Environmental Provisions. Borrower hereby represents and warrants to Lender that to the best of Borrower's knowledge (i) except for standard cleaning products and standard lawn care products used in connection with the landscaping of any Property and petroleum products used in connection with the operation of equipment at the Properties, no Hazardous Material is currently located at, on, in, under or about any Property, except as specifically set forth in the Environmental Reports, (ii) no Hazardous Material is currently located at, in, on, under or about any Property in a manner which violates any Environmental Requirement, or which requires cleanup or corrective action of any kind under any Environmental Requirement, (iii) no releasing, emitting, discharging, leaching, dumping or disposing of any Hazardous Material from any Property onto or into any other property or from any other property onto or into any Property has occurred or is occurring in violation of any Environmental Requirement, (iv) no notice of violation, lien, complaint, suit, order or other notice with respect to any Property is presently outstanding under any Environmental Requirement, and (v) each Property and the operation thereof are in compliance with all Environmental Requirements. Borrower shall comply, and shall use its best efforts to cause all tenants or other occupants of the Properties to comply, in all respects with all Environmental Requirements, and will not generate, store, handle, process, dispose of or otherwise use, and will not permit any tenant or other occupant of any Property to generate, store, handle, process, dispose of or otherwise use, Hazardous Materials at, in, on, under or about any Property in a manner that could lead or potentially lead to the imposition on Borrower, Lender or any Property of any liability or lien of any nature whatsoever under any Environmental Requirement. Borrower shall notify Lender promptly in the event of any spill or other release of any Hazardous Material at, in, on, under or about any Property which is required to be reported to a Governmental Authority under any Environmental Requirement, will promptly forward Lender copies of any notices received by Borrower relating to alleged violations of any Environmental Requirement and will promptly pay when due any fine or assessment against Lender, any Borrower or any Property relating to any Environmental Requirement. If at any time it is determined that the operation or use of any Property violates any applicable Environmental Requirement or that there are Hazardous Materials located at, in, on, under or about any Property which, under any Environmental Requirement, require special handling in collection, storage, treatment or disposal, or any other form of cleanup or corrective action, Borrower shall, within sixty (60) days after receipt of notice thereof from any Governmental Authority or from Lender (or such shorter period of time as may be required by any such Governmental Authority or under applicable Environmental Requirements), take, at Borrower's sole cost and expense, such actions as may be necessary to fully comply in all respects with all Environmental Requirements; provided, however, that if such compliance cannot reasonably be completed within such sixty (60) day period, Borrower shall commence such necessary action within such sixty (60) day period and shall thereafter diligently and expeditiously proceed to fully comply in all respects and in a timely fashion with all Environmental Requirements. If Borrower fails to timely take, or to diligently and expeditiously proceed to complete in a timely fashion, any such action, Lender may, in its sole and absolute discretion, make advances or payments towards the performance or satisfaction of the same, but shall in no event be under any obligation to do so. All sums so advanced or paid by Lender (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, and fines or other penalty payments) and all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto, will immediately, upon demand, become due and payable from Borrower and shall bear interest at the Default Rate from the date any such sums are so advanced or paid by Lender until the date any such sums are repaid by Borrower to Lender. Borrower will execute and deliver, promptly upon request, such instruments as Lender may deem useful or necessary to permit Lender to take any such action, and such additional notes, as Lender may require to secure all sums so advanced or paid by Lender. If a lien is filed against any Property by any Governmental Authority resulting from the need to expend or the actual expending of monies arising from an action or omission, whether intentional or unintentional, of Borrower or for which Borrower is responsible, resulting in the releasing, spilling, leaking, leaching, pumping, emitting, pouring, emptying or dumping of any Hazardous Material into the waters or onto land located within or without the State in which any Property is located, then Borrower will, within thirty (30) days from the date that Borrower is first given notice that such lien has been placed against such Property (or within such shorter period of time as may be specified by Lender if such Governmental Authority has commenced steps to cause such Property to be sold pursuant to such lien) either (a) pay the claim and remove the lien, or (b) furnish a cash deposit, bond, or such other security with respect thereto as is satisfactory in all respects to Lender and is sufficient to effect a complete discharge of such lien on such Property. Notwithstanding the foregoing, in the case of any material item, Borrower, at its own expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the validity or enforceability, in whole or in part, of any Environmental Requirement, provided that (i) Borrower shall have given prior notice of such contest to Lender, (ii) no default shall have occurred and be continuing under the Note, the Mortgages, this Agreement or any of the other Loan Documents, (iii) such proceeding shall suspend the obligation of Borrower to comply with any such Environmental Requirement, (iv) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower, or the Properties, are subject and shall not constitute a default thereunder, (v) failure to immediately comply with any such law, order, ordinance, rule or regulation will not invalidate or vitiate any Insurance Policies, in whole or in part, and will not in the opinion of Lender constitute a present danger to the Properties or any portion thereof, or to the individuals using and entering upon the Properties, (vi) neither the Properties nor any part thereof nor any interest therein will in the opinion of Lender be in danger of being sold, forfeited, confiscated, terminated, canceled or lost, (vii) delay in the compliance with any Environmental Requirement will not, in the opinion of Lender, result in a worsening or deterioration in the condition requiring remediation, (viii) Borrower shall have delivered to Lender in escrow all sums necessary to insure the payment by Borrower of all costs of compliance, fines and penalties, together with interest thereon, as may be incurred by Borrower in the event of a determination in such proceeding adverse to Borrower, and (ix) neither Borrower nor Lender will in the opinion of Lender be subject to any criminal or civil liability as the result of such contestment by Borrower. Lender may, at its option, at intervals of not more frequently than once a year, or more frequently if Lender reasonably believes that a Hazardous Material or other environmental condition violates or threatens to violate any Environmental Requirement applicable to a Property, cause an environmental audit of such Property to be conducted to confirm Borrower's compliance with the provisions of this paragraph in respect of such Property, and Borrower shall cooperate in all reasonable ways with Lender in connection with any such audit. Borrower shall pay all costs and expenses incurred in connection with such audit. If any of the Mortgages is foreclosed, or if any Property is sold pursuant to the provisions of the Mortgages, or if Borrower tenders a deed or assignment in lieu of foreclosure or sale, Borrower shall deliver such Properties to the purchaser at foreclosure or sale or to Lender, its nominee, or wholly owned subsidiary, as the case may be, in a condition that complies in all respects with all Environmental Requirements. Borrower will defend, indemnify, and hold harmless Lender, its employees, agents, officers, and directors, from and against any and all claims, demands, penalties, causes of action, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or otherwise (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, court costs, and litigation expenses) arising out of, or in any way related to, (i) any breach by Borrower of any of the provisions of this Section, (ii) the presence, disposal, spillage, discharge, emission, leakage, release, or threatened release of any Hazardous Material which is at, in, on, under, about, from or affecting any Property, including, without limitation, any damage or injury resulting from any such Hazardous Material to or affecting any Property or the soil, water, air, vegetation, buildings, personal property, individuals or animals located on any Property or on any other property or otherwise, (iii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any such Hazardous Material, (iv) any lawsuit brought or threatened, settlement reached, or order or directive of or by any Governmental Authority relating to such Hazardous Material, or (v) any violation of any Environmental Requirement. The obligations and liabilities of Borrower under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of whether the Debt has been paid in full and irrespective of any foreclosure of any of the Mortgages, sale of any one or more of the Properties pursuant to the provisions of the Mortgages or acceptance by Lender, its nominees or wholly owned subsidiaries of one or more deeds or assignments in lieu of foreclosure or sale and irrespective of any other fact or circumstance of any nature whatsoever.
