Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall: (a) Immediately report to Mortgagee upon becoming aware of (i) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release of Hazardous Materials in accordance with Section 5.7(c) of the Credit Agreement. (b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement. (c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all times.
Appears in 2 contracts
Samples: Credit Agreement (Cig Wireless Corp.), Credit Agreement (Cig Wireless Corp.)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial Disclosure Certificate”), a fully completed copy of which is attached hereto as Exhibit G and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant’s Agents. Tenant shall, on each anniversary of the Commencement Date and at any time Tenant is required to notify (ior seek approval from) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or applicable governmental authorities in connection with any such facility relating the manufacture, treatment, use or storage on or about the Premises of new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to any Release Landlord an updated Disclosure Certificate (each, an “Updated Disclosure Certificate”) describing Tenant’s then current and proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as Exhibit G or in such updated format as Landlord may reasonably require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to reasonably approve or disapprove such new or additional Hazardous Materials; provided, however, the foregoing shall not apply to the use or storage by Tenant, in the ordinary course of Tenant’s business, of new or additional Hazardous Materials that have the same, or substantially similar, Hazardous Materials Identification System (HMIS) rating and in similar quantities as previously approved Hazardous Materials (hereafter, “Like Kind Materials”). Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate, Like Kind Materials, or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies of As used in this Lease, the term “Hazardous Materials” means (i) all reports (other than routine reports regularly submitted any substance or material that is included within the definitions of “hazardous substances,” “hazardous materials,” “toxic substances,” “pollutant,” “contaminant,” “hazardous waste,” or “solid waste” in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and Environmental Law; (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substancesderivatives, providedincluding crude oil or any fraction thereof, thatall forms of natural gas, such installation and use comply with this Section 9.1(cpetroleum products or by-products or waste; (iii) at all timespolychlorinated biphenyls (PCBs); (iv) asbestos and asbestos containing materials (whether friable or non-friable); (v) lead and lead based paint or other lead containing materials (whether friable or non-friable); (vi) urea formaldehyde; (vii) microbiological pollutants; (viii) batteries or liquid solvents or similar chemicals; (ix) radon gas; and (x) mildew, fungus, mold, bacteria and/or other organic spore material.
Appears in 2 contracts
Samples: Lease Agreement (10x Genomics, Inc.), Lease Agreement (10X Genomics, Inc.)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial Disclosure Certificate”), a fully completed copy of which is attached hereto as Exhibit G and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant’s Agents. Tenant shall, upon becoming aware of request by Landlord not more frequently than annually, and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an “Updated Disclosure Certificate”) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant’s then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit G or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies As used in this Lease, the term “Hazardous Materials” shall mean and include any substance that is or contains (1) any “hazardous substance” as now or hereafter defined in § 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”) (42 U.S.C. § 9601 et seq.) or any regulations promulgated under CERCLA; (2) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act, as amended (“RCRA”) (42 U.S.C. § 6901 et seq.) or any regulations promulgated under RCRA; (3) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended (“TSCA”) (15 U.S.C. § 2601 et seq.) or any regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in any form, whether friable or non-friable; (6) polychlorinated biphenyls; (7) lead and lead-containing materials; or (8) any additional substance, material or waste (A) the presence of which on or about the Premises (i) all reports requires reporting, investigation or remediation under any Environmental Laws (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facilityas hereinafter defined), and (ii) all reports, notices, and correspondence transmitted causes or threatens to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either cause a nuisance on the presence of any Hazardous Materials at or near any such facility Premises or any other environmental matter relating adjacent area or property or poses or threatens to such facility in accordance with Section 5.7(c) pose a hazard to the health or safety of persons on the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor Premises or its Subsidiaries uses any adjacent area or stores or that an Obligor (defined below) of Mortgagor or its Subsidiariesproperty, or (iii) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which is now or is hereafter classified or considered to be hazardous or toxic under any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesLaws.
Appears in 2 contracts
Samples: Warehouse/Industrial Lease Agreement, Warehouse/Industrial Lease Agreement (Corsair Components, Inc.)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report to Mortgagee upon becoming aware of (i) the introduction of Borrower shall not engage in, cause or permit any Hazardous Material onto any facility owned Prohibited Activities or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release of Hazardous Materials in accordance with Section 5.7(c) of the Credit AgreementConditions.
(b) Immediately deliver Borrower shall take all commercially reasonable actions (including the inclusion of appropriate provisions in any Leases executed after the date of this Agreement) to Mortgagee copies prevent its employees, agents and contractors, and all tenants and other occupants from causing or permitting any Prohibited Activities or Conditions. Borrower shall not lease or allow the sublease or use of (i) all reports (other than routine reports regularly submitted in or any portion of the ordinary course of business) submitted Mortgaged Property to any Governmental Authority by Mortgagor tenant or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries subtenant for nonresidential use by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiariesuser that, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business business, would cause or permit any Prohibited Activity or Condition.
(c) Guarantor shall not engage in, cause or permit any Prohibited Activities or Conditions with respect to the Mortgaged Property or any adjacent property owned by Borrower, Guarantor, Key Principal or any Borrower Affiliate;
(d) 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 is adjacent to the Mortgaged Property. If an O&M Program has been established, Borrower shall comply in compliance 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 paid by Borrower, and Lender's reasonable out-of-pocket costs incurred in connection with Legal Requirementsthe monitoring and review of the O&M Program and Borrower's performance shall be paid by Borrower upon demand by Lender. Any such out-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.
(e) Borrower shall comply with all Environmental Laws applicable to the Mortgaged Property, keep including all of its properties and assets free requirements for notification regarding releases of Hazardous Materials. Mortgagor and each Without limiting the generality of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and the previous sentence, Borrower shall obtain and comply with, and use its best efforts to ensure that maintain all tenants and subtenants obtain Environmental Permits required by Environmental Laws and comply withwith all conditions of such Environmental Permits.
(f) 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 actual knowledge of any written action, complaint, suit, claim , proceeding pending, order, notice of violation or other communication from any and all approvalsproperty management agents, registrations Governmental Authority or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigationsother Person with regard to present or future alleged Prohibited Activities or Conditions or any other environmental, studieshealth or safety matters affecting the Mortgaged Property or any other property owned by Borrower, sampling and testingGuarantor, and all remedial, removal, and other action necessary Key Principal or any Borrower Affiliate that is adjacent to clean up and remove all Hazardous Materials, on, from the Mortgaged Property; and
(3) any representation or affecting warranty in Section 3 of this Agreement was untrue as of the date of this Agreement or Borrower's breach of any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with obligations under this Section 9.1(c) at all times4. Any such notice given by Borrower shall not relieve Borrower of, or result in a waiver of, any obligation under this Agreement, the Note or any other Loan Document.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (Bluerock Residential Growth REIT, Inc.)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate ("INITIAL DISCLOSURE CERTIFICATE"), a fully completed copy of which is attached hereto as EXHIBIT G and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, upon becoming aware the request of Landlord and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an "UPDATED DISCLOSURE CERTIFICATE") the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant's then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in EXHIBIT G or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies As used in this Lease, the term "HAZARDOUS MATERIALS" shall mean and include any substance that is or contains (1) any "hazardous substance" as now or hereafter defined in Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. Section 9601 et seq.) or any regulations promulgated under CERCLA; (2) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. Section 6901 et seq.) or any regulations promulgated under RCRA; (3) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. Section 2601 et seq.) or any regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in any form, whether friable or non-friable; (6) polychlorinated biphenyls; (7) lead and lead-containing materials; or (8) any additional substance, material or waste (A) the presence of which on or about the Premises (i) all reports requires reporting, investigation or remediation under any Environmental Laws (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facilityas hereinafter defined), and (ii) all reports, notices, and correspondence transmitted causes or threatens to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either cause a nuisance on the presence of any Hazardous Materials at or near any such facility Premises or any other environmental matter relating adjacent area or property or poses or threatens to such facility in accordance with Section 5.7(c) pose a hazard to the health or safety of persons on the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor Premises or its Subsidiaries uses any adjacent area or stores or that an Obligor (defined below) of Mortgagor or its Subsidiariesproperty, or (iii) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which is now or is hereafter classified or considered to be hazardous or toxic under any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesLaws.
Appears in 1 contract
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate ("INITIAL DISCLOSURE CERTIFICATE"), a fully completed copy of which is attached hereto as EXHIBIT E and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an "UPDATED DISCLOSURE CERTIFICATE") the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant's then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in EXHIBIT E or in such updated format as Landlord may require 29 36 from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies of As used in this Lease, the term "HAZARDOUS MATERIALS" shall mean and include any substance that is or contains (i) all reports any "hazardous substance" as now or hereafter defined in section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (other than routine reports regularly submitted "CERCLA") (42 U.S.C. section 9601 et seq.) or any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or hereafter defined in the ordinary course of businessResource Conservation and Recovery Act, as amended ("RCRA") submitted to any Governmental Authority by Mortgagor (42 U.S.C. section 6901 et seq.) or any of its Subsidiaries regulations promulgated under RCRA; (iii) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. section 2601 et seq.) or any regulations promulgated under TSCA; (iv) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos-containing material, in connection with either any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) lead and lead-containing materials; or (viii) any additional substance, material or waste (A) the presence of Hazardous Materials at which on or about the Premises (1) requires reporting, investigation or remediation under any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined belowas hereinafter defined), (2) and all Legal Requirements relating causes or threatens to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators cause a nuisance on the Property Premises or any adjacent area or property or poses or threatens to pose a hazard to the health or safety of persons on the Premises or any adjacent area or property, or (3) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which are is now or may use and contain oil, petroleum is hereafter classified or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesconsidered to be hazardous or toxic under any Environmental Laws.
Appears in 1 contract
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial Disclosure Certificate”), a fully completed copy of which is attached hereto as Exhibit G and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant’s Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an “Updated Disclosure Certificate”) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant’s then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as set forth in Exhibit G or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies of As used in this Lease, the term “Hazardous Materials” means (i) all reports (other than routine reports regularly submitted any substance or material that is included within the definitions of “hazardous substances,” “hazardous materials,” “toxic substances,” “pollutant,” “contaminant,” “hazardous waste,” or “solid waste” in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and Environmental Law; (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substancesderivatives, providedincluding crude oil or any fraction thereof, thatall forms of natural gas, such installation and use comply with this Section 9.1(cpetroleum products or by-products or waste; (iii) at all timespolychlorinated biphenyls (“PCBs”); (iv) asbestos and asbestos containing materials (whether friable or non-friable); (v) lead and lead-based paint or other lead containing materials (whether friable or non-friable); (vi) urea formaldehyde; (vii) microbiological pollutants; (viii) batteries or liquid solvents or similar chemicals; (ix) radon gas; and (x) mildew, fungus, mold, bacteria and/or other organic spore material.
Appears in 1 contract
Environmental Covenants. Mortgagor covenants Prior to executing this Lease, Tenant has completed, executed and agrees from delivered to Landlord a Hazardous Materials Disclosure Certificate ("Initial Disclosure Certificate"), a fully completed copy of which is attached hereto as Exhibit G and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the date hereof until information on the date that Initial Disclosure Certificate is true and any correct and all obligations accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on each anniversary of the Commencement Date and liabilitiesat such other times as Tenant desires to manufacture, together with interest treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and other costs deliver to Landlord an updated Disclosure Certificate (each, an "Updated Disclosure Certificate") describing Tenant's then current and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report to Mortgagee upon becoming aware of (i) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit G or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of this Paragraph 33(a). As used in this Lease, the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all times.term "
Appears in 1 contract
Samples: Lease Agreement (Cepheid)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate ("Initial Disclosure Certificate"), a fully completed copy of which is attached hereto as Exhibit E and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an "Updated Disclosure Certificate") the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant's then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit E or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies As used in this Lease, the term "Hazardous Materials" shall mean and include any substance that is or contains (1) any "hazardous substance" as now or hereafter defined in 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. 9601 et seq.) or any regulations promulgated under CERCLA; (2) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. 6901 et seq.) or any regulations promulgated under RCRA; (3) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. 2601 et seq.) or any regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos- containing material, in any form, whether friable or non- friable; (6) polychlorinated biphenyls; (7) lead and lead- containing materials; or (8) any additional substance, material or waste (A) the presence of which on or about the Premises (i) all reports requires reporting, investigation or remediation under any Environmental Laws (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facilityas hereinafter defined), and (ii) all reports, notices, and correspondence transmitted causes or threatens to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either cause a nuisance on the presence of any Hazardous Materials at or near any such facility Premises or any other environmental matter relating adjacent area or property or poses or threatens to such facility in accordance with Section 5.7(c) pose a hazard to the health or safety of persons on the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor Premises or its Subsidiaries uses any adjacent area or stores or that an Obligor (defined below) of Mortgagor or its Subsidiariesproperty, or (iii) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which is now or is hereafter classified or considered to be hazardous or toxic under any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesLaws.
Appears in 1 contract
Samples: Lease Agreement (Arthrocare Corp)
Environmental Covenants. Mortgagor covenants During the Term, Tenant shall not cause or permit the Leased Property to be in violation of, or do anything or permit anything to be done which will subject the Leased Property to any remedial obligations under, any Environmental Laws, including without limitation CERCLA and agrees RCRA, assuming disclosure to the applicable governmental authorities of all relevant facts, conditions and circumstances pertaining to the Leased Property, and Tenant shall promptly notify Landlord in writing of any existing, pending or, to the knowledge of Tenant, threatened investigation or inquiry by any governmental authority in connection with any suspected violation of the Leased Property under any Environmental Laws. During the Term, Tenant shall not conduct or permit Hazardous Substance Activities, except Permitted Hazardous Substance Use. During the Term, Tenant shall keep the Leased Property free of all Hazardous Substances (other than Permitted Hazardous Substances) and will remove the same (or if removal is prohibited by law, will take whatever action is required by law) promptly upon Tenant's discovery at Tenant's sole expense. During the Term, in the event Tenant fails to comply with or perform any of the foregoing obligations concerning Hazardous Substance Activities and Hazardous Substances, Landlord may, in addition to any other remedies available to it, after notifying Tenant in writing in advance of the remediation efforts Landlord believes are needed, cause the Leased Property to be freed from all Hazardous Substances as provided above (or if removal is prohibited by law, may take whatever action is required by law) and take such other action as is necessary to cause the date hereof until foregoing obligations to be met, and the date that cost of the removal and any and all obligations and liabilities, together with interest such other action shall be a demand obligation owing by Tenant to Landlord. For such removal and other costs action, Tenant grants to Landlord and expensesLandlord's agents and employees access to the Leased Property and the license to remove Hazardous Substances as provided above (or if removal is prohibited by law or otherwise deemed inadvisable by Landlord, to take whatever action is required by law or otherwise deemed advisable by Landlord) and take such other action as is necessary to cause the foregoing obligations to be met, subject to Paragraph 23. Further, subject to the provisions of subparagraph 12(c) below, Tenant agrees to indemnify Landlord against all Losses incurred by or asserted or proven against Landlord in each case owing connection therewith in accordance with Paragraph 12. During the Term, Tenant agrees to Mortgageesubmit from time to time, if requested by Landlord, a certificate of an officer of Tenant, certifying that, except for Permitted Hazardous Substance Use, the Leased Property is not being used for, nor to Tenant's knowledge (except as may be described in the Environmental Report) has the Leased Property been used in the past for, any Hazardous Substances Activities. Landlord reserves the right to retain an independent professional consultant to review any report prepared by Tenant or to conduct Landlord's own investigation to confirm whether Hazardous Substances Activities or the discharge of anything into groundwater or surface water has occurred, but Landlord's right to reimbursement for the fees of such consultant shall be limited to the following circumstances: (1) an Event of Default shall have occurred and be continuing; (2) Landlord shall have retained the consultant to establish the condition of the Leased Property just prior to any conveyance thereof pursuant to the Purchase Agreement or just prior to the expiration of this Lease; (3) Landlord shall have retained the consultant to satisfy any regulatory requirements applicable to Landlord or its Affiliates; or (4) Landlord shall have retained the consultant because Landlord has been paid in full notified of a violation of Environmental Laws concerning the Leased Property or Landlord otherwise reasonably believes that Mortgagor shall:
Tenant has not complied with this subparagraph. Subject to Xxxxxxxxx 00, Xxxxxx grants to Landlord and to Landlord's agents, employees, consultants and contractors the right during reasonable business hours and after reasonable advance written notice to enter upon the Leased Property to inspect the Leased Property and to perform such tests as are reasonably necessary or appropriate to conduct a review or investigation of Hazardous Substances on, or discharged into groundwater or surface water from, the Leased Property. Tenant further agrees that Landlord will have the same right, power and authority to enter and inspect the Leased Property as is granted to a secured lender under Section 2929.5 of the California Civil Code. Tenant shall promptly reimburse Landlord for the cost of any such inspections and tests, but only when the inspections and tests are: (a1) Immediately report ordered by Landlord after an Event of Default has occurred and is continuing; (2) ordered by Landlord to Mortgagee upon becoming aware establish the condition of the Leased Property just prior to any conveyance thereof pursuant to the Purchase Agreement or just prior to the expiration of this Lease; (3) ordered by Landlord to satisfy any regulatory requirements applicable to Landlord or its Affiliates; or (4) ordered because Landlord has been notified of a violation of Environmental Laws concerning the Leased Property or Landlord otherwise reasonably believes that Tenant has not complied with this subparagraph. During the Term, Tenant shall immediately advise Landlord of (i) the introduction Tenant's discovery of any Hazardous Material onto event or circumstance which would render any facility owned or operated by Mortgagor or its Subsidiaries of the representations contained in subparagraph 9(e) inaccurate in any material respect if made at the introduction thereof reasonably could be expected to have a Material Adverse Effect and time of such discovery, (ii) the initiation of any action, suit, proceeding, investigation or regulatory remedial action against Mortgagor or any of its Subsidiaries or taken by Tenant in connection with any such facility relating response to any Release of (A) Hazardous Materials in accordance with Section 5.7(c) of the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (Substances other than routine reports regularly submitted in Permitted Hazardous Substances on, under or about the ordinary course of businessLeased Property or (B) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of claim for damages resulting from Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facilitySubstance Activities (herein called "Hazardous Substance Claims"), and (iiiii) all reportsTenant's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Leased Property which creates a material risk of causing the Leased Property or any part thereof to be subject to significant ownership, noticesoccupancy, transferability or use restrictions under Environmental Laws or that could give rise to Hazardous Substance Claims. In such event, Tenant shall deliver to Landlord within thirty (30) days after Landlord's request, a preliminary written environmental plan setting forth a general description of the action that Tenant proposes to take with respect thereto to bring the Leased Property into compliance with Environmental Laws (herein called a "Clean Up"), including, without limitation, any proposed corrective work, the estimated cost and time of completion, the name of the contractor and a copy of the construction contract, if any, and correspondence transmitted to Mortgagor such additional data, instruments, documents, agreements or its Subsidiaries by any Governmental Authority in connection with either other materials or information as Landlord may reasonably request. Tenant shall thereafter diligently and continuously pursue the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) Clean Up of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports Leased Property in the ordinary course of its business and in strict compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts inform Landlord monthly as to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any the status of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesClean Up.
