHazardous Materials.
Appears in 2 contracts
Samples: Open End Mortgage and Security Agreement (Associated Estates Realty Corp), Open End Mortgage and Security Agreement (Associated Estates Realty Corp)
Environmental Covenants. The Borrower covenants (a) Each Loan Party, for themselves respectively, and agrees thatas applicable to each such Loan Party’s ownership, occupation or leasing of or conducting operations and activities at any Property, shall keep such Property free of Hazardous Materials and shall remove, or cause their lessees to remove, all Hazardous Materials which are now or at any time in the future in or on the Property, irrespective of the source thereof, except to the extent that such Hazardous Materials are present on or stored and/or used substantially in compliance with Environmental Laws; provided, that it shall not be deemed to be a violation of this Section 3(a) unless or until any failure to comply with any applicable Environmental Law would result in fines, penalties, remediation costs, other similar liabilities or injunctive relief which, considered either individually or in the aggregate could reasonably be expected to result in a Material Adverse Change. Each Loan Party, for themselves respectively, and as applicable to each such Loan Party’s ownership, occupation or leasing of or conducting operations and activities at any Property, shall not suffer or permit such Property to be used to generate, manufacture, refine, transport, treat, dispose of, transfer, produce or process Hazardous Materials in violation of Environmental Laws; provided, that it shall not be deemed to be a violation of this Section 3(a) unless or until any failure to comply with any applicable Environmental Law would result in fines, penalties, remediation costs, other similar liabilities or injunctive relief which, considered either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.
(b) Each Loan Party, for themselves respectively, and as applicable to each such Loan Party’s ownership, occupation or leasing of or conducting operations and activities at any Property, shall immediately, upon their respective Responsible Officer obtaining knowledge of any of the following, notify the Collateral Trustee for the benefit of the Secured Parties in writing upon the occurrence of:
(i) all uses and operations the release of any Hazardous Materials on or about the Property in violation of each Project, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant theretothat could reasonably be expected to result in fines, penalties, remediation costs, other similar liabilities or injunctive relief which, considered either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change;
(ii) except for Releases incidental to any violation affecting the Use Property of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable any Environmental Laws, if such violation is reasonably likely to result in fines, penalties, remediation costs, other similar liabilities or injunctive relief which, considered either individually or in the Borrower shall not permit aggregate, could reasonably be expected to result in a Release of Hazardous Substances in, on, under or from any Project;Material Adverse Change; and
(iii) any Environmental Liability or any claim or claims made against or the Borrower shall not knowingly permit Property relating to damage, contribution, cost of recovery, compensation, loss or injury resulting from any Hazardous Substances inMaterials affecting the Property if such claim or series of claims, onwhen considered either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.
(c) Except as otherwise disclosed in written reports delivered to the Collateral Trustee prior to the date hereof, the Loan Parties certify that, as of the date of this Agreement, to their knowledge, no report, analysis, study or other document prepared by or for any Person exists which identifies any Hazardous Materials as being located upon or as being released or discharged from the Property which, considered either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change.
(d) The Loan Parties, at their sole expense and for themselves respectively, and as applicable to each such Loan Party’s ownership, occupation or leasing of or conducting operations and activities at any Property, shall, or under any Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) tenants of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited Property to, providing conduct and complete all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, auditssampling and testing and all removal and other actions necessary to clean up and remove all Hazardous Materials on, reviews under, from or affecting any of the Property in accordance with all Environmental Laws; provided, however that it shall not be deemed to be a violation of this Section 3(d) unless or until any failure to conduct and complete all investigations, studies, sampling and testing and all removal and other actions is reasonably likely to result in fines, penalties, remediation costs or other analyses conducted by similar liabilities which, considered either individually or that are in the possession or control of the Borrower aggregate, could reasonably be expected to result in relation to any Project, whether heretofore or hereafter obtaineda Material Adverse Change.
Appears in 2 contracts
Samples: Revolving Credit Facility (CONSOL Energy Inc), Revolving Credit Facility (CNX Gas Corp)
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower Indemnitor or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) the Borrower Indemnitor shall not knowingly permit Hazardous Substances in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsd) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Indemnitor shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person (collectively, “Environmental Liens”the "ENVIRONMENTAL LIENS");
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeIndemnitor shall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion PARAGRAPH 2 of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofthis Agreement, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons Persons available for interviews interviews; (f) Indemnitor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Indemnitee (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Indemnitor shall, at its sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the Property; (ii) comply with any Environmental Law; (iii) comply with any directive from any governmental authority; and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Indemnitor shall not do or allow any tenant or other user of the Property to, with respect to Hazardous Substances, do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; and (i) Indemnitor shall immediately notify Indemnitee in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) promptly upon request, copies any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of all environmental investigations, studies, audits, reviews conditions relating to the Property; and (E) any written notice or other analyses conducted by communication of which any Indemnitor becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or that are in the possession or control Remediation thereof, possible liability of the Borrower in relation any Person pursuant to any ProjectEnvironmental Law, whether heretofore other environmental conditions in connection with the Property, or hereafter obtainedany actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement.
Appears in 2 contracts
Samples: Hazardous Materials Indemnification (Mack Cali Realty Corp), Hazardous Materials Indemnification (Mack Cali Realty L P)
Environmental Covenants. The Borrower Each Indemnitor covenants and agrees that:
: (iA) all uses and operations on or of each Projectthe Property, whether by the Borrower Indemnitors or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iiB) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property, except those that are both (iiii) the Borrower in compliance with all Environmental Laws and with permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in writing; (C) there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsD) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Indemnitors shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitors or any other Person (collectively, the “Environmental Liens”);
; (viiE) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeIndemnitors shall, at reasonable times (during normal business hours) their sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion Section 4 of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsthis Agreement, including, but not limited to, providing all relevant information and making knowledgeable persons Persons available for interviews interviews; (F) Indemnitors shall, at their sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, by an environmental consultant approved by Indemnitee pursuant to any reasonable written request of Indemnitee (including, but not limited to, sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (G) Indemnitors shall, at their sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) effectuate Remediation or obtain a no further action letter for any condition (including, but not limited to, a Release of any Hazardous Substances) in, on, under or from the Property, in full compliance of Environmental Laws or reasonably required by Indemnitee based upon recommendations and observations of an independent environmental consultant approved by Indemnitee, (ii) comply with any Environmental Law, (iii) comply with any directive from any Governmental Authority, and (Biv) promptly upon requesttake any other reasonable action necessary or appropriate for protection of human health or the environment; (H) Indemnitors shall not do, copies of all environmental investigations, studies, audits, reviews or allow any Tenant or other analyses conducted by or that are in the possession or control user of the Borrower in relation Property to do, any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any ProjectPerson (whether on or off the Property), whether heretofore impairs or hereafter obtainedmay impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; (I) Indemnitor shall use commercially reasonable efforts to enforce the applicable provisions of the Leases in order to prevent Tenants or other users of the Property from taking any action that violates any applicable Environmental Law, impairs or may impair the value of the Property, as contrary to any requirement of any Issuer, constitutes a public or private nuisance, constitutes waste or violates any covenant, condition, agreement or easement applicable to the Property; and (J) to the extent Indemnitor has actual knowledge, Indemnitor shall immediately notify Indemnitee in writing of (i) any presence or Release or threatened Release of Hazardous Substances in, on, under, from or migrating towards the Property, (ii) any non-compliance with any Environmental Laws related in any way to the Property, (iii) any actual or potential imposition of an Environmental Lien, (iv) any required or proposed Remediation of environmental conditions relating to the Property, and/or (v) any written or oral notice or other communication of which any Indemnitor becomes aware from any source whatsoever (including, but not limited to, a Governmental Authority) relating in any way to Hazardous Substances or Remediation thereof, possible liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement.
Appears in 2 contracts
Samples: Environmental Indemnity Agreement (Inland Diversified Real Estate Trust, Inc.), Environmental Indemnity Agreement (Inland Diversified Real Estate Trust, Inc.)
Environmental Covenants. The Borrower covenants and agrees that:
(ia) all uses and operations on or of each Project, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
(ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not cause or permit a Release of Hazardous Substances in, on, under any Prohibited Activities or from any Project;Conditions.
(iiib) Borrower shall take all commercially reasonable actions (including the inclusion of appropriate provisions in any Leases executed after the date of this Agreement) to prevent its employees, agents and contractors, and all tenants and other occupants from causing or permitting any Prohibited Activities or Conditions. Borrower shall not knowingly permit Hazardous Substances in, on, lease or under any Project, except those that are in compliance with all Environmental Laws and allow the sublease or use of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of the Mortgaged Property to any Project tenant or subtenant for purposes nonresidential use by any user that, in the ordinary course of inspection; provided its business, would cause or permit any Prohibited Activity or Condition.
(c) Lender shall have the right to establish, monitor and review an O&M Program with respect to Hazardous Materials on the Mortgaged Property or any other property owned by Borrower, Guarantor, Key Principal or any Borrower Affiliate that such inspections is adjacent to the Mortgaged Property. If an O&M Program has been established, Borrower shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofcomply in a timely manner with, and cause all employees, agents and contractors of Borrower and any other persons present on the Mortgaged Property to comply with, the O&M Program. All costs of performance of Borrower’s obligations under any O&M Program shall be subject to the rights of tenants under their Leasespaid by Borrower, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives Lender’s reasonable out‑of‑pocket costs incurred in connection with the monitoring and review of the O&M Program and Borrower’s performance shall be paid by Borrower upon demand by Lender. Any such inspectionsout-of-pocket costs of Lender which Borrower fails to pay promptly shall become an additional part of the Indebtedness as provided in the Security Instrument.
(d) Borrower shall comply with all Environmental Laws applicable to the Mortgaged Property. Without limiting the generality of the previous sentence, includingBorrower shall obtain and maintain all Environmental Permits required by Environmental Laws and comply with all conditions of such Environmental Permits.
(e) Borrower shall promptly notify Lender in writing upon the occurrence of any of the following events:
(1) Borrower’s discovery of any Prohibited Activity or Condition;
(2) Borrower’s receipt of or knowledge of any complaint, but not limited toorder, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies notice of all environmental investigations, studies, audits, reviews violation or other analyses conducted communication from any property management agents, Governmental Authority or other Person with regard to present or future alleged Prohibited Activities or Conditions or any other environmental, health or safety matters affecting the Mortgaged Property or any other property owned by Borrower, Guarantor, Key Principal or any Borrower Affiliate that are is adjacent to the Mortgaged Property; and
(3) any representation or warranty in this Agreement becomes untrue after the possession date of this Agreement or control Borrower’s breach of any of its obligations under this Section 4. Any such notice given by Borrower shall not relieve Borrower of, or result in a waiver of, any obligation under this Agreement, the Borrower in relation to Note or any Project, whether heretofore or hereafter obtainedother Loan Document.
Appears in 2 contracts
Samples: Environmental Indemnity Agreement (Steadfast Income REIT, Inc.), Environmental Indemnity Agreement (Steadfast Income REIT, Inc.)
Environmental Covenants. The Borrower covenants and agrees thatEnvironmental Indemnitors shall:
(ia) comply, and cause all uses and operations other persons on or of each Projectoccupying any Project to comply, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant theretorelating to Hazardous Material;
(iib) not install, use, generate, manufacture, store, treat, release or dispose of, nor permit the installation, use, generation, storage, treatment, release or disposal of, Hazardous Material on, under or about any Project, except for Releases incidental to materials used in the Use ordinary course of Hazardous Substances permitted by clause maintenance and operation (iii) below and in compliance with all Applicable Laws, ) of the Borrower shall not permit a Release Projects;
(c) immediately advise Lender in writing of: (i) any and all Environmental Proceedings;(ii) the presence of any Hazardous Substances in, Material on, under or from about any Project of which Lender has not previously been advised in writing, except for materials used in the ordinary course of maintenance and operation (and in compliance with all Laws) of the Projects; (iii) any remedial action taken by, or on behalf of, any Environmental Indemnitor in response to any Hazardous Material on, under or about any Project or to any Environmental Proceedings of which Lender has not previously been advised in writing; (iv) the discovery by any Environmental Indemnitor of the presence of any Hazardous Material on, under or about any real property or bodies of water adjoining or in the vicinity of any Project; and (v) the discovery by any Environmental Indemnitor of any occurrence or condition on any real property adjoining or in the vicinity of any Project that could cause any Project or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use of such Project under any Laws relating to Hazardous Material;
(d) provide Lender with copies of all reports, analyses, notices, licenses, approvals, orders, correspondences or other written materials in its possession or control relating to the environmental condition of each Project or real property or bodies of water adjoining or in the vicinity of each Project or Environmental Proceedings immediately upon receipt, completion or delivery of such materials;
(e) not install or allow to be installed any tanks on, at or under any Project;
(iiif) not create or permit to continue in existence any lien (whether or not such lien has priority over the Borrower shall not knowingly permit Hazardous Substances in, on, or under lien created by the Mortgage) upon any Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due Laws relating to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental IndemnityMaterial; and
(ixg) not change or alter the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion present use of any Project for purposes of inspection; provided unless Environmental Indemnitors shall have notified Lender thereof in writing and Lender shall have determined, in its sole and absolute discretion, that such inspections shall change or modification will not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are result in the possession or control presence of Hazardous Material on the Borrower Project in relation to any Project, whether heretofore or hereafter obtainedquestion in such a level that would increase the potential liability for Environmental Proceedings.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (Brookdale Senior Living Inc.), Loan Agreement (Brookdale Senior Living Inc.)
Environmental Covenants. The Borrower Indemnitor hereby covenants and agrees thatas follows:
(ia) to cause all uses and operations on or activities at the Property during the term of each Project, whether by the Borrower or any other Person, shall Loan to be conducted in compliance with all Environmental Laws and permits issued pursuant theretoLaws;
(b) to provide the Lender with copies of all: (i) correspondence, notices of violation, summons, orders, complaints or other documents received by the Indemnitor, its lessees, sublessees, occupants or assigns, pertaining to compliance with any Environmental Laws; (ii) except for Releases incidental to reports of previous environmental investigations undertaken at the Use of Hazardous Substances permitted by clause Property which the Indemnitor knows of, or has or can obtain possession; (iii) below licenses, certificates and in compliance with all Applicable permits required by the Environmental Laws, ; (iv) a description of the Borrower shall not permit a Release operations and processes of Hazardous Substances in, on, under or from the Indemnitor; and (v) any Project;other information that the Lender may reasonably request.
(iiic) the Borrower shall not knowingly permit Hazardous Substances into generate, onmanufacture, refine, transport, transfer, produce, store, use, process, treat, dispose of, handle, or under in any Projectmanner deal with, any Regulated Substances on any part of the Property, nor permit others to engage in any such activity on the Property, except for (i) those that Regulated Substances which are used or present in the ordinary course of the Indemnitor’s business in compliance with all Environmental Laws Laws, or are listed on Schedule I attached hereto and of types have not been released into the environment in such a manner as to constitute Contamination hereunder, and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operationsii) and shall undertake to supervise and inspect activities those Regulated Substances which are naturally occurring on the Projects as may be reasonably prudent to comply with the foregoing obligationProperty, but only in such naturally occurring form;
(ivd) not to cause or permit, as a result of any intentional or unintentional act or omission on the part of the Indemnitor or any tenant, subtenant, occupant or assigns, the presence of Regulated Substances or Contamination on the Property, except as disclosed in Schedule 8.11 for (i) those Regulated Substances which are used or as specifically described present in the Environmental Reports, ordinary course of the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed Indemnitor’s business in compliance with all Applicable Environmental Laws, or are listed on Schedule I attached hereto and have not been released into the environment in such a manner as to constitute Contamination hereunder, and (ii) those Regulated Substances which are naturally occurring on the Property, but only in such naturally occurring form.
(e) to give notice and a full description to the Lender immediately upon the Indemnitor’s acquiring knowledge of (i) any and all enforcement, clean-up, removal or other regulatory actions threatened, instituted or completed by any governmental authority with respect to the Indemnitor or the Property; (ii) all claims made or threatened by any third party against the Indemnitor or the Property relating to damage, contribution, compensation, loss or injury resulting from any Regulated Substances or Contamination; and (iii) the presence of any Contamination on, under, from or affecting the Property;
(vf) Reservedto timely comply with any Environmental Laws requiring the removal, treatment, storage, processing, handling, transportation or disposal of such Regulated Substances or Contamination and provide the Lender with satisfactory evidence of such compliance;
(vig) the Borrower shall keep each Project free to conduct and clear of complete all Liens investigations, studies, sampling and testing, as well as all remedial, removal and other encumbrances imposed pursuant actions necessary to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, clean up and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present remove all Contamination on, under under, from or emanating from any Projectaffecting the Property, or migrating onto or into any Project, all in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental IndemnityLaws; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hoursh) to continue to have all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with necessary licenses, certificates and permits required under the operation of such Project or the tenants or occupants thereof, and shall be subject Environmental Laws relating to the rights of tenants under their LeasesIndemnitor and its Property, facilities, assets and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedbusiness.
Appears in 2 contracts
Samples: Environmental Indemnity Agreement, Environmental Indemnity Agreement (Inland Diversified Real Estate Trust, Inc.)
Environmental Covenants. The Borrower Mortgagor covenants and agrees that:
that so long as the Mortgagor owns, manages, is in possession of, or otherwise controls the operation of the Property: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower Mortgagor or any other Personperson or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are in compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects extent required; (i.e., materials used in cleaning and other building operationsd) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Mortgagor shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Mortgagor or any other Person person or entity (collectively, “the "Environmental Liens”");
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeMortgagor shall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsSection 11.3 below, including, but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Mortgagor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender after Lender has reason to believe this Section 11.2 has been violated (including, but not limited to sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties (defined in Section 12.1) shall be entitled to rely on such reports and other results thereof; (g) Mortgagor shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate Remediation of any condition (including, but not limited to a Release of a Hazardous Substance) in, on, under or from the Property, (ii) comply with any Environmental Law, (iii) comply with any directive from any governmental authority, and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Mortgagor shall not do or allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; and (i) Mortgagor shall immediately notify Lender in writing promptly after it has become aware of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property which is required to be reported to a governmental authority under any Environmental Law, (B) promptly upon requestany actual Environmental Lien affecting the Property, copies (C) any required Remediation of all environmental investigationsconditions relating to the Property, studies, audits, reviews and (D) any written or oral notice or other analyses conducted by communication of which Mortgagor becomes aware from any source whatsoever (including, but not limited to a governmental entity) relating in any way to Hazardous Substances or that are in the possession Remediation thereof, possible liability of any person or control of the Borrower in relation entity pursuant to any ProjectEnvironmental Law, whether heretofore other environmental conditions in connection with the Property, or hereafter obtainedany actual or threatened administrative or judicial proceedings in connection with anything referred to in this Article 11.
Appears in 2 contracts
Samples: Loan and Credit Facility Agreement (Cv Reit Inc), Real Estate Purchase Agreement (Cv Reit Inc)
Environmental Covenants. The Borrower covenants Borrowers covenant and agrees that:
agree that so long as Borrowers own, manage, is in possession of, or otherwise control the operation of the Individual Properties: (ia) all uses and operations on or of each Projectthe Individual Properties, whether by the Borrower Borrowers or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
Individual Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances Materials in, on, or under any ProjectIndividual Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Projectextent required, and shall operate, maintain, repair (ii) (A) in amounts not in excess of that necessary to operate the Individual Properties for the purposes set forth herein or (B) fully disclosed to and replace any such underground storage tank so disclosed approved by Lender in compliance with all Applicable Laws;
writing; (vd) Reserved;
(vi) the Borrower Borrowers shall keep each Project the Individual Properties free and clear of all Liens Environmental Liens; (e) Borrowers shall, at their sole cost and other encumbrances imposed expense, fully and expeditiously cooperate in all activities pursuant to any Environmental LawSection 12.4 below, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Borrowers shall, at their sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with any Individual Property, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that any Individual Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Borrowers shall, at their sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from any Individual Property; and (ii) comply with any Environmental Law; (h) Borrowers shall not allow any tenant or other user of any Individual Property to violate any Environmental Law; and (i) Borrowers shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Release of Hazardous Materials in, on, under, from or migrating towards any Individual Property; (B) promptly upon request, copies any non-compliance with any Environmental Laws related in any way to any Individual Property; (C) any actual or potential Environmental Lien against any Individual Property; (D) any required or proposed remediation of all environmental investigations, studies, audits, reviews conditions relating to any Individual Property; and (E) any written or oral notice or other analyses conducted by or that are communication of which Borrowers becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials. Any failure of Borrowers to perform their obligations pursuant to this Section 12.2 shall constitute bad faith waste with respect to the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedIndividual Properties.
Appears in 2 contracts
Samples: Loan Agreement (Extra Space Storage Inc.), Loan Agreement (Extra Space Storage Inc.)
Environmental Covenants. The Borrower Mortgagor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Mortgaged Property, whether by the Borrower Mortgagor or any other Personperson over which Mortgagor has control, shall be in compliance with all Environmental Laws and permits that may have been issued pursuant thereto;
; (iib) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower Mortgagor shall not permit a the Release of Hazardous Substances by Mortgagor or any other person over which Mortgagor has control in, on, under or from any Project;
the Mortgaged Property; (iiic) the Borrower Mortgagor shall not knowingly permit any Hazardous Substances in, on, or under any Projectthe Mortgaged Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits that may have been issued pursuant thereto and (ii) fully disclosed to Mortgagee in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsd) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Mortgagor shall keep each Project the Mortgaged Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Mortgagor or any other Person person or entity (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause Mortgagor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Mortgaged Property, pursuant to any reasonable written request of Mortgagee made in the event that Mortgagee has a good faith reason to believe that an environmental hazard exists on the Mortgaged Property (iii) aboveincluding but not limited to sampling, the Borrower shall nottesting and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Projectgas), and share with Mortgagee the reports and other results thereof, and the Mortgagee shall upon be entitled to rely on such reports and following the Closing Date implementother results thereof; (g) Mortgagor shall, at its sole cost and expense, comply with and maintain all reasonable written requests of Mortgagee made in effect the event that Mortgagee has a good faith reason to believe that an operations and maintenance program with respect environmental hazard exists on the Mortgaged Property in order to any existing asbestos or asbestos containing materials located at any Project;
(viiii) the Borrower shall cause the reasonably effectuate Remediation of such any Release of any Hazardous Substances present in, on, under or emanating from the Mortgaged Property; (ii) comply with any Environmental Law; (iii) comply with any directive from any Projectgovernmental authority; and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Mortgagor shall not do or allow any tenant or other user of the Mortgaged Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity (whether on or off the Mortgaged Property), impairs or may impair the value of the Mortgaged Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or migrating onto violates any covenant, condition, agreement or into any Project, in accordance with this Agreement and easement applicable Environmental Laws subject to the right to contest such Remediation Mortgaged Property; and (i) Mortgagor shall immediately notify Mortgagee in accordance with Section 7(a) writing of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) any presence of Releases or Threat of Release of Hazardous Substances in, on, under, from or migrating towards the Mortgaged Property; (B) any non-compliance with accessany Environmental Laws related in any way to the Mortgaged Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating the Mortgaged Property; and (E) any written or oral notice or other communication of which Mortgagor becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to the Mortgaged Property and Hazardous Substances or Remediation thereof, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion possible liability of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject Person pursuant to any Environmental Law relating to the rights of tenants under their LeasesMortgaged Property, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives other environmental conditions in connection with such inspectionsthe Mortgaged Property, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by any actual or that are potential administrative or judicial proceedings in the possession or control of the Borrower connection with anything referred to in relation to any Project, whether heretofore or hereafter obtainedthis Agreement.