Appears in 8 contracts
Samples: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Environmental Provisions. Borrower hereby represents and warrants to Lender that to the best of Borrower's knowledge
(i) except for standard cleaning products and standard lawn care products used in connection with the landscaping of any Property and petroleum products used in connection with the operation of equipment at the Properties, no Hazardous Material is currently located at, on, in, under or about any Property, except as specifically set forth in the Environmental Reports, (ii) no Hazardous Material is currently located at, in, on, under or about any Property in a manner which violates any Environmental Requirement, or which requires cleanup or corrective action of any kind under any Environmental Requirement, (iii) no releasing, emitting, discharging, leaching, dumping or disposing of any Hazardous Material from any Property onto or into any other property or from any other property onto or into any Property has occurred or is occurring in violation of any Environmental Requirement, (iv) no notice of violation, lien, complaint, suit, order or other notice with respect to any Property is presently outstanding under any Environmental Requirement, and (v) each Property and the operation thereof are in compliance with all Environmental Requirements. Borrower 9.1 Companies shall comply, and shall use its best efforts to cause all tenants or other occupants of the Properties their Subsidiaries to comply, in all respects with all applicable Environmental RequirementsLaws except for such non-compliance which would reasonably not be expected to materially adversely affect its business or the value of its property or assets.
9.2 Companies shall provide to Bank, and will not generatepromptly upon receipt, storecopies of any correspondence, handlenotice, processpleading, dispose of or otherwise usecitation, and will not permit any tenant indictment, complaint, order, decree, or other occupant document from any source asserting or alleging a circumstance or condition which requires or may require a financial contribution by any Company or any Subsidiary to a cleanup, removal, remedial action, or other response by or on the part of any Property to generate, store, handle, process, dispose of or otherwise use, Hazardous Materials at, in, on, under or about any Property in a manner that could lead or potentially lead to the imposition on Borrower, Lender Company or any Property Subsidiary under applicable Environmental Laws or which seeks damages or civil, criminal or punitive penalties from any Company for an alleged violation of Environmental Laws, where such contribution, response or damages would reasonably be expected to materially adversely affect its business or the value of its property or assets.
9.3 Companies shall promptly notify Bank in writing as soon as Companies become aware of the occurrence or existence of any liability condition or lien circumstance which makes the environmental warranties contained in this Agreement incomplete or inaccurate in any material respect as of any nature whatsoever under any Environmental Requirement. Borrower shall notify Lender promptly in date.
9.4 In the event of any spill condition or circumstance that makes any environmental warranty, representation and/or agreement incomplete or inaccurate in any material respect as of any date, Companies shall, at the reasonable request of Bank, at their sole expense, retain an environmental consultant, reasonably acceptable to Bank, to conduct a thorough and complete investigation regarding the changed condition and/or circumstance. A copy of the environmental consultant’s report will be promptly delivered to both Bank and Companies upon completion.
9.5 At any time Companies, directly or indirectly through any environmental consultant or other release of any Hazardous Material atrepresentative, indetermine to undertake an environmental audit, on, under assessment or about any Property which is required to be reported to a Governmental Authority under any Environmental Requirement, will promptly forward Lender copies of any notices received by Borrower relating to alleged violations of any Environmental Requirement and will promptly pay when due any fine or assessment against Lender, any Borrower or any Property investigation relating to any Environmental Requirementfact, event or condition which would reasonably be expected to materially adversely affect its business or the value of its property or assets, Companies shall promptly provide Bank with written notice of the initiation of the environmental audit, fully describing the purpose and intended scope of the environmental audit. If at any time it is determined that the operation or use Upon receipt, Companies will promptly provide to Bank copies of all final findings and conclusions of any Property violates such environmental investigation.
9.6 Companies hereby indemnify, save and hold Bank and any of its past, present and future officers, directors, shareholders, employees, representatives and consultants harmless from any and all loss, damages, suits, penalties, costs, liabilities and expenses (including but not limited to reasonable investigation, environmental audit(s), and legal expenses) arising out of any claim, loss or damage to any property, injuries to or death of persons, contamination of or adverse affects on the environment, caused by or in any way related to the violation of any applicable Environmental Requirement or that there are Hazardous Materials located at, in, on, under or about any Property which, under any Environmental Requirement, require special handling in collection, storage, treatment or disposal, or any other form of cleanup or corrective action, Borrower shall, within sixty (60) days after receipt of notice thereof from any Governmental Authority or from Lender (or such shorter period of time as may be required Laws by any such Governmental Authority Company or under applicable Environmental Requirements)its officers, takedirectors, at Borrower's sole cost and expenseshareholders, such actions as may be necessary to fully comply in all respects with all Environmental Requirementsemployees, consultants and/or representatives; provided, however, that if the foregoing indemnification shall not be applicable when arising solely from events or conditions occurring while the Bank is in sole possession (subject to the rights of any creditors of Companies) of such compliance cannot reasonably be completed within such sixty (60) day period, Borrower shall commence such necessary action within such sixty (60) day period and shall thereafter diligently and expeditiously proceed to fully comply in all respects and in a timely fashion with all Environmental Requirementsproperty. If Borrower fails to timely take, or to diligently and expeditiously proceed to complete in a timely fashion, any such action, Lender may, in its sole and absolute discretion, make advances or payments towards the performance or satisfaction of the same, but shall in In no event shall Companies be under liable hereunder for any obligation to do so. All sums so advanced or paid by Lender (includingloss, without limitationdamages, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, and fines or other penalty payments) and all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto, will immediately, upon demand, become due and payable from