Appears in 1 contract
Samples: Lease Agreement (Genentech Inc)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate ("INITIAL DISCLOSURE CERTIFICATE"), a fully completed copy of which is attached hereto as EXHIBIT F and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be, manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an "UPDATED DISCLOSURE CERTIFICATE") the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant's then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in EXHIBIT F or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies As used in this Lease, the term "HAZARDOUS MATERIALS" shall mean and include any substance that is or contains (1) any "hazardous substance" as now or hereafter defined in Section 10l(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. Section 9601 ET SEQ.) or any regulations promulgated under CERCLA; (2) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. Section 6901 ET SEQ.) or any regulations promulgated under RCRA; (3) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. Section 2601 ET SEQ.) or any regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in any form, whether friable or non-friable; (6) polychlorinated biphenyls; (7) lead and lead-containing materials; or (8) any additional substance, material or waste (A) the presence of which on or about the Premises (i) all reports requires reporting, investigation or remediation under any Environmental Laws (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facilityas hereinafter defined), and (ii) all reports, notices, and correspondence transmitted causes or threatens to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either cause a nuisance on the presence of any Hazardous Materials at or near any such facility Premises or any other environmental matter relating adjacent area or property or poses or threatens to such facility in accordance with Section 5.7(c) pose a hazard to the health or safety of persons on the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor Premises or its Subsidiaries uses any adjacent area or stores or that an Obligor (defined below) of Mortgagor or its Subsidiariesproperty, or (iii) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which is now or is hereafter classified or considered to be hazardous or toxic under any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesLaws.
Appears in 1 contract
Samples: Lease Agreement (Finisar Corp)
Environmental Covenants. Mortgagor covenants 7.1. Tenant, its employees, agents, contractors and agrees from the date hereof until the date that and any and invitees shall, at Tenant’s own expense, comply with all obligations and liabilitiesEnvironmental Laws, together with interest and other costs and expensesas herein defined, in each case owing to Mortgageeconnection with its use and occupancy of the Premises and shall obtain, have been paid in full that Mortgagor shall:maintain and comply with all necessary environmental permits, approvals, registrations and licenses.
(a) Immediately report to Mortgagee upon becoming aware of (i) the introduction 7.2. Tenant, its employees, agents, contractors and invitees shall not use, generate, release, manufacture, treat, refine, produce, process, store, dump or dispose of any Hazardous Material onto any facility owned Substance, as herein defined, on, under, or operated by Mortgagor about the Premises, the Building, or its Subsidiaries if the introduction thereof reasonably could be expected Land or transport to have a Material Adverse Effect and (ii) or from the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release of Hazardous Materials in accordance with Section 5.7(c) of the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of Premises any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled Substance. Notwithstanding anything to the contrary contained in this Section 7.2, Tenant may use and store within the Premises such reasonable quantities of the applicable properties or assets, uses, stores or transports normal office products as are used by Tenant in the ordinary course of its business operations and which are customarily found in first-class offices; provided such reasonable quantities and use do not constitute a danger to the health of individuals or a danger to the environment and which are used, stored and disposed of in accordance with all applicable Environmental Laws.
7.3. Tenant shall, at Tenant’s own expense, make all submissions to, provide all information required by, and comply with all requirements of all governmental authorities (the “Authorities” or “Authority”) under the Environmental Laws. Tenant shall provide Landlord with copies of any environmental audit prepared by or for Tenant with respect to the Premises and any report(s) or filing(s) made by Tenant with any Authority.
7.4. Should Landlord, any Authority or any third party demand that a clean-up plan be prepared and that a clean-up be undertaken because of any deposit, spill, discharge, or other release of Hazardous Substances that occurs as a result of Tenant’s use or occupancy of the Premises, then Tenant shall, at Tenant’s own expense, prepare and submit to Landlord and any applicable Authority the required plans and all related bonds and other financial assurances, and Tenant shall carry out all such clean-up plans following their approval by Landlord and all applicable Authorities.
7.5. Tenant shall promptly provide all information regarding the use, generation, storage, transportation, or disposal of Hazardous Substances that is requested by Landlord. If Tenant fails to fulfill any duty imposed under this ARTICLE VII within ten (10) days, Landlord may fulfill such duty on behalf of Tenant, at Tenant’s cost and expense; and in such case, Tenant shall cooperate with Landlord in order to prepare all documents Landlord deems necessary or appropriate to determine the applicability of the Environmental Laws to the Premises and Tenant’s use thereof, and for compliance therewith, and Tenant shall execute all documents promptly upon Landlord’s request. No such action by Landlord and no attempt made by Landlord to mitigate damages under any Environmental Law shall constitute a waiver of any of Tenant’s obligations under this ARTICLE VII.
7.6. Tenant shall immediately notify Landlord in writing of any release or discharge of any Hazardous Substance, whether or not the release is in quantities that would require under law the reporting of such release to a governmental or regulatory agency.
7.7. Tenant shall also immediately notify Landlord in writing of, and shall contemporaneously provide Landlord with a copy of:
(a) Any written notice of release of Hazardous Substances in the Premises that is provided by Tenant or any subtenant or other occupant of the Premises to a governmental or regulatory agency;
(b) Any notice of a violation, or a potential or alleged violation, of any Environmental Law that is received by Tenant or any subtenant or other occupant of the Premises from any governmental or regulatory agency;
(c) Any inquiry, investigation, enforcement, cleanup, removal, or other action that is instituted or threatened by a governmental or regulatory agency against Tenant or any subtenant or other occupant of the Premises and that relates to the release or discharge of Hazardous Substances on or from the Premises;
(d) Any claim that is instituted or threatened by any third party against Tenant or any subtenant or other occupant of the Premises and that relates to any release or discharge of Hazardous Substance on or from the Premises; and
(e) Any notice of the loss of any environmental operating permit by Tenant or any subtenant or other occupant of the Premises.
7.8. Landlord shall have the right, but not the obligation, at all times during the Lease Term to (1) inspect the Premises; (2) enter upon the Premises to conduct tests and investigations and take samples to determine whether Tenant is in compliance with Legal Requirementsthe provisions of this ARTICLE VII, keep or as otherwise necessary; and (3) request lists of all Hazardous Substances used, stored or located on the Premises. The cost of its properties all such inspections, tests and assets free investigations shall be borne by Tenant.
7.9. Tenant’s obligations and liabilities under this ARTICLE VII shall survive the expiration or early termination of Hazardous Materialsthe Lease. Mortgagor For purposes of this ARTICLE VII, the Building shall include the Land.
7.10. Tenant shall indemnify, defend, protect and each hold harmless Landlord, the manager of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply withthe Building, and use its best efforts to ensure that their respective officers, directors, trustees, beneficiaries, shareholders, partners, agents and employees from all tenants fines, suits, procedures, claims, and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testingactions of every kind, and all remedialcosts associated therewith (including without limitation, removalattorneys’ and consultants’ fees and the costs of investigation and settlement of any claims) arising out of or in any way connected with (1) any deposit, spill, discharge, or other release of Hazardous Substances which arises at any time from Tenant’s, its employees’, agents’, contractors’, or invitees’ use or occupancy of the Premises or the Building; (2) any failure to provide all information, make all submissions and take all steps required by all Authorities under the Environmental Laws; and (3) Tenant’s, its employees’, agents’, contractors’ or invitees’ breach of this Article VII, whether or not Tenant has acted negligently with respect to such Hazardous Substances.
7.11. As used in this ARTICLE VII, the term “Hazardous Substances” means:
(a) any substance designated pursuant to Section 311 (b)(2)(A) of the Federal Water Pollution Control Act;
(b) any element, compound, mixture, solution or substance designated pursuant to Section 102 of the Comprehensive Environmental Response, Compensation and Liability Act;
(c) any hazardous waste having the characteristics identified under or listed pursuant to Section 3001 of the Solid Waste Disposal Act;
(d) any toxic pollutant listed under Section 307(a) of the Federal Water Pollution Control Act;
(e) any hazardous air pollutant listed under Section 112 of the Clean Air Act;
(f) any imminently hazardous chemical substance or mixture with respect of which the Administrator of the United States Environmental Protection Agency has taken action pursuant to Section 7 of the Toxic Substances Control Act; and
(g) any substance, waste or other material considered hazardous, dangerous or toxic under any state, local or federal law, code, ordinance or regulation.
(h) petroleum and petroleum products, including crude oil or any fraction thereof, which is not specifically listed or designated as a Hazardous Substance under subsection 7.11 (a) through (g) of this ARTICLE VII, as well as natural gas, natural gas liquids, liquefied natural gas and synthetic gas usable for fuel and mixtures of natural gas and such synthetic gas.
7.12. As used in this ARTICLE VII, the term “Environmental Laws” shall mean and refer to the entirety of the federal acts, portions of which are referenced in Section 7.11, and all other action necessary to clean up federal and remove all Hazardous Materialsstate and local laws, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such lawscodes, ordinances, rules, rules regulations, orders and directives governing the discharge, emission or directives may be contested by Mortgagor disposal of any pollutant in, to or from the Premises or the Building or other premises or the environment and its Subsidiaries in good faith by appropriate proceedings prescribing methods for storing, handling or otherwise managing Hazardous Substances and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood wastes including, but not limited to, the then current versions of the following federal statutes, their state analogs, and agreed by Mortgagor the regulations implementing them: the Resource Conservation and Mortgagee that Mortgagor’s tenants Recovery Act (42 U.S.C. 6901 et seq.), the Comprehensive Environmental Response, Compensation and subtenants may install Liability Act (42 U.S.C. 9601 et seq.), the Clean Water Act (33 U.S.C. 1251 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesToxic Substances Control Act (15 U.S.C. 2601 et seq.).
Appears in 1 contract
Environmental Covenants. Mortgagor (a) Tenant covenants not to discharge any "Hazardous Substances" or "Hazardous Wastes" (as said terms are defined in ISRA and/or Spill Compensation and agrees from Control Act) upon the date hereof until Premises or any adjacent lands. In the date that event of any such discharge, Tenant shall immediately notify Landlord, and shall, at Tenant's sole cost and expense, immediately take any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:actions required by law.
(ab) Immediately report Tenant agrees to Mortgagee upon becoming aware conduct any and all environmental testing and sampling required by ISRA, if applicable, not more than six months, or less than two months, before the earlier of (i) the introduction anticipated termination date of any Hazardous Material onto any facility owned this Lease, or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation date on which Tenant intends to "close, terminate or transfer operations" at the Premises (as those terms are defined in ISRA and/or in the regulations promulgated pursuant thereto). Tenant shall notify Landlord at least seven days in advance of any actionsuch testing or sampling and permit Landlord or its representatives to observe all testing and sampling activities. Tenant shall provide to the Landlord, suitwithin seven days from Landlord's request the following:
(1) the name, proceedingaddress and telephone number and primary contact name of Tenant's environmental testing or sampling consultants or contractors; and
(2) written authorization to such consultant or contractor to communicate freely with Landlord or its environmental consultants and to provide to Landlord or its environmental consultants, investigation or regulatory action against Mortgagor or any copies of its Subsidiaries or in connection with any such facility all written materials relating to any Release the Premises. Landlord agrees to obtain, on Tenant's behalf, if applicable, a Letter of Hazardous Materials in accordance with Section 5.7(cNon-Applicability ("LNA") from the New Jersey Department of the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, Environmental Protection and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials Energy at or near any such facility or any other environmental matter relating the end of Term. Tenant agrees to such facility cooperate with Landlord in accordance with Section 5.7(cobtaining said LNA. Tenant also agrees to pay to Landlord the filing fee for said LNA within ten (10) days of the Credit AgreementTenant's receipt of an invoice for same.
(c) Except Tenant agrees to remove and clean-up any Hazardous Substances or Hazardous Wastes prior to cessation of operation or termination of this Lease. In the event that the clean-up is not completed prior to the termination date of this Lease, Tenant shall be deemed to be a Hold Over in accordance with Section 26.12 and all the obligations of Tenant under the Lease, including, but not limited to, the Tenant's obligation to pay Basic Rent and any additional rent shall continue until completion of the clean-up and receipt of written approval of such completion from the governmental authority(ies) having jurisdiction thereof; provided, however, that Tenant's rights under the Lease shall be limited to a right of access for the sole and limited purpose of completing the required clean-up.