Appears in 1 contract
Environmental Covenants. The Borrower Each Indemnitor covenants and agrees that:
that (ia) all uses and operations on or of each ProjectIndividual Property, whether by any of the Borrower Indemnitors, any of the Mortgage Borrowers or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
Individual Property (iiiexcept in compliance with all applicable Environmental Laws and with permits issued pursuant thereto); (c) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, on or under any ProjectIndividual Property, except those that are both (i) in compliance with all applicable Environmental Laws and of types with any necessary permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsd) and Indemnitors shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Projectkeep, and shall operatecause each Mortgage Borrower to keep, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project Individual Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of any of the Borrower Indemnitors or any other Person (collectively, the “Environmental Liens”);
; provided, that after prior notice to Indemnitee, Indemnitors, may contest, or may cause any Mortgage Borrower to contest, at Indemnitors’ or such Mortgage Borrower’s sole cost and expense, by appropriate legal proceeding, conducted in good faith and with due diligence, the amount or validity of any Environmental Liens, provided that (vii1) notwithstanding no Event of Default has occurred and remains uncured, (2) such proceeding shall be permitted under and be conducted in accordance with all applicable statutes, laws and ordinances, (3) no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost, (4) Indemnitors shall, or shall cause the applicable Mortgage Borrower to, promptly upon final determination thereof pay the amount of any such Environmental Liens, together with all costs, interest and penalties which may be payable in connection therewith, (5) to insure the payment of such Environmental Liens, Indemnitors shall deliver, or shall cause the applicable Mortgage Borrower to deliver, to Indemnitee either (A) cash, or other security as may be approved by Indemnitee, in an amount equal to one hundred ten percent (110%) of the contested amount if such contested amount will be less than one million dollars ($1,000,000) or one hundred twenty five percent (125%) of such contested amount if such contested amount will be equal to or greater than ($1,000,000), or (B) a payment and performance bond in an amount equal to one hundred percent (100%) of the contested amount from a surety acceptable to Indemnitee in its reasonable discretion, provided, however, Indemnitor shall not be required to deliver any security pursuant to this clause (iii5) above, the if Mortgage Borrower shall nothave delivered security in respect of the relevant matter to the Mortgage Lender, (6) failure to pay such Environmental Liens will not subject Indemnitee to any civil or knowingly permit criminal liability, (7) such contest shall not affect the ownership, use or occupancy of any other Person toIndividual Property, install any asbestos or asbestos containing materials on any Projectand (8) Indemnitors shall, upon request by Indemnitee, give Indemnitee prompt notice of the status of such proceedings and/or confirmation of the continuing satisfaction of the conditions set forth in clauses (1) through (7) of this Section 2(d); (e) Indemnitors shall, at their sole cost and expense, fully and in a timely manner cooperate, and shall upon cause each Mortgage Borrower to fully and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Projecta timely manner cooperate, in accordance with all activities pursuant to Section 3 of this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsAgreement, including, but not limited to, providing all relevant information and making knowledgeable persons Persons available for interviews upon reasonable advance written request and at reasonable times and places; (Bf) promptly upon requestIndemnitors shall perform, copies of all and shall cause each Mortgage Borrower to perform, at Indemnitors’ or such Mortgage Borrower’s, sole cost and expense, any environmental investigations, studies, audits, reviews site assessment or other analyses conducted by or that are investigation of environmental conditions in the possession or control of the Borrower in relation connection with any Individual Property, pursuant to any Projectreasonable written request of Indemnitee made in consideration of any environmental event or condition reasonably believed by Indemnitee to have occurred or to exist at any Individual Property (which request shall briefly describe the basis for Indemnitee’s belief) (including, but not limited to, sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether heretofore solid, liquid or hereafter obtained.gas, such assessment or investigation to be in scope and nature appropriate to the suspected event or condition) that would be reasonably expected to have an adverse effect on any Individual Property or on the business or condition (financial or otherwise) of Borrower, and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (
Appears in 1 contract
Samples: Mezzanine Environmental Indemnity Agreement (Hospitality Investors Trust, Inc.)
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property (or any portion thereof), whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
Individual Property; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any ProjectIndividual Property, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (B) de-minimis amounts necessary to operate the applicable Individual Property for the purposes set forth in the Loan Agreement which will not result in an environmental condition in, on or under the applicable Individual Property and in quantities customarily which are otherwise permitted under and used in the ownership, operation compliance with Environmental Law and maintenance of buildings similar (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, including providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender made if Lender has reason to believe that an environmental hazard exists on any Individual Property (including sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made if Lender has reason to believe that an environmental hazard exists on any Individual Property (A) reasonably effectuate Remediation of any condition (including a Release of a Hazardous Substance) in, on, under or from any Individual Property; (B) promptly upon request, copies comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (viii) Borrower shall not do or allow any Tenant or other analyses conducted by user of the Property to do any act that materially increases the dangers to human health or that are the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property (or any portion thereof)), impairs or may impair the value of the Property (or any portion thereof), is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property (or any portion thereof); (ix) Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards any Individual Property; (B) any non-compliance with any Environmental Laws related in any way to any Individual Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to any Individual Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including a governmental entity) relating in any way to the release or potential release of Hazardous Substances or Remediation thereof, likely to result in liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with any Individual Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section; (x) Borrower shall not install, use, generate, manufacture, store, treat, release or dispose of, nor permit the installation, use, generation, storage, treatment, release or disposal of, any Hazardous Substances (except de-minimis amounts necessary to operate the Property (or any portion thereof) for the purposes set forth in the possession Loan Agreement which will not result in an environmental condition in, on or under the Property (or any portion thereof) and which are otherwise permitted under and used in compliance with Environmental Law) on, under or about the Property (or any portion thereof), and all uses and operations on or of the Property (or any portion thereof), whether by Borrower or any other person or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (xi) Borrower shall not make any change in the use or condition of any Individual Property which (A) might lead to the presence on, under or about the applicable Individual Property of any Hazardous Substances which is not in accordance with any applicable Environmental Law, or (B) would require, under any applicable Environmental Law, notice be given to or approval be obtained from any governmental agency in the event of a transfer of ownership or control of the applicable Individual Property, in each case without the prior written consent of Lender; (xii) Borrower shall not allow any Institutional Control on or to affect any Individual Property; and (xiii) Borrower shall take all acts necessary to preserve its status, if applicable, as an “innocent landowner,” “contiguous property owner,” or “prospective purchaser” as to the Property (or any portion thereof) and as those terms are defined in relation CERCLA; provided, however, that this covenant does not limit or modify any of Borrower’s other duties or obligations under this Agreement.
(b) If Lender has reason to believe that an environmental hazard exists on any ProjectIndividual Property that may, whether heretofore in Lender’s discretion, endanger any Tenants or hereafter obtainedother occupants of the applicable Individual Property or their guests or the general public or may materially and adversely affect the value of the Individual Property, upon reasonable notice from Lender, Borrower shall, at Borrower’s expense, promptly cause an engineer or consultant satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined in Lender’s discretion) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Lender and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period or if Lender has reason to believe that an environmental hazard exists on the Property that, in Lender’s sole judgment, endangers any Tenant or other occupant of the Property or their guests or the general public or may materially and adversely affect the value of the applicable Individual Property, upon reasonable notice to Borrower, Lender and any other Person designated by Lender, including any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon the applicable Individual Property at all reasonable times to assess any and all aspects of the environmental condition of the applicable Individual Property and its use, including conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Borrower shall cooperate with and provide Lender and any such Person designated by Lender with access to the applicable Individual Property.
(c) [Intentionally Deleted.]
(d) [Intentionally Deleted.]
(e) Borrower shall promptly perform all necessary remedial work in response to the presence of any Hazardous Substances on any Individual Property, any violation of any Environmental Laws, or any claims or requirements made by any governmental agency or authority. All such work shall be conducted by licensed and reputable contractors pursuant to written plans approved by the agency or authority in question (if applicable), under proper permits and licenses (if applicable) with such insurance coverage as is customarily maintained by prudent property owners in similar situations. If the cost of the work exceeds $100,000, then Lender shall have the right of prior approval over the environmental contractor and plans, which shall not be unreasonably withheld or delayed. All costs and expenses of the remedial work shall be promptly paid by Borrower. In the event Borrower fails to undertake the remedial work, or fails to complete the same within a reasonable time period after the same is undertaken, and if Lender is of the good faith opinion that Lender’s security in the applicable Individual Property is jeopardized thereby, then Lender shall have the right to undertake or complete the remedial work itself. In such event all costs of Lender in doing so, including all fees and expenses of environmental consultants, engineers, attorneys, accountants and other professional advisors, shall become a part of the Loan and shall be due and payable from Borrower upon demand. Such amount shall be secured by the Loan Documents, and failure to pay the same shall be an event of default under the Loan Documents. In the event any Hazardous Substances are removed from the Property, either by Borrower or Lender, the number assigned by the United States Environmental Protection Agency to such Hazardous Substances shall be solely in the name of Borrower, and Borrower shall have any and all liability for such removed Hazardous Substances.
Appears in 1 contract
Environmental Covenants. The Borrower covenants and agrees that:
that so long as the Borrower owns, manages, is in possession of, or otherwise controls the operation of the Property: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Personperson or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are in compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects extent required; (i.e., materials used in cleaning and other building operationsd) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person person or entity (collectively, “the "Environmental Liens”");
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsSection 12.3 below, including, but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender after Lender has reason to believe this Section 12.2 has been violated (including, but not limited to sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties (defined in Section 13.1) shall be entitled to rely on such reports and other results thereof; (g) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate Remediation of any condition (including, but not limited to a Release of a Hazardous Substance) in, on, under or from the Property, (ii) comply with any Environmental Law, (iii) comply with any directive from any governmental authority, and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Borrower shall not do or allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; and (i) Borrower shall immediately notify Lender in writing promptly after it has become aware of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property which is required to be reported to a governmental authority under any Environmental Law, (B) promptly upon requestany actual Environmental Lien affecting the Property, copies (C) any required Remediation of all environmental investigationsconditions relating to the Property, studies, audits, reviews and (D) any written or oral notice or other analyses conducted by communication of which Borrower becomes aware from any source whatsoever (including, but not limited to a governmental entity) relating in any way to Hazardous Substances or that are in the possession Remediation thereof, possible liability of any person or control of the Borrower in relation entity pursuant to any ProjectEnvironmental Law, whether heretofore other environmental conditions in connection with the Property, or hereafter obtainedany actual or threatened administrative or judicial proceedings in connection with anything referred to in this Article 12.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Butler International Inc /Md/)
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Properties, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Properties; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Properties, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (B) de-minimis amounts necessary to operate each Individual Property for the purposes set forth in the Loan Agreement which will not result in an environmental condition in, on or under the Properties and in quantities customarily which are otherwise permitted under and used in the ownership, operation compliance with Environmental Law and maintenance of buildings similar (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project Individual Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with each Individual Property, pursuant to any reasonable written request of Lender made in the event that Lender has reason to believe that a Hazardous Substance exists on each Individual Property (including but not limited to sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made in the event that Lender has reason to believe that a Hazardous Substance exists on each Individual Property (A) reasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from each Individual Property; (B) promptly upon request, copies comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (viii) Borrower shall not do or allow any Tenant or other analyses conducted user of each Individual Property to do any act relating to Hazardous Substances that (A) materially increases the dangers to human health or the environment, (B) poses an unreasonable risk of harm to any Person (whether on or off the Properties), (C) impairs or may impair the value of each Individual Property, (D) is contrary to any requirement of any insurer, (E) constitutes a public or private nuisance, (F) constitutes waste, or (G) violates any covenant, condition, agreement or easement applicable to each Individual Property; and (ix) Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Properties; (B) any non-compliance with any Environmental Laws related in any way to the Properties; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to each Individual Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to the release or potential release of Hazardous Substances or Remediation thereof, likely to result in liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with each Individual Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section.
(b) In the event that Lender has reason to believe that a Hazardous Substance exists on any Individual Property that may, in Lender’s sole discretion, endanger any Tenants or other occupants of such Individual Property or their guests or the general public or may materially and adversely affect the value of such Individual Property, upon reasonable notice from Lender, Borrower shall, at Borrower’s expense, promptly cause an engineer or consultant satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Lender and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period or if Lender has reason to believe that are a Hazardous Substance exists on an Individual Property that, in Lender’s sole judgment, endangers any Tenant or other occupant of such Individual Property or their guests or the possession general public or control is likely to materially and adversely affect the value of such Individual Property, upon reasonable notice to Borrower, Lender and any other Person designated by Lender, including but not limited to any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon any Individual Property at all reasonable times to assess any and all aspects of the environmental condition of such Individual Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Borrower shall cooperate with and provide Lender and any such Person designated by Lender with access to such Individual Property.
(c) Borrower hereby represents and warrants that attached hereto as Exhibit A is a true and complete copy of the Asbestos Operations and Maintenance Plans for the Individual Property known as Richmond Place located in relation to Richmond, Michigan and the Individual Property known as Candlelight Village located in Sauk Village, Illinois (whether one or more, the “O&M Program”), and (b) Borrower has as of the date hereof complied in all respects with the O&M Program. Borrower hereby covenants and agrees that, during the term of the Loan, including any Projectextension or renewal thereof, whether heretofore or hereafter obtainedBorrower shall comply in all respects with the terms and conditions of the O&M Program.
Appears in 1 contract
Samples: Loan Agreement (Sun Communities Inc)
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (B) de-minimis amounts necessary to operate the Property for the purposes set forth in the Loan Agreement which will not result in an environmental condition in, on or under the Property and in quantities customarily which are otherwise permitted under and used in the ownership, operation compliance with Environmental Law and maintenance of buildings similar (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender made in the event that Lender has reasonable reason to believe that an environmental hazard exists on the Property (including but not limited to sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, (A) comply with all reasonable written requests of Lender made in the event that Lender has reason to believe that an environmental hazard exists on the Property (B) promptly upon requestreasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, copies on, under or from the Property; (C) comply with any Environmental Law; (D) comply with any directive from any Governmental Authority; and (E) take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (viii) Borrower shall not do or allow any Tenant or other analyses conducted by or that are in the possession or control user of the Borrower in relation Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any ProjectPerson (whether on or off the Property), whether heretofore impairs or hereafter obtainedmay impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; and (ix) Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to the release or potential release of Hazardous Substances or Remediation thereof, likely to result in liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section.
(b) In the event that Lender has reasonable reason to believe that an environmental hazard exists on the Property that may, in Lender’s sole discretion, endanger any Tenants or other occupants of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon reasonable notice from Lender, Borrower shall, at Borrower’s expense, promptly cause an engineer or consultant satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Lender and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period or if Lender has reason to believe that an environmental hazard exists on the Property that, in Lender’s sole judgment, endangers any Tenant or other occupant of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon reasonable notice to Borrower, Lender and any other Person designated by Lender, including but not limited to any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Borrower shall cooperate with and provide Lender and any such Person designated by Lender with access to the Property.
Appears in 1 contract
Environmental Covenants. The Borrower covenants and agrees that:
: (iA) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws Statutes and permits issued pursuant thereto;
; (iiB) except for there shall be no willful Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the Property, except those that are both (iiii) the Borrower in compliance with or remediated in compliance with all Environmental Statutes and with permits issued pursuant thereto and (ii) fully disclosed to Agent in writing; (C) there shall not knowingly permit be no Hazardous Substances placed by Borrower in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws Statutes and of types with permits issued pursuant thereto and (ii) fully disclosed to Agent in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsD) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental LawStatute, whether due to any act or omission of the Borrower or any other Person Person, provided that if such liens or encumbrances are the subject of a bona fide dispute, Borrower may in good faith contest the amount or validity thereof and further provided that it shall not be a default under the Loan Documents if any such Environmental Liens are imposed so long as Borrower commences to remove such Environmental Liens within thirty (collectively30) days after written notice thereof from a Governmental Authority and thereafter diligently and expeditiously proceed to successfully remove the same within ninety (90) days after written notice thereof; provided, “Environmental Liens”);
further, that (viii) notwithstanding clause no Default or Event of Default has otherwise occurred and remains uncured; (ii) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (iii) above, the Borrower shall not, or knowingly permit promptly upon final determination thereof pay any other Person to, install any asbestos or asbestos containing materials on any Project, amounts due and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program payable with respect to such lien or encumbrance, together with all costs, interest and penalties which may be payable in connection therewith; (iv) such proceeding shall suspend the collection of any existing asbestos amounts due and payable with respect to such lien or asbestos containing materials located at any Project;
encumbrance; and (viiiv) the Borrower shall cause the Remediation of furnish such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative security as may be required by Agent, to insure the Lenders payment of any amounts due and their representatives payable with respect to such lien or encumbrance, together with all interest and penalties thereon; (AE) with access, upon prior reasonable noticeBorrower shall, at reasonable times (during normal business hours) to all its sole cost and expense, perform any environmental site assessment or any portion other investigation of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives environmental conditions in connection with such inspectionsthe Property, by an environmental consultant approved USActive 36631986.12 -116- by Agent pursuant to any reasonable written request of Agent (including, but not limited to, providing sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas if reasonably necessary), and share with Agent the reports and other results thereof, and Agent shall be entitled to rely on such reports and other results thereof; (F) no more than once per calendar year, and provided that there is a reasonable basis for Agent to so require (unless an Event of Default has occurred and is continuing or there is an actual Release of Hazardous Material at the Property in which case no such restriction shall apply), Borrower shall, at its sole cost and expense, comply with all relevant information reasonable written requests of Agent to (i) effectuate Remediation or obtain a no further action letter for any condition (including, but not limited to, a Release of any Hazardous Substances) in, on, under or from the Property, in full compliance of Environmental Statutes or reasonably required by Agent based upon recommendations and making knowledgeable persons available for interviews observations of an independent environmental consultant approved by Agent, (ii) comply with any Environmental Statute, (iii) comply with any directive from any Governmental Authority, and (Biv) promptly upon request, copies take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (G) [Intentionally Omitted]; (H) Borrower shall use commercially reasonable efforts to enforce the applicable provisions of the Leases in order to prevent Tenants or other analyses conducted by users of the Property from taking any action that violates any applicable Environmental Statute, impairs or that are may impair the value of the Property, constitutes a public or private nuisance, constitutes waste or violates any covenant, condition, agreement or easement applicable to the Property; and (I) Borrower shall promptly notify Agent in writing if Borrower obtains actual knowledge of (i) any presence or Release or threatened Release of Hazardous Substances in, on, under, from or migrating towards the Property, (ii) any non‑compliance with any Environmental Statutes related in any way to the Property, (iii) any actual or potential imposition of a lien or other encumbrances against the Property imposed pursuant to any Environmental Statute, (iv) any required or proposed Remediation of environmental conditions relating to the Property, and/or (v) any written notice or other written communication of which any Borrower becomes aware from any source whatsoever (including, but not limited to, a Governmental Authority) relating in any way to Hazardous Substances or Remediation thereof, possible liability of any Person pursuant to any Environmental Statute, other environmental conditions in connection with the Property, the discovery of any occurrence or condition on any real property adjoining or in the possession or control vicinity of the Borrower Property that could cause the Property or any actual or potential administrative or judicial proceedings in relation connection with anything referred to any Project, whether heretofore or hereafter obtainedin this Section 5.4.
Appears in 1 contract
Samples: Building Loan Agreement (KBS Strategic Opportunity REIT, Inc.)
Environmental Covenants. The Borrower Lessee covenants and agrees thatthat it shall:
(i) comply in all uses and operations on respects with all applicable Environmental Laws, including the effecting of environmental responses or of each Projectremediation, whether by the Borrower structural modifications, or any other Person, shall be in environmental cures to maintain or ensure compliance with all Environmental Laws and permits issued pursuant theretoLaws, if applicable;
(ii) except for Releases incidental obtain and maintain at all times during the effectiveness of this Agreement, all Environmental Permits that are now or hereafter required with respect to the Use of Hazardous Substances permitted by clause (iii) below Leased Property and in compliance comply with all Applicable Laws, the Borrower shall not permit a Release terms and conditions of Hazardous Substances in, on, under all Environmental Permits now or from any Projecthereafter required;
(iii) (x) keep the Borrower shall Leased Property free of Hazardous Materials and (y) not knowingly permit use Leased Property or allow any other Person at any time during the effectiveness of this Agreement to use the Leased Property to generate, manufacture, refine, produce or process any Hazardous Substances inMaterial or to store, onhandle, transfer or under transport any ProjectHazardous Material on the Leased Property, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar other than (as to the Projects both clause (i.e., materials used in cleaning and other building operationsx) and shall undertake to supervise (y)) normal and inspect activities occurring on lawful uses of such Hazardous Materials, taking into account Lessee’s intended use of the Projects as may be reasonably prudent to Leased Property, which will not diminish the Fair Market Sales Value of the Leased Property and which at all times will comply with the foregoing obligationEnvironmental Laws;
(iv) except as disclosed in Schedule 8.11 permitted by Environmental Laws and all other Applicable Law, not construct, operate, maintain or as specifically described in allow to be located in, under or on the Environmental ReportsLeased Property any (w) surface impoundments, the Borrower shall not permit any (x) underground storage tanks to be intanks, on(y) asbestos or asbestos-containing material, or under any Project(z) PCB-containing equipment, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Lawsincluding transformers;
(v) Reservedcause any alterations of, improvements or construction on, the Leased Property to be done in accordance with Environmental Laws and Environmental Permits, and in connection with any such modifications, improvements or construction, shall remove and dispose of or otherwise remediate, in compliance with Environmental Laws, any Hazardous Materials present upon the Leased Property and generated or encountered during such activity and required to be removed or remediated pursuant to any Environmental Laws;
(vi) promptly upon obtaining actual knowledge thereof, give to the Borrower shall keep each Project free and clear Lessor notice of all Liens and other encumbrances imposed pursuant the occurrence of any of the following events: (t) the failure of the Leased Property, or the Lessee or any permitted assignee of the Lessee with respect to the Leased Property, to comply with any Environmental Law in any manner whatsoever; (u) the issuance by any Governmental Authority to the Lessee or any permitted assignee of the Lessee, of any notice, complaint or order of violation or non-compliance of any nature with regard to the Leased Property or the use thereof with respect to Environmental Laws; (v) any notice of a pending or threatened, non-routine investigation to determine whether the operations of the Lessee or any permitted assignee of the Lessee on the Leased Property are in violation of any Environmental Law; (w) any notice from any Governmental Authority requiring any corrective action with respect to the Leased Property or any portion thereof under any Environmental Law; (x) the initiation of any private party judicial or administrative action relating to violation of any Environmental Law in connection with the use, whether due to any act occupancy or omission operation of the Borrower Leased Property; (y) the existence or threat of a Release of a Hazardous Material at the Leased Property or any condition regulated by any Environmental Law which is or must be reported to a Governmental Authority or that could have a Material Adverse Effect upon the Leased Property; or (z) any other Person (collectively, “occurrence or discovery or any condition at the Leased Property related to Environmental Liens”);Laws and which would constitute a Material Adverse Effect on the Leased Property; and
(vii) notwithstanding clause if, despite the foregoing prohibitions, during the Lease Term (iiix) abovethere is any actual or threatened Release, which is not in compliance with Environmental Laws or Environmental Permits or (y) Hazardous Materials on, in, under or at the Leased Property which give rise to a liability or Claim under common law or any Environmental Law or Environmental Permit, the Borrower shall notLessee shall, with all deliberate speed, in any and all such occurrences and at its sole cost and expense, promptly take all applicable action required under and taken in compliance with Environmental Laws and the reasonable instructions of the Lessor to correct, remove, remediate, clean up, prevent, mitigate, monitor, evaluate, investigate, assess or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following axxxx the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation Release of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedMaterial.
Appears in 1 contract
Environmental Covenants. The Borrower covenants and agrees that:
that so long as Borrower owns, manages, is in possession of, or otherwise controls the operation of the Property: (ia) all uses and operations on or of each Project, whether by the Borrower or any other Person, Property shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable LawsBorrower, the Borrower shall not permit a Release of Hazardous Substances its agents or employees in, on, under or from any Project;
the Property; (iiic) the Borrower shall not knowingly permit any Hazardous Substances in, on, or under any Projectthe Property, except those that are in compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects extent required; (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vid) the Borrower Property shall keep each Project be kept free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person person or entity (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofSection 12.3 below, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any written request of Lender (including but not limited to sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties (as defined herein) shall be entitled to rely on such reports and other results thereof provided, however, that no such request shall be made by Lender unless Lender has reasonable grounds to believe that a Release of Hazardous Substances or a violation of Environmental Law has occurred; (g) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the Property; (ii) comply with any Environmental Law; (iii) comply with any directive from any governmental authority; and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Borrower shall not do or knowingly allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; (i) Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) promptly upon request, copies any non compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of all environmental investigations, studies, audits, reviews conditions relating to the Property; and (E) any written or oral notice or other analyses conducted by communication which Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or that are in Remediation thereof affecting the possession Property, possible liability of any person or control of the Borrower in relation entity pursuant to any ProjectEnvironmental Law, whether heretofore other environmental conditions in connection with the Property, or hereafter obtainedany actual or potential administrative or judicial proceedings in connection with anything referred to in this Article 12; and (j) Borrower shall, at Borrower’s sole cost and expense, sample suspect asbestos-containing materials (“ACMs”) (as defined by the EPA “Green Book”) prior to commencing a repair, renovation or demolition project at the Property that will disturb suspect ACMs to the extent that Borrower has a reasonable basis to believe such ACM’s exist. Any failure of Borrower to perform its obligations pursuant to this Section 12.2 shall constitute bad faith waste with respect to the Property.
Appears in 1 contract
Samples: Mortgage, Assignment of Leases and Rents, Security Agreement (American Assets Trust, Inc.)