Borrower and shall bear interest at the Default Rate from the date any such sums are so advanced or paid by Lender until the date any such sums are repaid by Borrower to Lender. Borrower will execute and deliver, promptly upon request, such instruments as Lender may deem useful or necessary to permit Lender to take any such action, and such additional notes, as Lender may require to secure all sums so advanced or paid by Lender. If a lien is filed against any Property by any Governmental Authority resulting from the need to expend or the actual expending of monies arising from an action or omission, whether intentional or unintentional, of Borrower or for which Borrower is responsible, resulting in the releasing, spilling, leaking, leaching, pumping, emitting, pouring, emptying or dumping of any Hazardous Material into the waters or onto land located within or without the State in which any Property is located, then Borrower will, within thirty (30) days from the date that Borrower is first given notice that such lien has been placed against such Property (or within such shorter period of time as may be specified by Lender if such Governmental Authority has commenced steps to cause such Property to be sold pursuant to such lien) either (a) pay the claim and remove the lien, or (b) furnish a cash deposit, bond, or such other security with respect thereto as is satisfactory in all respects to Lender and is sufficient to effect a complete discharge of such lien on such Property. Notwithstanding the foregoing, in the case of any material item, Borrower, at its own expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the validity or enforceability, in whole or in part, of any Environmental Requirement, provided that (i) Borrower shall have given prior notice of such contest to Lender, (ii) no default shall have occurred and be continuing under the Note, the Mortgages, this Agreement or any of the other Loan Documents, (iii) such proceeding shall suspend the obligation of Borrower to comply with any such Environmental Requirement, (iv) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower, or the Properties, are subject and shall not constitute a default thereunder, (v) failure to immediately comply with any such law, order, ordinance, rule or regulation will not invalidate or vitiate any Insurance Policies, in whole or in part, and will not in the opinion of Lender constitute a present danger to the Properties or any portion thereof, or to the individuals using and entering upon the Properties, (vi) neither the Properties nor any part thereof nor any interest therein will in the opinion of Lender be in danger of being sold, forfeited, confiscated, terminated, canceled or lost, (vii) delay in the compliance with any Environmental Requirement will not, in the opinion of Lender, result in a worsening or deterioration in the condition requiring remediation, (viii) Borrower shall have delivered to Lender in escrow all sums necessary to insure the payment by Borrower of all costs of compliance, fines and penalties, together with interest thereon, as may be incurred by Borrower in the event of a determination in such proceeding adverse to Borrower, and (ix) neither Borrower nor Lender will in the opinion of Lender be subject to any criminal or civil liability as the result of such contestment by Borrower. Lender may, at its option, at intervals of not more frequently than once a year, or more frequently if Lender reasonably believes that a Hazardous Material or other environmental condition violates or threatens to violate any Environmental Requirement applicable to a Property, cause an environmental audit of such Property to be conducted to confirm Borrower's compliance with the provisions of this paragraph in respect of such Property, and Borrower shall cooperate in all reasonable ways with Lender in connection with any such audit. Borrower shall pay all costs and expenses incurred in connection with such audit. If any of the Mortgages is foreclosed, or if any Property is sold pursuant to the provisions of the Mortgages, or if Borrower tenders a deed or assignment in lieu of foreclosure or sale, Borrower shall deliver such Properties to the purchaser at foreclosure or sale or to Lender, its nominee, or wholly owned subsidiary, as the case may be, in a condition that complies in all respects with all Environmental Requirements. Borrower will defend, indemnify, and hold harmless Lender, its employees, agents, officers, and directors, from and against any and all claims, demandssuits, penalties, causes of action, fines, liabilities, settlements, damages, costs, liabilities or expenses arising from any act of whatever kind gross negligence or naturewillful misconduct of Bank, known or unknownits agents or employees. It is expressly understood and agreed that the indemnifications granted herein are intended to protect Bank, foreseen its past, present and future officers, directors, shareholders, employees, consultants and representatives from any claims that may arise by reason of the security interest, liens and/or mortgages granted to Bank, or unforeseenunder any other document or agreement given to secure repayment of any indebtedness from Companies, contingent whether or not such claims arise before or after Bank has foreclosed upon and/or otherwise (including, without limitation, counsel become the owner of any such property. All obligations of indemnity as provided hereunder shall be secured by the collateral documents. It is expressly agreed and consultant fees understood that the provisions hereof shall and expenses, investigation are intended to be continuing and laboratory fees and expenses, court costsshall survive the repayment of any indebtedness from Companies to Bank.
9.7 Companies shall maintain, and litigation expenses) arising out ofshall cause their Subsidiaries to maintain, or in any way related toall permits, (i) any breach by Borrower licenses and approvals required under applicable Environmental Laws except such permits, licenses and approvals the failure of any of the provisions of this Section, (ii) the presence, disposal, spillage, discharge, emission, leakage, release, or threatened release of any Hazardous Material which is at, in, on, under, about, from or affecting any Property, including, without limitation, any damage or injury resulting from any such Hazardous Material to or affecting any Property have would reasonably not be expected to materially adversely affect its business or the soil, water, air, vegetation, buildings, personal property, individuals or animals located on any Property or on any other value of their property or otherwise, (iii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any such Hazardous Material, (iv) any lawsuit brought or threatened, settlement reached, or order or directive of or by any Governmental Authority relating to such Hazardous Material, or (v) any violation of any Environmental Requirement. The obligations and liabilities of Borrower under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of whether the Debt has been paid in full and irrespective of any foreclosure of any of the Mortgages, sale of any one or more of the Properties pursuant to the provisions of the Mortgages or acceptance by Lender, its nominees or wholly owned subsidiaries of one or more deeds or assignments in lieu of foreclosure or sale and irrespective of any other fact or circumstance of any nature whatsoeverassets.