I. H.F.&S. M.O.N.L. 10/93
(d) Landlord shall have the right to inspect the Premises and surrounding lands and waters and to conduct environmental surveys and testing of any nature whatsoever (collectively "Inspection"), at any time. Landlord's right to conduct Inspection shall include, without limitation, a right of access to all portions of the Premises for testing and a right to inspect all of Tenant's raw materials, processes, work in process, finished products, machinery, waste disposal procedures, waste disposal equipment and waste materials, and the right to remove samples of any of the foregoing for analysis. In addition, Tenant shall, upon request by Landlord, supply to Landlord, in writing, a listing of all of Tenant's raw materials and intermediate and finished products, if applicable, and a listing of any Hazardous Materials that Mortgagor or its Subsidiaries uses Toxic Substances or stores Wastes generated, manufactured, refined, treated, stored, handled or that an Obligor disposed of on or from the Demised Premises at any time during the Term hereof. Landlord shall pay the cost of such Inspection unless any one or more of the following conditions are applicable, in which event the entire cost and expense of the Inspection shall be borne by the Tenant:
(defined below1) the Inspection occurs within six months prior to, or within a reasonable time after, (i) the termination date of Mortgagor the Lease or its Subsidiariesthe closure, termination or transfer of operations at the Premises and Tenant has failed to provide such testing as required in subsection (b) above; (ii) the assignment or sublease of all or a portion of the Premises by Tenant; or (iii) the termination of any such assignment or sublease; or
(2) the Inspection is required by any governmental authority having jurisdiction ("Environmental Regulator"); or
(3) the Inspection reveals any unlawful environmental contamination of or discharge on the Premises; or
(4) the Inspection is the result of or in response to any discharge, spill or contamination of the Premises, or any other Person entitled to the use clean-up of any of the applicable properties foregoing. As used herein, the costs and expenses of Inspection includes all costs directly or assetsindirectly related to such Inspection, uses, stores or transports as may be required by any Environmental Regulator in the ordinary course formulation of its business and a clean-up plan or otherwise. Except in compliance the case of an emergency, Landlord agrees to provide Tenant with Legal Requirements, keep all written notice prior to entering onto the Demised Premises to perform an Inspection. Landlord further agrees not to perform any Inspection unless: it has a good faith belief that the Demised Premises contains the existence of its properties and assets free Hazard Substances; or the Inspection is required by the mortgagee; or the Inspection is required by any governmental agency having jurisdiction.
(e) Landlord shall have the right of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts injunctive relief to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, enforce any and all approvalsof Tenant's obligations under this Section.
(f) Landlord shall have the right to remedy, registrations at Tenant's sole cost and expense, which shall be due from Tenant upon demand as additional rent, any environmental contamination revealed by any Inspection or permits clean-up required thereunderby any Environmental Regulator.
(g) All rights and remedies of the Landlord under this Section are cumulative and in addition to any other rights or remedies provided to Landlord elsewhere in this Lease or pursuant to applicable law. Mortgagor In the event of any conflict between the provisions of this Section and its Subsidiaries the other provisions of this Lease, the provision which gives the greater protection to the Landlord shall conduct and complete all investigationscontrol.
(h) Notwithstanding any provision in this Section 26.29 to the contrary, studiesLandlord agrees that Tenant shall not be responsible for:
1. any Hazardous Substances or Hazardous Wastes which is existing on the Demised Premises prior to Tenant's occupancy; or
2. any contamination of the Demised Premises caused by Landlord, sampling and testinghis agents, and all remedialinvitees, removallicensees, and other action necessary employees or anyone acting under his control or authority; or
3. any Hazardous Substances or Hazardous Wastes on the Demised Premises caused by any third party tenants Landlord has given the right to clean up and remove all Hazardous Materials, on, from or affecting use any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators the Common Drive Easements existing on the Property Demised Premises; or
4. Subterranean contamination of ground, water or soil which are is not the result of a contamination source which is located within the Demised Premises or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with is in any way related to Tenant's operations at the Demised Premises. Tenant shall only be relieved of its responsibilities as set forth in this Section 9.1(c26.29(h) at all timesif Tenant provides Landlord with notice of its discovery of any such contamination within three (3) business days of Tenant's actual discovery of such contamination.
Appears in 1 contract
Samples: Multiple Occupancy Net Lease (United Natural Foods Inc)
Environmental Covenants. Mortgagor covenants (a) Prior to executing this Lease, Tenant has completed, executed and agrees delivered to Landlord a Hazardous Materials Disclosure Certificate ("Initial Disclosure Certificate"), a fully completed copy of which is attached hereto as Exhibit F and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is, to the best of Tenant's knowledge, true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on an annual basis, complete, execute and deliver to Landlord an updated Disclosure Certificate (each, an "Updated Disclosure Certificate") describing Tenant's then current and proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit For in such updated format as Landlord may reasonably require from the date hereof until the date that and time to time. Tenant shall deliver to Landlord copies of any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
filings (aa "Filing") Immediately report to Mortgagee upon becoming aware of (i) made after the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection Commencement Date with any such facility state, local or federal governmental agencies relating to Hazardous Materials used or to be used on or about the Premises and Tenant shall promptly upon Landlord's request make appropriate representatives of Tenant available to discuss with Landlord any Release such Filing. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in accordance with Section 5.7(c) of the Credit AgreementInitial Disclosure Certificate or an Updated Disclosure Certificate, as required hereunder.
(b) Immediately deliver to Mortgagee copies As used in this Lease, the term "Hazardous Materials" shall mean and include any substance that is or contains (1) any "hazardous substance" as now or hereafter defined in § 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. § 9601 et seq.) or any regulations promulgated under CERCLA; (2) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. §6901 et seq.) or any regulations promulgated under RCRA; (3) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. § 2601 et seq.) or any regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in any form, whether friable or non-friable; (6) polychlorinated biphenyls; (7) lead and lead-containing materials; or (8) any additional substance, material or waste (A) the presence of which on or about the Premises (i) all reports requires reporting, investigation or remediation under any Environmental Laws (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facilityas hereinafter defined), and (ii) all reports, notices, and correspondence transmitted causes or threatens to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either cause a nuisance on the presence of any Hazardous Materials at or near any such facility Premises or any other environmental matter relating adjacent area or property or poses or threatens to such facility in accordance with Section 5.7(cpose a hazard to the health or safety of persons on the Premises or any adjacent area or property, or (iii) of which, if it emanated or migrated from the Credit AgreementPremises, could constitute a trespass, or (B) which is now or is hereafter classified or considered to be hazardous or toxic under any Environmental Laws.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor As used in this Lease, the term "Environmental Laws" shall mean and include (defined below1) of Mortgagor or its SubsidiariesCERCLA, or RCRA and TSCA; and (2) any other Person entitled to the use of the applicable properties federal, state or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such local laws, ordinances, statutes, codes, rules, regulations, orders or directives decrees now or hereinafter in effect relating to (A) pollution, (B) the protection or regulation of human health, natural resources or the environment, (C) the treatment, storage or disposal of Hazardous Materials, or (D) the emission, discharge, release or threatened release of Hazardous Materials into the environment.
(d) Tenant agrees that during its use and occupancy of the Premises it will (1) not (A) permit Hazardous Materials to be present on or about the Premises except in a manner and quantity necessary for the ordinary performance of Tenant's business or (B) release, discharge or dispose of any Hazardous Materials on, in, at, under, or emanating from, the Premises, the Building or the Project; (2) comply with all Environmental Laws relating to Tenant's use of Hazardous Materials in, on or about the Premises in violation of any Environmental Laws; and (3) immediately notify Landlord of (A) any inquiry, test, investigation or enforcement proceeding by any governmental agency or authority against Tenant, Landlord or the Premises, Building or Project relating to any Hazardous Materials or under any Environmental Laws or (B) the occurrence of any event or existence of any condition that would cause a breach of any of the covenants set forth in this Paragraph 32.
(e) If Tenant's use of Hazardous Materials on or about the Premises results in a release, discharge or disposal of Hazardous Materials on, in, at, under, or emanating from, the Premises, the Building or the Project, Tenant agrees to investigate, clean up, remove or remediate such Hazardous Materials in full compliance with (1) the requirements of (A) all Environmental Laws and (B) any governmental agency or authority responsible for the enforcement of any Environmental Laws; and (2) any additional requirements of Landlord that are reasonably necessary to protect the value of the Premises, the Building or the Project.
(f) Upon reasonable notice to Tenant, Landlord may inspect the Premises and surrounding areas for the purpose of determining whether there exists on or about the Premises any Hazardous Material or other condition or activity that is in violation of the requirements of this Lease or of any Environmental Laws. Such inspections may include, but are not limited to, entering upon the property adjacent to or surrounding the Premises with drill rigs or other machinery for the purpose of obtaining laboratory samples. Landlord shall not be limited in the number of such inspections during the Term of this Lease but such inspections shall be reasonable in light of the circumstances. In the event (1) such inspections reveal the presence of any such Hazardous Material or other condition or activity caused by Tenant or its Agents in violation of the requirements of this Lease or of any Environmental Laws, or (2) Tenant or its Agents contribute or knowingly consent to the importation of any Hazardous Materials in, on, under, through or about the Premises, the Building or the Project or knowingly exacerbate the condition of or the conditions caused by any Hazardous Materials in, on, under, through or about the Premises, the Building or the Project, Tenant shall reimburse Landlord for the cost of such inspections within ten (10) days of receipt of a written statement therefore. Tenant will supply to Landlord such historical and operational information regarding the Premises and surrounding areas as may be contested by Mortgagor reasonably requested to facilitate any such inspection and will make available for meetings appropriate personnel having knowledge of such matters. Tenant agrees to give Landlord at least sixty (60) days' prior notice of its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves intention to vacate the Premises so that Landlord will have been established in conformity with generally accepted accounting principlesan opportunity to perform such an inspection prior to such vacation. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators The right granted to Landlord herein to perform inspections shall not create a duty on Landlord's part to inspect the Premises, or liability on the Property part of Landlord for Tenant's use, storage, treatment or disposal of Hazardous Materials, it being understood that Tenant shall be solely responsible for all liability in connection therewith.
(g) Landlord shall have the right, but not the obligation, prior or subsequent to a Default, without in any way limiting Landlord's other rights and remedies under this Lease, to enter upon the Premises, or to take such other actions as it deems necessary or advisable, to investigate, clean up, remove or remediate any Hazardous Materials or contamination by Hazardous Materials present on, in, at, under, or emanating from, the Premises, the Building or the Project in violation of Tenant's obligations under this Lease or under any Environmental Laws. Notwithstanding any other provision of this Lease, Landlord shall also have the right, at its election, in its own name or as Tenant's agent, to negotiate, defend, approve and appeal, at Tenant's expense, any action taken or order issued by any governmental agency or authority with regard to any such Hazardous Materials or contamination by Hazardous Materials. All costs and expenses paid or incurred by Landlord in the exercise of the rights set forth in this Paragraph 32 shall be payable by Tenant upon demand.
(h) Tenant shall surrender the Premises to Landlord upon the expiration or earlier termination of this Lease free of debris, waste or Hazardous Materials placed on, about or near the Premises by Tenant or Tenant's Agents, and in a condition which complies with (i) all Environmental Laws relating to Hazardous Materials placed on, about or near the Premises by Tenant or Tenant's Agents and (ii) any additional requirements of Landlord that are reasonably necessary to protect the value of the Premises, the Building or the Project, including, without limitation, the obtaining of any closure permits or other governmental permits or approvals related to Tenant's use of Hazardous Materials in or about the Premises. Tenant's obligations and liabilities pursuant to the provisions of this Paragraph 32 shall survive the expiration or earlier termination of this Lease. If it is determined by Landlord that the condition of all or any portion of the Premises, the Building, and/or the Project is not in compliance with the provisions of this Lease with respect to Hazardous Materials, including, without limitation, all Environmental Laws, at the expiration or earlier termination of this Lease, then at Landlord's sole option, Landlord may use require Tenant to hold over possession of the Premises until Tenant can surrender the Premises to Landlord in the condition in which the Premises existed as of the Commencement Date and contain oilprior to the appearance of such Hazardous Materials which Tenant or Tenant's Agents caused to be present except for normal wear and tear, petroleum including, without limitation, the conduct or petroleum derived substancesperformance of any closures as required by any Environmental Laws. The burden of proof hereunder shall be upon Tenant. For purposes hereof, providedthe term "normal wear and tear" shall not include any deterioration in the condition or diminution of the value of any portion of the Premises, thatthe Building, and/or the Project in any manner whatsoever related to directly, or indirectly, Hazardous Materials. Any such installation holdover by Tenant will be with Landlord's consent, will not be terminable by Tenant in any event or circumstance and use comply with will otherwise be subject to the provisions of Paragraph 35 of this Section 9.1(cLease.
(i) at Tenant agrees to indemnify and hold harmless Landlord from and against any and all timesclaims, losses (including, without limitation, loss in value of the Premises, the Building or the Project, liabilities and expenses (including attorneys' fees)) sustained by Landlord attributable to (1) any Hazardous Materials placed on or about the Premises, the Building or the Project by Tenant or Tenant's Agents, or (2) Tenant's breach of any provision of this Paragraph 32.
(j) Landlord agrees to indemnify and hold harmless Tenant from and against any and all claims, losses (including, without limitation, liabilities and expenses (including attorneys' fees)) actually sustained by Tenant attributable to any Hazardous Materials placed on or about the Premises, the Building or the Project by Landlord or Landlord's Agents, but specifically excluding any other third parties.
(k) The provisions of this Paragraph 32 shall survive the expiration or earlier termination of this Lease.
Appears in 1 contract
Samples: Lease Agreement (Corgentech Inc)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial Disclosure Certificate”), a fully completed copy of which is attached hereto as Exhibit D and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant’s Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an “Updated Disclosure Certificate”) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant’s then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit D or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 33(a).
(b) Immediately deliver to Mortgagee copies As used in this Lease, the term “Hazardous Materials” shall mean and include any substance that is or contains (1) any “hazardous substance” as now or hereafter defined in § 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”) (42 U.S.C. § 9601 et seq.) or any regulations promulgated under CERCLA; (2) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act, as amended (“RCRA”) (42 U.S.C. § 6901 et seq.) or any regulations promulgated under RCRA; (3) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended (“TSCA”) (15 U.S.C. § 2601 et seq.) or any regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in any form, whether friable or non-friable; (6) polychlorinated biphenyls; (7) lead and lead-containing materials; or (8) any additional substance, material or waste (A) the presence of which on or about the Premises (i) all reports requires reporting, investigation or remediation under any Environmental Laws (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facilityas hereinafter defined), and (ii) all reports, notices, and correspondence transmitted causes or threatens to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either cause a nuisance on the presence of any Hazardous Materials at or near any such facility Premises or any other environmental matter relating adjacent area or property or poses or threatens to such facility in accordance with Section 5.7(c) pose a hazard to the health or safety of persons on the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor Premises or its Subsidiaries uses any adjacent area or stores or that an Obligor (defined below) of Mortgagor or its Subsidiariesproperty, or (iii) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which is now or is hereafter classified or considered to be hazardous or toxic under any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesLaws.
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Environmental Covenants. Mortgagor covenants 7.1. Tenant, its employees, agents, contractors and agrees from the date hereof until the date that and any and invitees shall, at Tenant's own expense, comply with all obligations and liabilitiesEnvironmental Laws, together with interest and other costs and expensesas herein defined, in each case owing to Mortgageeconnection with its use and occupancy of the Premises and shall obtain, have been paid in full that Mortgagor shall:maintain and comply with all necessary environmental permits, approvals, registrations and licenses.
(a) Immediately report to Mortgagee upon becoming aware of (i) the introduction 7.2. Tenant, its employees, agents, contractors and invitees shall not use, generate, release, manufacture, treat, refine, produce, process, store, dump or dispose of any Hazardous Material onto any facility owned Substance, as herein defined, on, under, or operated by Mortgagor about the Premises, the Building, or its Subsidiaries if the introduction thereof reasonably could be expected Land or transport to have a Material Adverse Effect and (ii) or from the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release of Hazardous Materials in accordance with Section 5.7(c) of the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of Premises any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled Substance. Notwithstanding anything to the contrary contained in this Section 7.2, Tenant may use and store within the Premises such reasonable quantities of the applicable properties or assets, uses, stores or transports normal office products as are used by Tenant in the ordinary course of its business operations and which are customarily found in first- class offices; provided such reasonable quantities and use do not constitute a danger to the health of individuals or a danger to the environment and which are used, stored and disposed of in accordance with all applicable Environmental Laws.
7.3. Tenant shall, at Tenant's own expense, make all submissions to, provide all information required by, and comply with all requirements of all governmental authorities (the "Authorities" or "Authority") under the Environmental Laws. Tenant shall provide Landlord with copies of any environmental audit prepared by or for Tenant with respect to the Premises and any report(s) or filing(s) made by Tenant with any Authority.