Environmental Covenants. The (a) Borrower covenants and agrees that:
that so long as the Loan is outstanding: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other PersonPerson (if within Borrower’s control, or Borrower shall use its commercially reasonable efforts if such Person is not within Borrower’s control), shall be in compliance in all material respects with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
of the Property in violation of any Environmental Law whether by Borrower or any other Person (if within Borrower’s control, or Borrower shall use its commercially reasonable efforts if such Person is not within Borrower’s control); (iii) the Borrower there shall not knowingly permit be no Hazardous Substances Materials in, on, or under any Projectthe Property, except those that are both (A) in compliance in all material respects with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects extent required, and (i.e., materials used B) (1) in cleaning amounts not in excess of that necessary to operate the Property or (2) fully disclosed to and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
approved by Lender in writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectivelyif within Borrower’s control, or Borrower shall use its best efforts to keep the Property free of any such liens if the acts or omissions are of any Person that is not within Borrower’s control) (the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to paragraph (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and (B) promptly upon requestexpense, copies of all perform any environmental investigations, studies, audits, reviews site assessment or other analyses conducted by or that are investigation of environmental conditions in connection with the possession or control of the Borrower in relation Property, pursuant to any Projectreasonable written request of Lender, whether heretofore or hereafter obtained.upon
Appears in 1 contract
Samples: Loan Agreement (Piedmont Office Realty Trust, Inc.)
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Person, shall be in material compliance with all Environmental Laws and permits issued pursuant thereto;
thereto except to the extent that (A) any Environmental Law or order or directive of a Governmental Authority with respect thereto is being contested in good faith by appropriate proceedings and the pendency of such proceedings could not be reasonably expected to have a material adverse effect on the condition (financial or otherwise) or business of Borrower, Operating Lessee or the condition or ownership of the Property or (B) Borrower has determined in good faith that contesting the same is not in the best interests of Borrower and the failure to contest the same could not be reasonably expected to have a material adverse effect on the condition (financial or otherwise) or business of Borrower, Operating Lessee or the condition or ownership of the Property; (ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release cause, and shall use commercially reasonably efforts to ensure that no Person causes any Releases of Hazardous Substances in, on, under or from any Project;
the Property, except those that are both (A) in compliance with all Environmental Laws and with permits issues pursuant thereto and (B) fully disclosed to Lender in writing; (iii) the Borrower shall not knowingly permit place no and shall use commercially reasonable efforts to ensure no other Person places Hazardous Substances in, on, or under any Projectthe Property, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (B) de-minimis amounts necessary to operate the Property for the purposes set forth in the Loan Agreement which will not result in an environmental condition in, on or under the Property and in quantities customarily which are otherwise permitted under and used in the ownership, operation and maintenance of buildings similar compliance with Environmental Law or (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether Law due to any act or omission of Borrower (the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, and shall use commercially reasonable efforts to keep the Borrower shall not, Property free and clear from any Environmental Liens due to any act or knowingly permit omission of any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
Person; (viiiv) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews at reasonable times upon reasonable notice; (vi) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made in the event that Lender has reason to believe that an environmental hazard exists on the Property to (A) reasonably effectuate Remediation of any Release of a Hazardous Substance in, on, under or from the Property to the extent required under Environmental Law; (B) promptly upon request, copies comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (vii) Borrower shall not do and shall use commercially reasonable efforts not to allow any Tenant or other analyses conducted by or that are in the possession or control user of the Borrower in relation Property to do any act relating to environmental matters that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any ProjectPerson (whether on or off the Property), whether heretofore impairs or hereafter obtained.may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance,
Appears in 1 contract
Environmental Covenants. The (a) Borrower covenants and agrees that:
to use commercially reasonable efforts to assure that (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Person, shall be in compliance in all material respects with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
the Property; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances Materials in, on, or under any Projectthe Property, except those that are both (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects extent required, and (i.e., materials used B) (1) in cleaning amounts not in excess of that necessary to operate the Property or (2) fully disclosed to and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
approved by Lender in writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to paragraph (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that the Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (A) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews comply with any Environmental Law; (viii) Borrower shall not allow any tenant or other analyses conducted by or that are in the possession or control user of any of the Property to violate any Environmental Law; and (ix) Borrower shall promptly notify Lender in relation writing after it has become aware of (A) any presence or Release or threatened Releases of Hazardous Materials in, on, under, from or migrating towards the Property; (B) any non compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials.
(b) Upon reasonable belief by Lender that there exists at the Property a violation of Environmental Law, a Release of Hazardous Materials or other condition prohibited thereunder or hereunder Lender and any other Person designated by Lender, including but not limited to any Projectrepresentative of a Governmental Authority, whether heretofore and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or hereafter obtainedaudit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Borrower shall cooperate with and provide access to Lender and any such Person designated by Lender.
Appears in 1 contract
Environmental Covenants. The (a) Borrower covenants and agrees that it shall and it shall cause Mortgage Borrower to ensure that:
: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Person, shall be in material compliance with all Environmental Laws and permits issued pursuant thereto;
thereto except to the extent that (A) any Environmental Law or order or directive of a Governmental Authority with respect thereto is being contested in good faith by appropriate proceedings and the pendency of such proceedings could not be reasonably expected to have a material adverse effect on the condition (financial or otherwise) or business of Borrower, Mortgage Borrower, Operating Lessee, Mezzanine A Borrower or the condition or ownership of the Pledged Collateral, Mezzanine A Pledged Collateral or the Property or (B) Borrower has determined in good faith that contesting the same is not in the best interests of Borrower and the failure to contest the same could not be reasonably expected to have a material adverse effect on the condition (financial or otherwise) or business of Borrower, Mortgage Borrower, Operating Lessee, Mezzanine A Borrower or the condition or ownership of the Pledged Collateral, Mezzanine A Pledged Collateral or the Property; (ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release cause, and shall use commercially reasonably efforts to ensure that no Person causes any Releases of Hazardous Substances in, on, under or from any Project;
the Property except those that are both (A) in compliance with all Environmental Laws and with permits issues pursuant thereto and (B) fully disclosed to Lender in writing; (iii) the Borrower shall not knowingly permit place no and shall use commercially reasonable efforts to ensure no other Person places Hazardous Substances in, on, or under any Projectthe Property, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (B) de-minimis amounts necessary to operate the Property for the purposes set forth in the Mortgage Loan Agreement which will not result in an environmental condition in, on or under the Property and in quantities customarily which are otherwise permitted under and used in the ownership, operation and maintenance of buildings similar compliance with Environmental Law or (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Projectshall, and shall operatecause Mortgage Borrower and Operating Lessee to, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) keep the Borrower shall keep each Project Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower (the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, and shall use commercially reasonable efforts to keep the Borrower shall not, Property free and clear from any Environmental Liens due to any act or knowingly permit omission of any other Person to, install any asbestos or asbestos containing materials on any ProjectPerson; (v) Borrower shall, and shall upon cause Mortgage Borrower and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeOperating Lessee to, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews at reasonable times upon reasonable notice; (vi) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made in the event that Lender has reason to believe that an environmental hazard exists on the Property to (A) reasonably effectuate Remediation of any Release of a Hazardous Substance) in, on, under or from the Property to the extent required under Environmental Law; (B) comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of human health or the environment; (vii) Borrower shall not, nor cause or permit Mortgage Borrower or Operating Lessee to, do and shall use commercially reasonable efforts not to allow any Tenant or other user of the Property to do any act relating to environmental matters that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; and (viii) Borrower shall notify Lender in writing promptly upon requestBorrower obtaining knowledge of (A) any presence or Releases or threatened Releases of Hazardous Substances in, copies on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of all environmental investigationsconditions relating to the Property; and (E) any written notice to Borrower from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to the release or potential release of Hazardous Substances or Remediation thereof, studieslikely to result in liability of any Person pursuant to any Environmental Law, auditsother environmental conditions in connection with the Property, reviews or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section 5.1.19.
(b) In the event that Lender has a reasonable basis to believe that an environmental hazard exists on the Property that, in Lender’s sole discretion, endangers any Tenants or other analyses conducted by or that are in the possession or control occupants of the Property or their guests or the general public or materially and adversely affects the value of the Property, upon reasonable notice from Lender, (i) Borrower shall (subject to the rights of Tenants under Leases), at Borrower’s expense, promptly cause an engineer or consultant reasonably satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined in relation Lender’s reasonable discretion) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Lender and promptly deliver to Lender the results of any such assessment, audit, sampling or other testing, and (ii) Lender and any other Person designated by Lender, including but not limited to any Projectreceiver, whether heretofore any representative of a Governmental Authority, and any environmental consultant, shall have the right, but not the obligation, to enter upon the Property at all reasonable times, and upon reasonable prior notice to Borrower, to assess any and all aspects of the environmental condition of the Property and its use with respect to such environmental hazard, including but not limited to conducting any environmental assessment or hereafter obtainedaudit (the scope of which shall be determined in Lender’s reasonable discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Borrower shall and shall cause Mortgage Borrower or Operating Lessee to, cooperate with and provide Lender and any such Person designated by Lender with access to the Property.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Strategic Hotels & Resorts, Inc)
Environmental Covenants. The Borrower (a) [Reserved].
(b) [Reserved]
(c) Subject to Section 21(d), ATC covenants and agrees that:
that as to each Site (i) all uses ATC shall not conduct or allow to be conducted upon any Site any business operations or activities, or employ or use a Site, to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce, or process Hazardous Materials; provided that ATC shall have the right to bring, use and operations keep and allow any Third Party Tenant to bring and keep on or the Subleased Property of each Project, whether by the Borrower or any other Person, shall be Site in compliance with all Environmental Laws and permits issued pursuant thereto;
(ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable applicable Laws, the Borrower shall not permit a Release of Hazardous Substances inbatteries, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance with all Environmental Laws generators and of types associated fuel tanks and in quantities customarily other substances commonly used in the ownership, industry necessary for the operation and maintenance of buildings similar to the Projects each Site; (i.e.ii) ATC shall carry on its business and operations at each Site in compliance with, materials used and will remain in cleaning and other building operations) compliance with, all applicable Environmental Laws and shall undertake require all Third Party Tenants to supervise and inspect activities occurring do the same; (iii) ATC shall not create or permit to be created any Lien against any Site for any cost of any response, removal or remedial action or clean-up of Hazardous Materials Released by any Person on or after the Projects as may be reasonably prudent Site Commencement Date other than ALLTEL, its Affiliates or the Ground Lessor with respect to comply with the foregoing obligation;
any Leased Site; (iv) except as disclosed in Schedule 8.11 ATC shall promptly conduct and complete, or as specifically described in have conducted and completed, all investigations, studies, sampling and testing, and all remedial, removal, and other actions necessary to clean up and remove all Hazardous Materials released by any Person on or after the Environmental ReportsSite Commencement Date (other than ALLTEL, its Affiliates or the Borrower shall not permit Ground Lessor or any underground storage tanks of their respective officers, directors, employees, agents, engineers, contractors, subcontractors, licensees, or invitees) with respect to be in, any Leased Site on, from or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed affecting each Site in compliance accordance with all Applicable applicable Environmental Laws;
; and (v) Reserved;
ATC shall promptly notify ALLTEL in writing if ATC receives any notice, letter, citation, order, warning, complaint, claim or demand on or after the applicable Site Commencement Date that: (viA) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to ATC, any Environmental Law, whether due to any act or omission of the Borrower Third Party Tenant or any other Person (collectivelyincluding ALLTEL and its Affiliates) has violated, “or is about to violate, any Environmental Liens”);Law relating to a Site, (B) there has been a Release or there is a threat of Release, of Hazardous Materials at or from the applicable Site, (C) ATC, any Third Party Tenant or any other Person (including ALLTEL and its Affiliates) may be or is liable, in whole or in part, for the costs of cleaning up, remediating, removing or responding to a Release of Hazardous Materials at or from a Site, or (D) a Site is subject to a Lien in favor of any Governmental Authority for any liability, cost or damages under any Environmental Law.
(viid) notwithstanding clause Subject to Section 21(c), ALLTEL covenants and agrees that as to each Site: (i) ALLTEL shall not conduct or allow to be conducted upon any Site any business operations or activities, or employ or use the Site, to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce, or process Hazardous Materials; provided that ALLTEL shall have the right to bring, use and keep on the Reserved Space of any Site in compliance with all applicable Laws, batteries, generators and associated fuel tanks and other substances commonly used in the industry necessary for the operation and maintenance of each Reserved Space of any Site; (ii) ALLTEL shall carry on its business and operations on the Site in compliance with, and will remain in compliance with, all applicable Environmental Laws; (iii) aboveALLTEL shall not create or permit to be created any Lien against any Site for the costs of any response, the Borrower shall notremoval or remedial action or clean-up of Hazardous Materials Released by ALLTEL or its Affiliates, agents, vendors, or knowingly permit any contractors (other Person to, install any asbestos than ATC or asbestos containing materials on any Project, its Affiliates); (iv) ALLTEL shall promptly conduct and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Projectcomplete, or migrating onto or into any Projecthave conducted and completed, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, auditssampling and testing, reviews and all remedial, removal, and other actions necessary to clean up and remove all Hazardous Materials Released by ALLTEL or its Affiliates, agents, vendors, or contractors (other analyses conducted by than ATC or that are its Affiliates) on, from or affecting the Site in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtained.accordance with all applicable Environmental Laws;
Appears in 1 contract
Environmental Covenants. The (a) Each Individual Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectits applicable Individual Property, whether by the such Individual Borrower or any other Personperson or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
the applicable Individual Property; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe applicable Individual Property, except those that are both (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, and (B) in quantities customarily de-minimis amounts necessary to operate the applicable Individual Property for the purposes set forth in the Loan Agreement which will not result in an environmental condition in, on or under such Individual Property and which are otherwise permitted under and used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply compliance with the foregoing obligation;
Environmental Law; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reportssubject to a right to contest under applicable environmental law, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace provided any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) contest stays any enforcement proceeding by the applicable authority, such Individual Borrower shall keep each Project its applicable Individual Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the such Individual Borrower or any other Person person or entity (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the such Individual Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) such Individual Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with its applicable Individual Property, pursuant to any reasonable written request of Lender made in the event that Lender has a good faith reason to believe based upon credible evidence or information that an environmental hazard exists on or affects the applicable Individual Property (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) such Individual Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made in the event that Lender has a good faith reason to believe based on credible evidence or information that an environmental hazard exists on or affects its applicable Individual Property to (A) reasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the applicable Individual Property; (B) promptly upon request, copies comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (viii) such Individual Borrower shall not do or allow any tenant or other analyses conducted user of its applicable Individual Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off such Individual Property), impairs or may impair the value of such Individual Property, is contrary to any requirement of any insurer, involves Hazardous Substances or an environmental condition and constitutes a public or private nuisance, involves Hazardous Substances or an environmental condition and constitutes waste, or involves Hazardous Substances or an environmental condition and constitutes and violates any covenant, condition, agreement or easement applicable to such Individual Property; and (ix) such Individual Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards its applicable Individual Property; (B) any non-compliance with any Environmental Laws related in any way to such Individual Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to such Individual Property; and (E) any written or oral notice or other communication of which any Individual Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or Remediation thereof, possible liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with such Individual Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section.
(b) In the event that Lender has reason to believe that an environmental hazard exists on any Individual Property that may, in Lender’s sole discretion, endanger any Tenants or other occupants of such Individual Property or their guests or the general public, or may materially and adversely affect the value of such Individual Property, upon reasonable notice from Lender, the applicable Individual Borrower shall, at such Individual Borrower’s expense, promptly cause an engineer or consultant satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Lender and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period or if Lender has reason to believe that are an environmental hazard exists on such Individual Property that, in Lender’s sole judgment, endangers any Tenant or other occupant of such Individual Property or their guests or the possession general public or control may materially and adversely affect the value of such Individual Property, upon reasonable notice to Borrower, Lender and any other Person designated by Lender, including but not limited to any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon such Individual Property at all reasonable times to assess any and all aspects of the environmental condition of such Individual Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Each Individual Borrower in relation shall cooperate with and provide Lender and any such Person designated by Lender with access to any Project, whether heretofore or hereafter obtainedits Individual Property.
Appears in 1 contract
Samples: Loan Agreement (Inland Diversified Real Estate Trust, Inc.)
Environmental Covenants. The Borrower covenants and agrees that:
that the Borrower: (ia) all uses shall keep, and operations on or of each Projectshall exercise commercially reasonable efforts to cause third parties to keep, whether the Property free from Hazardous Substances (except those substances used by the Borrower or any other Person, shall be tenants under leases at the Property in the ordinary course of their businesses and in compliance with all Environmental Laws Laws); (b) shall not install or use any underground storage tanks, shall not itself engage in and permits issued pursuant thereto;
(ii) except for Releases incidental to shall expressly prohibit all tenants of space in the Use Improvements from engaging in the use, generation, handling, storage, production, processing or management of Hazardous Substances permitted by clause (iii) below Substances, except in the ordinary course of their businesses and in compliance with all Applicable Environmental Laws, the Borrower ; (c) shall not permit a itself cause or allow and shall expressly prohibit the Release of Hazardous Substances inat, on, under under, or from any Project;
the Property; (iiid) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance itself comply and shall expressly require all tenants to comply with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects Laws; (i.e., materials used in cleaning and other building operationse) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person person or entity (collectively, “Environmental Liens”);
; (viif) notwithstanding clause shall comply and shall use commercially reasonable efforts to cause all occupants of the Property to comply with the recommendations of any qualified environmental engineer or other environmental expert that apply or pertain to the Property; and (iiig) abovewithout limiting the generality of the foregoing, during the Borrower term of this Agreement, shall notnot use any construction materials which contain asbestos nor install in the Improvements on the Property, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are installed in the possession or control of Improvements on the Borrower in relation to Property, any Project, whether heretofore or hereafter obtainedmaterials which contain asbestos.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (Grubb & Ellis Healthcare REIT, Inc.)
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Project, whether the Property by the Borrower or any other Person, Indemnitor shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
(ii) except for Releases incidental , and Indemnitor shall use its commercially reasonable efforts to cause all other Persons to comply in their uses and operations at the Use of Hazardous Substances permitted by clause (iii) below and in compliance Property with all Applicable Environmental Laws, the Borrower ; (b) it shall not cause or permit a Release any unlawful Releases of Hazardous Substances in, on, under or from any Project;
the Property; (iiic) except as set forth in the Borrower Environmental Report, it shall not knowingly use or permit the use of and shall cause the Property to be free of Hazardous Substances (whether in, on, on or under any Projectthe Property), except those that are (i) in compliance with all Environmental Laws and of types and with any required permits issued pursuant thereto or (ii) in quantities customarily non‑reportable or negligible amounts used in the ownership, operation ordinary course of business and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Environmental Laws;
; (vd) Reserved;
(vi) the Borrower subject to Borrower’s right to contest same in accordance with this Agreement, Indemnitor shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeIndemnitor shall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion Paragraph 3 of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsthis Agreement, including, but not limited to, providing all relevant information and making knowledgeable persons Persons available for interviews interviews; (f) Indemnitor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions with respect to the Property, pursuant to any reasonable written request of Indemnitee based upon Indemnitee’s reasonable belief that the Property is not in compliance with Environmental Laws in any material respect or that a material environmental hazard exists with respect to the Property (which shall, where appropriate, include, but not be limited to, related sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Indemnitor shall, at its sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) effectuate Remediation of any condition as required by Environmental Laws (including, but not limited to, a Release of a Hazardous Substance) in, on, under or from the Property; and/or (ii) subject to Borrower’s right to contest same in accordance with this Agreement, comply with any Environmental Law (including any directive from any Governmental Authority); (h) Indemnitor shall use commercially reasonable efforts to cause any tenant or other user of the Property to comply with Environmental Laws; (i) if at any time hereafter, it is determined that the Property contains paint containing more than 0.5% lead by dry weight (“Lead Based Paint”), Borrower shall at its sole cost and expense and within twenty (20) days thereafter have prepared an assessment report describing the location and condition of the Lead Based Paint (a “Lead Based Paint Report”) prepared by an expert, and in form, scope and substance, acceptable to Indemnitee; (j) if prior to the date hereof, it was determined that the Property contains asbestos or asbestos-containing material (“Asbestos”), Borrower shall have prepared an assessment report describing the location and condition of the Asbestos (an “Asbestos Report”), (k) 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 date hereof, or (ii) the date of such determination, if such determination is hereafter made, as applicable, Indemnitor shall, at its 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 for the Lead Based Paint and/or Asbestos, as applicable, on the Property, which plan shall be prepared by an expert, and be in form, scope and substance, acceptable to Indemnitee (together with any Lead Based Paint Report and/or Asbestos Report, as applicable, the “O&M Plan”), and if an O&M Plan has been prepared prior to the date hereof, Indemnitor agrees to diligently and continually carry out (or cause to be carried out) the provisions thereof, it being understood and agreed that 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; (l) in the event that any inspection or audit reveals the presence of Toxic Mold in the indoor air of the Property at concentrations materially exceeding ambient air levels or visible Toxic Mold on any building materials or surfaces at the Property for which the NYC Guidelines recommends or requires removal thereof by remediation professionals, Indemnitor shall immediately remediate the Toxic Mold and perform post-remedial clearance sampling in accordance with the “Guidelines on Assessment and Remediation of Fungi in Indoor Environments” prepared by the New York City Department of Health (the “NYC Guidelines”), following which abatement of the Toxic Mold, Indemnitor shall prepare and implement an Operations and Maintenance Plan for Toxic Mold and Moisture acceptable to Indemnitee and in accordance with the guidelines issued by the National Multi Housing Council; and (m) Indemnitor shall immediately notify Indemnitee in writing of (A) any unpermitted presence or Release or threatened Release of Hazardous Substances in, on, under, from or migrating towards the Property; (B) promptly upon request, copies any noncompliance with any Environmental Laws related to the Property; (C) any actual or threatened Environmental Lien; (D) any required or proposed Remediation of all environmental investigations, studies, audits, reviews conditions relating to the Property; and/or (E) any written or oral notice or other analyses conducted by communication of which Indemnitor becomes aware from any source whatsoever (including, but not limited to, any Governmental Authority) relating to Hazardous Substances in, on or under the Property or the Remediation thereof. Notwithstanding the foregoing, to the extent that are any breach of Indemnitor’s covenants contained in this Paragraph 2 or Paragraph 3 of this Agreement arises due to the possession action or control inaction of the Borrower in relation any Tenant (that is not an Affiliate of Indemnitor), Indemnitor shall be deemed not to any Project, whether heretofore or hereafter obtainedhave breached such covenants provided that Indemnitor promptly takes all commercially reasonable actions necessary to effectuate remediation of such breach.
Appears in 1 contract
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property (or any portion thereof), whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
Individual Property; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any ProjectIndividual Property, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (B) de-minimis amounts necessary to operate the applicable Individual Property for the purposes set forth in this Agreement which will not result in an environmental condition in, on or under the applicable Individual Property and in quantities customarily which are otherwise permitted under and used in the ownership, operation compliance with Environmental Law and maintenance of buildings similar (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, including providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender made if Lender has reason to believe that an environmental hazard exists on any Individual Property (including sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made if Lender has reason to believe that an environmental hazard exists on any Individual Property (A) reasonably effectuate Remediation of any condition (including a Release of a Hazardous Substance) in, on, under or from any Individual Property; (B) promptly upon request, copies comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (viii) Borrower shall not do or allow any Tenant or other analyses conducted user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property (or any portion thereof)), impairs or may impair the value of the Property (or any portion thereof), is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property (or any portion thereof); (ix) Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards any Individual Property; (B) any non-compliance with any Environmental Laws related in any way to any Individual Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to any Individual Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including a governmental entity) relating in any way to the release or potential release of Hazardous Substances or Remediation thereof, likely to result in liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with any Individual Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section; (x) Borrower shall not install, use, generate, manufacture, store, treat, release or dispose of, nor permit the installation, use, generation, storage, treatment, release or disposal of, any Hazardous Substances (except de-minimis amounts necessary to operate the Property (or any portion thereof) for the purposes set forth in this Agreement which will not result in an environmental condition in, on or under the Property (or any portion thereof) and which are otherwise permitted under and used in compliance with Environmental Law) on, under or about the Property (or any portion thereof), and all uses and operations on or of the Property (or any portion thereof), whether by Borrower or that are any other person or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (xi) Borrower shall not make any change in the possession use or condition of any Individual Property which (A) might lead to the presence on, under or about the applicable Individual Property of any Hazardous Substances which is not in accordance with any applicable Environmental Law, or (B) would require, under any applicable Environmental Law, notice be given to or approval be obtained from any governmental agency in the event of a transfer of ownership or control of the applicable Individual Property, in each case without the prior written consent of Lender; (xii) Borrower shall not allow any Institutional Control on or to affect any Individual Property; and (xiii) Borrower shall take all acts necessary to preserve its status, if applicable, as an “innocent landowner,” “contiguous property owner,” or “prospective purchaser” as to the Property (or any portion thereof) and as those terms are defined in relation CERCLA; provided, however, that this covenant does not limit or modify any of Borrower’s other duties or obligations under this Agreement.