Appears in 3 contracts
Samples: Credit Agreement (Us Concrete Inc), Credit Agreement (Us Concrete Inc), Credit Agreement (Us Concrete Inc)
Environmental Provisions. Borrower hereby represents and warrants to Lender that to the best of Borrower's knowledge
(i) except for standard cleaning products and standard lawn care products used in connection with the landscaping of any Property and petroleum products used in connection with the operation of equipment at the Properties, no Hazardous Material is currently located at, on, in, under or about any Property, except as specifically set forth in the Environmental Reports, (ii) no Hazardous Material is currently located at, in, on, under or about any Property in a manner which violates any Environmental Requirement, or which requires cleanup or corrective action of any kind under any Environmental Requirement, (iii) no releasing, emitting, discharging, leaching, dumping or disposing of any Hazardous Material from any Property onto or into any other property or from any other property onto or into any Property has occurred or is occurring in violation of any Environmental Requirement, (iv) no notice of violation, lien, complaint, suit, order or other notice with respect to any Property is presently outstanding under any Environmental Requirement, and (v) each Property and the operation thereof are in compliance with all Environmental Requirements. Borrower Each Loan Party shall comply, and shall use its best efforts to cause all tenants or other occupants of the Properties to comply, comply in all respects with all Environmental Requirements, and will not generate, store, handle, process, dispose of or otherwise use, and no Loan Party will not permit any tenant or other occupant of any Property to generate, store, handle, process, dispose of or otherwise use, Hazardous Materials at, in, on, under or about any Property or Improvements in a manner that could lead or potentially lead to the imposition on Borrower, any Loan Party or Lender or any Property of any liability or lien of any nature whatsoever under any Environmental Requirement. Borrower shall notify Lender promptly in the event of any spill or other release of any Hazardous Material at, in, on, under or about any Property or Improvements which is required to be reported to a Governmental Authority under any Environmental Requirement, will promptly forward to Lender copies of any notices received by Borrower any Loan Party relating to alleged violations of any Environmental Requirement and will promptly pay when due any fine or assessment against Lender, any Borrower Lender or any Property Loan Party relating to any Environmental Requirement. If at any time it is determined that the operation or use of any Property violates any applicable Environmental Requirement or that there are Hazardous Materials located at, in, on, on or under or about any Property or Improvements which, under any Environmental Requirement, require special handling in collection, storage, treatment or disposal, or any other form of cleanup or corrective action, Borrower shall, or shall cause any Loan Party to take, within sixty thirty (6030) days after receipt of notice thereof from any Governmental Authority or from Lender (or such shorter period of time as may be required by any such Governmental Authority or under applicable Environmental Requirements), takeLender, at Borrower's its sole cost and expense, such actions as may be necessary to fully comply in all respects with all Environmental Requirements; , provided, however, that if such compliance cannot reasonably be completed within such sixty thirty (6030) day period, Borrower then such Person shall commence such necessary action within such sixty thirty (6030) day period and shall thereafter diligently and expeditiously proceed to fully comply in all respects and in a timely fashion with all Environmental Requirements. If Borrower such Person fails to timely take, or to diligently and expeditiously proceed to complete in a timely fashion, any such action, Lender Lender, may, in its sole and absolute discretion, make advances or payments towards the performance or satisfaction of the same, but shall in no event be under any obligation to do so. All sums so advanced or paid by Lender (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, and fines or other penalty payments) and all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto, will immediately, upon demand, become due and payable from Borrower and shall bear interest at the Protective Advance Default Rate from the date any such sums are so advanced or paid by Lender until the date any such sums are repaid by Borrower to Lender. Borrower will execute and deliver, promptly upon request, such instruments as Lender may reasonably deem useful or necessary to permit Lender to take any such action, and Borrower shall execute and deliver such additional notesnotes and security instruments, as Lender may reasonably require to secure all sums so advanced or paid by Lender. If a lien Lien is filed against any Property by any Governmental Authority related to Environmental Requirements and resulting from the need to expend or the actual expending of monies arising from an action or omission, whether intentional or unintentional, of Borrower or for which Borrower is responsible, resulting in the releasing, spilling, leaking, leaching, pumping, emitting, pouring, emptying or dumping of any Hazardous Material into the waters or onto land located within or without the State in which any Property is located, then Borrower will, within thirty (30) days from the date that Borrower is first given notice that such lien Lien has been placed against such any Property (or within such shorter period of time as may be specified by Lender if such Governmental Authority has commenced steps to cause such the Property to be sold pursuant to such lienLien) either (a) pay the claim and remove the lienLien, or (b) furnish a cash deposit, bond, or such other security with respect thereto as is satisfactory in all respects to Lender and is sufficient to effect a complete discharge of such lien Lien on such Property. Notwithstanding the foregoing, in the case of any material item, Borrower, at its own expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the validity or enforceability, in whole or in part, of any Environmental Requirement, provided that (i) Borrower shall have given prior notice of such contest to Lender, (ii) no default shall have occurred and be continuing under the Note, the Mortgages, this Agreement or any of the other Loan Documents, (iii) such proceeding shall suspend the obligation of Borrower to comply with any such Environmental Requirement, (iv) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower, or the Properties, are subject and shall not constitute a default thereunder, (v) failure to immediately comply with any such law, order, ordinance, rule or regulation will not invalidate or vitiate any Insurance Policies, in whole or in part, and will not in the opinion of Lender constitute a present danger to the Properties or any portion thereof, or to the individuals using and entering upon the Properties, (vi) neither the Properties nor any part thereof nor any interest therein will in the opinion of Lender be in danger of being sold, forfeited, confiscated, terminated, canceled or lost, (vii) delay in the compliance with any Environmental Requirement will not, in the opinion of Lender, result in a worsening or deterioration in the condition requiring remediation, (viii) Borrower shall have delivered to Lender in escrow all sums necessary to insure the payment by Borrower of all costs of compliance, fines and penalties, together with interest thereon, as may be incurred by Borrower in the event of a determination in such proceeding adverse to Borrower, and (ix) neither Borrower nor Lender will in the opinion of Lender be subject to any criminal or civil liability as the result of such contestment by Borrower. Lender may, at its option, at intervals of not more frequently less than once a one year, or more frequently if Lender reasonably believes suspects that a Hazardous Material or other environmental condition violates may violate or threatens threaten to violate any Environmental Requirement applicable to a PropertyRequirement, and also upon the occurrence of an Event of Default, cause an environmental audit of such the relevant Property or Improvements or portions thereof to be conducted to confirm Borrower's ’s compliance with the provisions of this paragraph in respect of such Propertyparagraph, and Borrower shall cooperate in all reasonable ways with Lender in connection with any such audit, and Borrower shall provide to Lender and its representatives access to such Property to permit and facilitate the conduct of such audit. If such audit discloses that a violation of an Environmental Requirement exists, or if such audit is conducted upon the occurrence of an Event of Default, then Borrower shall pay all costs and expenses incurred in connection with such audit, otherwise, the costs and expenses of such audit shall, notwithstanding anything to the contrary set forth in this paragraph, be paid by Lender. If any Lender acquires the Collateral pursuant to an exercise of Lender’s remedies under one of the Mortgages is foreclosedPledge Agreements, or if any Property the Collateral is sold pursuant to the provisions of one of the MortgagesPledge Agreements, or if Borrower tenders a deed or an assignment in lieu of foreclosure or sale, Borrower shall deliver such Properties the foreclosed, sold or assigned Ownership Interests free and clear of any liabilities to the purchaser at foreclosure or sale or to Lender, its nominee, or wholly wholly-owned subsidiary, as the case may be, in a condition that complies in all respects arising from any failure to comply with all Environmental Requirements. Borrower will defend, indemnify, and hold harmless Lender, its employees, agents, officers, and directors, from and against any and all claims, demands, penalties, causes of action, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or otherwise (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, court costs, and litigation expenses) arising out of, or in any way related to, (i) any breach by Borrower of any of the provisions of this Section, (ii) the presence, disposal, spillage, discharge, emission, leakage, release, or threatened release of any Hazardous Material which is at, in, on, under, about, from or affecting any Property, including, without limitation, any damage or injury resulting from any such Hazardous Material to or affecting any Property or the soil, water, air, vegetation, buildings, personal property, individuals or animals located on any Property or on any other property or otherwise, (iii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any such Hazardous Material, (iv) any lawsuit brought or threatened, settlement reached, or order or directive of or by any Governmental Authority relating to such Hazardous Material, or (v) any violation of any Environmental Requirement. The obligations and liabilities of Borrower under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of whether the Debt has been paid in full and irrespective of any foreclosure of any of the Mortgages, sale of any one or more of the Properties pursuant to the provisions of the Mortgages or acceptance by Lender, its nominees or wholly owned subsidiaries of one or more deeds or assignments in lieu of foreclosure or sale and irrespective of any other fact or circumstance of any nature whatsoever.