7.4. Should Landlord, any Authority or any third party demand that a clean-up plan be prepared and that a clean-up be undertaken because of any deposit, spill, discharge, or other release of Hazardous Substances that occurs as a result of Tenant's use or occupancy of the Premises, then Tenant shall, at Tenant's own expense, prepare and submit to Landlord and any applicable Authority the required plans and all related bonds and other financial assurances, and Tenant shall carry out all such clean-up plans following their approval by Landlord and all applicable Authorities.
7.5. Tenant shall promptly provide all information regarding the use, generation, storage, transportation, or disposal of Hazardous Substances that is requested by Landlord. If Tenant fails to fulfill any duty imposed under this ARTICLE VII within ten (10) days, Landlord may fulfill such duty on behalf of Tenant, at Tenant's cost and expense; and in such case, Tenant shall cooperate with Landlord in order to prepare all documents Landlord deems necessary or appropriate to determine the applicability of the Environmental Laws to the Premises and Tenant's use thereof, and for compliance therewith, and Tenant shall execute all documents promptly upon Landlord's request. No such action by Landlord and no attempt made by Landlord to mitigate damages under any Environmental Law shall constitute a waiver of any of Tenant's obligations under this ARTICLE VII.
7.6. Tenant shall immediately notify Landlord in writing of any release or discharge of any Hazardous Substance, whether or not the release is in quantities that would require under law the reporting of such release to a governmental or regulatory agency.
7.7. Tenant shall also immediately notify Landlord in writing of, and shall contemporaneously provide Landlord with a copy of:
(a) Any written notice of release of Hazardous Substances in the Premises that is provided by Tenant or any subtenant or other occupant of the Premises to a governmental or regulatory agency;
(b) Any notice of a violation, or a potential or alleged violation, of any Environmental Law that is received by Tenant or any subtenant or other occupant of the Premises from any governmental or regulatory agency; (c) Any inquiry, investigation, enforcement, cleanup, removal, or other action that is instituted or threatened by a governmental or regulatory agency against Tenant or any subtenant or other occupant of the Premises and that relates to the release or discharge of Hazardous Substances on or from the Premises; (d) Any claim that is instituted or threatened by any third party against Tenant or any subtenant or other occupant of the Premises and that relates to any release or discharge of Hazardous Substance on or from the Premises; and
(e) Any notice of the loss of any environmental operating permit by Tenant or any subtenant or other occupant of the Premises.
7.8. Landlord shall have the right, but not the obligation, at all times during the Lease Term to (1) inspect the Premises; (2) enter upon the Premises to conduct tests and investigations and take samples to determine whether Tenant is in compliance with Legal Requirementsthe provisions of this ARTICLE VII, keep or as otherwise necessary; and (3) request lists of all Hazardous Substances used, stored or located on the Premises. The cost of its properties all such inspections, tests and assets free investigations shall be borne by Tenant.
7.9. Tenant's obligations and liabilities under this ARTICLE VII shall survive the expiration or early termination of Hazardous Materialsthe Lease. Mortgagor For purposes of this ARTICLE VII, the Building shall include the Land.
7.10. Tenant shall indemnify, defend, protect and each hold harmless Landlord, the manager of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply withthe Building, and use its best efforts to ensure that their respective officers, directors, trustees, beneficiaries, shareholders, partners, agents and employees from all tenants fines, suits, procedures, claims, and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testingactions of every kind, and all remedialcosts associated therewith (including without limitation, removalattorneys' and consultants' fees and the costs of investigation and settlement of any claims) arising out of or in any way connected with (1) any deposit, spill, discharge, or other release of Hazardous Substances which arises at any time from Tenant's, its employees', agents', contractors', or invitees' use or occupancy of the Premises or the Building; (2) any failure to provide all information, make all submissions and other action necessary to clean up and remove take all Hazardous Materials, on, from or affecting any of its properties or assets as steps required by Legal Requirementsall Authorities under the Environmental Laws; and (3) Tenant's, except as its employees', agents', contractors' or invitees' breach of this Article VII, whether or not Tenant has acted negligently with respect to such lawsHazardous Substances.
7.11. As used in this ARTICLE VII, ordinancesthe term "Hazardous Substances" means: (a) any substance designated pursuant to Section 311 (b)(2)(A) of the Federal Water Pollution Control Act; (b) any element, rulescompound, regulationsmixture, orders solution or directives may be contested by Mortgagor substance designated pursuant to Section 102 of the Comprehensive Environmental Response, Compensation and its Subsidiaries in good faith by appropriate proceedings Liability Act; (c) any hazardous waste having the characteristics identified under or listed pursuant to Section 3001 of the Solid Waste Disposal Act; (d) any toxic pollutant listed under Section 307(a) of the Federal Water Pollution Control Act; (e) any hazardous air pollutant listed under Section 112 of the Clean Air Act; (f) any imminently hazardous chemical substance or mixture with respect of which the Administrator of the United States Environmental Protection Agency has taken action pursuant to Section 7 of the Toxic Substances Control Act; and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are (g) any substance, waste or may use and contain oilother material considered hazardous, petroleum dangerous or petroleum derived substancestoxic under any state, providedlocal or federal law, thatcode, such installation and use comply with this Section 9.1(c) at all timesordinance or regulation.
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Environmental Covenants. Mortgagor Tenant and Landlord, as applicable covenants and agrees agree as follows:
A. Other than as disclosed to Tenant, or as set forth in that certain Phase I Environmental Site Assessment Final Report (August Xxxx Project Number JK1125.316) dated December 5, 2010 (the “Phase I”), to the best of Landlord’s reasonable knowledge (which knowledge is qualified and limited to the information set forth in the Phase I), no Hazardous Materials are stored or exist in the Premises including the Building and there are no Environmental Enforcement Actions known to Landlord in connection with the Premises including the Building.
B. The Premises will be used and operated by Tenant and its permitted agents, invitees and guests (“Third Parties”) in compliance with all applicable federal, state and local laws and regulations related to air quality, waste disposal or management, Hazardous Substances, and the protection of health and the environment.
C. No Hazardous Substances will be generated, stored, transported, utilized, disposed of, managed, released or located on, under or from the date hereof until Premises (whether or not in reportable quantities), or in any manner introduced onto the date Premises, including, without limitation, the septic, sewage or other waste disposal systems serving the Premises by Tenant and Third Parties, excepting only Hazardous Substances used by Tenant in ordinary course of its business provided that and any and all obligations and liabilitiessuch Hazardous Substances will be generated, together with interest and other costs and expensesstored, in each case owing to Mortgageetransported, have been paid utilized, disposed of, managed, released, located or introduced onto the Premises in full accordance with all applicable Environmental Laws, and the terms and conditions of this Lease.
D. There shall be no installation on the Premises of any (i) “underground storage tank,” as that Mortgagor shall:term is defined in the Hazardous Solid Waste Amendments of 1984 to the Resource Conservation and Recovery Act and/or equivalent state act; or (ii) above ground storage tank by Tenant and Third Parties.
E. Tenant shall promptly notify Landlord of its knowledge of any threat of release of any Hazardous Substances on, under or from the Premises.
F. Tenant shall promptly notify Landlord of any notice (awritten or oral) Immediately report to Mortgagee upon becoming aware of from the United States Environmental Protection Agency or any other Governmental Authority (as defined below) claiming that (i) the introduction Premises or any use thereof violates any of any Hazardous Material onto any facility owned the Environmental Laws, or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation Tenant or regulatory action against Mortgagor or Third Parties have violated any of its Subsidiaries the Environmental Laws. Tenant shall not take any remedial action or enter into any agreements or settlements in connection with any such facility relating response to any Release of Hazardous Materials in accordance with Section 5.7(c) of the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at Substances in, on, or near about the Premises, without prior written consent of Landlord (which shall not be unreasonably withheld, conditioned or delayed), except in the case of an emergency.
G. Tenant shall promptly notify Landlord of any such facility liability incurred by Tenant or Third Parties to the State of Michigan, the United States of America or any other environmental matter relating to such facility in accordance with Section 5.7(c) Governmental Authority under any of the Credit AgreementEnvironmental Laws.
H. Tenant shall promptly notify Landlord if there are any Environmental Enforcement Actions brought against Tenant or Third Parties, or to its information, knowledge and belief, threatened.
I. Tenant shall indemnify and defend the Landlord Parties against and hold the Landlord Parties harmless from all claims, demands, actions, judgments, liabilities, costs, expenses, losses, damages, penalties, fines and obligations of any nature, including, without limitation, Environmental Enforcement Actions (cincluding reasonable attorneys’ fees and disbursements incurred in the investigation, defense or settlement of claims) Except for that the Landlord Parties may incur as a result of, or in connection with, claims arising from the presence, use, storage, transportation, treatment, disposal, release or other handling, on or about or beneath the Premises, of any Hazardous Materials that Mortgagor Substances introduced or permitted on or about or beneath the Premises by any act, error or omission of Tenant or its Subsidiaries uses agents, officers, employees, contractors, invitees or stores or that an Obligor (defined below) licensees in violation of Mortgagor or its Subsidiariesany Environmental Laws, or any other Person entitled the terms of this Lease. Tenant shall take all actions necessary to restore the use Premises to substantially the same condition as existing as of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous MaterialsCommencement Date. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that MortgagorTenant’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with obligations under this Section 9.1(c) at all times.22 shall survive the termination or expiration of this Lease. The following definitions apply to this Lease:
Appears in 1 contract
Samples: Lease Agreement (Graham Corp)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial Disclosure Certificate”), a fully completed copy of which is attached hereto as Exhibit D and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant’s Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an “Updated Disclosure Certificate”) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant’s then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit D or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies of As used in this Lease, the term “Hazardous Materials” means (i) all reports any substance or material that is included within the definitions of “hazardous substances,” “hazardous materials,” “toxic substances,” “pollutant,” “contaminant,” “hazardous waste,” or “solid waste” in any Environmental Law (other than routine reports regularly submitted as defined in the ordinary course of businessParagraph 32(c) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and below); (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substancesderivatives, providedincluding crude oil or any fraction thereof, thatall forms of natural gas, such installation and use comply with this Section 9.1(cpetroleum products or by-products or waste; (iii) at all timespolychlorinated biphenyls (PCBs); (iv) asbestos and asbestos containing materials (whether friable or non-friable); (v) lead and lead-based paint or other lead containing materials (whether friable or non-friable); (vi) urea formaldehyde; (vii) microbiological pollutants; (viii) batteries or liquid solvents or similar chemicals; (ix) radon gas; and (x) mildew, fungus, mold, bacteria and/or other organic spore material, whether or not airborne, colonizing, amplifying or otherwise.
Appears in 1 contract
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial Disclosure Certificate”), a fully completed copy of which is attached hereto as Exhibit F and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant’s Agents. Tenant shall, on each anniversary of the Commencement Date, and at such other times as shall be required under Paragraph 33(b) below, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an “Updated Disclosure Certificate”) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release describing Tenant’s then current uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in accordance with Section 5.7(c) of the Credit Agreementsame format as that which is set forth in Exhibit F or in such updated format as Landlord may require from time to time.
(b) Immediately deliver Tenant’s right to Mortgagee copies of manufacture, treat, use or store Hazardous Materials on or about the Premises that were not listed on, or that are in addition to the quantities described in, the Initial Disclosure Certificate (each, a “New Hazardous Material”) shall be subject to the following terms and conditions:
(i) all reports For so long as Kyphon Inc. (other than routine reports regularly submitted and specifically excluding any assignee or sublessee of Kyphon Inc.) is in possession of the ordinary course Premises and is using the Premises for Customary R&D Uses, the following terms and conditions shall apply:
(A) If Tenant intends to manufacture, treat, use or store twenty (20) gallons or more of business) submitted to any Governmental Authority by Mortgagor a New Hazardous Material on or any about the Premises, or a lesser quantity of its Subsidiaries a New Hazardous Material that is not generally used in connection with either R&D uses in buildings then owned by Landlord in the presence Xxxxxxx Park area of Sunnyvale, then Tenant shall deliver an Updated Disclosure Certificate to Landlord describing Tenant’s anticipated use of such New Hazardous Material. Landlord shall have the right to approve or disapprove such New Hazardous Materials at in its reasonable discretion; provided, however, that Landlord shall not unreasonably withhold its approval of the use by Tenant of a New Hazardous Material that is necessary for the conduct of Tenant’s business operations in the Premises, provided that Tenant takes such measures as may be recommended by Landlord’s environmental consultants (the “Environmental Consultants”) from time to time to prevent the potential spill or release of such New Hazardous Material (the “Handling Recommendations”). Landlord shall only impose Handling Recommendations where the nature of the particular New Hazardous Material reasonably justifies the Handling Recommendation, as advised by the Environmental Consultants.
(B) If Tenant intends to manufacture, treat, use or store on or about the Premises less than twenty (20) gallons of a New Hazardous Material that is generally used in connection with R&D uses in buildings then owned by Landlord in the Xxxxxxx Park area of Sunnyvale, then Tenant shall have the right to commence the manufacture, treatment, use or storage of such New Hazardous Material without first submitting an Updated Disclosure Certificate to Landlord, but Tenant shall describe such New Hazardous Material on the next Updated Disclosure Certificate delivered to Landlord hereunder. Landlord shall thereafter have the right to approve or disapprove such New Hazardous Materials in its reasonable discretion; provided, however, that Landlord shall not unreasonably withhold its approval of the use by Tenant of a New Hazardous Material that is necessary for the conduct of Tenant’s business operations in the Premises, provided that Tenant follows the Handling Recommendations with respect thereto. Tenant shall promptly cease the use of any facility owned or operated New Hazardous Material disapproved by Mortgagor or any of its Subsidiaries or any other environmental matter relating Landlord under this subparagraph (B) or, if Landlord approves the same subject to certain Handling Recommendations, Tenant shall promptly follow such facility, and Handling Recommendations.
(ii) all reports, noticesIn the event Kyphon Inc. shall hereafter use the Premises for a use that is not a Customary R&D Use, and correspondence transmitted if Kyphon Inc. intends to Mortgagor manufacture, treat, use or its Subsidiaries by any Governmental Authority in connection with either store a New Hazardous Material on or about the presence Premises, then prior to the commencement of any such manufacture, treatment, use or storage, Kyphon Inc. shall deliver an Updated Disclosure Certificate to Landlord describing Kyphon Inc.’s anticipated use of such New Hazardous Material. Landlord shall have the right to approve or disapprove such New Hazardous Materials at or near any such facility or any in its reasonable discretion; provided, however, that Landlord shall not unreasonably withhold its approval of the use by Kyphon Inc. of a New Hazardous Material that is necessary for the conduct of Kyphon Inc.’s business operations in the Premises, provided that Kyphon Inc. follows the Handling Recommendations. Nothing contained in this Paragraph 33(b)(ii) shall be construed to permit Tenant to use the Premises for other environmental matter relating to such facility than a Permitted Use without the prior consent of Landlord in accordance with Section 5.7(cParagraph 9(a) above.
(iii) In the event Kyphon Inc. assigns this Lease, and if the assignee intends to manufacture, treat, use or store a New Hazardous Material on or about the Premises, then prior to the commencement of such manufacture, treatment, use or storage, the assignee shall deliver an Updated Disclosure Certificate to Landlord describing the assignee’s anticipated use of such New Hazardous Material. Landlord shall have the right to approve or disapprove such New Hazardous Materials in its reasonable discretion; provided, however, that Landlord shall not unreasonably withhold its approval of the Credit Agreementuse by the assignee of a New Hazardous Material that is necessary for the conduct of the assignee’s business operations in the Premises, provided that the assignee follows the Handling Recommendations.