(b) If Lender has reason to believe that an environmental hazard exists on any ProjectIndividual Property that may, whether heretofore in Lender’s discretion, endanger any Tenants or hereafter obtainedother occupants of the applicable Individual Property or their guests or the general public or may materially and adversely affect the value of the Individual Property , upon reasonable notice from Lender, Borrower shall, at Borrower’s expense, promptly cause an engineer or consultant satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined in Lender’s discretion) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Lender and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period or if Lender has reason to believe that an environmental hazard exists on the Property that, in Lender’s sole judgment, endangers any Tenant or other occupant of the Property or their guests or the general public or may materially and adversely affect the value of the applicable Individual Property, upon reasonable notice to Borrower, Lender and any other Person designated by Lender, including any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon the applicable Individual Property at all reasonable times, after providing Borrower with reasonable notice, to assess any and all aspects of the environmental condition of the applicable Individual Property and its use, including conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Borrower shall cooperate with and provide Lender and any such Person designated by Lender with access to the applicable Individual Property.
(c) Intentionally omitted.
Appears in 1 contract
Environmental Covenants. (a) The Borrower covenants and agrees that:Indemnitors shall not, nor shall the Indemnitors permit any tenants or other occupants of the Property to, at any time in the future, cause or permit a Release, except in compliance with applicable Hazardous Substances Laws.
(ib) all uses and operations on The Indemnitors shall give prompt written notice to the Lender of any Pending Claims, or of each Project, whether by any Proceedings.
(c) The Indemnitors shall give prompt written notice to the Borrower Lender of the Indemnitors' discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Substances Laws including, without limitation, the Indemnitors' discovery of any occurrence or condition on the Property or on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be classified as a hazardous waste property or border-zone property, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Substances Laws.
(d) In the event that any investigation, site monitoring, containment, cleanup, removal, restoration, precautionary actions or other Personremedial work of any kind or nature (hereinafter, "Remedial Work") is required under any applicable Hazardous Substances Law as a result of, or in connection with, any Release, suspected Release, or threatened Release, the Indemnitors shall within thirty (30) days after receipt of information that such Remedial Work is or may be required (or such shorter period of time as may be required under applicable law, regulation, order or agreement), commence the performance of, or cause to be commenced, and thereafter diligently prosecute to completion, the performance of all such Remedial Work in compliance with all Environmental Laws and permits issued pursuant thereto;
(ii) except for Releases incidental to the Use of applicable Hazardous Substances permitted Laws. All Remedial Work shall be performed by clause (iii) below one or more contractors, approved in advance in writing by the Lender, and under the supervision of a consulting engineer approved in compliance with all Applicable Lawsadvance in writing by the Lender, which consent shall not be unreasonably withheld. All costs and expenses of such Remedial Work shall be paid by the Indemnitors, including, without limitation, the Borrower charges of such contractor(s) and/or the consulting engineer, and the Indemnified Parties' reasonable attorneys' fees and costs, including, without limitation, fees and costs of both outside and staff counsel incurred in connection with monitoring or review of such Remedial Work. In the event the Indemnitors shall not permit a Release of Hazardous Substances in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, onfail to timely commence, or under any Projectcause to be commenced, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar or fail to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake diligently prosecute to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reportscompletion, the Borrower shall not permit any underground storage tanks to be inperformance of such Remedial Work, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Lender or any other Person (collectivelyIndemnified Party may, “Environmental Liens”);
(vii) notwithstanding clause (iii) abovebut shall not be required to, the Borrower shall notcause such Remedial Work to be performed and all costs and expenses thereof, or knowingly permit any other Person toincurred in connection therewith, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtaineddeemed Claims hereunder.
Appears in 1 contract
Samples: Unsecured Indemnity Agreement (Grand Canal Shops Mall Construction LLC)
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Properties, whether by the Borrower or any other Person, shall be in material compliance with all Environmental Laws and permits issued pursuant thereto;
thereto except to the extent that (A) any Environmental Law or order or directive of a Governmental Authority with respect thereto is being contested in good faith by appropriate proceedings and the pendency of such proceedings could not be reasonably expected to have a material adverse effect on the condition (financial or otherwise) or business of Borrower or the condition or ownership of the Property, or (B) Borrower has determined in good faith that contesting the same is not in the best interests of Borrower and the failure to contest the same could not be reasonably expected to have a material adverse effect on the condition (financial or otherwise) or business of Borrower or the condition or ownership of the Property; (ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release cause, and shall use commercially reasonably efforts to ensure that no Person causes any Releases of Hazardous Substances in, on, under or from any Project;
the Properties, except those that are both (A) in compliance with all applicable Environmental Laws and with permits issued pursuant thereto and (B) fully disclosed to Lender in writing; (iii) the Borrower shall not knowingly permit place and shall use commercially reasonable efforts to ensure no other Person places Hazardous Substances in, on, or under any Projectthe Properties, except those that are (A) in compliance with all applicable Environmental Laws and of types with permits issued pursuant thereto (to the extent such permits are required by applicable Environmental Law), (B) de-minimis amounts necessary to operate the Properties for the purposes set forth in the Loan Agreement which will not result in an environmental hazard in, on or under the Properties and in quantities customarily which are otherwise permitted under and used in the ownership, operation and maintenance of buildings similar compliance with Environmental Law or (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Properties free and clear of all Liens liens and other encumbrances imposed pursuant to any applicable Environmental Law, whether Law due to any act or omission of Borrower (the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, and shall use commercially reasonable efforts to keep the Borrower shall not, Properties free and clear from any Environmental Liens due to any act or knowingly permit omission of any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
Person; (viiiv) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews at reasonable times upon reasonable notice; (vi) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made in the event that Lender has reason to believe that an environmental hazard exists on the Properties to (A) reasonably effectuate Remediation of any Release of a Hazardous Substance in, on, under or from the Properties to the extent required under Environmental Law; (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to comply with any Project, whether heretofore or hereafter obtained.applicable Environmental Law; (C) comply with any directive from any
Appears in 1 contract
Environmental Covenants. The Borrower covenants and agrees that:
: (i) all uses use and operations on or operation of each Project, whether by the Borrower or any other Person, Property shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
required permits; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause Materials affecting the Property in violation of Environmental Laws; (iii) below there shall be no Hazardous Materials affecting the Property except (A) routine cleaning and in compliance with all Applicable Lawsjanitorial supplies, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
(iiiB) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownershipLaws, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operationsC) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
required permits, and (vD) Reserved;
(vi1) in only the amounts necessary to operate each respective Individual Property or (2) as shall have been fully disclosed to and approved by Lender in writing; (iv) Borrower shall keep each Project Individual Property free and clear of all Liens liens and other encumbrances imposed pursuant to by any Environmental Law, whether Laws due to any act or omission of the by Borrower or any other Person person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times (during normal business hoursits sole CENTRAL\31200109.7 -17- expense, fully and expeditiously cooperate in all activities performed under Section 4.12(c) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, including providing all relevant information and making knowledgeable persons available for interviews and interviews; (vi) Borrower shall, at its sole expense, (A) perform any environmental site assessment or other investigation of environmental conditions at any Individual Property upon Lender’s request based on Lender’s reasonable belief that such Individual Property is not in compliance with all Environmental Laws, (B) promptly upon requestshare with Lender the results and reports and Lender and the Indemnified Parties (defined below) shall be entitled to rely on such results and reports, copies and (C) complete any remediation of all environmental investigations, studies, audits, reviews Hazardous Materials affecting any Individual Property or other analyses conducted actions required by any Environmental Laws; (vii) Borrower shall not allow any Tenant or that are in the possession or control other user of the Property to violate any Environmental Law; (viii) Borrower shall immediately notify Lender in relation writing after it becomes aware of (A) the presence, Release, or threatened Release of Hazardous Materials affecting any Individual Property, (B) any non-compliance of any Individual Property with any Environmental Laws, (C) any actual or potential Environmental Lien, (D) any required or proposed remediation of environmental conditions relating to any ProjectIndividual Property, whether heretofore or hereafter obtained(E) any written communication or notice from any person relating to Hazardous Materials, or any oral communication relating to or alleging any violation or potential violation of Environmental Law, and (ix) if an Asbestos Operation and Maintenance Plan and any other Operation and Maintenance Plan (collectively, the “O&M Plan”) is in effect (or required by Lender to be implemented) at the time of the closing of the Loan, then Borrower shall, at its sole expense, implement and continue the O&M Plan (with any modifications required to comply with applicable Laws) until payment and full satisfaction of the Obligations. Any failure of Borrower to perform its obligations under this Section 4.12 shall constitute bad faith waste of the Property.
Appears in 1 contract
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, Property except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar with permits issued pursuant thereto (to the Projects extent such permits are required by Environmental Law); (i.e., materials used in cleaning and other building operationsiii) and there shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be no Hazardous Substances in, on, or under any Projectthe Property, and shall operate, maintain, repair and replace any such underground storage tank so disclosed except those that are (A) in compliance with all Applicable Laws;
Environmental Laws and with permits issued pursuant thereto (vto the extent such permits are required by Environmental Law), or (B) Reserved;
de-minimis amounts necessary to operate the Property for the purposes set forth in the Loan Agreement which will not result in an environmental condition in, on or under the Property and which are otherwise permitted under and used in compliance with Environmental Law; (viiv) the Borrower shall keep each Project the Properties free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the a right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agentliens under applicable environmental law, the Lenders and their representatives provided (A) with accessany such contest stays any enforcement proceeding by the applicable authority, upon prior reasonable notice(B) neither the applicable Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost, and (C) Borrower shall furnish such security as may be required in the proceeding, or as may be requested by Lender; (v) Borrower shall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Properties, pursuant to any reasonable written request of Lender made in the event that Lender has a good faith reason to believe based on credible evidence or information that an environmental hazard exists on the Properties (including but not limited to sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made in the event that Lender has a good faith reason to believe based on credible evidence or information that an environmental hazard exists on the Properties to (A) reasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the Properties; (B) promptly upon request, copies comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (viii) Borrower shall not do or allow any Tenant or other analyses conducted by or that are in the possession or control user of the Borrower in relation Properties to do any act that materially increases the dangers to human health or the environment, involves Hazardous Substances or an environmental condition and poses an unreasonable risk of harm to any ProjectPerson (whether on or off the Property), whether heretofore involves Hazardous Substances or hereafter obtainedan environmental condition and impairs or may impair the value of the Properties, is contrary to any requirement of any insurer, involves Hazardous Substances or an environmental condition and constitutes a public or private nuisance, involves Hazardous Substances or an environmental condition and constitutes waste, or involves Hazardous Substances or an environmental condition and violates any covenant, condition, agreement or easement applicable to the Properties; and (ix) Borrower shall immediately notify Lender in writing upon learning of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Properties; (B) any non-compliance with any Environmental Laws related in any way to the Properties; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Properties; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to the release or potential release of Hazardous Substances or Remediation thereof, likely to result in liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section.
(b) In the event that Lender has a good faith reason to believe based on credible evidence or information that an environmental hazard exists on the Properties that may, in Lender’s sole discretion, endanger any Tenants or other occupants of the Properties or their guests or the general public or may materially and adversely affect the value of the Properties, upon reasonable notice from Lender, Borrower shall, at Borrower’s expense, promptly cause an engineer or consultant satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Lender and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period or if Lender has a good faith reason to believe based on credible evidence or information that an environmental hazard exists on the Property that, in Lender’s sole judgment, endangers any Tenant or other occupant of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon reasonable notice to Borrower, Lender and any other Person designated by Lender, including but not limited to any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, and subject to the rights of Tenants, to enter upon the Properties at all reasonable times to assess any and all aspects of the environmental condition of the Properties and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Borrower shall cooperate with and provide Lender and any such Person designated by Lender with access to the Properties subject to the rights of Tenants.
Appears in 1 contract
Samples: Loan Agreement (Cole Credit Property Trust III, Inc.)
Environmental Covenants. The Borrower In addition to, but not in limitation of, the obligations of Tenant to comply with all Legal Requirements pursuant to Section 5.3, Tenant covenants and agrees thatas follows:
(ia) all uses The Premises, and the operations on or of each ProjectTenant thereon (including, whether by without limitation, the Borrower or performance of any other PersonAlterations), shall at all times comply in all respects with all Environmental Laws.
(b) Tenant shall obtain or caused to be obtained all environmental, health and safety permits necessary for the operations of Tenant and the Premises, in compliance with all Environmental Laws Laws; all such permits shall at all times remain in good standing and permits issued pursuant thereto;
(ii) except for Releases incidental to Tenant’s operations and the Use of Hazardous Substances permitted by clause (iii) below and Premises shall remain in compliance with all Applicable Laws, terms and conditions of such permits.
(c) No portion of the Borrower Premises shall not permit become subject to any lien or security interest in favor of any Governmental Authority or other party for (i) liability under any Environmental Laws or (ii) damages arising from or costs incurred by such Governmental Authority in response to a Release or threatened Release or any Contamination, which is not discharged within one hundred eighty (180) days from the date filed against the Premises.
(d) Promptly after learning of Hazardous Substances inthe occurrence of any of the following affecting the Premises, onTenant shall give Landlord written notice thereof, under describing the same and the steps being taken by Tenant with respect thereto, and including with such written notice all related correspondence and documentation: (i) the occurrence of any Contamination; (ii) any action, suit, investigation, litigation, arbitration, or from governmental proceeding in respect of any Project;
Environmental Laws; (iii) Tenant’s operations on the Borrower shall Premises not knowingly permit Hazardous Substances in, on, or under any Project, except those that are being in compliance with all any requirements of applicable Environmental Laws; (iv) Tenant being subject to any federal or state investigation evaluating whether any remedial action is needed to respond to any Contamination; (v) the Premises being subject to a lien in favor of any governmental entity for any liability under any Environmental Laws or damages arising from, or costs incurred by such governmental entity in response to, any Contamination; or (vi) any violation or breach of the covenants set forth in this Section 6.2. Tenant shall also send to Landlord a notice and copies of types any and in quantities customarily used in all results of any tests of underground storage tanks or any other environmental tests or examinations of the ownership, operation and maintenance of buildings similar Premises performed or completed subsequent to the Projects date hereof.
(i.e., materials used in cleaning and other building operationse) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent If Tenant fails to comply with any Environmental Law (including compliance with requirements for curative action thereunder), then Landlord shall have the foregoing right (but not the obligation;
) to enter the Premises and to perform, and the right (but not the obligation) to require Tenant to perform, from time to time, in each case at the sole cost and expense of Tenant, reasonable inspections and investigations of the environmental condition of the Premises, including but not limited to soil and groundwater sampling and monitoring, inspections for Hazardous Substances, and environmental audits and risk assessments of the Premises’ waste management practices and of waste disposal sites used by Tenant. Any such environmental audits and risk assessments shall, among other things, (i) investigate any environmental hazards or conditions for which Tenant may be liable with regard to the Premises, (ii) determine whether Tenant’s operations on the Premises comply, in all respects deemed material by Landlord, with all applicable Environmental Laws, (iii) be performed by an environmental consultant reasonably satisfactory to Landlord, and (iv) except as disclosed in Schedule 8.11 be of a scope and nature that is reasonably satisfactory to Landlord. Tenant, at Tenant’s sole cost, shall promptly comply with all recommendations made by the environmental consultant or as specifically described in the Environmental Reports, the Borrower shall not permit other expert conducting such audit or risk assessment or any underground storage tanks to be in, on, other inspection or investigation under any Projectthis Section 6.2(e), and shall operatepromptly correct all deficiencies or problems reported by such environmental consultant or other expert (only to the extent the recommendations relate to procedures for preventing environmental damage, maintain, repair and replace any such underground storage tank so disclosed in Contamination or non-compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due and only to the extent any act such matter or omission condition was not caused, by Landlord or its agents, employees, guests or contractors); provided, that Tenant shall have the right to obtain a second environmental audit and/or risk assessment by a consultant reasonably acceptable to Landlord of a scope and nature substantially the Borrower same as that described in the immediately preceding sentence. Landlord and Tenant shall work together to reasonably resolve any differences between the two reports. All costs and expenses incurred by Landlord in the performance of an environmental audit and/or risk assessment or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, inspection or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project investigation provided for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and hereunder shall be subject reimbursed by Tenant to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly Landlord upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedwritten demand therefor.
Appears in 1 contract
Environmental Covenants. (A) The Borrower covenants that it has not discharged, dumped, installed, stored, used, treated, transported, disposed or maintained, and agrees that:shall neither discharge, dump, install, store, use, treat, transport, dispose or maintain toxic, hazardous, or radioactive substances, materials or wastes, including, without limitation, all of the following: (a) asbestos in any form; (b) urea formaldehyde foam insulation; (c) transformers or other equipment which contain dielectric fluid containing any level of polychlorinated biphenyls or (d) any other chemical, material or substance which is prohibited, limited, or regulated by any federal, state, county, regional, local, or other governmental authority or which, even if not so regulated, poses a known material hazard to the health and safety of the occupants of any Project Realty or the owners of property adjacent to the Project Realty (all of which are referred to collectively herein as “Hazardous Substances”), and that none of the Project Realty, the Business, the Borrower or Guarantors are the subject of any existing, pending or threatened investigation or inquiry by, or of any remedial order or obligation issued by or at the behest of, any governmental authority under any law, rule or regulation pertaining to health or the environment. The Borrower shall at all times keep the Collateral free from any Hazardous Substances. If the Borrower fails to take with diligence any action reasonably required by the Authority or by any governmental entity with respect to the clean-up of any Hazardous Substances, materials or wastes on the Collateral, the Authority, at its option, may enter upon the Collateral, retain such experts and consultants at the expense of Borrower and take such action as the Authority deems advisable, and may advance such sums of money as they deem reasonably necessary with respect to the clean-up of any such substances, materials or wastes on the Collateral; Borrower shall pay to the Authority immediately upon demand, all sums of money advanced or expended by the Authority pursuant to this paragraph, together with interest on each such advancement at a rate of interest that is one percent (1%) per annum greater than the interest rate per annum required by the Note, and all such sums, and the interest thereon, shall be secured by the financing documents, as sums spent to preserve and protect the security.
(B) The Borrower shall (i) conduct and complete, or cause to be conducted and completed, all uses investigations, studies, sampling and operations on testing, and all remedial, removal and other actions necessary to clean up and remove all Hazardous Substances on, under, from or affecting the Collateral and any other property of each ProjectBorrower in accordance with all applicable federal, whether by State, and local laws, ordinances, rules, regulations and policies, to the satisfaction of the Authority and in accordance with the orders and directives of all federal, State and local governmental authorities, and (ii) defend, indemnify and hold harmless the Authority, its employees, agents, officers, members and directors, from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way related to, (1) the presence, disposal, release or threatened release of any Hazardous Substances on, over, under, from or affecting the Collateral or the soil, water, vegetation, buildings, personal property, persons or animals thereon; (2) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to such Hazardous Substances; (3) any lawsuit brought or threatened, settlement reached or government order relating to such Hazardous Substances, and/or (4) any violation of laws, orders, regulations, requirements or demands of government authorities which are based upon or in any way related to such Hazardous Substances including, without limitation, attorney’s and consultant’s fees, investigation and laboratory fees, court costs and litigation expenses.
(C) The Borrower agrees to immediately notify the Authority in writing upon its receipt of any of the following: (i) any notice of any violation or potential violation of any federal, State or local environmental or land use laws, ordinances or regulation; (ii) any notice of the initiation of any environmental enforcement action or private environmental suits against the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
(ii) except for Releases incidental to tenant of the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
Collateral; (iii) the Borrower shall not knowingly permit occurrence of any use of the Loan proceeds or the Collateral involving Hazardous Substances in, onSubstances, or under any Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 any release of any such Hazardous Substances on or as specifically described from the Project Realty which violates or may cause a violation of any federal, State or local law, ordinance or regulation.
(D) [RESERVED]
(E) The Authority has the right, but shall not be obligated, to notify any State, federal or local governmental authority of information which may come to its attention with respect to Hazardous Substances on or emanating from the Collateral and Borrower irrevocably releases the Authority from any claims of loss, damage, liability, expense or injury relating to or arising from, directly or indirectly, any such disclosure.
(F) At any time during the term of the Loan and in the Environmental Reportsevent of default or otherwise in the event the Authority reasonably deems in its discretion it prudent to make further inquiry, the Authority may require the Borrower shall not permit to provide the Authority, at the expense of any underground storage tanks Borrower, written reports of inspections or audits of the Collateral, prepared by a qualified independent consultant approved by the Authority, certifying as to be in, onthe presence or absence of Hazardous Substances, or under any Projectto permit the Authority to so inspect or audit the Collateral at the Borrower’s expense, and shall operateBorrower hereby grants to the Authority its employees, maintainagents and independent contractors, repair the right to enter upon the Collateral for the purpose of conducting tests, soil borings, the installation of monitoring xxxxx and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;other tests as the Authority deems necessary or desirable.
(vG) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission The liability of the Borrower to the Authority under the covenants of this Section is not limited by any exculpatory provision in the Note or in the other Financing Documents and shall survive any assignment, transfer, discharge or foreclosure of the Mortgage or any other Person (collectivelytransfer of the Collateral by deed in lieu of foreclosure, “Environmental Liens”);
(vii) notwithstanding clause (iii) aboveand any one or more transfers of the Collateral by deed or otherwise, by whomsoever made, it being the intent hereof that the Authority may seek recourse against the Borrower shall not, or knowingly permit hereunder after any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation number of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews transfers or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedevents.
Appears in 1 contract
Samples: Loan Agreement (Immucell Corp /De/)
Environmental Covenants. The Borrower covenants and agrees that:
that so long as Borrower owns, manages, is in possession of, or otherwise controls the operation of the Property: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Personperson or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
the Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances Materials in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Projectextent required, and shall operate, maintain, repair (ii) (A) in amounts not in excess of that necessary to operate the Property or (B) fully disclosed to and replace any such underground storage tank so disclosed approved by Lender in compliance with all Applicable Laws;
writing; (vd) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person person or entity (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofSection 12.3 below, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that the Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with any Environmental Law; (h) Borrower shall not allow any tenant or other user of the Property to violate any Environmental Law; and (i) Borrower shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Releases of Hazardous Materials in, on, under, from or migrating towards the Property; (B) promptly upon request, copies any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed remediation of all environmental investigations, studies, audits, reviews conditions relating to the Property; and (E) any written or oral notice or other analyses conducted by or that are communication of which Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Materials; (j) Borrower shall engage an engineering consultant reasonably acceptable to Lender each calendar year during the possession or control term of the Loan to conduct (and such consultant shall conduct) a yearly inspection for water damage; (k) Borrower in relation shall engage an environmental consultant reasonably acceptable to Lender each calendar year during the term of the Loan to conduct (and such consultant shall conduct) a yearly inspection for evidence of growth of Microbial Matter; (l) Borrower shall immediately adopt a remediation plan reasonably acceptable to Lender with respect to any Projectwater damage or Microbial Matter identified as a result of such yearly environmental and engineering inspections; (m) Borrower shall undertake any course of action recommended by the Environmental Protection Agency to prevent the growth of Microbial Matter; and (n) Borrower shall comply with any and all local, whether heretofore state or hereafter obtainedfederal laws, legislation, guidelines or statutes at any time in effect with respect to Microbial Matter. Any failure of Borrower to perform its obligations pursuant to this Section 12.2 shall constitute bad faith waste with respect to the Property.
Appears in 1 contract
Samples: Deed of Trust and Security Agreement (Innovative Micro Technology Inc)
Environmental Covenants. The Borrower covenants and agrees thatEnvironmental Indemnitors shall:
(ia) comply, and cause all uses and operations other persons on or of each Projectoccupying any Project to comply, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant theretorelating to Hazardous Material;
(iib) not install, use, generate, manufacture, store, treat, release or dispose of, nor permit the installation, use, generation, storage, treatment, release or disposal of, Hazardous Material on, under or about any Project, except as specifically disclosed in the Environmental Documents and except for Releases incidental to materials used in the Use ordinary course of Hazardous Substances permitted by clause maintenance and operation (iii) below and in compliance with all Applicable Laws, ) of a Borrower's or any Tenant's business;
(c) immediately advise Lender in writing of: (i) any and all Environmental Proceedings; (ii) the Borrower shall not permit a Release presence of any Hazardous Substances in, Material on, under or from about any Project of which Lender has not previously been advised in writing; (iii) any remedial action taken by, or on behalf of, any Environmental Indemnitor in response to any Hazardous Material on, under or about any Project or to any Environmental Proceedings of which Lender has not previously been advised in writing; (iv) the discovery by any Environmental Indemnitor of the presence of any Hazardous Material on, under or about any real property or bodies of water adjoining or in any way affecting any Project; and (v) the discovery by any Environmental Indemnitor of any occurrence or condition on any real property adjoining or in any way affecting any Project that could cause such Project or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use of such Project under any Laws relating to Hazardous Material;
(iiid) provide Lender with copies of all reports, analyses, notices, licenses, approvals, orders, correspondences or other written materials in its possession or control relating to the Borrower shall environmental condition of each Project or real property or bodies of water adjoining or in any way affecting each Project or Environmental Proceedings immediately upon receipt, completion or delivery of such materials;
(e) not knowingly permit Hazardous Substances in, install or allow to be installed any tanks on, at or under any Project, except those that are the Project (other than above ground tanks used in the ordinary course of operation and maintenance (and in compliance with all Environmental Laws and Laws) of types and in quantities customarily used in Borrower's business; provided that Borrower promptly provide Lender written notice of the ownership, operation and maintenance installation of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligationany such tank);
(ivf) except as disclosed not create or permit to continue in Schedule 8.11 existence any lien (whether or as specifically described in not such lien has priority over the Environmental Reports, lien created by the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(vMortgage) Reserved;
(vi) upon the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due Laws relating to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental IndemnityMaterial; and
(ixg) not change or alter the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion present use of any Project for purposes of inspection; provided unless Environmental Indemnitors shall have notified Lender thereof in writing and Lender shall have determined, in its sole and absolute discretion, that such inspections shall change or modification will not unreasonably interfere with result in the operation presence of Hazardous Material on such Project or in question in such a level that would increase the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available potential liability for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedEnvironmental Proceedings.