Appears in 2 contracts
Samples: Loan Agreement (Prime Group Realty Trust), Loan Agreement (Prime Group Realty Trust)
Environmental Provisions. Borrower hereby represents and warrants to Lender that to the best of Borrower's knowledge
(ia) except for standard cleaning products and standard lawn care products used in connection with the landscaping of any Property and petroleum products used in connection with the operation of equipment at the Properties, no Hazardous Material is currently located at, on, in, under or about any Property, except as specifically set forth in the Environmental Reports, (ii) no Hazardous Material is currently located at, in, on, under or about any Property in a manner which violates any Environmental Requirement, or which requires cleanup or corrective action of any kind under any Environmental Requirement, (iii) no releasing, emitting, discharging, leaching, dumping or disposing of any Hazardous Material from any Property onto or into any other property or from any other property onto or into any Property has occurred or is occurring in violation of any Environmental Requirement, (iv) no notice of violation, lien, complaint, suit, order or other notice with respect to any Property is presently outstanding under any Environmental Requirement, and (v) each Property and the operation thereof are in compliance with all Environmental Requirements. Borrower The Company shall comply, and shall use cause its best efforts to cause all tenants or other occupants of the Properties Subsidiaries to comply, in all material respects with all applicable Environmental RequirementsLaws, and will except where the failure to so comply would not generatehave a Material Adverse Effect.
(b) The Company shall provide to the Purchasers, storepromptly after receipt, handlecopies of any correspondence, processnotice, dispose of or otherwise usepleading, and will not permit any tenant citation, indictment, complaint, order, decree, or other occupant document from any source asserting or alleging a circumstance or condition which requires or may require a financial contribution by the Company or any Subsidiary or a cleanup, removal, remedial action, or other response by or on the part of the Company or any Subsidiary under applicable Environmental Laws or which seeks damages or civil, criminal or punitive penalties from the Company for an alleged violation of Environmental Laws.
(c) The Company shall promptly notify the Purchasers in writing as soon as the Company becomes aware of any Property to generate, store, handle, process, dispose of condition or otherwise use, Hazardous Materials at, in, on, under circumstance which makes the environmental warranties contained in this Agreement incomplete or about inaccurate in any Property in a manner that could lead or potentially lead to the imposition on Borrower, Lender or any Property material respect as of any liability or lien of any nature whatsoever under any Environmental Requirement. Borrower shall notify Lender promptly in date.
(d) In the event of any spill condition or other release circumstance that makes any environmental warranty, representation and/or agreement contained herein incomplete or inaccurate in any material respect as of any Hazardous Material at, in, on, under date regarding any real property owned or about any Property which is required to be reported to a Governmental Authority under any Environmental Requirement, will promptly forward Lender copies of any notices received operated by Borrower relating to alleged violations of any Environmental Requirement and will promptly pay when due any fine or assessment against Lender, any Borrower the Company or any Property relating Subsidiary, the Company shall, at the reasonable request of the Purchasers, at the Company's sole expense, retain an environmental professional consultant, reasonably acceptable to the Purchasers, to conduct an environmental audit regarding the changed condition and/or circumstance and any Environmental Requirementenvironmental concerns arising from that changed condition and/or circumstance in form and scope recommended by such consultant in light of the relevant facts and circumstances. A copy of the environmental consultant's report will be promptly delivered to the Purchasers and the Company upon completion.
(e) If at any time it is determined that the operation Company or use any Subsidiary, directly or indirectly through any professional consultant or other representative, determines to undertake an environmental audit, assessment or investigation, then the Company shall promptly provide the Purchasers with written notice of the initiation of the environmental audit, fully describing the purpose and intended scope of the environmental audit. Upon receipt, the Company will promptly provide to the Purchasers copies of all final written findings and conclusions of any Property violates such environmental investigation. Preliminary written findings and conclusions shall be provided if final reports have not been completed and delivered to the Purchasers within 60 days following completion of the preliminary findings and conclusions.
(f) The Company will promptly comply with any applicable Environmental Requirement or that there are Hazardous Materials located at, in, on, under or about any Property which, under any Environmental Requirement, require special handling in collection, storagegovernmental requirements requiring the removal, treatment or disposal, or any other form of cleanup or corrective action, Borrower shall, within sixty (60) days after receipt of notice thereof from any Governmental Authority or from Lender (or such shorter period of time as may be required by any such Governmental Authority or under applicable Environmental Requirements), take, at Borrower's sole cost and expense, such actions as may be necessary to fully comply in all respects with all Environmental Requirements; provided, however, that if such compliance cannot reasonably be completed within such sixty (60) day period, Borrower shall commence such necessary action within such sixty (60) day period and shall thereafter diligently and expeditiously proceed to fully comply in all respects and in a timely fashion with all Environmental Requirements. If Borrower fails to timely take, or to diligently and expeditiously proceed to complete in a timely fashion, any such action, Lender may, in its sole and absolute discretion, make advances or payments towards the performance or satisfaction of the same, but shall in no event be under any obligation to do so. All sums so advanced or paid by Lender (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, and fines or other penalty payments) and all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto, will immediately, upon demand, become due and payable from Borrower and shall bear interest at the Default Rate from the date any such sums are so advanced or paid by Lender until the date any such sums are repaid by Borrower to Lender. Borrower will execute and deliver, promptly upon request, such instruments as Lender may deem useful or necessary to permit Lender to take any such action, and such additional notes, as Lender may require to secure all sums so advanced or paid by Lender. If a lien is filed against any Property by any Governmental Authority resulting from the need to expend or the actual expending of monies arising from an action or omission, whether intentional or unintentional, of Borrower or for which Borrower is responsible, resulting in the releasing, spilling, leaking, leaching, pumping, emitting, pouring, emptying or dumping disposal of any Hazardous Material into Materials or Hazardous Materials Contamination and provide evidence satisfactory to the waters or onto land located within or without the State in which any Property is located, then Borrower will, within thirty (30) days from the date that Borrower is first given notice that such lien has been placed against such Property (or within such shorter period of time as may be specified by Lender if such Governmental Authority has commenced steps to cause such Property to be sold pursuant to such lien) either (a) pay the claim and remove the lien, or (b) furnish a cash deposit, bond, or such other security with respect thereto as is satisfactory in all respects to Lender and is sufficient to effect a complete discharge Purchasers of such lien on such Property. Notwithstanding the foregoing, in the case of any material item, Borrower, at its own expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the