(iv) In the event Kyphon Inc. subleases all or a portion of the Premises, the terms of Paragraph 33(b)(i) above shall continue to apply to Kyphon Inc. (with respect to the portion of the Premises, if any, occupied from time to time by Kyphon Inc. for Customary R&D Uses) and to the sublessee, so long as the sublessee occupies the Premises for Customary R&D Uses (with all references in Paragraph 33(b)(i) to “Kyphon Inc.” and “Tenant” being deemed to refer to the sublessee). If the sublessee desires to use the Premises for a use that is not a Customary R&D Use, then the terms of Paragraph 33(b)(ii) above shall apply (and all references to “Kyphon Inc.” and “Tenant” therein shall be deemed to refer to the sublessee). Nothing contained in this Paragraph 33(b)(iv) shall be construed to permit Tenant or any sublessee to use the Premises for other than a Permitted Use without the prior consent of Landlord in accordance with Paragraph 9(a) above.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its SubsidiariesAs used in this Lease, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of term “Hazardous Materials. Mortgagor and each ” means (i) any substance or material that is included within the definitions of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all “hazardous substances,” “hazardous materials,” “toxic substances,” “pollutant,” “contaminant,” “hazardous waste,” or “solid waste” in any Environmental Laws Law; (defined belowii) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substancesderivatives, providedincluding crude oil or any fraction thereof, thatall forms of natural gas, such installation and use comply with this Section 9.1(cpetroleum products or by-products or waste; (iii) at all timespolychlorinated biphenyls (PCBs); (iv) asbestos and asbestos containing materials (whether friable or non-friable); (v) lead and lead based paint or other lead containing materials (whether friable or non-friable); (vi) urea formaldehyde; (vii) microbiological pollutants; (viii) batteries or liquid solvents or similar chemicals; (ix) radon gas; and (x) mildew, fungus, mold, bacteria and/or other organic spore material, whether or not airborne, colonizing, amplifying or otherwise.
Appears in 1 contract
Samples: Lease Agreement (Kyphon Inc)
Environmental Covenants. Mortgagor covenants and agrees from So long as Borrower owns or is in possession of the date hereof until the date that and any and all obligations and liabilitiesProperty, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report to Mortgagee upon becoming aware of Borrower (i) shall keep or cause the introduction of any Property to be kept free from Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release of Hazardous Materials in accordance with Section 5.7(c) of the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and Substances except those in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws or any permits issued with respect thereto, (defined belowii) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure promptly notify Lender if Borrower shall become aware of any Hazardous Substances on the Property and/or if Borrower shall become aware that all tenants and subtenants obtain and comply with, the Property is in violation of any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries Environmental Laws and/or if Borrower shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting become aware of any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators condition on the Property which are shall pose a threat to the health, safety or welfare of humans, and (iii) 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 similar circumstances), promptly after Borrower becomes aware of same, at Borrower's sole expense. Notwithstanding anything to the contrary in this Section, Borrower, Manager and/or tenants on the Property may use and contain oilstore ordinary amounts of Hazardous Substances at the Property if such use or storage is in connection with business supplies used by Borrower, petroleum a tenant in accordance with the terms of its Lease or petroleum derived substances, provided, that, by Manager pursuant to the Management Agreement or is in connection with the ordinary cleaning and maintenance of the Property so long as such installation use and storage (A) does not violate any applicable Environmental Laws and (B) is not the subject of any specific recommendations in the Phase I Report that would prohibit such use comply with 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 9.1(c) at all times5.8.1 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 acquisition of the Property by foreclosure or a conveyance in lieu of foreclosure.
Appears in 1 contract
Environmental Covenants. Mortgagor Tenant agrees and covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shallas follows:
(a) Immediately report to Mortgagee Tenant shall notify Landlord in writing within three (3) business days upon becoming aware of (i) the introduction receipt by Tenant from any person of any Hazardous Material onto inquiry, notice, claim, charge, cause of action or demand relating to Requirements of Environmental Laws or an Environmental Claim, including any facility owned notice of inspection or operated by Mortgagor assertion of noncompliance with Requirements of Environmental Laws, stating the basis of such inquiry or its Subsidiaries if the introduction thereof reasonably could be expected notification. Tenant shall promptly deliver to have a Material Adverse Effect Landlord any and (ii) the initiation of any action, suit, proceeding, investigation all documentation or regulatory action against Mortgagor or any of its Subsidiaries or records as Landlord may request in connection with such notice or inquiry, and shall keep Landlord advised of any such facility relating to any Release of Hazardous Materials in accordance with Section 5.7(c) of the Credit Agreementsubsequent developments at all times.
(b) Immediately deliver to Mortgagee copies of (i) Tenant will obtain, comply with and properly maintain all reports (other than routine reports regularly submitted in Environmental Permits required for the ordinary course of business) submitted to Premises and any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreementoperations conducted thereon.
(c) Except for Hazardous Materials Tenant will not do or permit anything that Mortgagor will cause Tenant or its Subsidiaries uses to be in violation of any Requirements of Environmental Laws, or stores do or permit anything to be done that an Obligor (defined below) might subject Tenant or any of Mortgagor the Premises to any Remediation obligations that would materially and adversely affect the financial condition of Tenant or its Subsidiaries, the value or marketability of any of the Premises or to any enforcement actions under any Environmental Laws or any other Person entitled Environmental Claim.
(d) If any release of Hazardous Substances should exist or occur at any of the Premises or if Tenant should be ordered or directed by any governmental authority to undertake Remediation of any Hazardous Substances at any of the Premises or take any other action to satisfy Requirements of Environmental Law, Tenant, at no cost or expense to the use of the applicable properties or assetsLandlord and Indenture Trustee Indemnitees, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws Laws, conduct and complete all required sampling, testing and monitoring and undertake such Remediation promptly upon discovery or notice thereof and thereafter diligently and continuously pursue such Remediation, completing each element, phase or stage of it within each applicable period established by any agency or bureau empowered to enforce any applicable Environmental Law (defined below) or if no such period or schedule is established, in accordance with a reasonable schedule consistent with prudent business practice taking into account potentially adverse effects to the environment and all Legal Requirements relating to occupational safety or individuals' health and shall obtain and comply withsafety), and use its best efforts but in any case before any lien is created on the applicable Premises. If Tenant undertakes any Remediation, or causes it to ensure that all tenants and subtenants obtain and comply withbe undertaken, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries Tenant shall conduct and complete such Remediation (i) in compliance with Requirements of Environmental Laws, (ii) in accordance with the directives and orders of all investigationsappropriate federal, studiesstate and local governmental authorities and (iii) in accordance with sound business practice taking into account potentially adverse effects to the environment and individuals' health and safety.
(e) If any Remediation fails to comply with Requirements of Environmental Laws because of changes to said Environmental Laws, sampling Tenant shall promptly undertake such Remediation and testingother work as is necessary to comply with the then-current Environmental Laws in the manner set forth in this Section.
(f) Upon the occurrence of any Payment Default and upon Landlord's request, at any time and from time to time, Tenant will provide, at no cost or expense to the Landlord and Indenture Trustee Indemnitees, an Environmental Audit; PROVIDED, that unless required by any governmental authority, Landlord may not request more than one (1) Environmental Audit for any Premises in any twelve (12) calendar month period. If Tenant fails to provide an Environmental Audit within thirty (30) days after Landlord's written request, Landlord may order one, and all remedialTenant grants to Landlord and its agents, removalemployees, contractors and other consultants access to the Premises and a license to perform such inspections and tests as are reasonable under the circumstances. At Landlord's option, the cost of such inspections and tests actually incurred by Landlord shall be payable by Tenant to Landlord upon demand.
(g) Tenant will not install any ACM or permit any ACM to be installed in or introduced onto any of the Premises; and if any ACM exists in or on any of the Premises in violation of Environmental Laws, whether installed by Tenant or others, Tenant will, at no cost or expense to the Landlord and Indenture Trustee Indemnitees, remove it (or if removal is prohibited by law or in Tenant's reasonable judgment is impractical, take whatever action is required by law or reasonably necessary to clean up mitigate adverse impact to the environment and remove all Hazardous Materialsindividuals' health and safety, on, from including encapsulation of the ACM or affecting any implementation of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor an operation and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesmaintenance program).
Appears in 1 contract
Environmental Covenants. Mortgagor covenants (A) Prior to executing this Lease, Tenant has completed, executed and agrees from delivered to Landlord a Hazardous Materials Disclosure Certificate ("Initial Disclosure Certificate"), a fully completed copy of which is attached hereto as Exhibit F and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the date hereof until information on the date that Initial Disclosure Certificate is, to the best of Tenant's knowledge, true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. [...***...] Tenant shall deliver to Landlord copies of any and all obligations filings (a "Filing") made after the Commencement Date with any state, local or federal governmental agencies relating to Hazardous Materials used or to be used on or about the Premises and liabilitiesTenant shall promptly upon Landlord's request make appropriate representatives of Tenant available to discuss with Landlord any such Filing. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or an Updated Disclosure Certificate, together with interest as required hereunder.
(B) As used in this Lease, the term "Hazardous Materials" shall mean and include any substance that is or contains (1) any "hazardous substance" as now or hereafter defined in Section 101 (14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. Section 9601 et seq.) or any regulations promulgated under *CONFIDENTIAL TREATMENT REQUESTED 37. CERCLA; (2) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. Section 6901 et seq.) or any regulations promulgated under RCRA; (3) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. Section 2601 et seq.) or any regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other costs petroleum hydrocarbons; (5) asbestos and expensesasbestos-containing material, in each case owing to Mortgageeany form, have been paid in full that Mortgagor shall:
whether friable or non-friable; (a6) Immediately report to Mortgagee upon becoming aware polychlorinated biphenyls; (7) lead and lead-containing materials; or (8) any additional substance, material or waste (A) the presence of which on or about the Premises (i) the introduction of requires reporting, investigation or remediation under any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and Environmental Laws (as hereinafter defined), (ii) causes or threatens to cause a nuisance on the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor Premises or any adjacent area or property or poses or threatens to pose a hazard to the health or safety of its Subsidiaries or in connection with any such facility relating to any Release of Hazardous Materials in accordance with Section 5.7(c) of persons on the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor Premises or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned adjacent area or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiariesproperty, or (iii) which, if it emanated or migrated from the Premises, could constitute a trespass, or(B) which is now or is hereafter classified or considered to be hazardous or toxic under any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesLaws.
Appears in 1 contract
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed. executed and delivered to Landlord a Hazardous Materials Disclosure Certificate ("Initial Disclosure Certificate"), a fully completed copy of which is attached hereto as Exhibit F and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an "Updated Disclosure Certificate") the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant's then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit F or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies of As used in this Lease, the term "Hazardous Materials" shall mean and include any substance that is or contains (i1) all reports any "hazardous substance" as now or hereafter defined in (other than routine reports regularly submitted in the ordinary course of businessS)(S) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c101(14) of the Credit AgreementComprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA")(42 U.S.C. (S)(S) 9601 et seq.
) or any regulations promulgated under CERCLA; (c2) Except for Hazardous Materials that Mortgagor any "hazardous waste" as now or its Subsidiaries uses hereafter defined in the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. (S)(S) 6901 et seq.) or stores any regulations promulgated under RCRA; (3) any substance now or that an Obligor hereafter regulated by the Toxic Substance Control Act, as amended (defined below"TSCA") of Mortgagor (15 U.S.C. (S)(S) 2601 et seq.) or its Subsidiariesany regulations promulgated under TSCA; (4) petroleum, petroleum by- products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in any other Person entitled to the use of the applicable properties form, whether friable or assets, uses, stores or transports in the ordinary course of its business non-friable; (6) polychlorinated biphenyls; (7) lead and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all times.lead-containing materials or
Appears in 1 contract
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate ("INITIAL DISCLOSURE CERTIFICATE"), a fully completed copy of (i) which is attached hereto as EXHIBIT F and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if information on the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor Initial Disclosure Certificate or any Updated Disclosure Certificate (as hereinafter defined), is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on each anniversary of its Subsidiaries the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or in connection with any such facility relating store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to any Release Landlord an updated Disclosure Certificate (each, an "UPDATED DISCLOSURE CERTIFICATE") describing Tenant's then current and proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in accordance with Section 5.7(cthe same format as that which is set forth in EXHIBIT F or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Credit AgreementPremises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or in any Updated Disclosure Certificate, and except for reasonable quantities of janitorial and cleaning products and office supplies used by tenants of premises comparable to the Premises (collectively "PERMITTED MATERIALS") (and for which no Disclosure Certificate shall be required).
(b) Immediately deliver to Mortgagee copies As used in this Lease, the term "HAZARDOUS MATERIALS" shall mean and include any substance that is or contains (1) any "hazardous substance" as now or hereafter defined in Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. Section 9601 ET SEQ.) or any regulations promulgated under CERCLA; (2) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. Section 6901 ET SEQ.) or any regulations promulgated under RCRA; (3) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. Section 2601 ET SEQ.) or any regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in any form, whether friable or non-friable; (6) polychlorinated biphenyls; (7) lead and lead-containing materials; or (8) any additional substance, material or waste (A) the presence of which on or about the Premises (i) all reports requires reporting, investigation or remediation under any Environmental Laws (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facilityas hereinafter defined), and (ii) all reports, notices, and correspondence transmitted causes or threatens to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either cause a nuisance on the presence of any Hazardous Materials at or near any such facility Premises or any other environmental matter relating adjacent area or property or poses or threatens to such facility in accordance with Section 5.7(c) pose a hazard to the health or safety of persons on the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor Premises or its Subsidiaries uses any adjacent area or stores or that an Obligor (defined below) of Mortgagor or its Subsidiariesproperty, or (iii) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which is now or is hereafter classified or considered to be hazardous or toxic under any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesLaws.
Appears in 1 contract
Samples: Lease Agreement (Affymetrix Inc)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report to Mortgagee upon becoming aware of (i) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or Borrower shall, at its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect expense, comply with all applicable laws, regulations, codes and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility ordinances relating to any Release of Hazardous Materials in accordance with Section 5.7(c) of the Credit Agreementor to any Environmental Activities (as such terms are defined hereinbelow), including, without limitation, obtaining and filing all applicable notices, permits, licenses and similar authorizations (collectively, "ENVIRONMENTAL LAWS").
(b) Immediately deliver Borrower shall not use or permit to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of be used any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) the construction of the Credit AgreementHomes in violation of Environmental Laws.
(c) Except Borrower agrees to submit from time to time, if requested by Lender, a report, satisfactory to Lender, certifying that the Property is not now being used nor been used in the past for Hazardous Materials that Mortgagor or any Environmental Activities except as has been previously disclosed to Lender in writing and approved by Lender. Lender reserves the right, in its Subsidiaries uses or stores or that reasonable discretion, to retain, at Borrower's expense, an Obligor (defined below) of Mortgagor or independent professional consultant to review any report prepared by Borrower and/or to conduct its Subsidiaries, or any other Person entitled to the use own investigation of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Property for Hazardous Materials. Mortgagor Borrower hereby grants to Lender, its agents, employees, consultants and each contractors the right to enter upon the Property and to perform such tests as are reasonably necessary to conduct such a review and/or investigation.
(d) Upon the discovery by Borrower of its Subsidiaries any event or situation which would render any of the representations or warranties contained in Section 6.15 hereof inaccurate in any respect if made at the time of such discovery, Borrower shall comply promptly notify Lender of such event or situation and, within thirty (30) days after such discovery, submit to Lender a preliminary written environmental plan setting forth a general description of such event or situation and the action that Borrower proposes to take with respect thereto. Within sixty (60) days after such discovery, Borrower shall submit to Lender a final written environmental report, setting forth a detailed description of such event or situation and use its best efforts the action that Borrower proposes to ensure compliance by all tenants take with respect thereto, including, without limitation, any proposed corrective work, the estimated cost and subtenants time of completion, and such additional data, instruments, documents, agreements or other materials or information as Lender may reasonably request. The plan shall be subject to Lender's written approval, which approval may be granted or withheld in Lender's sole but reasonable discretion. If Lender disapproves said plan, such disapproval shall, at Lender's option and upon notice to Borrower, constitute an "EVENT OF DEFAULT" hereunder. The rights of Lender with all Environmental Laws (defined below) respect to the approval or disapproval of the plan set forth herein and all Legal Requirements relating the actions of Lender pursuant to occupational safety or health such rights are not intended to, and shall obtain not, in and comply withof themselves, and use its best efforts confer on Lender a right to ensure that all tenants and subtenants obtain and comply withmanage, any and all approvals, registrations operate or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on control the Property which are on a continuing basis following the discovery of the event(s) or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with occurrence(s) described in this Section 9.1(c) at all times5.14(d).