Appears in 1 contract
Samples: Hotel Loan Agreement (Ashford Hospitality Trust Inc)
Environmental Covenants. The (a) Borrower covenants and agrees that:
that so long as the Loan is outstanding (i) all uses and operations on or of each Projectthe Properties, whether by the Borrower or any other Person, shall be in compliance in all material respects with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for unless Borrower or Tenant is diligently pursuing remediation in accordance with the notice required to be delivered pursuant to Section 5.1.19(a)(ix) hereof, there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
of the Properties; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances Materials in, on, or under any Projectof the Properties, except those that are both (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects extent required, and (i.e., materials used B) (1) in cleaning amounts not in excess of that necessary to operate the applicable Individual Property or (2) fully disclosed to and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
approved by Lender in writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project (or cause to be kept) the Properties free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to paragraph (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) Borrower shall, at its sole cost and expense, perform or cause to be performed any environmental site assessment or other investigation of environmental conditions in connection with any of the Properties, pursuant to any reasonable written request of Lender, upon Lender’s reasonable belief that an Individual Property is not in full compliance with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (vii) Borrower shall, at its sole cost and expense, comply or cause compliance with all reasonable written requests of Lender to (A) reasonably effectuate remediation of any Hazardous Materials in, on, under or from any Individual Property; and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews comply with any Environmental Law; (viii) Borrower shall not knowingly permit any Tenant or other analyses conducted by or that are in the possession or control user of any of the Properties to violate any Environmental Law; and (ix) Borrower shall immediately notify Lender in relation writing after it has become aware of (A) any presence or Release or threatened Releases of Hazardous Materials in, on, under, from or migrating towards any of the Properties; (B) any non-compliance with any Environmental Laws related in any way to any Projectof the Properties; (C) any actual or potential Environmental Lien; (D) any required or proposed remediation of environmental conditions relating to any of the Properties; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including but not limited to a Governmental Authority) relating in any way to Hazardous Materials in violation of Environmental Laws.
(b) Lender and any other Person designated by Lender, whether heretofore including but not limited to any representative of a Governmental Authority, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the right, but not the obligation, to enter upon any Individual Property at all reasonable times to assess any and all aspects of the environmental condition of any Individual Property and its use, including but not limited to conducting any environmental assessment or hereafter obtainedaudit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Borrower shall cooperate with and provide access to Lender and any such Person or entity designated by Lender.
Appears in 1 contract
Samples: Loan Agreement (Spirit Finance Corp)
Environmental Covenants. The Borrower covenants and agrees that:
that so long as Borrower owns, manages, is in possession of, or otherwise controls the operation of the Property: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Personperson or entity, shall be in compliance compliance, in all material respects, with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
the Property; (iiic) the Borrower there shall not knowingly permit be no Hazardous Substances Materials in, on, or under any Projectthe Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto, if and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Projectextent required, and shall operate, maintain, repair (ii) (A) in amounts not in excess of that necessary to operate the Property or (B) fully disclosed to and replace any such underground storage tank so disclosed approved by Lender in compliance with all Applicable Laws;
writing; (vd) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person person or entity (collectively, “the "Environmental Liens”");
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof0 below, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Borrower shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender, upon Lender's reasonable belief that the Property is not in compliance (in all material respects) with all Environmental Laws, and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties hereinafter defined shall be entitled to rely on such reports and other results thereof; (g) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender to (i) reasonably effectuate remediation of any Hazardous Materials in, on, under or from the Property; and (ii) comply with any Environmental Law; (h) Borrower shall not allow any tenant or other user of the Property to violate any Environmental Law; and (i) Borrower shall immediately notify Lender in writing after it has become aware of (A) any presence or Release or threatened Release of Hazardous Materials in, on, under, from or migrating towards the Property; (B) promptly upon request, copies any material non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien against the Property; (D) any required or proposed remediation of all environmental investigations, studies, audits, reviews conditions relating to the Property; and (E) any written or oral notice or other analyses conducted communication of which Borrower becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Materials. Lender's Rights. Lender and any other person or entity designated by or that are in Lender, including but not limited to any representative of a governmental entity, and any environmental consultant, and any receiver appointed by any court of competent jurisdiction, shall have the possession or control right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender's sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and conducting other invasive testing. Borrower in relation shall cooperate with and provide access to Lender and any Project, whether heretofore such person or hereafter obtained.entity designated by Lender. - Indemnifications
Appears in 1 contract
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Project, whether the Property by the Borrower Indemnitor or any other Person, person or entity shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no intentional Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Lawsat, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances inProperty by Indemnitor or anyone controlled by, on, controlling or under any Project, except those that are in compliance common control with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects Indemnitor; (i.e., materials used in cleaning and other building operationsc) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Indemnitor shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person person or entity (collectively, “Environmental Liens”);
; (viid) notwithstanding clause (iii) aboveIndemnitor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect Property pursuant to any existing asbestos or asbestos containing materials located at any Project;
written request of Indemnitee (viii) the Borrower shall cause the Remediation of provided that such request is made based upon Indemnitee’s reasonable belief that there are Hazardous Substances present at, in, on, under or emanating from any Project, or migrating onto or into any Project, the Property which are not in accordance compliance with this Agreement Environmental Laws) and applicable Environmental Laws subject to share with Indemnitee the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders reports and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants other results thereof, and Indemnitee and the other Indemnified Parties shall be subject entitled to rely on such reports and other results thereto (e) Indemnitor shall, at its sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) reasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) at, in, on, under or from the Property; (ii) comply with any Environmental Law; (iii) comply with any directive from any governmental authority; and (iv) take any other reasonable action necessary or appropriate for the protection of human health or the environment; and (f) Indemnitor shall immediately notify Indemnitee in writing of (i) any presence or Releases or threatened Releases of Hazardous Substances at, in, on, under, from or migrating towards the Property; (ii) any non-compliance with any Environmental Laws related in any way to the rights Property; (iii) any actual or potential Environmental Lien; (iv) any required or proposed Remediation of tenants under their Leases, environmental conditions relating to the Property; and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives (v) any written or oral notice or other communication of which any Indemnitor becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to environmental conditions in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews the Property or other analyses conducted by any actual or that are potential administrative or judicial proceedings in the possession or control of the Borrower connection with anything referred to in relation to any Project, whether heretofore or hereafter obtainedthis Agreement.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (NNN Apartment REIT, Inc.)
Environmental Covenants. The Borrower Indemnitor hereby covenants and agrees thatas follows:
(ia) to cause all uses and operations on or activities at the Property during the term of each Project, whether by the Borrower or any other Person, shall Loan to be conducted in compliance with all applicable Environmental Laws and permits issued pursuant theretoLaws;
(b) to provide the Bank with copies of all: (i) correspondence, notices of violation, summons, orders, complaints or other documents received by the Indemnitor, its lessees, sublessees, occupants or assigns, pertaining to compliance with any Environmental Laws from the date hereof; (ii) except for Releases incidental to reports of previous environmental investigations undertaken at the Use of Hazardous Substances permitted by clause Property which the Indemnitor knows of, or has or can obtain possession; (iii) below licenses, certificates and permits required by the Environmental Laws; (iv) a description of the operations and processes of the Indemnitor; and (v) any other information that the Bank may reasonably request;
(c) not to generate, manufacture, refine, transport, transfer, produce, store, use, process, treat, dispose of, handle, or in any manner deal with, any Regulated Substances on any part of the Property, nor permit others to engage in any such activity on the Property, except for (i) those Regulated Substances which are used or present in the ordinary course of the Indemnitor’s business in compliance with all Applicable applicable Environmental Laws, and except as disclosed on Schedule I attached hereto or in the Borrower shall Phase I, and have not permit been released into the environment in such a Release of Hazardous manner as to constitute Contamination hereunder; and (ii) those Regulated Substances inwhich are naturally occurring on the Property, on, under or from any Projectbut only in such naturally occurring form;
(iiid) not to cause or permit, as a result of any intentional or unintentional act or omission on the Borrower shall not knowingly permit Hazardous part of the Indemnitor or any tenant, subtenant, occupant or assigns, the presence of Regulated Substances in, on, or under any ProjectContamination on the Property, except for (i) those that Regulated Substances which are used or present in the ordinary course of the Indemnitor’s business in compliance with all applicable Environmental Laws and of types and in quantities customarily used Laws, are listed on Schedule I attached hereto or in the ownershipPhase I, operation and maintenance of buildings similar have not been released into the environment in such a manner as to the Projects constitute Contamination hereunder, and (i.e., materials used in cleaning and other building operationsii) and shall undertake to supervise and inspect activities those Regulated Substances which are naturally occurring on the Projects as may be reasonably prudent to comply with the foregoing obligationProperty, but only in such naturally occurring form;
(e) to give notice and a full description to the Bank within three (3) Business Days upon the Indemnitor’s acquiring knowledge of (i) any and all enforcement, clean-up, removal or other regulatory actions threatened, instituted or completed by any governmental authority with respect to the Indemnitor or the Property; (ii) all claims made or threatened by any third party against the Indemnitor or the Property relating to damage, contribution, compensation, loss or injury resulting from any Regulated Substances or Contamination; (iii) any complaint made or threatened by any third party against the Indemnitor or the Property relating to damage, contribution, compensation, loss or injury resulting from any Regulated Substances or Contamination; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit presence of any underground storage tanks to be in, Contamination on, under, from or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
affecting the Property; (v) Reserved;
Indemnitor’s violation of any Environmental Laws; (vi) the Borrower shall keep each Project free imposition, attachment or recording of any lien or encumbrance under applicable Environmental Laws against the Property and/or any personal or other real property owned by Indemnitor; and clear of all Liens and other encumbrances imposed pursuant (vii) the inability to obtain or renew any Environmental Permit or a notice from a governmental authority that it has revoked or suspended, or otherwise intends to revoke or suspend, whether in whole or in part, any permit for the Property, which permit relates, in any way, to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(viif) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, to timely comply with any Environmental Laws requiring the removal, treatment, storage, processing, handling, transportation or disposal of such Regulated Substances or Contamination and maintain in effect an operations and maintenance program provide the Bank with respect to any existing asbestos or asbestos containing materials located at any Projectsatisfactory evidence of such compliance;
(viiig) the Borrower shall cause the Remediation of such Hazardous Substances present to conduct and complete all investigations, studies, sampling and testing, as well as all remedial, removal and other actions necessary to clean up and remove all Contamination on, under under, from or emanating from any Projectaffecting the Property, or migrating onto or into any Project, all in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental IndemnityLaws; and
(ixh) to continue to have all necessary licenses, certificates and permits required under the Borrower shall provide Environmental Laws relating to the Administrative AgentIndemnitor and its Property, facilities, assets and business. Notwithstanding anything to the contrary herein, the Lenders Indemnitor is permitted to use and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all maintain on the Property any substances of kinds and in amounts ordinarily and customarily used or any portion of any Project stored in similar properties for the purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews cleaning or other analyses conducted by maintenance or that are operations and otherwise in the possession or control of the Borrower compliance in relation to any Project, whether heretofore or hereafter obtainedall material respects with all applicable Environmental Laws.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (Integrated Biopharma Inc)
Environmental Covenants. The Borrower covenants Indemnitors covenant and agrees agree that:
: (ia) all uses and operations on or of each Projectthe Premises, whether by the Borrower Indemnitors or any other Personperson or entity, shall be in material compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances or Wastes in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances inPremises by Indemnitors or anyone controlled by, on, controlling or under any Project, except those that are in compliance common control with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects Indemnitors; (i.e., materials used in cleaning and other building operationsc) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Indemnitors shall keep each Project the Premises free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitors or any other Person person or entity (collectively, the “Environmental Liens”);
; (viid) notwithstanding clause Indemnitors shall, at their sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Premises, pursuant to any written request of Indemnitee (iii) above, the Borrower shall notprovided that such request is made based upon Indemnitee’s reasonable belief that there are Hazardous Substances or Wastes in, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Projectunder the Premises which are not in compliance with Environmental Laws), and share with Indemnitee the reports and other results thereof, and Indemnitee and other Indemnified Parties shall upon be entitled to rely on such reports and following the Closing Date implementother results thereof; (e) Indemnitors shall, at their sole cost and expense, comply with and maintain in effect an operations and maintenance program with respect all written requests of Indemnitee to any existing asbestos or asbestos containing materials located at any Project;
(viiii) the Borrower shall cause the effectuate Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
condition (ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews a Release of a Hazardous Substance) in, on, under or from the Premises; (ii) comply with any Environmental Law; (iii) comply with any directive from any governmental authority; and (Biv) promptly upon request, copies take any other action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (f) Indemnitors shall not do or knowingly allow any tenant or other analyses conducted by or that are in the possession or control user of the Borrower in relation Premises to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Projectperson or entity (whether on or off the Premises), whether heretofore impairs or hereafter obtainedmay impair the value of the Premises, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Premises; and (g) Indemnitors shall immediately notify Indemnitee in writing of (i) any presence or Releases or threatened Releases of Hazardous Substances or Wastes in, on, under, from or migrating towards the Premises; (ii) any non-compliance with any Environmental Laws related in any way to the Premises; (iii) any actual or potential Environmental Lien; (iv) any required or proposed Remediation of environmental conditions relating to the Premises; and (v) any written or oral notice or other communication of which any Indemnitor becomes aware from any source whatsoever (including, but not limited to, a governmental entity) relating in any way to Hazardous Substances or Wastes or Remediation thereof, possible liability of any person or entity pursuant to any Environmental Law, other environmental conditions in connection with the Premises, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (TNP Strategic Retail Trust, Inc.)
Environmental Covenants. The Borrower covenants (a) Indemnitors shall at all times comply, and agrees that:cause the Mortgaged Property to comply, with all applicable Environmental Laws. Indemnitors shall not install or permit to be installed, except in accordance with all applicable Environmental Laws, any asbestos containing material or above-ground or below-ground storage tanks at, on, above or under the Real Estate.
(ib) Indemnitors shall promptly take any and all uses necessary remedial actions upon obtaining knowledge of the presence or Release of any Hazardous Materials on, under or about the Real Estate in violation of any Environmental Laws or in any manner that could have a Material Adverse Effect. In the event any such Person undertakes any remedial action with respect to any such Hazardous Materials, such Person shall conduct and operations on or of each Project, whether by the Borrower or any other Person, shall be complete such remedial action in compliance with all applicable Environmental Laws.
(c) If an Event of Default exists or Lender at any time has a reasonable basis to believe that there may be a violation of any Environmental Laws and permits issued pursuant thereto;
(ii) except for Releases incidental by, or any liability arising thereunder of, an Indemnitor or any other Person relating to the Use of Hazardous Substances permitted by clause (iii) below and in compliance Real Estate, then Indemnitors shall, upon request from Lender, provide Lender with all Applicable Lawssuch reports, certificates, engineering studies or other written material or data as Lender may reasonably require so as to satisfy Lender that the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
(iii) and the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that Mortgaged Property are in compliance with all applicable Environmental Laws and Laws.
(d) In the event that the Real Estate (or any portion thereof) becomes the subject of types and in quantities customarily used in any Remediation, Indemnitors shall commence such Remediation no later than the ownershipearlier of (a) thirty (30) days after written demand by Lender for performance thereof, operation and maintenance or (b) such shorter period of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects time as may be reasonably prudent required under applicable law or direction of any Governmental Authorities and thereafter shall diligently prosecute the same to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, completion in accordance with this Agreement and all applicable Environmental Laws subject to Laws. All Remediation shall be performed by contractors approved in advance by Lender, which approval shall not be unreasonably withheld, conditioned or delayed, and under the right to contest supervision of a consulting engineer approved by Lender, which approval shall not be unreasonably withheld, conditioned or delayed. All costs and expenses of such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights paid by Indemnitors, including, without limitation, Lender’s reasonable attorneys’ fees and actual out of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives pocket third party costs incurred in connection with monitoring or review of such inspectionsRemediation. In the event Indemnitors shall fail to timely commence, includingor cause to be commenced, or fail to diligently prosecute to completion, such Remediation, Lender may, but shall not limited be required to, providing cause such Remediation to be performed, and all relevant information actual out of pocket third party costs and making knowledgeable persons available for interviews and (B) promptly upon requestexpenses thereof, copies of all environmental investigationsor incurred in connection therewith, studies, audits, reviews or other analyses conducted by or that are in shall become an Obligation under the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedLoan.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (Alexion Pharmaceuticals Inc)
Environmental Covenants. The Borrower covenants and agrees that:
So long as Borrowers own or are in possession of the Property, Borrowers (i) all uses and operations on shall keep or of each Project, whether by cause the Borrower or any other Person, shall Property to be kept free from Hazardous Substances except those in compliance with all Environmental Laws and or any permits issued pursuant with respect thereto;
, (ii) except for Releases incidental to the Use shall promptly notify Lender if Borrowers shall become aware of any release of Hazardous Substances permitted by clause on the Property and/or if Borrowers shall become aware that the Property is in violation of any Environmental Laws and/or if Borrowers shall become aware of any condition on the Property which shall pose a threat to the health, safety or welfare of humans, and (iii) below shall remove or remediate such Hazardous Substances and/or cure such violations and/or remove or remediate such threats, as applicable, as required by law (or as shall be reasonably required by Lender in the case of removal or remediation which is not required by law, but in response to the opinion of a licensed hydrogeologist, licensed environmental engineer or other qualified consultant engaged by Lender ("Lender’s Consultant") provided that such removal, remediation or cure is reasonably necessary to eliminate imminent danger to the health, safety or welfare of humans and would customarily be performed by prudent owners of properties similar to the Property in compliance with all Applicable Lawssimilar circumstances), promptly after Borrowers become aware of same, at Borrowers’ sole expense, without prejudice to any rights Borrowers may have against any responsible parties. Notwithstanding anything to the Borrower shall not permit a Release contrary in this Section, 44 Borrowers, Manager and/or tenants on the Property may use and store ordinary amounts of Hazardous Substances inat the Property if such use or storage is in connection with business supplies used by Borrowers, on, under a tenant in accordance with the terms of its Lease or from by Manager pursuant to the Management Agreement or is in connection with the ordinary cleaning and maintenance of the Property so long as such use and storage (A) does not violate any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance with all applicable Environmental Laws and (B) is not the subject of types and in quantities customarily used any specific recommendations in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and Phase I Reports that would prohibit such use or storage. Nothing herein shall prevent Borrowers from recovering such expenses from any other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as party that may be reasonably prudent to comply with liable for such removal or cure. The obligations and liabilities of Borrowers under this Section 5.8.1 shall survive any termination, satisfaction, or assignment of the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 Mortgage and the exercise by Lender of any of its rights or as specifically described in the Environmental Reportsremedies hereunder, including, without limitation, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission acquisition of the Borrower Property by foreclosure or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain a conveyance in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation lieu of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspectionforeclosure; provided that such inspections obligations and liabilities of Borrowers shall not unreasonably interfere with survive after the operation of such Project date Lender or the tenants or occupants thereof, and shall be subject its Affiliates take title to the rights Property pursuant to foreclosure or a conveyance in lieu of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedforeclosure.
Appears in 1 contract
Environmental Covenants. The Borrower covenants and agrees that:
that the Borrower: (ia) all uses shall keep, and operations on or of each Project, whether shall exercise commercially reasonable efforts to cause third parties to the keep Property free from Hazardous Substances (except those substances used by the Borrower or any other Person, shall be tenants under leases at the Property in the ordinary course of their businesses and in compliance with all Environmental Laws Laws); (b) shall not install or use any underground storage tanks, shall not itself engage in and permits issued pursuant thereto;
(ii) except for Releases incidental to shall expressly prohibit all tenants of space in the Use Improvements from engaging in the use, generation, handling, storage, production, processing or management of Hazardous Substances permitted by clause (iii) below Substances, except in the ordinary course of their businesses and in compliance with all Applicable Environmental Laws, the Borrower ; (c) shall not permit a itself cause or allow and shall expressly prohibit the Release of Hazardous Substances inat, on, under under, or from any Project;
(iii) the Borrower Property; shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance itself comply and shall expressly require all tenants to comply with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects Laws; (i.e., materials used in cleaning and other building operationsd) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person person or entity (collectively, “Environmental Liens”);
; (viie) notwithstanding clause shall comply and shall use commercially reasonable efforts to cause all occupants of the Property to comply with the recommendations of any qualified environmental engineer or other environmental expert that apply or pertain to the Property; and (iiif) abovewithout limiting the generality of the foregoing, during the Borrower term of this Agreement, shall notnot use any construction materials which contain asbestos nor install in the Improvements on the Property, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are installed in the possession or control of Improvements on the Borrower in relation to Property, any Project, whether heretofore or hereafter obtainedmaterials which contain asbestos.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (Grubb & Ellis Healthcare REIT, Inc.)
Environmental Covenants. The Borrower (a) Tenant hereby covenants and agrees that:
that (i) all uses Tenant will not conduct or permit to be conducted on the Premises any activity that will use or generate any "Hazardous Materials" (as hereinafter defined), except for those activities that are part of the ordinary course of Tenant's soft drink bottling and operations on or of each Project, whether by distribution business (the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
"Permitted Activities"); (ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and all Permitted Activities will be conducted in compliance accordance with all "Applicable Environmental Laws, " (as hereinafter defined) and will have been approved in advance in writing (if required by applicable law) by the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
appropriate regulatory authority; (iii) the Borrower shall Premises will not be used for the storage of any Hazardous Materials except for the storage of such materials used or generated in the ordinary course of Tenant's business; (iv) the storage of Hazardous Materials will be conducted in accordance with all Applicable Environmental Laws in temporary storage areas on the Premises approved in writing by the appropriate regulatory authority (if required by applicable law) and Landlord; (v) only the Hazardous Materials used or generated by Tenant with respect to Permitted Activities, (the "Permitted Materials"), will be generated, used or stored on the Premises and no other Hazardous Materials will be generated, used or temporarily stored on the Premises without the prior written approval of the appropriate regulatory authority (if required by applicable law) and Landlord; (vi) no portion of the Premises will be used as a landfill or dump; (vii) Tenant will not install or allow to be installed any underground tanks of any type without Landlord's prior written consent; (viii) Tenant will not knowingly allow any surface or subsurface conditions to exist or come into existence on the Premises that constitutes, or with the passage of time may constitute, a public or private nuisance; (ix) Tenant will not knowingly permit any Hazardous Substances Materials to be brought onto the Premises, except for the Permitted Materials described above, and if so found located thereon, Tenant will immediately remove such Hazardous Materials from the Premises, with proper packaging, labeling, transportation, and disposal, and all required cleanup and remediation procedures will be diligently undertaken by Tenant and at Tenant's sole cost and expense pursuant to all Applicable Environmental Laws. If the presence of any Hazardous Materials brought, kept, stored, generated or used on, in, under or about the Premises by Tenant, its agents, employees, contractors or invitees results in any contamination of the Premises or in any release of any such Hazardous Materials on, in, under, about or under from the Premises or into the air, soil, surface water or ground water, (a "Tenant Release") Tenant shall promptly take all actions, at its sole cost and expense, as are necessary to return the affected area to the condition existing prior to the Tenant Release, including, without limitation, any Projectinvestigation or monitoring of site conditions and any clean up, except those that are remediation, response, removal, encapsulation, containment or restoration work required because of the Tenant Release (collectively, the "Tenant's Remedial Work"). Tenant shall obtain all necessary licenses, manifests, permits and approvals to perform Tenant's Remedial Work. Tenant shall perform all of Tenant's Remedial Work and the disposal of all waste generated by the Tenant's Remedial Work in compliance accordance with all Applicable Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent Laws. If Tenant fails to comply with any of the foregoing obligation;covenants and agreements set forth above, Landlord, at Tenant's sole cost and expense, may, with reasonable prior notice to Tenant, enter upon the Premises and undertake to restore the environmental condition of Premises to the condition existing immediately prior to Tenant's occupation of the Premises. Tenant shall immediately give Landlord written notice of any contamination or suspected contamination of the Premises, of any release, suspected release or threat of release of any Hazardous Materials on, in, under, about or from the Premises, of any breach or suspected breach of this paragraph or of the receipt of any notice from a governmental agency pertaining to the presence, release or threat of release or the suspected presence, release or threat of release of any Hazardous Materials on, in, under, about or from the Premises or pertaining to any violation of Applicable Environmental Laws.