validity or enforceability, in whole or in part, of any Environmental Requirement, provided that (i) Borrower shall have given prior notice of such contest to Lender, (ii) no default shall have occurred and be continuing under the Note, the Mortgages, this Agreement or any of the other Loan Documents, (iii) such proceeding shall suspend the obligation of Borrower to comply with any such Environmental Requirement, (iv) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower, or the Properties, are subject and shall not constitute a default thereunder, (v) failure to immediately comply with any such law, order, ordinance, rule or regulation will not invalidate or vitiate any Insurance Policies, in whole or in part, and will not in the opinion of Lender constitute a present danger to the Properties or any portion thereof, or to the individuals using and entering upon the Properties, (vi) neither the Properties nor any part thereof nor any interest therein will in the opinion of Lender be in danger of being sold, forfeited, confiscated, terminated, canceled or lost, (vii) delay in the compliance with any Environmental Requirement will not, in the opinion of Lender, result in a worsening or deterioration in the condition requiring remediation, (viii) Borrower shall have delivered to Lender in escrow all sums necessary to insure the payment by Borrower of all costs of compliance, fines and penalties, together with interest thereon, as may be incurred by Borrower in except where such compliance is the event subject of a determination in such proceeding adverse to Borrower, and (ix) neither Borrower nor Lender will in the opinion of Lender be subject to any criminal or civil liability as the result of such contestment by Borrower. Lender may, at its option, at intervals of not more frequently than once a year, or more frequently if Lender reasonably believes that a Hazardous Material or other environmental condition violates or threatens to violate any Environmental Requirement applicable to a Property, cause an environmental audit of such Property to be conducted to confirm Borrower's compliance with the provisions of this paragraph in respect of such Property, and Borrower shall cooperate in all reasonable ways with Lender in connection with any such audit. Borrower shall pay all costs and expenses incurred in connection with such audit. If any of the Mortgages is foreclosed, or if any Property is sold pursuant to the provisions of the Mortgages, or if Borrower tenders a deed or assignment in lieu of foreclosure or sale, Borrower shall deliver such Properties to the purchaser at foreclosure or sale or to Lender, its nominee, or wholly owned subsidiary, as the case may be, in a condition that complies in all respects with all Environmental Requirements. Borrower will defend, indemnify, and hold harmless Lender, its employees, agents, officers, and directors, from and against any and all claims, demands, penalties, causes of action, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or otherwise (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, court costs, and litigation expenses) arising out of, or in any way related to, (i) any breach by Borrower of any of the provisions of this Section, (ii) the presence, disposal, spillage, discharge, emission, leakage, release, or threatened release of any Hazardous Material which is at, in, on, under, about, from or affecting any Property, including, without limitation, any damage or injury resulting from any such Hazardous Material to or affecting any Property or the soil, water, air, vegetation, buildings, personal property, individuals or animals located on any Property or on any other property or otherwise, (iii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any such Hazardous Material, (iv) any lawsuit brought or threatened, settlement reached, or order or directive of or by any Governmental Authority relating to such Hazardous Material, or (v) any violation of any Environmental Requirement. The obligations and liabilities of Borrower under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of whether the Debt has been paid in full and irrespective of any foreclosure of any of the Mortgages, sale of any one or more of the Properties pursuant to the provisions of the Mortgages or acceptance by Lender, its nominees or wholly owned subsidiaries of one or more deeds or assignments in lieu of foreclosure or sale and irrespective of any other fact or circumstance of any nature whatsoeverPermitted Contest."
Appears in 2 contracts
Samples: Senior Subordinated Note and Warrant Purchase Agreement (Mce Companies Inc), Note, Warrant and Preferred Stock Purchase Agreement (Mce Companies Inc)
Environmental Provisions. Borrower hereby represents (A) The Mortgagor represents, warrants and warrants covenants to Lender that the Mortgagee as follows: (i) the Mortgaged Property will not and, to the best of Borrowerthe Mortgagor's knowledge
(i) except for standard cleaning products and standard lawn care products used in connection with the landscaping of any Property and petroleum products used in connection with the operation of equipment at the Properties, no Hazardous Material is currently located atdo not, on, in, under or about any Property, except as specifically set forth in the Environmental Reports, (ii) no Hazardous Material is currently located at, in, on, under or about any Property in a manner which violates any Environmental Requirement, or which requires cleanup or corrective action of any kind under any Environmental Requirement, (iii) no releasing, emitting, discharging, leaching, dumping or disposing of contain any Hazardous Material from any Property onto or into any other property or from any other property onto or into any Property has occurred or is occurring in violation of any Environmental Requirement, (iv) no notice of violation, lien, complaint, suit, order or other notice with respect to any Property is presently outstanding under any Environmental Requirement, and (v) each Property and the operation thereof are Materials except in compliance with all Environmental Requirements. Borrower shall complyapplicable Hazardous Materials Law; and (ii) (I) the Mortgaged Property and any buildings now or hereafter located thereon are not now being used, and shall use its best efforts to cause all tenants or other occupants of the Properties to comply, in all respects with all Environmental Requirementsnor have ever been used, and will not generatenot, store, handle, process, dispose of or otherwise use, and will not permit any tenant or other occupant of any Property to generate, store, handle, process, dispose of or otherwise use, Hazardous Materials at, in, on, under or about any Property in a manner that could lead or potentially lead to while the imposition on Borrower, Lender Mortgagor or any Property of any liability affiliate thereof is the owner or lien of any nature whatsoever under any Environmental Requirement. Borrower shall notify Lender promptly in the event of any spill or other release of any Hazardous Material at, in, on, under or about any Property which is required to be reported to a Governmental Authority under any Environmental Requirement, will promptly forward Lender copies of any notices received by Borrower relating to alleged violations of any Environmental Requirement and will promptly pay when due any fine or assessment against Lender, any Borrower or any Property relating to any Environmental Requirement. If at any time it is determined that the operation or use of any Property violates any applicable Environmental Requirement or that there are Hazardous Materials located at, in, on, under or about any Property which, under any Environmental Requirement, require special handling in collection, storage, treatment or disposal, or any other form of cleanup or corrective action, Borrower shall, within sixty (60) days after receipt of notice thereof from any Governmental Authority or from Lender (or such shorter period of time as may be required by any such Governmental Authority or under applicable Environmental Requirements), take, at Borrower's sole cost and expense, such actions as may be necessary to fully comply in all respects with all Environmental Requirements; provided, however, that if such compliance cannot reasonably be completed within such sixty (60) day period, Borrower shall commence such necessary action within such sixty (60) day period and shall thereafter diligently and expeditiously proceed to fully comply in all respects and in a