Appears in 1 contract
Samples: Loan Agreement (Calprop Corp)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report If removal, encapsulation or other remediation is required as to Mortgagee upon becoming aware of Hazardous Substances located in, on or under the Land, or the Improvements by applicable Laws (i) herein "REMEDIATION"), unless such Hazardous Substances were released or placed on the introduction of any Land or Improvements by Tenant, Landlord immediately and with all due diligence and at no expense to Tenant, shall take all measures necessary to comply with all applicable Laws, to remove such Hazardous Material onto any facility owned or operated Substances and to perform such Remediation. Landlord shall repair and restore the Premises at its expense (herein "RESTORATION"). From the date such Hazardous Substances are discovered on the Premises to the date such Remediation and Restoration is complete, the Rent due hereunder shall be reduced by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) same percentage as the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release of Hazardous Materials in accordance with Section 5.7(c) percentage of the Credit AgreementPremises which, in Tenant's good faith judgment, cannot be safely, economically or practically used for the operation of Tenant's business. Notwithstanding anything to the contrary, if in Tenant's good faith judgment such Remediation and Restoration cannot be completed within NINETY (90) DAYS following the date such Hazardous Substances are discovered, Tenant may terminate this Lease by written notice to Landlord which shall be effective on Landlord's receipt.
(b) Immediately deliver Subject to Mortgagee copies the provisions of PARAGRAPH 16 (a) of this Lease, Landlord agrees to indemnify and save Tenant harmless from and against any and all claims, judgments, demands, penalties, fines, losses and costs and expenses incurred by Tenant during or after the term of this Lease as a result of (i) all reports (other than routine reports regularly submitted any Hazardous Substances that Landlord causes or permits to be brought upon, kept or used in or about the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, Premises; and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at Substance that exist in or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) about Premises as of the Credit AgreementCommencement Date.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor Subject to the provisions of PARAGRAPH 16 (defined belowa) of Mortgagor or its Subsidiariesthis Lease, or any other Person entitled Tenant agrees to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business indemnify and in compliance with Legal Requirements, keep all of its properties save Landlord harmless from and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, against any and all approvalsclaims, registrations judgments, demands, penalties, fines, losses and costs and expenses incurred by Landlord during or after the term of this Lease as a result of any Hazardous Substances that Tenant causes or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigationsto be brought upon, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from kept or affecting any of its properties used in or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on about the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesPremises.
Appears in 1 contract
Samples: Lease Agreement (Industrial Distribution Group Inc)
Environmental Covenants. Mortgagor covenants Prior to executing this Amendment, Tenant has completed, executed and agrees from delivered to Landlord a Hazardous Materials Disclosure Certificate ("Initial Disclosure Certificate"), a fully completed copy of which is attached hereto as Exhibit A and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the date hereof until information on the date that Initial Disclosure Certificate is true and any correct and all obligations accurately describes the Hazardous Materials which are being manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on or about January 1 of each year during the Term and liabilitiesat such other times as Tenant desires to manufacture, together with interest treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and other costs deliver to Landlord an updated Disclosure Certificate (each, an "Updated Disclosure Certificate") describing Tenant's then current and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report to Mortgagee upon becoming aware of (i) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit A or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Notwithstanding anything to the contrary contained in the Lease, Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) this Paragraph 7. The provisions of this Paragraph 7 shall survive the Credit Agreementexpiration or earlier termination of this Lease.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all times.
Appears in 1 contract
Samples: Industrial Lease Agreement (Centigram Communications Corp)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate ("Initial Disclosure Certificate"), a fully completed copy of which is attached hereto as Exhibit G and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an "Updated Disclosure Certificate") the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant's then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit G or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies of As used in this Lease, the term "Hazardous Materials" shall mean and include any substance that is or contains (i1) all reports (other than routine reports regularly submitted any "hazardous substance" as now or hereafter defined in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c101(14) of the Credit AgreementComprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. Section 9601 et seq.
) or any regulations promulgated under CERCLA; (c2) Except for Hazardous Materials that Mortgagor any "hazardous waste" as now or its Subsidiaries uses hereafter defined in the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. Section. 6901 et seq.) or stores any regulations promulgated under RCRA; (3) any substance now or that an Obligor hereafter regulated by the Toxic Substances Control Act, as amended (defined below"TSCA") of Mortgagor (15 U.S.C. Section 2601 et seq.) or its Subsidiariesany regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in any other Person entitled to the use of the applicable properties form, whether friable or assets, uses, stores or transports in the ordinary course of its business non-friable; (6) polychlorinated biphenyls; (7) lead and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all times.lead-containing materials; or
Appears in 1 contract
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shallcovenants:
(aA) Immediately report to Mortgagee upon becoming aware That no Hazardous Materials (as defined below) are currently on or in the Property (except as expressly described in the Phase I Environmental Site Assessment of the Property prepared by ATC Associates, Inc., dated November 18, 2003) or shall be installed, used, generated, manufactured, treated, handled, refined, produced, processed, stored or disposed of, in, on or under the Property other than Hazardous Materials in quantities and of types reasonably and customarily associated with general office use which have been and are stored, used and disposed of in compliance with Hazardous Material Laws (ias defined below) and the presence of which do not require compliance with any reporting requirements under any Hazardous Material Laws;
(B) That no activity shall be undertaken on the Property which would cause:
(1) the introduction Property to become a hazardous waste treatment, storage or disposal facility under any Hazardous Material Law,
(2) a release or threatened release of Hazardous Material from the Property in violation of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and Law, or
(ii3) the initiation discharge of Hazardous Material into any watercourse, body of surface or subsurface water or wetland, or the discharge into the atmosphere of any actionHazardous Material which would require a permit under any Hazardous Material Law and for which no such permit has been issued;
(C) That no activity shall be undertaken or permitted to be undertaken, suitby the Mortgagor on the Property which would result in a violation under any Hazardous Material Law; and
(D) To obtain and deliver to Mortgagee, proceedingwithin a reasonable time following completion of actions required by an appropriate governmental agency, investigation certifications of engineers or regulatory action against Mortgagor other professionals reasonably acceptable to Mortgagee, in form and substance satisfactory to Mortgagee, certifying that all necessary and required actions to clean up, remove, contain, prevent and eliminate all releases or any threats of its Subsidiaries or in connection with any such facility relating to any Release release of Hazardous Materials on or about the Property to the levels required by the appropriate governmental agencies have been taken and, to the knowledge of such professional, the Property is then in accordance compliance with Section 5.7(c) applicable Hazardous Material Laws as then in effect and applicable to such actions. For purposes of the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor this Mortgage, "Hazardous Materials" means and includes asbestos or any of its Subsidiaries in connection with either the presence of Hazardous Materials at substance containing asbestos, polychlorinated biphenyls, any facility owned explosives, radioactive materials, chemicals known or operated by Mortgagor suspected to cause cancer or reproductive toxicity, pollutants, effluents, contaminants, emissions, infectious wastes, any of its Subsidiaries petroleum or petroleum-derived waste or product or related materials and any other environmental matter relating to such facilityitems defined as hazardous, and (ii) all reportsspecial or toxic materials, notices, and correspondence transmitted to Mortgagor substances or its Subsidiaries by any Governmental Authority in connection with either the presence of waste under any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its SubsidiariesMaterial Law, or any other Person entitled material which shall be removed from the Property pursuant to any administrative order or enforcement proceeding or in order to place the use of the applicable properties Property in a condition that is suitable for ordinary use. "Hazardous Material Laws" means all federal, state and local laws (whether under common law, statute or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such lawsotherwise), ordinances, rules, regulationsregulations and guidance documents now in force, orders as amended from time to time, in any way relating to or directives may be contested by Mortgagor regulating human health or safety, industrial hygiene or environmental conditions, protection of the environment, pollution or contamination of the air, soil, surface water or groundwater, and its Subsidiaries in good faith by appropriate proceedings includes, without limitation, the Comprehensive Environmental Response, Compensation, and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood Liability Act of 1980, 42 U.S.C. Section 9601, et seq., the Resource Conservation and agreed by Mortgagor Recovery Act, 42 U.S.C. Section 6901, et seq., the Clean Water Act, 33 U.S.C. Section 1251 et seq., the Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq., the Occupational Safety and Mortgagee that Mortgagor’s tenants Health Act, 29 U.S.C. Section 651 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., the Federal Water Pollution Control Act, 33 U.S.C. Section 1321 et seq., and subtenants may install and use generators on the Property which are or may use and contain oilToxic Substances Control Act, petroleum or petroleum derived substances, provided, that, such installation and use comply with this 15 U.S.C. Section 9.1(c) at all times2601 et seq.
Appears in 1 contract
Environmental Covenants. Mortgagor covenants (a) Prior to executing this Lease, Tenant has completed, executed and agrees delivered to Landlord a Hazardous Materials Disclosure Certificate ("INITIAL DISCLOSURE CERTIFICATE"), a fully completed copy of which is attached hereto as EXHIBIT F and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is, to the best of Tenant's knowledge, true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on an annual basis, complete, execute and deliver to Landlord an updated Disclosure Certificate (each, an "UPDATED DISCLOSURE CERTIFICATE") describing Tenant's then current and proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit F or in such updated format as Landlord may reasonably require from the date hereof until the date that and time to time. Tenant shall deliver to Landlord copies of any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
filings (aa "FILING") Immediately report to Mortgagee upon becoming aware of (i) made after the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection Commencement Date with any such facility state, local or federal governmental agencies relating to Hazardous Materials used or to be used on or about the Premises and Tenant shall promptly upon Landlord's request make appropriate representatives of Tenant available to discuss with Landlord any Release such Filing. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in accordance with Section 5.7(c) of the Credit AgreementInitial Disclosure Certificate or an Updated Disclosure Certificate, as required hereunder.
(b) Immediately deliver to Mortgagee copies of As used in this Lease, the term "HAZARDOUS MATERIALS" shall mean and include any substance that is or contains (i) all reports any "hazardous substance" as now or hereafter defined in Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (other than routine reports regularly submitted "CERCLA") (42 U.S.C. Section 9601 et seq.) or any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or hereafter defined in the ordinary course of businessResource Conservation and Recovery Act, as amended ("RCRA") submitted to any Governmental Authority by Mortgagor (42 U.S.C. Section 6901 et seq.) or any of its Subsidiaries regulations promulgated under RCRA; (iii) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. Section 2601 et seq.) or any regulations promulgated under TSCA; (iv) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos-containing material, in connection with either any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) lead and lead-containing materials; or (viii) any additional substance, material or waste (A) the presence of Hazardous Materials at which on or about the Premises (1) requires reporting, investigation or remediation under any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined belowas hereinafter defined), (2) and all Legal Requirements relating causes or threatens to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators cause a nuisance on the Property Premises or any adjacent area or property or poses or threatens to pose a hazard to the health or safety of persons on the Premises or any adjacent area or property, or (3) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which are is now or may use and contain oil, petroleum is hereafter classified or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesconsidered to be hazardous or toxic under any Environmental Laws.
Appears in 1 contract
Samples: Lease Agreement (Corixa Corp)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial Disclosure Certificate”), a fully completed copy of which is attached hereto as Exhibit E and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant’s Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an “Updated Disclosure Certificate”) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant’s then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit E or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 33(a).
(b) Immediately deliver to Mortgagee copies of As used in this Lease, the term “Hazardous Materials” shall mean and include any substance that is or contains: (i) all reports any “hazardous substance” as now or hereafter defined in § 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (other than routine reports regularly submitted “CERCLA”) (42 U.S.C. § 9601 et seq.) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the ordinary course of businessResource Conservation and Recovery Act, as amended (“RCRA”) submitted to any Governmental Authority by Mortgagor (42 U.S.C. § 6901 et seq.) or any of its Subsidiaries regulations promulgated under RCRA; (iii) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended (“TSCA”) (15 U.S.C. § 2601 et seq.) or any regulations promulgated under TSCA; (iv) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos-containing material, in connection with either any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) lead and lead-containing materials; or (viii) any additional substance, material or waste (A) the presence of Hazardous Materials at which on or about the Premises (1) requires reporting, investigation or remediation under any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined belowas hereinafter defined), (2) and all Legal Requirements relating causes or threatens to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators cause a nuisance on the Property Premises or any adjacent area or property or poses or threatens to pose a hazard to the health or safety of persons on the Premises or any adjacent area or property, or (3) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which are is now or may use and contain oil, petroleum is hereafter classified or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesconsidered to be hazardous or toxic under any Environmental Laws.
Appears in 1 contract
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial Disclosure Certificate”), a fully completed copy of (i) the introduction which is attached hereto as Exhibit F and incorporated herein by this reference. By execution of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could this Lease, Landlord shall be expected deemed to have a Material Adverse Effect approved the Initial Disclosure Certificate and the materials indicated thereon shall be deemed “necessary for the ordinary performance of Tenant’s business” for purposes of Paragraph 32(d) below. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant’s Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (iieach, an “Updated Disclosure Certificate”) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release describing Tenant’s then current and proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit F or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its reasonable discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies of As used in this Lease, the term “Hazardous Materials” shall mean and include any substance that is or contains: (i) all reports any “hazardous substance” as now or hereafter defined in § 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (other than routine reports regularly submitted “CERCLA”) (42 U.S.C. § 9601 et seq.) or any regulations promulgated under CERCLA; (ii) any “hazardous waste” as now or hereafter defined in the ordinary course of businessResource Conservation and Recovery Act, as amended (“RCRA”) submitted to any Governmental Authority by Mortgagor (42 U.S.C. § 6901 et seq.) or any of its Subsidiaries regulations promulgated under RCRA; (iii) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended (“TSCA”) (15 U.S.C. § 2601 et seq.) or any regulations promulgated under TSCA; (iv) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos-containing material, in connection with either any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) lead and lead-containing materials; or (viii) any additional substance, material or waste (A) the presence of Hazardous Materials at which on or about the Premises (1) requires reporting, investigation or remediation under any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined belowas hereinafter defined), (2) and all Legal Requirements relating causes or threatens to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators cause a nuisance on the Property Premises or any adjacent area or property or poses or threatens to pose a hazard to the health or safety of persons on the Premises or any adjacent area or property, or (3) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which are is now or may use and contain oil, petroleum is hereafter classified or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesconsidered to be hazardous or toxic under any Environmental Laws.
Appears in 1 contract
Samples: Lease Agreement (Alliance Fiber Optic Products Inc)
Environmental Covenants. Mortgagor covenants and agrees from (a) During the date hereof until the date that and any and all obligations and liabilitiesterm of this Lease, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor Tenant shall:
(a) Immediately report to Mortgagee upon becoming aware of (i) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and timely comply with all applicable Environmental Laws;
(ii) the initiation provide Landlord, immediately upon receipt thereof, with copies of any actioncorrespondence, suitnotice, proceedingpleading, investigation citation, indictment, complaint, order, decree or regulatory other document from any source asserting or alleging violation upon the Premises by Tenant of any Environmental Laws, or asserting or alleging a financial contribution by Tenant or a cleanup, remedial action against Mortgagor or other response by or on the part of Tenant under any Environmental Laws;
(iii) permit Landlord, in the event Landlord has reasonable cause to believe that there exists a condition or circumstance created by Tenant, its employees or invitees during the term of its Subsidiaries this Lease warranting an environmental inspection or in connection with any such facility relating audit, at Tenant's expense to any Release of Hazardous Materials in accordance with Section 5.7(c) retain an architect or engineer selected by Landlord to perform an environmental inspection and/or audit of the Credit AgreementPremises to evaluate Tenant's compliance with Environmental laws, and to test for Hazardous Substances on the Premises, and for risks associated with exposure to Hazardous Substances. Tenant shall permit Landlord and its employees and agents access to the Premises and the books and records of Tenant as necessary for the performance of the environmental inspection and/or audit;
(iv) at its expense, remove or contain any Hazardous Substances on the Premises that were brought onto the Premises by Tenant, its employees or invitees during the term of this Lease, or perform other corrective action as required by Landlord in its sole discretion, if at any time it is determined that such Hazardous Substances present a health hazard on the Premises or are required to be removed or contained or other corrective action is required by any Environmental Laws.