(b) Tenant shall indemnify, save harmless and defend Landlord from and against any and all claims (including, without limitation, third party claims for personal injury or real or personal Premises damage), actions, administrative proceedings (including informal proceedings), judgments, damages, punitive damages, penalties, fines, costs, liabilities, interest or losses (including, without limitation, diminution in value of the Premises, reasonable attorneys' fees, consultant fees, expert fees and any fees and expenses incurred in enforcing its rights under Section 10 of this Lease) incurred by, sought from or asserted directly or indirectly against Landlord during or after the term of this Lease as a result of (i) the presence, release or threat of release or the suspected presence, release or threat of release of any Hazardous Materials on, in, under, about or from the Premises, which Hazardous Materials were brought, kept, stored or used on, in, under or about the Premises by Tenant, its agents, employees, contractors or invitees, (ii) any violation of Applicable Environmental Laws by Tenant, its agents, employees, contractors or invitees, (iii) any activities conducted by Tenant on the Premises, including, without limitation, any Permitted Activities, (iv) except as disclosed in Schedule 8.11 the generation, use, storage, handling or as specifically described in the Environmental Reportsdisposal by Tenant of any Hazardous Materials, the Borrower shall not permit including, without limitation, any underground storage tanks to be inPermitted Materials, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
and/or (v) Reserved;
(vi) the Borrower shall keep each Project free and clear any breach by Tenant of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, its obligations and/or covenants under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedSection.
Appears in 1 contract
Environmental Covenants. The Borrower Each Indemnitor covenants and agrees that:
that (ia) all uses and operations on or of each ProjectIndividual Property, whether by any of the Borrower Indemnitors, any of the Mortgage Borrowers or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
Individual Property (iiiexcept in compliance with all applicable Environmental Laws and with permits issued pursuant thereto); (c) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, on or under any ProjectIndividual Property, except those that are both (i) in compliance with all applicable Environmental Laws and of types with any necessary permits issued pursuant thereto and (ii) fully disclosed to Indemnitee and/or Original Indemnitee in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsd) and each Indemnitor shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Projectkeep, and shall operatecause each Mortgage Borrower to keep, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project Individual Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of any of the Borrower Indemnitors or any other Person (collectively, the “Environmental Liens”);
; provided, that after prior notice to Indemnitee, Indemnitors may contest, or may cause any Mortgage Borrower to contest, at Indemnitors’ or such Mortgage Borrower’s sole cost and expense, by appropriate legal proceeding, conducted in good faith and with due diligence, the amount or validity of any Environmental Liens, provided that (vii1) notwithstanding no Event of Default has occurred and remains uncured, (2) such proceeding shall be permitted under and be conducted in accordance with all applicable statutes, laws and ordinances, (3) no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost, (4) Indemnitors shall, or shall cause the applicable Mortgage Borrower to, promptly upon final determination thereof pay the amount of any such Environmental Liens, together with all costs, interest and penalties which may be payable in connection therewith, (5) to insure the payment of such Environmental Liens, Indemnitors shall deliver, or shall cause the applicable Mortgage Borrower to deliver, to Indemnitee either (A) cash, or other security as may be approved by Indemnitee, in an amount equal to one hundred ten percent (110%) of the contested amount if such contested amount will be less than one million dollars ($1,000,000) or one hundred twenty five percent (125%) of such contested amount if such contested amount will be equal to or greater than one million dollars ($1,000,000), or (B) a payment and performance bond in an amount equal to one hundred percent (100%) of the contested amount from a surety acceptable to Indemnitee in its reasonable discretion, provided, however, Indemnitor shall not be required to deliver any security pursuant to this clause (iii5) above, the if Mortgage Borrower shall nothave delivered security in respect of the relevant matter to the Mortgage Lender, (6) failure to pay such Environmental Liens will not subject Indemnitee to any civil or knowingly permit criminal liability, (7) such contest shall not affect the ownership, use or occupancy of any other Person toIndividual Property, install any asbestos or asbestos containing materials on any Projectand (8) Indemnitors shall, upon request by Indemnitee, give Indemnitee prompt notice of the status of such proceedings and/or confirmation of the continuing satisfaction of the conditions set forth in clauses (1) through (7) of this Section 2(d); (e) Indemnitors shall, at their sole cost and expense, fully and in a timely manner cooperate, and shall upon cause each Mortgage Borrower to fully and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Projecta timely manner cooperate, in accordance with all activities pursuant to Section 3 of this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsAgreement, including, but not limited to, providing all relevant information and making knowledgeable persons Persons available for interviews upon reasonable advance written request and at reasonable times and places; (f) Indemnitors shall perform, and shall cause each Mortgage Borrower to perform, at Indemnitors’ or such Mortgage Borrower’s sole cost and expense, any environmental site assessment or other investigation of environmental conditions in connection with any Individual Property, pursuant to any reasonable written request of Indemnitee made in consideration of any environmental event or condition reasonably believed by Indemnitee to have occurred or to exist at any Individual Property (which request shall briefly describe the basis for Indemnitee’s belief) (including, but not limited to, sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas, such assessment or investigation to be in scope and nature appropriate to the suspected event or condition) that would be reasonably expected to have an adverse effect on any Individual Property or on the business or condition (financial or otherwise) of Borrower, and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Indemnitors shall comply, and shall cause each Mortgage Borrower to comply, at Indemnitors’ or such Mortgage Borrower’s sole cost and expense, with all reasonable written requests of Indemnitee to (i) effectuate any required Remediation of any condition (including, but not limited to, a Release of a Hazardous Substance) in, on, under or from any Individual Property; (ii) comply with any applicable Environmental Law; and/or (iii) comply with any directive from any Governmental Authority having jurisdiction over the applicable Individual Property requiring any action relating to any environmental condition in, on, under, from or migrating toward such Individual Property; provided, that with respect to clauses (g)(ii) and (iii), after notice to Indemnitee, Indemnitors, at their own expense, may suspend, or cause the applicable Mortgage Borrower to suspend (at such Mortgage Borrower’s expense), such compliance and contest, or cause to be contested by appropriate legal proceeding, conducted in good faith and with due diligence, the applicability of any Environmental Law, provided that (1) no Event of Default has occurred and remains uncured, (2) such proceeding shall be permitted under and be conducted in accordance with all applicable statutes, laws and ordinances, (3) no Individual Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost, (4) Indemnitors shall promptly, or shall cause the applicable Mortgage Borrower to promptly, upon final determination thereof take all acts then necessary to comply with such Environmental Law, together with the payment of all costs, interest and penalties which may be payable in connection therewith, (5) to insure the performance of such legal obligations and the payment of all related costs, Indemnitors shall deliver, or shall cause the applicable Mortgage Borrower to deliver, to Indemnitee either (A) cash, or other security as may be approved by Indemnitee, in an amount equal to one hundred ten percent (110%) of the maximum costs and expenses that are reasonably expected to be incurred in connection with such proceeding, including costs of compliance if any Indemnitor or the applicable Mortgage Borrower is required to do so (collectively, the “Maximum Cost”) if such Maximum Cost is less than one million dollars ($1,000,000) or one hundred twenty five percent (125%) of the Maximum Cost if such Maximum Cost is equal to or greater than one million dollars ($1,000,000), or (B) promptly a payment and performance bond in an amount equal to one hundred percent (100%) of the Maximum Cost from a surety acceptable to Indemnitee in its reasonable discretion; provided, however, Indemnitor shall not be required to deliver any security pursuant to this clause (5) if Mortgage Borrower shall have delivered security in respect of the relevant matter to the Mortgage Lender, (6) failure to comply with such Environmental Laws will not subject Indemnitee to any civil or criminal liability, (7) such contest shall not affect the ownership, use or occupancy of any Individual Property, and (8) Indemnitors shall, upon requestrequest by Indemnitee, copies give Indemnitee prompt notice of the status of such proceedings and/or confirmation of the continuing satisfaction of the conditions set forth in clauses (1) through (7) of this Section 2(g); (h) Indemnitors shall not knowingly do or allow, or cause any Mortgage Borrower to do or allow, any tenant or other user of any Individual Property to do any act that is in non-compliance with any applicable Environmental Law, impairs or may impair the value of any Individual Property or the Collateral, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste or violates any covenant, condition, agreement or easement applicable to any Individual Property; (i) if following the date hereof, it is determined that any Individual Property contains paint containing more than 0.5% lead by dry weight (“Lead Based Paint”), present in violation of any Environmental Law and not previously disclosed in the Environmental Reports, Indemnitors agree, at their sole cost and expense and within forty-five (45) days thereafter, to cause (or cause the applicable Mortgage Borrower to cause) to be prepared an assessment report describing the location and condition of the Lead Based Paint (a “Lead Based Paint Report”), prepared by an expert, and in form, scope and substance, acceptable to Indemnitee; (j) if following the date hereof, it is determined that any Individual Property contains asbestos or asbestos-containing material (“Asbestos”) present in violation of any Environmental Law and not previously disclosed in the Environmental Reports, Indemnitors shall at their sole cost and expense, or cause Mortgage Borrower at Mortgage Borrower’s sole cost and expense, and within forty-five (45) days thereafter, cause to be prepared an assessment report describing the location and condition of the Asbestos (an “Asbestos Report”), prepared by an expert, and in form, scope and substance, acceptable to Indemnitee; (k) if a Lead Based Paint Report or Asbestos Report is required to be prepared pursuant to clauses (i) or (j) of this Section 2, on or before thirty (30) days following the preparation of such report, Indemnitors shall develop and implement, or shall cause the applicable Mortgage Borrower to develop and implement, at Indemnitors’ or such Mortgage Borrower’s sole cost and expense, an operations and maintenance plan to manage such condition(s) on the applicable Individual Property, which plan shall be prepared by an expert, and be in form, scope and substance, acceptable to Indemnitee (together with any Lead Based Paint Report and/or Asbestos Report, as applicable, the “O&M Plan”), and 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, it being understood and agreed that 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; (1) in the event that any inspection or audit reveals the presence of Toxic Mold in the indoor air of any Individual Property at concentrations for which any Legal Requirement applicable to such Individual Property requires removal thereof by remediation professionals, Indemnitors shall promptly remediate (or cause to be remediated) the Toxic Mold and perform (or cause to be performed) post-remedial clearance sampling in accordance with said Legal Requirement and applicable Environmental Law, following which abatement of the Toxic Mold, Indemnitors shall prepare and implement or shall cause the applicable Mortgage Borrower to prepare and implement an Operations and Maintenance Plan for Toxic Mold and Moisture reasonably acceptable to Indemnitee and in accordance with the guidelines issued by the National Multi Housing Council; and (m) Indemnitors shall promptly notify Indemnitee in writing of (A) any presence or Release or threatened Release of Hazardous Substances in, on, under, from or migrating towards any Individual Property in material violation of, or as might be reasonably expected to result in material liability under, any Environmental Law; (B) material non-compliance with any Environmental Laws related in any way to any Individual Property; (C) any actual or threatened Environmental Lien; (D) any required or proposed Remediation of environmental investigations, studies, audits, reviews conditions relating to any Individual Property; and/or (E) any written or oral notice or other analyses conducted by communication of which any Indemnitor or that are in the possession any Mortgage Borrower becomes aware from any source whatsoever (including, but not limited to, any Governmental Authority) relating to a material or control unlawful Release, or threatened Release, of the Borrower in relation Hazardous Substances or Remediation thereof, possible liability of any Person pursuant to any ProjectEnvironmental Law concerning any Individual Property or the Property, whether heretofore other environmental conditions in connection with any Individual Property or hereafter obtained.any actual or threatened administrative or judicial proceedings in connection with any environmental matters referred to in this Agreement. 5 Environmental Indemnity Agreement (Mezzanine Loan)
Appears in 1 contract
Samples: Real Estate Sale Agreement (American Realty Capital Hospitality Trust, Inc.)
Environmental Covenants. (a) The Borrower covenants and agrees that:
(i) all uses and operations on Tenant shall not bring into or of each Projectallow to be present in the Premises or the Building any Pollutants, whether by except to the Borrower or any other Person, shall be extent in compliance with all and within levels permissible under Environmental Laws. If the Tenant shall bring or create upon the Building, including the Premises, any Pollutants, then such Pollutants shall be and remain the sole property of the Tenant and the Tenant shall remove same at its sole cost at the expiration or sooner termination of the Term or sooner if so directed by any governmental authority or if required to effect compliance with any Environmental Laws and permits issued pursuant thereto;or if required by the Landlord.
(iib) except for Releases incidental The obligations of the Tenant under this Section 10.09 shall survive the expiry, assignment, repudiation, disclaimer, surrender or earlier termination of this Lease. To the extent that the performance of those obligations require access to or entry upon the Premises by the Tenant after such expiry, assignment, repudiation, disclaimer, surrender or earlier termination of this Lease, or to the Use extent that the performance of Hazardous Substances permitted by clause those obligations require the Tenant to access or enter any other part of the Building (iii) below and in compliance with all Applicable Lawswhether before or after the expiry, assignment, repudiation, disclaimer, surrender or earlier termination of this Lease), the Borrower Tenant shall not permit a Release have such entry and access to that part or parts of Hazardous Substances in, on, under or the Building only at such times and upon such terms and conditions as the Landlord may from any Project;time to time specify.
(iiic) Notwithstanding any of the Borrower provisions of this Section 10.09, the Landlord may, at the Tenant's cost and expense, itself or by its agents, servants, employees, contractors and subcontractors, undertake the performance of any necessary work in order to complete the obligations of the Tenant under this Section 10.09, but having commenced such work, the Landlord shall have no obligation to the Tenant to complete such work but the Tenant will not knowingly permit Hazardous Substances in, on, or be released from its obligations under any Project, except those that are in compliance with all Environmental Laws and of types and in quantities customarily used this Section 10.09 in the ownership, operation and maintenance of buildings similar event the Landlord elects not to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any complete such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedwork.
Appears in 1 contract
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Properties, whether by the Borrower Indemnitor or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
Individual Property, except those that are both (iiii) in compliance with all Environmental Laws and with permits issued pursuant thereto and (ii) either has been fully disclosed to Indemnitee in writing (including in any Environmental Reports provided to Indemnitee) prior to the Borrower date hereof or are Hazardous Substances used in the ordinary course of operations at any such Properties in customary quantities reasonably necessary for such operations; (c) there shall not knowingly permit be no Hazardous Substances in, on, or under any ProjectIndividual Property, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto and (ii) either fully disclosed to Indemnitee in quantities customarily writing (including in any Environmental Reports provided to Indemnitee) prior to the date hereof or are Hazardous Substances used in the ownership, operation and maintenance ordinary course of buildings similar operations at any such Properties in customary quantities reasonably necessary for such operations; (d) subject to Indemnitor’s right to contest the Projects (i.e., materials used imposition of liens in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply accordance with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental ReportsLoan Agreement, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Indemnitor shall keep each Project Individual Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeIndemnitor shall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion Paragraph 3 of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofthis Agreement, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons Persons available for interviews interviews; (f) Indemnitor shall, at its reasonable sole cost and expense, if Indemnitee has a reasonable basis to be concerned that there may be Hazardous Substances on an Individual Property in violation of the Environmental Laws or which would result in liability under Environmental Laws, perform such environmental site assessments or other investigations of environmental conditions in connection with such Individual Property, pursuant to any reasonable written request of Indemnitee (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Indemnitor shall, at its sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) effectuate Remediation or obtain a no further action letter if available from the applicable governmental authority for any environmental condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from any Individual Property; (ii) subject to Indemnitor’s right to contest legal requirements in accordance with the Loan Agreement, comply with any applicable Environmental Law; (iii) comply with any directive from any governmental authority with respect to Hazardous Substances in, on or under any Individual Property; and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment on or at each Individual Property consistent with the practices of prudent commercial property owners; (h) Indemnitor shall not do and shall use reasonable efforts to cause any Tenant of any Individual Property not to do, any act at or on such Individual Property that materially increases the dangers to human health or the environment on or at such Individual Property, poses an unreasonable risk of harm to any Person or results from or otherwise relating to Hazardous Substances on, at or from such Individual Property; (i) Indemnitor shall notify Indemnitee in writing promptly after it has knowledge of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards any Individual Property; (B) promptly upon request, copies any non-compliance with any Environmental Laws related in any way to any Individual Property; (C) any actual or threatened (in writing) Environmental Lien on any Individual Property; (D) any required or proposed Remediation of all environmental investigations, studies, audits, reviews conditions relating to any Individual Property; and (E) any written notice that Indemnitor receives from a governmental entity or other analyses conducted by Person relating in any way to (a) Hazardous Substances in, on, under, from or that are migrating towards any Individual Property or Remediation thereof, or possible liability of any Person pursuant to any Environmental Law relating to Hazardous Substances in, on, under, to or from any Individual Property, or (b) other environmental conditions in the possession connection with any Individual Property, or control (c) any administrative or judicial proceedings actually occurring or threatened in writing in connection with any of the Borrower foregoing and Indemnitor shall comply with any and all local, state or federal laws, legislation, or statutes at any time in relation effect with respect to Microbial Matter applicable to the Properties and (j) Indemnitor shall promptly adopt a remediation plan reasonably acceptable to Indemnitee with respect to any Project, whether heretofore or hereafter obtainedMicrobial Matter identified as a result of any environmental assessment and/or investigation in order to comply with any applicable Environmental Law governing said Microbial Matter.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (American Finance Trust, Inc)
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses and operations on or of each Projectthe Property, whether by the Borrower or any other Person, shall be in material compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release violation of Hazardous Substances any Environmental Laws in, on, under or from any Project;
the Property; (iii) the Borrower there shall not knowingly permit be no Hazardous Substances in, on, or under any Projectthe Property, except those that are (A) in compliance with all Environmental Laws and of types with permits issued pursuant thereto (to the extent such permits are required by Environmental Law), (B) de-minimis amounts necessary to operate the Property for the purposes set forth in the Loan Agreement which will not result in an environmental condition in, on or under the Property and in quantities customarily which are otherwise permitted under and used in the ownership, operation compliance with Environmental Law and maintenance of buildings similar (C) fully disclosed to the Projects (i.e., materials used Lender in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, including providing all relevant information and making knowledgeable persons available for interviews interviews; (vi) intentionally omitted; (vii) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made if Lender has reason to believe that an environmental hazard exists on the Property in order to: (A) reasonably effectuate Remediation of any condition (including a Release of a Hazardous Substance) in, on, under or from the Property; (B) promptly upon request, copies comply with any Environmental Law; (C) comply with any directive from any Governmental Authority; and (D) take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (viii) Borrower shall not do or allow any Tenant or other analyses conducted by user of the Property to do any act that materially increases the dangers to human health or that are the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; (ix) Borrower shall immediately notify Lender in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) any non-compliance with any Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which Borrower becomes aware from any source whatsoever (including a governmental entity) relating in any way to the release or potential release of Hazardous Substances or Remediation thereof, likely to result in liability of any Person pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Section; (x) Borrower shall not install, use, generate, manufacture, store, treat, release or dispose of, nor permit the installation, use, generation, storage, treatment, release or disposal of, any Hazardous Substances (except de-minimis amounts necessary to operate the Property for the purposes set forth in the possession Loan Agreement which will not result in an environmental condition in, on or control under the Property and which are otherwise permitted under and used in compliance with Environmental Law) on, under or about the Property, and all uses and operations on or of the Borrower in relation to any ProjectProperty, whether heretofore by Borrower or hereafter obtained.any other person or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (xi) Borrower shall not make any change in the use or condition of the Property which (A) might lead to the presence on, under or
Appears in 1 contract
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Environmental Covenants. The (a) Borrower covenants and agrees that:
: (i) all uses Borrower shall use and operations on or of each Project, whether by operate the Borrower or any other Person, Property and shall be use commercially reasonable efforts to cause Subtenants to use the Property in compliance with all Environmental Laws and permits issued pursuant thereto;
; (ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not cause or knowingly permit a Release storage or any Releases of Hazardous Substances in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any ProjectProperty, except (A) those that are in compliance with all Environmental Laws and with permits issued pursuant thereto, and (B)(1) in amounts not in excess of types and in quantities customarily those typically used in the ownership, operation and maintenance by prudent owners of buildings properties similar to the Projects Property or reasonably necessary to operate tenant operations and the Property or (i.e.2) fully disclosed to and approved by Lender in writing, materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall such approval not permit any underground storage tanks to be inunreasonably withheld, on, conditioned or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
delayed; (viii) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Borrower (the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, and shall use commercially reasonable efforts to keep the Borrower shall not, Property free and clear of any such Environmental Liens due to any act or knowingly permit omission of any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
Person; (viiiiv) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to subsection (during normal business hoursb) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereofbelow, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information to Lender and making knowledgeable persons available to Lender for interviews interviews; (v) Borrower shall, at its sole cost and expense, perform any commercially reasonable environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any reasonable written request of Lender made in the event that Lender has a reasonable belief of a breach of any of the covenants in clauses (i) through (v) hereinabove (including but not limited to sampling, testing and analysis of soil, water, air, building materials and other materials and substances whether solid, liquid or gas), and share with Lender the reports and other results thereof, and Lender and other Indemnified Parties shall be entitled to rely on such reports and other results thereof (provided that Borrower may request a shorter list reasonably acceptable to Lender of Indemnified Parties that shall be entitled to rely on such reports); (vi) Borrower shall, at its sole cost and expense, comply with all reasonable written requests of Lender made in the event that Lender has reason to believe that an environmental hazard exists on the Property (A) reasonably effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the Property; (B) promptly comply with any Environmental Law; and (C) comply with any directive from any Governmental Authority; and (vii) upon requestobtaining knowledge thereof, copies Borrower shall immediately notify Lender in writing of all (A) any presence or Releases of Hazardous Substances in, on, under, from or migrating towards the Property in violation of Environmental Laws; (B) any material non-compliance of the Property with any Environmental Laws related in any way to the Property; (C) any actual Environmental Lien; (D) any required or proposed Remediation of environmental investigations, studies, audits, reviews conditions relating to the Property; and (E) any written notice or other analyses conducted by written communication of which Borrower becomes aware from any reasonably credible source whatsoever (including but not limited to a governmental entity) relating in any way to the release or potential release of Hazardous Substances in violation of Environmental Law or Remediation thereof, likely to result in liability pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any administrative or judicial proceedings in connection with anything referred to in this Section.
(b) In the event that are Lender has a commercially reasonable basis to believe that there has been or may be a Release in violation of any Environmental Law or a material environmental hazard exists on the possession Property that may, in Lender’s sole discretion, endanger any Tenants or control other occupants of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon reasonable notice from Lender, Borrower shall, at Borrower’s expense, promptly cause an engineer or consultant reasonably satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined in relation Lender’s reasonable discretion) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing reasonably requested by Lender and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period or if Lender has reason to believe that an environmental hazard exists on the Property that, in Lender’s reasonable judgment, endangers any Tenant or other occupant of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon reasonable notice to Borrower, Lender and any other Person designated by Lender, including but not limited to any Projectreceiver, whether heretofore any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or hereafter obtainedaudit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Borrower shall cooperate with and provide Lender and any such Person designated by Lender with access to the Property. Lender and any person designated by Lender shall use commercially reasonable efforts to minimize interference with or impact on Tenants and other occupants or visitors of the Property.