timely fashion with all Environmental Requirements. If Borrower fails to timely take, or to diligently and expeditiously proceed to complete in a timely fashion, any such action, Lender may, in its sole and absolute discretion, make advances or payments towards the performance or satisfaction lessee of the same, but shall in no event be under any obligation to do so. All sums so advanced or paid by Lender (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, and fines or other penalty payments) and all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto, will immediately, upon demand, become due and payable from Borrower and shall bear interest at the Default Rate from the date any such sums are so advanced or paid by Lender until the date any such sums are repaid by Borrower to Lender. Borrower will execute and deliver, promptly upon request, such instruments as Lender may deem useful or necessary to permit Lender to take any such action, and such additional notes, as Lender may require to secure all sums so advanced or paid by Lender. If a lien is filed against any Mortgaged Property by any Governmental Authority resulting from the need to expend or the actual expending of monies arising from an action or omission, whether intentional or unintentional, of Borrower or for which Borrower is responsible, resulting in the releasing, spilling, leaking, leaching, pumping, emitting, pouring, emptying or dumping of any Hazardous Material into the waters or onto land located within or without the State in which any Property is located, then Borrower will, within thirty (30) days from the date that Borrower is first given notice that such lien has been placed against such Property (or within such shorter period of time as may be specified by Lender if such Governmental Authority has commenced steps to cause such Property to be sold pursuant to such lien) either (a) pay the claim and remove the lien, or (b) furnish a cash deposit, bond, or such other security with respect thereto as is satisfactory in all respects to Lender and is sufficient to effect a complete discharge of such lien on such Property. Notwithstanding the foregoing, in the case of any material item, Borrower, at its own expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the validity or enforceability, in whole or in part, of any Environmental Requirement, provided that (i) Borrower shall have given prior notice of such contest to Lender, (ii) no default shall have occurred and be continuing under the Note, the Mortgages, this Agreement or any of the other Loan Documents, (iii) such proceeding shall suspend the obligation of Borrower to comply with any such Environmental Requirement, (iv) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower, or the Properties, are subject and shall not constitute a default thereunder, (v) failure to immediately comply with any such law, order, ordinance, rule or regulation will not invalidate or vitiate any Insurance Policies, in whole or in part, and will not in the opinion of Lender constitute a present danger to the Properties or any portion thereof, be used, for any activities involving, directly or indirectly, the use, handling, generation, treatment, storage, transportation, removal, remediation, release or disposal of any Hazardous Materials, and (II) to the individuals using best knowledge of the Mortgagor after due inquiry, there has never been any discharge of any Hazardous Materials (1) upon or at the Mortgaged Property, without regard to the source or origin of such discharge, or (2) from the Mortgaged Property into or onto any lands, surface waters or ground waters or air space adjacent to or in the vicinity of the Mortgaged Property; and entering upon the Properties, (viiii) neither the Properties Mortgaged Property nor the Mortgagor are subject to any part thereof nor existing or pending proceeding, investigation or inquiry by any interest therein will in the opinion of Lender be in danger of being soldGovernmental Authority or any sanction or remedial obligation imposed under any applicable Hazardous Materials Law, forfeitedand no such proceeding, confiscatedinvestigation, terminatedinquiry, canceled sanction or lost, remedial obligation has been threatened by any such Governmental Authority.
(viiB) delay in the compliance The Mortgagor shall comply with any Environmental Requirement and all Hazardous Materials Law, shall pay immediately when due the costs of removal of any such Hazardous Material if required by any Hazardous Materials Law and shall keep the Mortgaged Property free of any lien imposed pursuant to such Hazardous Materials Law. The Mortgagor covenants that the Mortgaged Property and any buildings now or hereafter located thereon, will not, in while the opinion of Lender, result in a worsening Mortgagor is the owner or deterioration in the condition requiring remediation, (viii) Borrower shall have delivered to Lender in escrow all sums necessary to insure the payment by Borrower operator of all costs or a portion thereof, be used in violation of compliance, fines and penalties, together with interest thereon, as may be incurred by Borrower in any Hazardous Materials Law. In the event of a determination in such proceeding adverse the Mortgagor fails to Borrowercomply with this section, after notice to the Mortgagor and (ix) neither Borrower nor Lender will in the opinion of Lender be subject to any criminal or civil liability as the result of such contestment by Borrower. Lender may, at its option, at intervals of not more frequently than once a year, or more frequently if Lender reasonably believes that a Hazardous Material or other environmental condition violates or threatens to violate any Environmental Requirement applicable to a Property, cause an environmental audit of such Property to be conducted to confirm Borrower's compliance with the provisions of this paragraph in respect of such Property, and Borrower shall cooperate in all reasonable ways with Lender in connection with any such audit. Borrower shall pay all costs and expenses incurred in connection with such audit. If any expiration of the Mortgages is foreclosed, or if any Property is sold pursuant to the provisions earlier of the Mortgages, or if Borrower tenders a deed or assignment in lieu of foreclosure or sale, Borrower shall deliver such Properties to the purchaser at foreclosure or sale or to Lender, its nominee, or wholly owned subsidiary, as the case may be, in a condition that complies in all respects with all Environmental Requirements. Borrower will defend, indemnify, and hold harmless Lender, its employees, agents, officers, and directors, from and against any and all claims, demands, penalties, causes of action, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or otherwise (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, court costs, and litigation expenses) arising out of, or in any way related to, (i) any breach by Borrower of any of the provisions of this Sectionapplicable cure period hereunder, or (ii) the presencecure period permitted under the applicable Hazardous Materials Law, disposal, spillage, discharge, emission, leakage, releasethe Mortgagee may declare this Mortgage to be in default and/or remove, or threatened release cause the removal of, the Hazardous Materials and the cost of any Hazardous Material which is at, in, on, under, about, from or affecting any Property, including, without limitation, any damage or injury resulting from any such Hazardous Material to or affecting any Property or removal shall be paid by the soil, water, air, vegetation, buildings, personal property, individuals or animals located on any Property or on any other property or otherwise, (iii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any such Hazardous Material, (iv) any lawsuit brought or threatened, settlement reached, or order or directive of or by any Governmental Authority relating to such Hazardous Material, or (v) any violation of any Environmental Requirement. The obligations Mortgagor as additional interest hereunder and liabilities of Borrower under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of whether the Debt has been paid in full and irrespective of any foreclosure of any of the Mortgages, sale of any one or more of the Properties pursuant to the provisions of the Mortgages or acceptance by Lender, its nominees or wholly owned subsidiaries of one or more deeds or assignments in lieu of foreclosure or sale and irrespective of any other fact or circumstance of any nature whatsoeversecured hereby.