(b) Immediately deliver As used herein, "Environmental Laws" shall mean any federal, state and local laws including statutes, regulations, ruling, orders, administrative interpretations and other governmental restrictions and requirements relating to Mortgagee copies the discharge of air pollutants, water pollutants or process wastewater or otherwise relating to the environment or Hazardous Substances (ias defined herein) all reports (other than routine reports regularly submitted in or the ordinary course recycling of business) submitted to wastes, including, but not limited to, Chapters 144 and 162 of the Wisconsin Statutes, the Federal Toxic Substances Control Act, the Federal Disposal Act, the Federal Clean Air Act, the Federal Clean Water Act, the Federal Resource Conservation and Recovery Act of 1976, the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, regulations of the Regulatory Agency, and regulations of any Governmental Authority by Mortgagor state department of natural resources or any of its Subsidiaries in connection with either the presence of Hazardous Materials state environmental protection agency now or at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority time hereafter in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreementeffect.
(c) Except for As used herein, "Hazardous Materials that Mortgagor Substances" shall mean any hazardous waste or its Subsidiaries uses substance, asbestos or stores asbestos-containing material pollutant, solid, liquid, gaseous, or that an Obligor thermal irritant or contaminant (defined below) such as smoke, vapor, soot, fumes, acids, alkalis, chemicals or waste, including materials to be recycled in the future, reconditioned or reclaimed), polychlorinated biphenyl (in the form of Mortgagor or its Subsidiarieselectrical transformers, fluorescent light fixtures with ballasts, cooking oils or any other Person entitled to the use of the applicable properties device or assetsform) or urea-formaldehyde foamed-in-place insulation, uses, stores all as defined or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all included under Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesLaws.
Appears in 1 contract
Samples: Lease Agreement
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate ("INITIAL DISCLOSURE CERTIFICATE"), a fully completed copy of which is attached hereto as EXHIBIT D and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an "UPDATED DISCLOSURE CERTIFICATE") the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant's then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in EXHIBIT D or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies As used in this Lease, the term "HAZARDOUS MATERIALS" shall mean and include any substance that is or contains (1) any "hazardous substance" as now or hereafter defined in Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended ("CERCLA") (42 U.S.C. Section 9601 et seq.) or any regulations promulgated under CERCLA; (2) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. Section 6901 et seq.) or any regulations 47 promulgated under RCRA; (3) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. Section 2601 et seq.) or any regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in any form, whether friable or non-friable; (6) polychlorinated biphenyls; (7) lead and lead-containing materials; or (8) any additional substance, material or waste (A) the presence of which on or about the Premises (i) all reports requires reporting, investigation or remediation under any Environmental Laws (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facilityas hereinafter defined), and (ii) all reports, notices, and correspondence transmitted causes or threatens to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either cause a nuisance on the presence of any Hazardous Materials at or near any such facility Premises or any other environmental matter relating adjacent area or property or poses or threatens to such facility in accordance with Section 5.7(c) pose a hazard to the health or safety of persons on the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor Premises or its Subsidiaries uses any adjacent area or stores or that an Obligor (defined below) of Mortgagor or its Subsidiariesproperty, or (iii) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which is now or is hereafter classified or considered to be hazardous or toxic under any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesLaws.
Appears in 1 contract
Samples: Lease Agreement (Combichem Inc)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shallBorrower covenants:
(aA) Immediately report to Mortgagee upon becoming aware That no Hazardous Materials (as defined below) are currently on or in the Property (except as expressly described in the Phase I Environmental Site Assessment of the Property prepared by ATC Associates, Inc., dated July 20, 2004, as updated for Lender) or shall be installed, used, generated, manufactured, treated, handled, refined, produced, processed, stored or disposed of, in, on or under the Property other than Hazardous Materials in quantities and of types reasonably and customarily associated with general office use which have been and are stored, used and disposed of in compliance with Hazardous Material Laws (ias defined below) and the presence of which do not require compliance with any reporting requirements under any Hazardous Material Laws;
(B) That no activity shall be undertaken on the Property which would cause:
(1) the introduction Property to become a hazardous waste treatment, storage or disposal facility under any Hazardous Material Law,
(2) a release or threatened release of Hazardous Material from the Property in violation of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and Law, or
(ii3) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release discharge of Hazardous Materials in accordance with Section 5.7(c) Material into any watercourse, body of surface or subsurface water or wetland, or the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in discharge into the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence atmosphere of any Hazardous Materials at or near Material which would require a permit under any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings Material Law and for which adequate reserves have no such permit has been established in conformity with generally accepted accounting principles. It is expressly understood and agreed issued;
(C) That no activity shall be undertaken or permitted to be undertaken, by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators Borrower on the Property which are would result in a violation under any Hazardous Material Law; and
(D) To obtain and deliver to Lender, within a reasonable time following completion of actions required by an appropriate governmental agency, certifications of engineers or may use other professionals reasonably acceptable to Lender, in form and contain oilsubstance satisfactory to Lender, certifying that all necessary and required actions to clean up, remove, contain, prevent and eliminate all releases or threats of release of Hazardous Materials on or about the Property to the levels required by the appropriate governmental agencies have been taken and, to the knowledge of such professional, the Property is then in compliance with applicable Hazardous Material Laws as then in effect and applicable to such actions. For purposes of this Security Deed, "Hazardous Materials" means and includes asbestos or any substance containing asbestos, polychlorinated biphenyls, any explosives, radioactive materials, chemicals known or suspected to cause cancer or reproductive toxicity, pollutants, effluents, contaminants, emissions, infectious wastes, any petroleum or petroleum petroleum-derived substanceswaste or product or related materials and any items defined as hazardous, providedspecial or toxic materials, thatsubstances or waste under any Hazardous Material Law, such installation and use comply with this Section 9.1(c) at all times.or any material which shall be removed from the Property pursuant to any administrative order or enforcement proceeding or in order to place the Property in a condition
Appears in 1 contract
Samples: Deed to Secure Debt and Security Agreement (Inland Western Retail Real Estate Trust Inc)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate ("Initial Disclosure Certificate"), a fully completed copy of which is attached hereto as Exhibit F and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an "Updated Disclosure Certificate") the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant's then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit F or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies As used in this Lease, the term "Hazardous Materials" shall mean and include any substance that is or contains (1) any "hazardous substance" as now or hereafter defined in Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (i"CERCLA") all reports (other than routine reports regularly submitted 42 U.S.C. Section 9601 et seq.) or any regulations promulgated under CERCLA; (2) any "hazardous waste" as now or hereafter defined in the ordinary course of businessResource Conservation and Recovery Act, as amended ("RCRA") submitted to any Governmental Authority by Mortgagor (42 U.S.C. Section 6901 et seq.) or any of its Subsidiaries regulations promulgated under RCRA; (3) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. Section 2601 et seq.) or any regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in connection with either any form, whether friable or non-friable; (6) polychlorinated biphenyls; (7) lead and lead-containing materials; or (8) any additional substance, material or waste (A) the presence of Hazardous Materials at which on or about the Premises requires reporting, investigation or remediation under any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined belowas hereinafter defined), or (B) and all Legal Requirements relating which is now or is hereafter classified or considered to occupational safety be hazardous or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, toxic under any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesEnvironmental Laws.
Appears in 1 contract
Samples: Lease Agreement (Vixel Corp)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate ("Initial Disclosure Certificate"), a fully completed copy of which is attached hereto as Exhibit D and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an "Updated Disclosure Certificate") the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant's then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit D or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 33 (a).
(b) Immediately deliver to Mortgagee copies of As used in this Lease, the term "Hazardous Materials" shall mean and include any substance that is or contains: (i) all reports any "hazardous substance" as now or hereafter defined in § 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (other than routine reports regularly submitted "CERCLA") (42 U.S.C. § 9601 et seq.) or any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or hereafter defined in the ordinary course of businessResource Conservation and Recovery Act, as amended ("RCRA") submitted to any Governmental Authority by Mortgagor (42 U.S.C. § 6901 et seq.) or any of its Subsidiaries regulations promulgated under RCRA; (iii) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. § 2601 et seq.) or any regulations promulgated under TSCA; (iv) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos-containing material, in connection with either any form, whether friable or non-friable; (vi) polychlorinated biphenyls; (vii) lead and lead-containing materials; or (viii) any additional substance, material or waste (A) the presence of Hazardous Materials at which on or about the Premises (1) requires reporting, investigation or remediation under any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined belowas hereinafter defined), (2) and all Legal Requirements relating causes or threatens to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators cause a nuisance on the Property Premises or any adjacent area or property or poses or threatens to pose a hazard to the health or safety of persons on the Premises or any adjacent area or property, or (3) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which are is now or may use and contain oil, petroleum is hereafter classified or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesconsidered to be hazardous or toxic under any Environmental Laws.
Appears in 1 contract
Samples: Lease Agreement (Paypal Inc)
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial Disclosure Certificate”), a fully completed copy of which is attached hereto as Exhibit D and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant’s Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an “Updated Disclosure Certificate”) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant’s then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in Exhibit D or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 33(a).
(b) Immediately deliver to Mortgagee copies As used in this Lease, the term “Hazardous Materials” shall mean and include any substance that is or contains (1) any “hazardous substance” as now or hereafter defined in § 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”) (42 U.S.C. § 9601 et seq.) or any regulations promulgated under CERCLA; (2) any “hazardous waste” as now or hereafter defined in the Resource Conservation and Recovery Act, as amended (“RCRA”) (42 U.S.C. § 6901 et seq.) or any regulations promulgated under RCRA; (3) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended (“TSCA”) (15 U.S.C. § 2601 et seq.) or any regulations promulgated under TSCA; (4) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (5) asbestos and asbestos-containing material, in any form, whether friable or non-friable; (6) polychlorinated biphenyls; (7) lead and lead-containing materials; or (8) any additional substance, material or waste (A) the presence of which on or about the Premises (i) all reports requires reporting, investigation or remediation under any Environmental Laws (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facilityas hereinafter defined), and (ii) all reports, notices, and correspondence transmitted causes or threatens to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either cause a nuisance on the presence of any Hazardous Materials at or near any such facility Premises or any other environmental matter relating adjacent area or property or poses or threatens to such facility in accordance with Section 5.7(c) pose a hazard to the health or safety of persons on the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor Premises or its Subsidiaries uses any adjacent area or stores or that an Obligor (defined below) of Mortgagor or its Subsidiariesproperty, or any other Person entitled to (iii) which, if it emanated or migrated from the use of the applicable properties Premises, could constitute a trespass, or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all times.
Appears in 1 contract
Environmental Covenants. Mortgagor covenants 7.1. Tenant, its employees, agents, contractors and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report to Mortgagee upon becoming aware of (i) the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release of Hazardous Materials in accordance with Section 5.7(c) of the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted invitees in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries Tenant’s business operations shall, at Tenant's own expense, comply with all Environmental Laws, as herein defined, in connection with either its use and occupancy of the presence Premises and shall obtain, maintain and comply with all necessary environmental permits, approvals, registrations and licenses.
7.2. Tenant, its employees, agents, contractors and invitees in the ordinary course of Hazardous Materials at any facility owned Tenant’s business operations shall not use, possess, generate, release, manufacture, treat, refine, produce, process, store, dump or operated by Mortgagor or any dispose of its Subsidiaries or any other environmental matter relating to such facility(collectively, and (ii“Use”) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its SubsidiariesSubstance, as herein defined, on, under, or about the Premises, the Building, or the Land or transport to or from the Premises any other Person entitled Hazardous Substance. Notwithstanding anything to the contrary contained in this Section 7.2, Tenant may use and store within the Premises such reasonable quantities of the applicable properties or assets, uses, stores or transports normal office and cleaning products as are used by Tenant in the ordinary course of its business operations and which are customarily found in first-class offices; provided such reasonable quantities and use do not constitute a danger to the health of individuals or a danger to the environment and they are used, stored and disposed of in accordance with all applicable Environmental Laws.
7.3. Tenant shall, at Xxxxxx's own expense, make all submissions to, provide all information required by, and comply with all requirements of all governmental authorities (the “Authorities” or “Authority”) under the Environmental Laws. Tenant shall provide Landlord with copies of any environmental audit prepared by or for Tenant with respect to the Premises and any report(s) or filing(s) made by Tenant with any Authority.
7.4. Should Landlord or any Authority demand that a clean-up plan be prepared and that a clean-up be undertaken because of any deposit, spill, discharge, or other release of Hazardous Substances that occurs as a result of Tenant's use or occupancy of the Premises, then Tenant shall, at Tenant's own expense, prepare and submit to Landlord and any applicable Authority the required plans and all related bonds and other financial assurances, and Tenant shall carry out all such clean-up plans following their approval by Landlord and all applicable Authorities.
7.5. Tenant shall promptly provide all information regarding the Use of Hazardous Substances that is reasonably requested by Landlord. If Xxxxxx fails to fulfill any duty imposed under this ARTICLE VIIARTICLE VII within ten (10) days, Landlord may fulfill such duty on behalf of Tenant, at Tenant's cost and expense; and in such case, Tenant shall cooperate with Landlord in order to prepare all documents Landlord deems necessary or appropriate to determine the applicability of the Environmental Laws to the Premises and Xxxxxx's use thereof, and for compliance therewith, and Tenant shall execute all documents promptly upon Xxxxxxxx's request. No such action by Xxxxxxxx and no attempt made by Landlord to mitigate damages under any Environmental Law shall constitute a waiver of any of Tenant's obligations under this ARTICLE VII.
7.6. Tenant shall immediately notify Landlord in writing of any deposit, spill, discharge, or other release of any Hazardous Substance, whether or not in quantities that would require under law reporting to a governmental or regulatory agency.
7.7. Tenant shall also immediately notify Landlord in writing of, and shall contemporaneously provide Landlord with a copy of:
(a) Any written notice of deposit, spill, discharge, or other release of Hazardous Substances in the Premises that is provided by Tenant or any subtenant or other occupant of the Premises to a governmental or regulatory agency;
(b) Any notice of a violation, or a potential or alleged violation, of any Environmental Law that is received by Tenant or any subtenant or other occupant of the Premises from any governmental or regulatory agency;
(c) Any inquiry, investigation, enforcement, cleanup, removal, or other action that is instituted or threatened by a governmental or regulatory agency against Tenant or any subtenant or other occupant of the Premises and that relates to the deposit, spill, discharge, or other release of Hazardous Substances on or from the Premises;
(d) Any claim that is instituted or threatened by any third party against Tenant or any subtenant or other occupant of the Premises and that relates to any deposit, spill, discharge, or other release of Hazardous Substance on or from the Premises; and
(e) Any notice of the loss of any environmental operating permit by Tenant or any subtenant or other occupant of the Premises.
7.8. Landlord shall have the right, but not the obligation, at all times during the Term to, with reasonable prior notice (except in the event of emergency when no notice shall be required)
(1) inspect the Premises; (2) enter upon the Premises to conduct tests and investigations and take samples to determine whether Tenant is in compliance with Legal Requirementsthe provisions of this ARTICLE VII, keep all or as otherwise deemed necessary by Landlord; and (3) request lists of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators Substances Used on the Property which are Premises. The cost of all such inspections, tests and investigations shall be borne by Tenant.
7.9. Tenant's obligations and liabilities under this ARTICLE VII shall survive the expiration or may use and contain oilearly termination of the Lease. For purposes of this ARTICLE VII, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesthe Building shall include the Land.
Appears in 1 contract
Samples: Deed of Lease
Environmental Covenants. Mortgagor covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report Prior to Mortgagee upon becoming aware executing this Lease, Tenant has completed, executed and delivered to Landlord a Hazardous Materials Disclosure Certificate ("INITIAL DISCLOSURE CERTIFICATE"), a fully completed copy of which is attached hereto as EXHIBIT E and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant's Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (ieach, an "UPDATED DISCLOSURE Certificate") the introduction of any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect describing Tenant's then current and (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as that which is set forth in EXHIBIT E or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date Tenant intends to commence the manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and absolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with Section 5.7(c) of the Credit Agreementthis Paragraph 32(a).