Appears in 1 contract
Environmental Covenants. The Borrower covenants and agrees thatshall:
(a) keep any property either owned or operated by Borrower free of any Environmental Liens or post bonds or other financial assurances sufficient to satisfy the obligations or liability evidenced by such Environmental Liens;
(b) comply, in all material respect, with Environmental Laws and provide to Silicon documentation of such compliance which Silicon reasonably requests;
(c) promptly notify Silicon of any release of a Contaminant in any reportable quantity from or onto property owned or operated by Borrower and take any Remedial Actions required to xxxxx said release or otherwise to come into compliance with applicable Environmental Law;
(d) promptly provide Silicon with written notice within 10 days of the receipt of any of the following: (i) all uses notice that an Environmental Lien has been filed against any of the real or personal property of Borrower, (ii) commencement of any Environmental Action or notice that an Environmental Action will be filed against Borrower, and operations (iii) notice of a violation, citation, or other administrative order which reasonably could be expected to result in a Material Adverse Effect;
(e) ensure that any Contaminant brought onto, stored or used by any Person on or of each Project, whether by any lands used in the Borrower or any other Person, Business shall be transported, used and stored only in accordance with all applicable laws, regulations, by-laws and other lawful requirements;
(f) ensure that the lands used in the Business will not be used for storing or using any Contaminant except in compliance with all Environmental Laws and permits issued pursuant theretoregulations and no use of any lands used in the Business will be allowed which may cause or increase the likelihood of the escape, seepage, leakage, spillage, release or discharge of any Contaminant on, from or under any such lands or into the environment or permit any policy of insurance to be cancelled or cancellable;
(iig) except for Releases incidental to Borrower shall promptly notify Silicon as soon as it knows of or suspect that any Contaminant (other than in the Use normal course of Hazardous Substances permitted by clause (iii) below the Business and in compliance with all Applicable Environmental Laws) has been brought onto any lands used in the Business or that there is any actual, the Borrower shall not permit a Release threatened or potential escape, seepage, leakage, spillage, release or discharge of Hazardous Substances in, any Contaminant on, from or under the any lands used in the Business or from any Projectinto the environment;
(iiih) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are otherwise comply in compliance all respects with all Environmental Laws, rules and regulations affecting or relating to the Business and will assume and perform any and all liabilities and obligations arising under Environmental Laws and of types and in quantities customarily relating to the Business, or other property used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent Businesses or for otherwise failing to comply with Environmental Laws including, without limitation, any liability for the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit clean up of any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present Contaminant on, under or emanating from any Projectthe Business, or migrating onto or into any Project, lands used in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental IndemnityBusiness; and
(ixi) Borrower shall, at their expense, furnish such information and such environmental audits and studies with respect to the Business as Silicon may reasonably request from time to time, such audits or studies to be prepared by an engineer or environmental consultant reasonably satisfactory to Silicon; without limiting the generality of the foregoing Borrower shall provide permit Silicon and its agents access to the Administrative Agent, lands used in the Lenders and their representatives (A) with access, upon prior reasonable notice, Business at all reasonable times (during normal business hours) for the purpose of conducting such environmental assessments as Silicon may require from time to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedtime.
Appears in 1 contract
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
(ia) all uses and operations on or of each Project, whether the Property by the Borrower or any other Person, Person affiliated with Borrower shall be in compliance in all material respects with all applicable Environmental Laws and permits issued pursuant thereto;
(iib) except for Borrower shall use commercially reasonable efforts to ensure that uses and operations by all tenants or other users of the Property are in compliance in all material respects with all applicable Environmental Laws and permits issued pursuant thereto;
(c) Borrower shall use commercially reasonable efforts to ensure that there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Lawsat, the Borrower shall not permit a Release of Hazardous Substances in, on, above, under or from any Projectthe Property that (i) are not in compliance in all material respects with applicable Environmental Law, (ii) are likely to require material Remediation under applicable Environmental Law, or (iii) are likely to result in the imposition of material Losses under Environmental Law;
(iiid) the Borrower shall not knowingly permit ensure that there shall be no Hazardous Substances present at, in, on, above, under or under any Projectfrom the Property, except those that are (i) both (A) in material compliance with all applicable Environmental Laws and of types with permits issued pursuant thereto, and (B) fully disclosed to Lender in quantities customarily writing or commonly used in the ownership, operation and maintenance of buildings of, or by tenants in, commercial properties similar to the Projects Property, and (i.e., materials used ii) not reasonably likely to result in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligationa Material Adverse Effect;
(ive) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether or not due to any act or omission of Borrower (the Borrower or any other Person (collectively, “Environmental Liens”), provided that it shall not be a default under the Loan Documents if any such Environmental Liens are imposed and Borrower either (i) commences to remove such Environmental Liens within 30 days after written notice thereof and thereafter diligently and expeditiously proceeds to remove the same, or (ii) after notice to Lender, contests by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the imposition of such Environmental Liens, so long as (A) no Event of Default has occurred and is continuing, (B) such proceeding shall suspend the enforcement of such Environmental Liens, (C) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost during the pendency of any such proceeding, and (D) Borrower shall have furnished such security as may be required in the proceeding, or as may be reasonably requested by Lender, to ensure the payment of any costs or expenses related to removal of the Environmental Lien or the prosecution of the legal proceedings, together with all interest or penalties thereon;
(viif) notwithstanding clause In the event that Lender reasonably determines that either (i) the Property or any operation thereon is in material violation of applicable Environmental Law, (ii) Hazardous Substances are present or have been Released at, in, on, above, under or from the Property in material violation of applicable Environmental Law or in a manner that requires material Remediation or is likely to result in the imposition of material Losses under Environmental Law, or (iii) any other environmental hazard exists at the Property that would reasonably be expected to have a Material Adverse Effect, then Borrower shall comply with all reasonable requests of Lender to: (x) reasonably effectuate Remediation of such Hazardous Substance or condition as required by Environmental Law; (y) comply in all material respects with any applicable Environmental Law; and (z) comply with any lawful and binding directive from any applicable Governmental Authority, provided that with respect to (f)(y) and (z) above, after notice to Lender, Borrower may suspend such compliance and contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the applicability of such Environmental Law, and provided further that (A) no Event of Default has occurred and is continuing, (B) neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, canceled or lost during the pendency of any such proceeding, and (C) Borrower shall nothave furnished the security as may be required in the proceeding, or knowingly permit as may be reasonably requested by Lender to ensure the payment of any related costs or expenses, together with all interest and penalties thereon;
(g) Borrower shall not do, and shall use commercially reasonable efforts to prevent any tenant or other user of the Property from doing, any act that is in non-compliance with applicable Environmental Law, is contrary to any reasonable requirement of any insurer, constitutes a public or private nuisance, constitutes physical waste, or violates any covenant, condition, agreement or easement, in each case as is related to any environmental matters applicable to the Property and that is reasonably likely, in any such case, to result in a Material Adverse Effect;
(h) Borrower shall promptly notify Lender as it becomes aware of (i) the presence or Release of Hazardous Substances at, in, on, above, under or from the Property in violation of applicable Environmental Law or in a manner that requires material Remediation or is likely to result in the imposition of material Losses under Environmental Law, (ii) any material non-compliance with any applicable Environmental Law related in any way to the Property, (iii) any actual or threatened (in writing) material Environmental Lien, or (iv) any written notice or other communication from any Governmental Authority or any other Person torelating to (A) any of the foregoing, install (B) reasonably likely material Losses of any Person pursuant to any Environmental Law in connection with the Property, (D) other material environmental hazard in connection with the Property, or (E) any actual or threatened material administrative or judicial proceedings pursuant to Environmental Law in connection with the Property;
(i) If, at any time, it is determined that asbestos or asbestos asbestos-containing materials are present on any Projectthe Property, and Borrower shall upon and following the Closing Date implement, comply with and maintain in effect retain an environmental consultant reasonably satisfactory to Lender to prepare an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the program, and Borrower shall cause comply with the Remediation same. Borrower shall deliver a copy of any such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject program to the right to contest such Remediation in accordance with Section 7(a) of the Environmental IndemnityLender; and
(ixj) the Borrower shall provide the Administrative Agentreasonably cooperate in all activities pursuant to Section 3 of this Agreement, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, to providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedinterviews.
Appears in 1 contract
Environmental Covenants. (1) The Borrower covenants Lessee and agrees that:the Property and the Equipment shall comply, and the Lessee shall use all reasonable efforts to cause the compliance by any contractors engaged in connection with the Property, with all Environmental Requirements applicable to the Property and the Equipment and activities and conduct of business performed thereon, including, without limitation, the use, maintenance and operation of the Property and the Equipment and all activities and conduct performed thereon, including, without limitation, the use, storage, removal, transport, treatment and/or remediation of any Hazardous Substance, except where noncompliance, individually or in the aggregate, (i) will not place the Lessor or any Assignee in any danger of civil liability for which the Lessor or any Assignee is not adequately indemnified for hereunder or subject the Lessor or any Assignee to any danger of criminal liability, (ii) will not result in a diminution in the value of any Parcel of Property or Unit of Equipment, (iii) will not impair the ability of the Lessee to perform its obligations under the Operative Documents in a timely manner or the ability of the Guarantor to perform its obligations under the Guaranty in a timely manner and (iv) will not impair the rights or interests of the Lessor or Assignee under this Lease or the Agreement for Lease.
(2) The Lessee shall maintain all Environmental Approvals necessary to conduct operations at the Property and shall comply with all such Environmental Approvals, except where noncompliance, individually or in the aggregate, (i) will not place the Lessor or any Assignee in any danger of civil liability for which the Lessor or any Assignee is not adequately indemnified hereunder or subject the Lessor or any Assignee to any danger of criminal liability, (ii) will not result in a diminution in the value of any Parcel of Property or Unit of Equipment, (iii) will not impair the ability of the Lessee to perform its obligations under the Operative Documents in a timely manner or the ability of the Guarantor to perform its obligations under the Guaranty in a timely manner and (iv) will not impair the rights or interests of the Lessor or Assignee under this Lease or the Agreement for Lease.
(3) The Lessee shall not cause or suffer or permit the attachment of any Environmental Lien to the Property or any portion thereof, except for such Environmental Liens as the Lessee is contesting pursuant to a Permitted Contest.
(4) The Lessee shall not cause, and shall use all reasonable efforts not to suffer or permit the transportation or arrangement for the transport of any Hazardous Substance from the Property to any facility or site for the purpose of treatment or disposal which is (i) included on the NPL or (ii) is subject to a Remedial Action requirement (other than routine anticipated regulatory requirements), except any Remedial Action which (A) will not place the Lessor or any Assignee in any danger of civil liability for which the Lessor or any Assignee is not adequately indemnified hereunder or subject the Lessor or any Assignee to any danger of criminal liability, (B) will not result in a diminution in the value of any Parcel of Property or Unit of Equipment, (C) will not impair the ability of the Lessee to perform its obligations under the Operative Documents in a timely manner or the ability of the Guarantor to perform its obligations under the Guaranty in a timely manner and (D) will not impair the rights or interests of the Lessor or Assignee under this Lease or the Agreement for Lease, or (iii) which has not obtained or maintained all Environmental Approvals required pursuant to applicable Environmental Requirements.
(5) The Lessee shall not engage in or permit any operations or activities upon, or any use or occupancy of, the Property or any portion thereof, for the purpose of or in any way involving the Release of any Hazardous Substance in a manner not in compliance with Environmental Requirements or the handling, storage, use or disposal of any Hazardous Substance in a manner not in compliance with Environmental Requirements, except where noncompliance, individually or in the aggregate, (i) will not place the Lessor or any Assignee in any danger of civil liability for which the Lessor or any Assignee is not adequately indemnified for hereunder or subject the Lessor or any Assignee to any danger of criminal liability, (ii) will not result in a diminution in the value of any Parcel of Property or Unit of Equipment, (iii) will not impair the ability of the Lessee to perform its obligations under the Operative Documents in a timely manner or the ability of the Guarantor to perform its obligations under the Guaranty in a timely manner and (iv) will not impair the rights or interests of the Lessor or Assignee under this Lease or the Agreement for Lease, and the Lessee shall not cause any Hazardous Substance to be released or otherwise come to be located on, under, in or about the Property, nor to the knowledge of the Lessee has any Hazardous Substance migrated from the Property onto or underneath other properties, in either case in a condition or under circumstances that could reasonably be expected to (A) place the Lessor or any Assignee in any danger of civil liability for which the Lessor or any Assignee is not adequately indemnified for hereunder or subject the Lessor or any Assignee to any danger of criminal liability, (B) result in a diminution in the value of any Parcel of Property or Unit of Equipment, (C) impair the ability of the Lessee to perform its obligations under the Operative Documents in a timely manner or the ability of the Guarantor to perform its obligations under the Guaranty in a timely manner or (D) impair the rights or interests of the Lessor or Assignee under this Lease or the Agreement for Lease.
(6) The Lessee shall not cause or suffer the use or Release of any asbestos-containing material or any article of PCBs in connection with the remodeling construction of the Property.
(i) all uses The Lessee shall promptly, but in any case within ten (10) Business Days of receiving actual notice thereof, notify the Lessor and operations on or Assignee if, after the date of each Projectthis Lease, whether by the Borrower (A) any Environmental Matter has occurred or any environmental condition is discovered in, on, beneath, from or involving the Property or any part thereof (including, without limitation, the presence or Release of Hazardous Substances or the violation of Environmental Requirements) that could reasonably be expected to result in Environmental Damages against the Lessee, the Lessor, any Assignee or any Indemnified Person in excess of $300,000, or (B) the Lessee has received notification that it, the Property or any part thereof is the subject of a proceeding that could reasonably be expected to result in any ordered remediation or corrective action or other Personliability related to an environmental event or condition, shall be in compliance with all Environmental Laws the cost of which liability to the Lessee is reasonably expected to exceed $300,000 (each of (A) and permits issued pursuant thereto;(B) and "ENVIRONMENTAL EVENT").
(ii) except for Releases incidental Following receipt of a notice pursuant to (i) above, the Lessor and Assignee, in each case in their reasonable discretion, may require the Lessee to conduct, or cause to be conducted, an environmental audit of the Property by an environmental consultant reasonably satisfactory to the Use of Hazardous Substances permitted by clause (iii) below Lessor and in compliance with all Applicable LawsAssignee, the Borrower scope of which audit shall not permit be limited to confirming the magnitude and anticipated cost of the liability resulting from the Environmental Matter and to provide a Release copy of Hazardous Substances in, on, under or from any Project;such environmental consultant's report to the Lessor and Assignee.
(iii) the Borrower The Lessee shall not knowingly permit Hazardous Substances in, oninitiate, or under any Projectcause to be initiated at no cost to the Lessor or Assignee, in a timely fashion, such actions as may be necessary to comply in all respects with all applicable Environmental Requirements, except those that are where noncompliance, individually or in compliance the aggregate, (A) will not place the Lessor or any Assignee in any danger of civil liability for which the Lessor or any Assignee is not adequately indemnified for hereunder or subject the Lessor or any Assignee to any danger of criminal liability, (B) will not result in a diminution in the value of any Parcel of Property or Unit of Equipment, (C) will not impair the ability of the Lessee to perform its obligations under the Operative Documents in a timely manner or the ability of the Guarantor to perform its obligations under the Guaranty in a timely manner and (D) will not impair the rights or interests of the Lessor or Assignee under this Lease or the Agreement for Lease and to alleviate any significant risk to human health or the environment if the same arises from a condition on or in respect of the Property or any part thereof, whether existing on or prior to the date of this Lease. Once the Lessee commences such actions, the Lessee shall thereafter diligently proceed to comply materially and in a timely manner with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtainedRequirements.
Appears in 1 contract
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Properties, whether by the Borrower Indemnitor or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any ProjectProperties, except those that are both (i) in compliance with all Environmental Laws and of types with permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects writing; (i.e., materials used in cleaning and other building operationsc) and there shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be no Hazardous Materials in, on, or under any Projectthe Properties, and shall operate, maintain, repair and replace any such underground storage tank so disclosed except those that are both (i) in compliance with all Applicable Laws;
Environmental Laws and with permits issued pursuant thereto as may be required by Environmental Laws and (vii) Reserved;
fully disclosed to Indemnitee in writing; (vid) the Borrower Indemnitor shall keep each Project the Properties free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person (collectively, the “Environmental Liens”);
; (viie) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeIndemnitor shall, at reasonable times (during normal business hours) its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to all or any portion Paragraph 3 of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsthis Agreement, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews interviews; (f) Indemnitor shall, at its sole cost and expense, perform or cause to be performed any environmental site assessment or other investigation of environmental conditions in connection with the Properties, pursuant to any reasonable written request of Indemnitee (including, but not limited to, sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other Indemnified Parties shall be entitled to rely on such reports and other results thereof, it being understood that it shall not be reasonable for Indemnitee to request an environmental site assessment or other investigation pursuant to this subsection unless Indemnitee has reason to believe that there is or has been a potential Release of Hazardous Materials or a breach of Environmental Law; (g) Indemnitor shall, at its sole cost and expense, comply with all reasonable written requests of Indemnitee to (i) effectuate Remediation of any condition (including, but not limited to, a Release of a Hazardous Material) in, on, under or from the Properties; (ii) comply with any Environmental Law; (iii) comply with any directive from any Governmental Authority; and (Biv) promptly upon requesttake any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Indemnitor shall not do, copies of all environmental investigations, studies, audits, reviews or allow any tenant or other analyses conducted by or that are in the possession or control user of the Borrower in relation Properties to do, any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any ProjectPerson at the Properties, whether heretofore impairs or hereafter obtainedmay impair the value of the Properties, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Properties; and (i) Indemnitor shall promptly notify Indemnitee in writing of (i) any presence or Releases or threatened Releases of Hazardous Materials in, on, under, from or migrating towards the Properties; (ii) any non-compliance with any Environmental Laws related in any way to the Properties; (iii) any actual or potential Environmental Lien; (iv) any required or proposed Remediation of environmental conditions relating to the Properties; and (v) any written or oral notice or other communication of which any Indemnitor becomes aware from any source whatsoever (including, but not limited to, a Governmental Authority) relating in any way to Hazardous Materials or Remediation thereof at any of the Properties, possible liability of any Person in connection with any of the Properties pursuant to any Environmental Law, other environmental conditions in connection with the Properties, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement.
Appears in 1 contract
Environmental Covenants. The (a) Borrower covenants and agrees that:
shall (i) comply, and cause all uses tenants and operations other persons on or of each Projectoccupying the Project to comply, whether by the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
Hazardous Materials Laws; (ii) except for Releases incidental to without limiting the Use generality of clause (i), not install, use, generate, manufacture, store, treat, release or dispose of, nor permit the installation, use, generation, storage, treatment, release or disposal of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, Materials on, under or about the Project, nor transport or permit the transportation of Hazardous Materials to or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance accordance with all Environmental applicable Hazardous Materials Laws and of types prudent business practices and in quantities customarily then only as commonly used in the ownership, operation and maintenance of buildings similar properties by prudent owners; (iii) immediately advise Lender in writing of (A) any and all Hazardous Materials Claims, (B) the presence of any Hazardous Materials on, under or about the Project, in violation of clause (ii) above, (C) any remedial action taken by Borrower in response to any Hazardous Materials on, under or about the Project or to any Hazardous Materials Claims, (D) Borrower’s discovery of the presence of Hazardous Materials on, under or about any real property or bodies of water adjoining or in the vicinity of the Project, and (E) Borrower’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Project that could cause the Project or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use of the Project under any Hazardous Materials Laws; (iv) provide Lender with copies of all reports, analyses, notices, licenses, approvals, orders, correspondence or other written materials relating to the Projects environmental condition of the Project or Real Property or bodies of water adjoining or in the vicinity of the Project or Hazardous Materials Claims immediately upon receipt, completion or delivery of such materials; (i.e.v) not install or allow to be installed any tanks on or under the Project; (vi) not create or permit to continue in existence any lien (whether or not such lien has priority over the lien created by the Security Instrument) upon the Project imposed pursuant to any Hazardous Materials Laws or any increase in real property taxes due to a release of Hazardous Materials on the Project; vii) not change or alter the present use of the Project unless Borrower shall have notified Lender thereof in writing and Lender shall have determined, materials used in cleaning its sole and absolute discretion, that such change or modification will not result in the presence of Hazardous Materials on the Project in such a level that would increase the potential liability for Hazardous Materials Claims; and (viii) not release or waive the liability of any previous owner, lessor or operator of the Project or any party who may be potentially responsible for the presence of or removal of or other response to, Hazardous Materials on or from the Project.
(b) Borrower hereby grants to Lender, its agents, employees, consultants and contractors, an irrevocable license and authorization to enter upon and inspect the Project, and conduct such environmental assessments, audits and tests, including, without limitation, subsurface testing, soils and groundwater testing, and other building operationstests which may physically invade the Project, as Lender (if Lender has reason to believe that such assessment or audit may disclose the presence or release of Hazardous Materials or if an environmental assessment or audit deems further testing necessary) and shall undertake in order to supervise limit its liability or protect its interest on the Project. Without limiting the generality of the foregoing, Borrower agrees that Lender will have the right to appoint a receiver to enforce this right to enter and inspect activities occurring the Project to the extent such authority is provided under applicable Laws. All costs and expenses incurred by Lender in connection with any inspection, assessment, audit or testing conducted in accordance with this subsection shall be paid by Borrower. Borrower consents to Lender notifying any party of the availability of the Environmental Report, and the information contained therein. Borrower further agrees that Lender may disclose such Environmental Report to any governmental agency or authority if it reasonably believes that it is required to disclose any matter contained therein to such agency or authority. Borrower acknowledges that Lender cannot control or otherwise assure the truthfulness or accuracy of the Environmental Report, and that the release of the Environmental Report, or any information contained therein, to prospective bidders at any foreclosure sale of the Project may have a material and adverse effect upon the amount which a party may bid at such sale. Borrower agrees that Lender shall have no liability whatsoever as a result of delivering the Environmental Report or any information contained therein to any third party, and Borrower hereby releases and forever discharges Lender from any and all claims, damages, or causes of action arising out of connected with or incidental to the Environmental Report or the delivery thereof to any third party.
(c) Borrower shall promptly perform any and all remediation, removal or other response (“Remedial Work”) necessary in response to any Hazardous Materials Claims or the presence, storage, use, disposal, transportation, discharge or release of any Hazardous Materials on, under or about the Project; provided, however, that Borrower shall perform such Remedial Work in good faith so as to minimize any impairment to Lender’s security under the Loan Documents. All Remedial Work shall be conducted (i) in a diligent and timely fashion by licensed contractors acting under the supervision of a consulting environmental engineer; (ii) pursuant to a detailed written plan for the Remedial Work approved by any public or private agencies or persons with a legal or contractual right to such approval; (iii) with such insurance coverage pertaining to liabilities arising out of the Remedial Work as is then customarily maintained with respect to such activities; and (iv) only following receipt of any required permits, licenses or approvals. The selection of the contractors and consulting environmental engineer to perform and supervise the Remedial Work, the contracts entered into with such parties, any disclosures to or agreements with any public or private agencies or parties relating to Remedial Work and the written plan for the Remedial Work (and any changes thereto) each shall, at Lender’s option, be subject to Lender’s prior written approval, which approval shall not be unreasonably withheld or delayed. In addition, Borrower shall submit to Lender, promptly upon receipt or preparation, copies of any and all reports, studies, analyses, correspondence, governmental comments or approvals, proposed Remedial Work contracts and similar information prepared or received by Borrower in connection with any Remedial Work. All costs and expenses of such Remedial Work shall be paid by Borrower, including, without limitation, the charges of the contractors and the consulting environmental engineer performing and supervising the Remedial Work, any taxes or penalties assessed in connection with the Remedial Work and Lender’s reasonable fees, costs incurred in connection with monitoring or review of such Remedial Work and reasonable attorney fees and costs. Lender shall have the right but no obligation to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims.