(b) Immediately deliver to Mortgagee copies of As used in this Lease, the term "Hazardous Materials" shall mean and include any substance that is or contains (i) all reports any "hazardous substance" as now or hereafter defined in ss. 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (other than routine reports regularly submitted "CERCLA") (42 U.S.C. ss. 9601 ci SEQ.) or any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or hereafter defined in the ordinary course of businessResource Conservation and Recovery Act, as amended ("RCRA") submitted to any Governmental Authority by Mortgagor (42 U.S.C. ss. 6901 ci SEQ.) or any of its Subsidiaries regulations promulgated under RCRA; (iii) any substance now or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA") (15 U.S.C. ss. 2601 ET SEQ) or any regulations promulgated under TSCA; (iv) petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos and asbestos-containing material, in connection with either any form, whether 30 friable or non-friable; (vi) polychiorinated biphenyls; (vii) lead and lead-containing materials; or (viii) any additional substance, material or waste (A) the presence of Hazardous Materials at which on or about the Premises (1) requires reporting, investigation or remediation under any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined belowas hereinafter defined), (2) and all Legal Requirements relating causes or threatens to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators cause a nuisance on the Property Premises or any adjacent area or property or poses or threatens to pose a hazard to the health or safety of persons on the Premises or any adjacent area or property, or (3) which, if it emanated or migrated from the Premises, could constitute a trespass, or (B) which are is now or may use and contain oil, petroleum is hereafter classified or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesconsidered to be hazardous or toxic under any Environmental Laws.
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Environmental Covenants. Mortgagor covenants 32.1 Prior to executing this Lease, Tenant has completed, executed and agrees delivered to Landlord a Hazardous Materials Disclosure Certificate (“Initial Disclosure Certificate”), a fully completed copy of which is attached hereto as Exhibit G and incorporated herein by this reference. Tenant covenants, represents and warrants to Landlord that, to the best of Tenant’s knowledge, the information on the Initial Disclosure Certificate is true and correct and accurately describes the Hazardous Materials which will be manufactured, treated, used or stored on or about the Premises by Tenant or Tenant’s Agents. Tenant shall, on each anniversary of the Commencement Date and at such other times as Tenant desires to manufacture, treat, use or store on or about the Premises new or additional Hazardous Materials which were not listed on the Initial Disclosure Certificate, complete, execute and deliver to Landlord an updated Disclosure Certificate (each, an “Updated Disclosure Certificate”) describing Tenant’s then current and proposed future uses of Hazardous Materials on or about the Premises, which Updated Disclosure Certificates shall be in the same format as Exhibit G or in such updated format as Landlord may require from time to time. Tenant shall deliver an Updated Disclosure Certificate to Landlord not less than thirty (30) days prior to the date hereof until Tenant intends to commence the date that manufacture, treatment, use or storage of new or additional Hazardous Materials on or about the Premises, and any Landlord shall have the right to approve or disapprove such new or additional Hazardous Materials in its sole and all obligations and liabilitiesabsolute discretion. Tenant shall make no use of Hazardous Materials on or about the Premises except as described in the Initial Disclosure Certificate or as otherwise approved by Landlord in writing in accordance with this Paragraph 32.1.
32.2 As used in this Lease, together with interest and other costs and expenses, in each case owing to Mortgagee, have been paid in full that Mortgagor shall:
(a) Immediately report to Mortgagee upon becoming aware of the term "Hazardous Materials" means (i) any substance or material that is included within the introduction definitions of “hazardous substances,” “hazardous materials,” “toxic substances,” “pollutant,” “contaminant,” “hazardous waste,” or “solid waste” in any Hazardous Material onto any facility owned or operated by Mortgagor or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and Environmental Law; (ii) the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of its Subsidiaries or in connection with any such facility relating to any Release of Hazardous Materials in accordance with Section 5.7(c) of the Credit Agreement.
(b) Immediately deliver to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substancesderivatives, providedincluding crude oil or any fraction thereof, thatall forms of natural gas, such installation and use comply with this Section 9.1(cpetroleum products or by-products or waste; (iii) at all timespolychlorinated biphenyls (“PCB’s”); (iv) asbestos and asbestos containing materials (whether friable or non-friable); (v) lead and lead-based paint or other lead containing materials (whether friable or non-friable); (vi) urea formaldehyde; (vii) microbiological pollutants; (viii) batteries or liquid solvents or similar chemicals; (ix) radon gas; and (x) mildew, fungus, mold, bacteria and/or other organic spore material.
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Samples: Warehouse/Industrial Lease Agreement (Zeltiq Aesthetics Inc)
Environmental Covenants. The Mortgagor further warrants, represents, covenants and agrees from the date hereof until the date that and any and all obligations and liabilities, together with interest and other costs and expenses, that:
a. Except as may have been disclosed in each case owing writing to Mortgagee, have been paid in full that neither Mortgagor shall:
(a) Immediately report nor, to Mortgagee upon becoming aware the best of Mortgagor’s knowledge, any other person has (i) the introduction used, installed or disposed of any Hazardous Material onto any facility owned Materials (hereafter defined) in, on, from, or operated by Mortgagor affecting the Mortgaged Premises except in full compliance with Applicable Environmental Laws (hereafter defined); or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) received any notice from any governmental authority with regard to Hazardous Materials in, on, from or affecting the initiation Mortgaged Premises. To the best of Borrower’s knowledge, no portion of the Mortgaged Premises is or has been at any time an “industrial establishment” as defined in the New Jersey Industrial Site Recovery Act (“ISRA”), and Mortgagor does not know or have reason to know of any actionlien or threatened lien on its personal or real property requiring or obligating Mortgagor to make payment pursuant to the New Jersey Spill Compensation and Control Act (“SCCA”). If the Mortgaged Premises is or has been an “industrial establishment,” Mortgage shall provide Mortgagee with a letter of non-applicability on and as of the date hereof. If the Mortgaged Premises was used as an “industrial establishment,” and hazardous substances were handled there, suitand Mortgagor’s transactions constitute a closing, proceedingtermination of, investigation or regulatory action against transfer of, operations, Mortgagor has provided Mortgagee with an approved cleanup plan or a negative declaration, obtained at its own expense, and Mortgagor, at its own expense, shall implement the cleanup plan to clean up such contamination.
b. Mortgagor shall not use the Mortgaged Premises, nor allow it to be used, to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Materials except in full compliance with Applicable Environmental Laws. Mortgagor shall not cause or permit, intentionally or unintentionally, a release of Hazardous Materials in, on, from or affecting the Mortgaged Premises or any of its Subsidiaries other use, installation, or in connection with any such facility relating to any Release disposition of Hazardous Materials in accordance with Section 5.7(c) violation of the Credit AgreementApplicable Environmental Laws.
(b) Immediately deliver c. If Mortgagor receives any notice from any governmental authority with regard to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned in, on, from or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either affecting the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its SubsidiariesMortgaged Premises, or any other Person entitled to the use notice of the applicable properties or assetsviolation of Applicable Environmental Laws, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous MaterialsMortgagor shall promptly notify Mortgagee. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action actions necessary to clean up and remove all Hazardous MaterialsMaterials in, on, from or affecting the Mortgaged Premises in accordance with all Applicable Environmental Laws and to the satisfaction of Mortgagee.
d. The term “Applicable Environmental Laws” shall mean, without limitation, all legal requirements of any governmental authority pertaining to the preservation or enhancement of its properties the quality of the environment or assets regulating or restricting the use, transfer, storage or remediation of Hazardous Materials, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as required by Legal Requirementsamended (42 U.S.C. Section 9601, except et seq.), the Hazardous Materials Transportation Act, as such lawsamended (49 U.S.C. Sections 1801, ordinanceset seq.), rulesthe Resource Conservation and Recovery Act, regulationsas amended (42 U.S.C. Sections 6901, orders et seq.), the SCCA, the ISRA and the rules and regulations adopted and publications promulgated pursuant thereto at any time. The term “Hazardous Materials” shall mean, without limitation, any flammable explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived toxic substances, providedor related materials, thatasbestos or any material containing asbestos, such installation and use comply with this Section 9.1(c) at all timesor any other substance or material regulated under any Applicable Environmental Laws.
Appears in 1 contract
Environmental Covenants. Mortgagor Tenant shall comply with all applicable Laws relating to discharge, emissions, waste, nuisance, pollution control, hazardous substances and other environmental matters as the same shall be attributable to Tenant’s operations at the Premises from and after the Commencement Date through the balance of the Term. All of the foregoing Laws are hereinafter referred to as “Environmental Laws.”
8.1 Tenant shall obtain all environmental licenses, permits, approvals, authorizations, exemptions, certificates and registrations (hereinafter collectively referred to as “Permits”) and make all applicable filings required of Tenant under the Environmental Laws required by Tenant to operate at the Premises. The Permits and required filings shall be made available for inspection and copying by Landlord at Tenant’s offices upon reasonable notice and during business hours.
8.2 Tenant shall not cause or permit any flammable explosive, oil, contaminant, pollutant, radioactive material, hazardous waste or material, toxic waste or material or any similar substance which is or may become regulated under any applicable federal, state or local law (hereinafter collectively referred to as “Hazardous Substances”) to be brought upon, kept or used in or about the Premises in violation of Environmental Laws. Tenant shall handle, store, use and dispose of any such Hazardous Substance in compliance with all applicable Environmental Laws in a manner which is safe and does not contaminate the Premises.
8.3 If Tenant causes a release of Hazardous Substances in violation of Environmental Laws at the Premises and Tenant fails during the Term to remediate such release in accordance with applicable standards for remediation of industrial properties, then the reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand as Additional Rent. In addition, Tenant, at Landlord’s sole cost and expense (including reimbursement of Tenant’s reasonable attorneys’ fees) shall execute affidavits, representations and the like upon Landlord’s request for such documents for purposes of obtaining insurance, financing and the like, concerning Tenant’s best knowledge and belief regarding the presence of Hazardous Substances on the Premises.
8.4 Tenant hereby agrees to indemnify and hold Landlord harmless from any liability, claim, loss, damage, or cost (including reasonable attorneys’ fees), including, without limitation, the cost of any required repair, cleanup, remediation or detoxification, arising from a breach by Tenant of this Section 8 or any actual or alleged violation of Environmental Laws by Tenant in, on, under or about the Premises or relating solely to the operation of Tenant’s business on the Premises from and after the Commencement Date through the Term. The foregoing covenants and agrees from indemnification shall survive the expiration of the Term of this Lease, provided that Tenant’s covenants and obligations shall terminate upon Tenant’s delivery of an environmental study reasonably acceptable to Landlord within two months of the end of the Lease Term that demonstrates to Landlord’s reasonable satisfaction that Tenant has no indemnification obligations, to Landlord pursuant to this Section 8.4, or that Tenant has satisfied such indemnification obligations.
8.5 Notwithstanding anything contained herein to the contrary, Landlord agrees, as to any Hazardous Substances at the Premises identified by Gaiatech pursuant to the Phase II Work (as defined in that certain Property Access Agreement dated as of March 13, 2014, by and among Power Solutions International, Inc., Xxxx X. Xxxxx, Xxxxxxx X. Xxxxx, CKT Holdings, Inc., and Landlord) as of the Commencement Date (the “Commencement Date Hazardous Substances”) or first introduced or otherwise brought to the Premises by Landlord or its contractors, agents or employees after the Commencement Date (the “Post Commencement Date Hazardous Substances”), to remove or otherwise remediate such Hazardous Substances if and to the extent required to attain applicable remediation standards for industrial properties issued pursuant to Environmental Law as existing on the Commencement Date (i.e., as it relates to the Commencement Date Hazardous Substances) or as of the date hereof until so introduced by Landlord or its contractors, agents or employees (i.e., as it relates to the date Post Commencement Date Hazardous Substances), as the case may be, at Landlord’s sole cost and expense. Landlord shall restore, at its sole cost and expense any damage caused to the Premises as a result of such access, removal or remediation by Landlord under this Section. In any entry into the Premises under this Section, Landlord shall use commercially reasonable efforts (which shall require overtime work to the extent such activity materially interferes with Tenant’s use and occupancy of or access to the Premises) to minimize interference with Tenant’s business operations therefrom. The foregoing is not intended to apply to Hazardous Substances present on the Premises on the Commencement Date used in connection with the ordinary course of Tenant’s business, provided that such Hazardous Substances have not been placed or used at the Premises by Landlord in violation of any applicable Environmental Laws or would require reporting of a release by Landlord pursuant to applicable Environmental Laws.
8.6 Notwithstanding anything contained herein to the contrary, Tenant shall not perform (or allow to be performed) any activities at the Premises that would disturb the ground surface or subsurface and shall not conduct (or allow to be conducted) any and all obligations and liabilitiesenvironmental evaluation, together with interest and other costs and expensesinvestigation, in each case owing to Mortgageesampling, have been paid in full that Mortgagor shall:
or testing of the soil or groundwater (aor surface water or sediment) Immediately report to Mortgagee upon becoming aware of at the Premises unless (i) the introduction of any Hazardous Material onto any facility owned Tenant is required by applicable Environmental Law to undertake such evaluation, investigation, sampling, or operated by Mortgagor testing and Tenant provides Landlord with no less than ten (10) days advance written notice; or its Subsidiaries if the introduction thereof reasonably could be expected to have a Material Adverse Effect and (ii) Landlord, in its sole discretion, agrees to such land disturbing activities or to such evaluation, investigation, sampling, or testing. In the initiation of any action, suit, proceeding, investigation or regulatory action against Mortgagor or any of event Tenant breaches its Subsidiaries or obligations under this Section 8.6 and Hazardous Substances are identified in connection with any such facility relating breach, Tenant shall be responsible, at its sole cost and expense, for all response actions including investigation and remediation of all such Hazardous Substances as necessary to any Release of Hazardous Materials in accordance achieve compliance with Section 5.7(c) of applicable Environmental Law and shall restore the Credit Agreement.
(b) Immediately deliver Premises to Mortgagee copies of (i) all reports (other than routine reports regularly submitted in substantially the ordinary course of business) submitted to any Governmental Authority by Mortgagor or any of its Subsidiaries in connection with either the presence of Hazardous Materials at any facility owned or operated by Mortgagor or any of its Subsidiaries or any other environmental matter relating to such facility, and (ii) all reports, notices, and correspondence transmitted to Mortgagor or its Subsidiaries by any Governmental Authority in connection with either the presence of any Hazardous Materials at or near any such facility or any other environmental matter relating to such facility in accordance with Section 5.7(c) of the Credit Agreement.
(c) Except for Hazardous Materials that Mortgagor or its Subsidiaries uses or stores or that an Obligor (defined below) of Mortgagor or its Subsidiaries, or any other Person entitled same condition as existed prior to the use of the applicable properties or assets, uses, stores or transports in the ordinary course of its business and in compliance with Legal Requirements, keep all of its properties and assets free of Hazardous Materials. Mortgagor and each of its Subsidiaries shall comply with and use its best efforts to ensure compliance by all tenants and subtenants with all Environmental Laws (defined below) and all Legal Requirements relating to occupational safety or health and shall obtain and comply with, and use its best efforts to ensure that all tenants and subtenants obtain and comply with, any and all approvals, registrations or permits required thereunder. Mortgagor and its Subsidiaries shall conduct and complete all investigations, studies, sampling and testing, and all remedial, removal, and other action necessary to clean up and remove all Hazardous Materials, on, from or affecting any of its properties or assets as required by Legal Requirements, except as such laws, ordinances, rules, regulations, orders or directives may be contested by Mortgagor and its Subsidiaries in good faith by appropriate proceedings and for which adequate reserves have been established in conformity with generally accepted accounting principles. It is expressly understood and agreed by Mortgagor and Mortgagee that Mortgagor’s tenants and subtenants may install and use generators on the Property which are or may use and contain oil, petroleum or petroleum derived substances, provided, that, such installation and use comply with this Section 9.1(c) at all timesbreach.
Appears in 1 contract
Samples: Lease Agreement (Power Solutions International, Inc.)