(d) BORROWER SHALL PROTECT, INDEMNIFY, DEFEND AND HOLD HARMLESS (I) LENDER, (II) ITS AFFILIATES AND ANY SUCCESSORS TO LENDER’S INTEREST IN THE PROJECT (INCLUDING ANY OTHER PERSON OR PARTY WHO ACQUIRES ANY PORTION OF THE PROJECT THROUGH A FORECLOSURE SALE, A DEED-IN-LIEU THEREOF OR THE EXERCISE OF LENDER’S RIGHT AND REMEDIES UNDER THE LOAN DOCUMENTS), (III) ANY SUCCESSORS OF THE FOREGOING, AND (IV) ALL DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF ANY OF THE FOREGOING, FROM AND AGAINST ANY AND ALL ACTUAL OR POTENTIAL CLAIMS, LIABILITIES, DAMAGES, LOSSES, FINES, PENALTIES, JUDGMENTS, AWARDS, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES AND COSTS AND EXPENSES OF INVESTIGATION) WHICH ARISE OUT OF OR RELATE IN ANY WAY TO ANY BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED HEREIN, OR TO ANY HAZARDOUS MATERIALS CLAIMS OR TO ANY USE, HANDLING, PRODUCTION, TRANSPORTATION, DISPOSAL, RELEASE OR STORAGE OF ANY HAZARDOUS MATERIALS IN, UNDER, ON OR ABOUT THE PROJECT, WHETHER BY BORROWER OR BY ANY TENANT OR ANY OTHER PERSON OR PARTY, INCLUDING, WITHOUT LIMITATION, ALL FORESEEABLE AND ALL UNFORESEEABLE CONSEQUENTIAL DAMAGES DIRECTLY OR INDIRECTLY ARISING OUT OF (I) HAZARDOUS MATERIALS CLAIMS OR THE USE, GENERATION, STORAGE, DISCHARGE OR DISPOSAL OF HAZARDOUS MATERIALS BY BORROWER, ANY PRIOR OWNER OR OPERATOR OF THE PROJECT OR ANY OTHER PERSON OR PARTY ON OR ABOUT THE PROJECT; (II) ANY RESIDUAL CONTAMINATION AFFECTING ANY NATURAL RESOURCE OR THE ENVIRONMENT; (III) ANY EXERCISE BY LENDER OF ANY OF ITS RIGHTS AND REMEDIES HEREUNDER; AND (IV) THE COSTS OF ANY REQUIRED OR NECESSARY INVESTIGATION, ASSESSMENT, TESTING, REMEDIATION, REPAIR, CLEANUP, OR DETOXIFICATION OF THE PROJECT AND THE PREPARATION OF ANY CLOSURE OR OTHER REQUIRED PLANS. Borrower’s liability to the aforementioned indemnified parties shall arise upon the earlier to occur of (A) discovery of any Hazardous Materials in, under, on or about the Projects Project, or (B) the institution of any Hazardous Materials Claims, and not upon the realization of loss or damage, and Borrower shall pay to Lender from time to time, immediately upon Lender’s request, an amount (as reasonably determined by Lender) equal to all such costs, damages, losses, liabilities, fines, penalties, judgments, awards, claims and expenses heretofore described and/or referred to in this subsection. In addition, in the event any Hazardous Material is caused to be removed from the Project by Borrower, Lender or any other person, the number assigned by the U.S. Environmental Protection Agency to such Hazardous Material or any similar identification shall be solely in the name of Borrower and Borrower shall assume any and all liability for such removed Hazardous Material. If the Project is conveyed by a Foreclosure Conveyance, then the indemnity provided for under this subsection will not apply to any Hazardous Materials Claim that arises solely after and not on or before the date of the Foreclosure Conveyance unless the Hazardous Materials Claim results in whole or in part from acts or omissions by Indemnitor or Borrower or from acts or omissions prior to the date of the Foreclosure Conveyance by any other person or entity. The indemnity provided for under this subsection will apply, however, to costs, damages, losses, liabilities, fines, penalties, judgments, awards, claims and expenses heretofore described and/or referred to in this subsection incurred after the date of the Foreclosure Conveyance that arise from any Hazardous Materials Claim in existence on or before the date of the Foreclosure Conveyance or any Hazardous Materials Claim otherwise not excluded from coverage under the immediately preceding sentence, even if that Hazardous Materials Claim is not discovered until after the date of the Foreclosure Conveyance. For purposes of this clause, a condition in existence on or before the date of the Foreclosure Conveyance will be deemed to be an Hazardous Materials Claim on or before that date even if the condition becomes an Hazardous Materials Claim as a result of a change in Hazardous Materials Laws that becomes effective after that date. Borrower will have the burden of proving that any Hazardous Materials Claim first arose after the date of the Foreclosure Conveyance, and if Borrower is unable to satisfy that burden of proof, then Borrower’s obligations hereunder with respect to that Hazardous Materials Claim will be effective and will not be reduced or diminished.
(e) In addition to any other rights or remedies Lender may have under this Agreement, at law or in equity, in the event that Borrower shall fail to comply timely with any of the provisions of this Section 3.28, or in the event that any representation or warranty made by Borrower in Section 4.27 of this Agreement proves to be reasonably prudent false or misleading, then, in such event Lender may, after (i) delivering written notice to Borrower, which notice specifically states that Borrower has failed to comply with the foregoing obligation;
provisions of such section or sections; and (ivii) except as disclosed in Schedule 8.11 the expiration of the earlier to occur of the fifteen (15) day period after receipt of such notice or as specifically described in the Environmental Reportscure period, the if any, permitted under applicable Laws with which Borrower shall not permit any underground storage tanks have failed to comply, Lender may do or cause to be in, on, or under any Project, done whatever is necessary to cause the Project to comply with all Hazardous Materials Laws and the cost thereof shall constitute an Expense hereunder and shall operate, maintain, repair become immediately due and replace any such underground storage tank so disclosed in compliance payable without notice and with all Applicable Laws;
(v) Reserved;
(vi) interest thereon at the Default Rate until paid. Borrower shall keep each give to Lender and its agents and employees access to the Project free for the purpose of effecting such compliance and clear of all Liens and other encumbrances imposed pursuant hereby specifically grants to any Environmental LawLender a license, whether due to any act or omission effective upon expiration of the Borrower or any other Person (collectivelyapplicable cure period, “Environmental Liens”);
(vii) notwithstanding clause (iii) aboveif any, the Borrower shall notto do, or knowingly permit any other Person toat its option but without obligation, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect whatever is necessary to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject Project to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspectionsso comply, including, but not limited towithout limitation, providing all relevant information to enter the Project and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to remove therefrom any Project, whether heretofore or hereafter obtainedHazardous Materials.
Appears in 1 contract
Samples: Loan Assumption Agreement (Inland Diversified Real Estate Trust, Inc.)
Environmental Covenants. The Borrower (a) Tenant hereby covenants and agrees that:
that (i) all uses Tenant will not conduct or permit to be conducted on the Premises any activity that will use or generate any "Hazardous Materials" (as hereinafter defined), except for those activities that are part of the ordinary course of Tenant's soft drink bottling and operations on or of each Project, whether by distribution business (the Borrower or any other Person, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
"Permitted Activities"); (ii) except for Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and all Permitted Activities will be conducted in compliance accordance with all "Applicable Environmental Laws, " (as hereinafter defined) and will have been approved in advance in writing (if required by applicable law) by the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
appropriate regulatory authority; (iii) the Borrower shall Premises will not be used for the storage of any Hazardous Materials except for the storage of such materials used or generated in the ordinary course of Tenant's business; (iv) the storage of Hazardous Materials will be conducted in accordance with all Applicable Environmental Laws in temporary storage areas on the Premises approved in writing by the appropriate regulatory authority (if required by applicable law) and Landlord; (v) only the Hazardous Materials used or generated by Tenant with respect to Permitted Activities, (the "Permitted Materials"), will be generated, used or stored on the Premises and no other Hazardous Materials will be generated, used or temporarily stored on the Premises without the prior written approval of the appropriate regulatory authority (if required by applicable law) and Landlord; (vi) no portion of the Premises will be used as a landfill or dump; (vii) Tenant will not install or allow to be installed any underground tanks of any type without Landlord's prior written consent; (viii) Tenant will not knowingly allow any surface or subsurface conditions to exist or come into existence on the Premises that constitutes, or with the passage of time may constitute, a public or private nuisance; (ix) Tenant will not knowingly permit any Hazardous Substances Materials to be brought onto the Premises, except for the Permitted Materials described above, and if so found located thereon, Tenant will immediately remove such Hazardous Materials from the Premises, with proper packaging, labeling, transportation, and disposal, and all required cleanup and remediation procedures will be diligently undertaken by Tenant and at Tenant's sole cost and expense pursuant to all Applicable Environmental Laws. If the presence of any Hazardous Materials brought, kept, stored, generated or used on, in, under or about the Premises by Tenant, its agents, employees, contractors or invitees results in any contamination of the Premises or in any release of any such Hazardous Materials on, in, under, about or under from the Premises or into the air, soil, surface water or ground water, (a "Tenant Release") Tenant shall promptly take all actions, at its sole cost and expense, as are necessary to return the affected area to the condition existing prior to the Tenant Release, including, without limitation, any Projectinvestigation or monitoring of site conditions and any clean up, except those that are remediation, response, removal, encapsulation, containment or restoration work required because of the Tenant Release (collectively, the "Tenant's Remedial Work"). Tenant shall obtain all necessary licenses, manifests, permits and approvals to perform Tenant's Remedial Work. Tenant shall perform all of Tenant's Remedial Work and the disposal of all waste generated by the Tenant's Remedial Work in compliance accordance with all Applicable Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent Laws. If Tenant fails to comply with any of the foregoing obligation;covenants and agreements set forth above, Landlord, at Tenant's sole cost and expense, may, with reasonable prior notice to Tenant, enter upon the Premises and undertake to restore the environmental condition of Premises to the condition existing immediately prior to Tenant's occupation of the Premises. Tenant shall immediately give Landlord written notice of any contamination or suspected contamination of the Premises, of any release, suspected release or threat of release of any Hazardous Materials on, in, under, about or from the Premises, of any breach or suspected breach of this paragraph or of the receipt of any notice from a governmental agency pertaining to the presence, release or threat of release or the suspected presence, release or threat of release of any Hazardous Materials on, in, under, about or from the Premises or pertaining to any violation of Applicable Environmental Laws.
(ivb) except Tenant shall indemnify, save harmless and defend Landlord from and against any and all claims (including, without limitation, third party claims for personal injury or real or personal Premises damage), actions, administrative proceedings (including informal proceedings), judgments, damages, punitive damages, penalties, fines, costs, liabilities, interest or losses (including, without limitation, diminution in value of the Premises, reasonable attorneys' fees, consultant fees, expert fees and any fees and expenses incurred in enforcing its rights under Section 10 of this Lease) incurred by, sought from or asserted directly or indirectly against Landlord during or after the term of this Lease as disclosed in Schedule 8.11 a result of (i) the presence, release or as specifically described in threat of release or the Environmental Reportssuspected presence, the Borrower shall not permit release or threat of release of any underground storage tanks to be Hazardous Materials on, in, under, about or from the Premises, which Hazardous Materials were brought, kept, stored or used on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project free and clear of all Liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present onin, under or emanating from about the Premises by Tenant, its agents, employees, contractors or invitees, (ii) any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable violation of Applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agentby Tenant, the Lenders and their representatives (A) with accessits agents, upon prior reasonable noticeemployees, at reasonable times (during normal business hours) to all contractors or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore or hereafter obtained.invitees,
Appears in 1 contract
Samples: Form 10 K
Environmental Covenants. The Borrower (1) From and after the Commencement Date, Tenant covenants and agrees that:
(iA) all uses that Tenant will not violate any Environmental Laws (as hereinafter defined); (B) that Tenant will not use, store, dispose or generate any Hazardous Materials (as hereinafter defined) in, on, at, or under the Premises except as may be necessary in the conduct of Tenant’s business and operations on or of each Project, whether by the Borrower or any other Person, shall be then only in full compliance with all Environmental Laws and permits issued pursuant thereto;
Laws; (iiC) except for Releases incidental to the Use that Tenant will not cause or permit any release, leak, discharge, spill, disposal, or emission of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances Materials in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances inat, on, or under any Projectthe Premises, except those that are as may be necessary in the conduct of Tenant’s business and then only in full compliance with all Environmental Law; (D) that Tenant shall give notice to Landlord promptly upon Tenant acquiring any knowledge of any release, leak, discharge, spill, disposal or emission of Hazardous Materials at the Premises occurring after the Commencement Date and either in violation of applicable Environmental Laws or reasonably determined to have a material adverse effect on the Premises, with a full description thereof, and shall promptly clean up such release, leak, discharge, spill, disposal or emission of types Hazardous Materials in accordance with the RSRs, and shall provide Landlord with documentation of the clean-up; (E) that Tenant shall give notice to Landlord promptly of any notice of violation or potential violation of any Environmental Law received by Tenant; (F) that Tenant shall promptly comply with any law, rule or regulation relating to the removal, treatment or disposal of Hazardous Materials which are present as a result of Tenant’s actions, inactions and/or business operations at the Premises; (G) that Tenant shall allow Landlord and its agents access to the Premises in connection with investigation and remediation activities deemed necessary and appropriate by Landlord in accordance with its Form III filing and the RSRs (including, without limitation, fencing off, posting signs, and/or otherwise restricting access to areas of the Premises, all without liability or claim by Tenant against Landlord hereunder), or as necessary to perform any other work mandated by DEEP, subject to the terms and conditions of Section 14.4(1); (H) that Tenant shall not cause or otherwise operate or permit any activities on any portion of the Premises, other than the 85 Floydville Parcel, so as to cause any portion of the Premises other than the 85 Floydville Parcel to be classified as an “Establishment” under the Transfer Act; and (I) except as necessary in the ordinary course of Tenant’s business operations at the Premises or in connection with the clean-up of a release, leak, discharge, spill, disposal or emission of Hazardous Material by Tenant as set forth in Section 14.2(1)(D), except as permitted by Section 1.3 of Article II hereof following delivery of the Closing Notice, and except as necessary to monitor Tenant’s usage of those chemicals disclosed by Tenant to Landlord under Section 14.2(2) below pursuant to a work plan and testing methods prepared by Tenant and approved in writing and in advance by Landlord (Landlord agreeing not to unreasonably withhold such consent provided Landlord is satisfied, in its sole discretion, that the work plan and testing methodology will result in data related solely to those chemicals both disclosed and not objected to by Landlord under Section 14.2 below), Tenant shall not perform or permit the performance of any soil, sediment, surface water or ground water testing anywhere on the Premises without Landlord’s prior written consent.
(2) On or before the Commencement Date (for the remainder of 2014) and on an annual basis thereafter in January of each calendar year (commencing in January, 2015), Tenant shall supply Landlord with a complete written listing and identification of all chemicals (including without limitation pesticides), together with estimated quantities customarily used in which Tenant anticipates utilizing at the ownership, operation and maintenance of buildings similar Premises for the coming year. Tenant shall on an interim basis supply Landlord with any modifications to such list(s) which Tenant may wish to make during each calendar year. Commencing with the Projects second such notification (i.e., materials used in cleaning January, 2015) and with each subsequent notification, Tenant shall submit to Landlord its written certification that Tenant’s actual chemical use during the prior year was consistent with Tenant’s notification for such year and with Tenant’s obligations under this Section14. On a semi-annual basis, Tenant shall also supply to Landlord its spray records and any other manifests, purchase records, and other building operationsdocumentation requested by Landlord with respect to chemical use at the Premises. Landlord specifically reserves the right to disapprove the type, manner, method and/or amount of any chemical usage at the Premises which Landlord, in the exercise of its reasonable discretion, determines is inconsistent with sound agricultural practices and/or which exposes the Premises to unreasonable risks of contamination. However, no action, inaction, consent or other comment by Landlord shall be construed as modifying in any manner Tenant’s obligations under this Section 14 or as Landlord’s consent to any contamination at the Premises.
(a) and To the extent Tenant creates any “recognized environmental conditions” (“RECs”) or contributes in any manner to an Existing Environmental Condition, Tenant shall undertake be responsible for any additional and/or incremental out-of-pocket costs incurred by Landlord in connection with any investigation, remediation or other activities necessary at such RECs for Landlord to supervise and inspect activities occurring on the Projects as may be reasonably prudent to timely comply with the foregoing obligation;its obligations under its Form III filing.
(ivb) except as disclosed in Schedule 8.11 In the event that Tenant causes any release, leak, discharge, spill, disposal, or as specifically described in the Environmental Reportsemission of Hazardous Materials in, the Borrower shall not permit any underground storage tanks to be inat, on, or under any Projectthe Premises, and shall operate, maintain, repair and replace any regardless of whether such underground storage tank so disclosed occurrence is in compliance with all Applicable Laws;or out of compliance with Environmental Law, Tenant, shall be responsible for any reasonable additional or incremental out-of-pocket costs incurred by Landlord in connection with any investigation, remediation or other activities necessary in connection with such occurrence for Landlord to timely comply with its obligations under its Form III filing and/or its obligations under Section 14.8 hereof.
(v4) Reserved;Upon the expiration or sooner termination of this Lease for any reason other than termination due to Tenant purchasing the Premises under Article II hereof, Tenant shall at its sole cost and expense conduct a Phase I environmental assessment of the Premises, and if such assessment identifies that RECs (other than Existing Environmental Conditions) occurred at the Premises after the Commencement Date, then (unless caused by or exacerbated by Landlord) Tenant, at its sole expense, shall be obligated to investigate and remediate all such conditions such that the same comply with the RSRs and/or any then applicable Environmental Law. If the Phase I environmental assessment concludes that Tenant’s operations have contributed in any manner to any Existing Environmental Conditions, then Tenant shall be responsible for any reasonable additional and/or incremental out-of-pocket costs incurred by Landlord in connection with any investigation, remediation or other activities necessary for such conditions contributed by Tenant to Existing Environmental Condition for Landlord to timely, comply with the RSRs and/or any then applicable Environmental Laws. The investigation and remediation work to be performed by Tenant under this Section 14.2(4) shall be conducted by a Licensed Environmental Professional (“LEP”) approved in writing and in advance by Landlord, such approval not to be unreasonably withheld, and all contractor(s) employed to perform such work shall likewise require Landlord’s prior written consent. All such work shall be performed in a good, workmanlike and lien-free manner, in accordance with all legal requirements, and only after all contractor(s) have procured such insurance coverages as Landlord reasonably deems necessary. At the conclusion of the work performed under this Section 14.2(4) the approved LEP shall issue a report confirming the completion of all necessary work so as to render the Premises in compliance with the RSRs and/or any then applicable Environmental Laws; such report shall be issued for the benefit of both Landlord and Tenant and shall be entitled to be relied upon by both parties.
(vi5) the Borrower shall keep each Project free As used in this Section 14, “Environmental Laws” means any and clear of all Liens present and future federal, state or local laws (whether common law, statute, rule, order, or regulation), permits, and other encumbrances imposed pursuant applicable lawful requirements of governmental authorities relating in any manner to the environment (land, air and/or water) or to any Hazardous Materials. As used in this Section 14, “Hazardous Materials” means any and all present and/or future materials and/or substances which are in any way prohibited, controlled or regulated by, or are otherwise defined as hazardous, toxic or controlled under, any Environmental Law, whether due to any act or omission of the Borrower or any other Person (collectively, “Environmental Liens”);
(vii) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, including but not limited to, providing all relevant information and making knowledgeable persons available for interviews and (B) promptly upon request, copies of all environmental investigations, studies, audits, reviews or other analyses conducted by or that are in the possession or control of the Borrower in relation to any Project, whether heretofore materials and/or substances for which remediation criteria have been or hereafter obtainedmay be adopted by DEEP.
Appears in 1 contract
Samples: Asset Purchase Agreement (Griffin Land & Nurseries Inc)
Environmental Covenants. The Borrower Indemnitor covenants and agrees that:
: (ia) all uses and operations on or of each Projectthe Property, whether by the Borrower Indemnitor or any other Personperson or entity, shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
; (iib) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause (iii) below and in compliance with all Applicable Laws, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
(iii) the Borrower shall not knowingly permit Hazardous Substances inProperty by Indemnitor or anyone controlled by, on, controlling or under any Project, except those that are in compliance common control with all Environmental Laws and of types and in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects Indemnitor; (i.e., materials used in cleaning and other building operationsc) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
(iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower Indemnitor shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of the Borrower Indemnitor or any other Person person or entity (collectively, the “Environmental Liens”);
; (viid) notwithstanding clause Indemnitor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, pursuant to any written request of Indemnitee (iii) above, the Borrower shall notprovided that such request is made based upon Indemnitee’s reasonable belief that there are Hazardous Substances in, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Projectunder the Property which are not in compliance with Environmental Laws), and share with Indemnitee the reports and other results thereof, and Indemnitee and other Indemnified Parties shall upon be entitled to rely on such reports and following the Closing Date implementother results thereof; (e) Indemnitor shall, at its sole cost and expense, comply with and maintain in effect an operations and maintenance program with respect all reasonable written requests of Indemnitee to any existing asbestos or asbestos containing materials located at any Project;
(viiii) the Borrower shall cause the reasonably effectuate Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
condition (ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable notice, at reasonable times (during normal business hours) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, providing all relevant information and making knowledgeable persons available for interviews a Release of a Hazardous Substance) in, on, under or from the Property; (ii) comply with any Environmental Law; (iii) comply with any directive from any governmental authority; and (Biv) promptly upon request, copies take any other reasonable action necessary or appropriate for protection of all environmental investigations, studies, audits, reviews human health or the environment; (f) Indemnitor shall not do or allow any tenant or other analyses conducted by or that are in the possession or control user of the Borrower in relation Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Projectperson or entity (whether on or off the Property), whether heretofore impairs or hereafter obtainedmay impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; and (g) Indemnitor shall immediately notify Indemnitee in writing of (i) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (ii) any non-compliance with any Environmental Laws related in any way to the Property; (iii) any actual or potential Environmental Lien; (iv) any required or proposed Remediation of environmental conditions relating to the Property; and (v) any written or oral notice or other communication of which any Indemnitor becomes aware from any source whatsoever (including, but not limited to, a governmental entity) relating in any way to Hazardous Substances or Remediation thereof, possible liability of any person or entity pursuant to any Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (Secured Investment Resources Fund Lp Ii)
Environmental Covenants. The Borrower covenants and agrees that:
: (i) all uses use and operations on or operation of each Project, whether by the Borrower or any other Person, Property shall be in compliance with all Environmental Laws and permits issued pursuant thereto;
required permits; (ii) except for there shall be no Releases incidental to the Use of Hazardous Substances permitted by clause Materials affecting the Property except in compliance with Environmental Laws; (iii) below there shall be no Hazardous Materials affecting the Property except (A) routine office, cleaning and in compliance with all Applicable Lawsjanitorial supplies, the Borrower shall not permit a Release of Hazardous Substances in, on, under or from any Project;
(iiiB) the Borrower shall not knowingly permit Hazardous Substances in, on, or under any Project, except those that are in compliance with all Environmental Laws Laws, (C) with all required permits, and of types (D) (1) in only the amounts necessary to operate the Property or (2) fully disclosed to and approved by Lender in quantities customarily used in the ownership, operation and maintenance of buildings similar to the Projects (i.e., materials used in cleaning and other building operations) and shall undertake to supervise and inspect activities occurring on the Projects as may be reasonably prudent to comply with the foregoing obligation;
writing; (iv) except as disclosed in Schedule 8.11 or as specifically described in the Environmental Reports, the Borrower shall not permit any underground storage tanks to be in, on, or under any Project, and shall operate, maintain, repair and replace any such underground storage tank so disclosed in compliance with all Applicable Laws;
(v) Reserved;
(vi) the Borrower shall keep each Project the Property free and clear of all Liens liens and other encumbrances imposed pursuant to by any Environmental Law, whether Laws due to any act or omission of the by Borrower or any other Person person (collectively, the “Environmental Liens”);
; (viiv) notwithstanding clause (iii) above, the Borrower shall not, or knowingly permit any other Person to, install any asbestos or asbestos containing materials on any Project, and shall upon and following the Closing Date implement, comply with and maintain in effect an operations and maintenance program with respect to any existing asbestos or asbestos containing materials located at any Project;
(viii) the Borrower shall cause the Remediation of such Hazardous Substances present on, under or emanating from any Project, or migrating onto or into any Project, in accordance with this Agreement and applicable Environmental Laws subject to the right to contest such Remediation in accordance with Section 7(a) of the Environmental Indemnity; and
(ix) the Borrower shall provide the Administrative Agent, the Lenders and their representatives (A) with access, upon prior reasonable noticeshall, at reasonable times its sole expense, fully and expeditiously Prudential Loan 6 1xx xxx Xxxx (during normal business hoursSecond Funding)/ Mortgage cooperate in all activities in Section 3.12(c) to all or any portion of any Project for purposes of inspection; provided that such inspections shall not unreasonably interfere with the operation of such Project or the tenants or occupants thereof, and shall be subject to the rights of tenants under their Leases, and the Borrower shall cooperate with the Administrative Agent, the Lenders and their representatives in connection with such inspections, including, but not limited to, including providing all relevant information and making knowledgeable persons available for interviews and interviews; (vi) Borrower shall, at its sole expense, (A) perform any environmental site assessment or other investigation of environmental conditions at the Property upon Lender’s request based on Lender’s reasonable belief that the Property is not in compliance with all Environmental Laws, (B) promptly upon requestshare with Lender the results and reports and Lender and the Indemnified Parties (defined below) shall be entitled to rely on such results and reports, copies and (C) complete any remediation of all environmental investigations, studies, audits, reviews Hazardous Materials affecting the Property or other analyses conducted actions required by any Environmental Laws; (vii) Borrower shall not allow any Tenant or that are in the possession or control other user of the Property to violate any Environmental Law; (viii) Borrower shall immediately notify Lender in relation writing after it becomes aware of (A) the presence, Release, or threatened Release of Hazardous Materials affecting the Property, (B) any non-compliance of the Property with any Environmental Laws, (C) any actual or potential Environmental Lien, (D) any required or proposed remediation of environmental conditions relating to the Property, and (E) any Projectwritten or oral communication or notice from any person relating to Hazardous Materials, whether heretofore and (ix) if an Asbestos Operation and Maintenance Plan and any other Operation and Maintenance Plan (collectively, the “O&M Plan”) is in effect (or hereafter obtainedrequired by Lender to be implemented) at the time of the closing of the Loan, then Borrower shall, at its sole expense, implement and continue the O&M Plan (with any modifications required to comply with applicable Laws), until payment and full satisfaction of the Obligations. Any failure of Borrower to perform its obligations under this Section 3.12 shall constitute bad faith waste of the Property.
Appears in 1 contract