Appears in 2 contracts
Samples: Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing (Decora Industries Inc), Mortgage, Security Agreement, Assignment of Leases and Rents (Decora Industries Inc)
Environmental Provisions. Borrower hereby represents and warrants to Lender that to the best of Borrower's knowledge
(i) except for standard cleaning products and standard lawn care products used in connection with the landscaping of any Property and petroleum products used in connection with the operation of equipment at the Properties, no Hazardous Material is currently located at, on, in, under or about any Property, except as specifically set forth in the Environmental Reports, (ii) no Hazardous Material is currently located at, in, on, under or about any Property in a manner which violates any Environmental Requirement, or which requires cleanup or corrective action of any kind under any Environmental Requirement, (iii) no releasing, emitting, discharging, leaching, dumping or disposing of any Hazardous Material from any Property onto or into any other property or from any other property onto or into any Property has occurred or is occurring in violation of any Environmental Requirement, (iv) no notice of violation, lien, complaint, suit, order or other notice with respect to any Property is presently outstanding under any Environmental Requirement, and (v) each Property and the operation thereof are in compliance with all Environmental Requirements. Borrower Each Loan Party shall comply, and shall use its best efforts to cause all Expanded Property Owners, tenants or other occupants of all or any part of any of the Expanded Properties and the Improvements to comply, in all respects with all Environmental Requirements, and will not generate, store, handle, process, dispose of or otherwise use, and no Loan Party will, nor will not it permit any Expanded Property Owner, tenant or other occupant of any of the Expanded Property and Improvements to generate, store, handle, process, dispose of or otherwise use, Hazardous Materials at, in, on, under or about any Expanded Property or Improvements in a manner that could lead or potentially lead to the imposition on Borrowerany Loan Party, Expanded Property Owner, Lender or any Property the Expanded Properties of any liability or lien of any nature whatsoever under any Environmental Requirement. Borrower shall notify Lender promptly in the event of any spill or other release of any Hazardous Material at, in, on, under or about any Expanded Property or Improvements which is required to be reported to a Governmental Authority under any Environmental Requirement, will promptly forward to Lender copies of any notices received by Borrower any Loan Party or Expanded Property Owner relating to alleged violations of any Environmental Requirement and will promptly pay when due any fine or assessment against Lender, any Borrower Loan Party or any Expanded Property Owner or such Expanded Property relating to any Environmental Requirement. If at any time it is determined that the operation or use of any Expanded Property violates any applicable Environmental Requirement or that there are Hazardous Materials located at, in, on, on or under any Expanded Property or about any Property Improvements which, under any Environmental Requirement, require special handling in collection, storage, treatment or disposal, or any other form of cleanup or corrective action, Borrower shall, or shall cause any Loan Party or Expanded Property Owner to take, within sixty thirty (6030) days after receipt of notice notice....................99 14.1 thereof from any Governmental Authority or from Lender (or such shorter period of time as may be required by any such Governmental Authority or under applicable Environmental Requirements), takeLender, at Borrower's its sole cost and expense, such actions as may be necessary to fully comply in all respects with all Environmental Requirements; , provided, however, that if such compliance cannot reasonably be completed within such sixty thirty (6030) day period, Borrower then such Person shall commence such necessary action within such sixty thirty (6030) day period and shall thereafter diligently and expeditiously proceed to fully comply in all respects and in a timely fashion with all Environmental Requirements. If Borrower such Person fails to timely take, or to diligently and expeditiously proceed to complete in a timely fashion, any such action, Lender Lender, may, in its sole and absolute discretion, make advances or payments towards the performance or satisfaction of the same, but shall in no event be under any obligation to do so. All sums so advanced or paid by Lender (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, and fines or other penalty payments) and all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto, will immediately, upon demand, become due and payable from Borrower and shall bear interest at the Default Rate from the date any such sums are so advanced or paid by Lender until the date any such sums are repaid by Borrower to Lender. Borrower will execute and deliver, promptly upon request, such instruments as Lender may reasonably deem useful or necessary to permit Lender to take any such action, and Borrower shall execute and deliver such additional notesnotes and security instruments, as Lender may reasonably require to secure all sums so advanced or paid by Lender. If a lien is filed against any Expanded Property by any Governmental Authority related to Environmental Requirements and resulting from the need to expend or the actual expending of monies arising from an action or omission, whether intentional or unintentional, of Borrower or for which Borrower is responsible, resulting in the releasing, spilling, leaking, leaching, pumping, emitting, pouring, emptying or dumping of any Hazardous Material into the waters or onto land located within or without the State in which any Property is located, then Borrower will, within thirty (30) days from the date that Borrower is first given notice that such lien has been placed against such any Expanded Property (or within such shorter period of time as may be specified by Lender if such Governmental Authority has commenced steps to cause such the Expanded Property to be sold pursuant to such lien) either (a) pay the claim and remove the lien, or (b) furnish a cash deposit, bond, or such other security with respect thereto as is satisfactory in all respects to Lender and is sufficient to effect a complete discharge of such lien on such Expanded Property. Notwithstanding the foregoing, in the case of any material item, Borrower, at its own expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the validity or enforceability, in whole or in part, of any Environmental Requirement, provided that (i) Borrower shall have given prior notice of such contest to Lender, (ii) no default shall have occurred and be continuing under the Note, the Mortgages, this Agreement or any of the other Loan Documents, (iii) such proceeding shall suspend the obligation of Borrower to comply with any such Environmental Requirement, (iv) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower, or the Properties, are subject and shall not constitute a default thereunder, (v) failure to immediately comply with any such law, order, ordinance, rule or regulation will not invalidate or vitiate any Insurance Policies, in whole or in part, and will not in the opinion of Lender constitute a present danger to the Properties or any portion thereof, or to the individuals using and entering upon the Properties, (vi) neither the Properties nor any part thereof nor any interest therein will in the opinion of Lender be in danger of being sold, forfeited, confiscated, terminated, canceled or lost, (vii) delay in the compliance with any Environmental Requirement will not, in the opinion of Lender, result in a worsening or deterioration in the condition requiring remediation, (viii) Borrower shall have delivered to Lender in escrow all sums necessary to insure the payment by Borrower of all costs of compliance, fines and penalties, together with interest thereon, as may be incurred by Borrower in the event of a determination in such proceeding adverse to Borrower, and (ix) neither Borrower nor Lender will in the opinion of Lender be subject to any criminal or civil liability as the result of such contestment by Borrower. Lender may, at its option, at intervals of not more frequently less than once a one year, or more frequently if Lender reasonably believes suspects that a Hazardous Material or other environmental condition violates may violate or threatens threaten to violate any Environmental Requirement applicable to a PropertyRequirement, and also upon the occurrence of an Event of Default, cause an environmental audit of such the relevant Expanded Property or Improvements or portions thereof to be conducted to confirm Borrower's compliance with the provisions of this paragraph in respect of such Propertyparagraph, and Borrower shall cooperate in all reasonable ways with Lender in connection with any such audit, and Borrower shall provide to Lender and its representatives access to such Expanded Property to permit and facilitate the conduct of such audit. If such audit discloses that a violation of an Environmental Requirement exists, or if such audit is conducted upon the occurrence of an Event of Default, then Borrower shall pay all costs and expenses incurred in connection with such audit, otherwise, the costs and expenses of such audit shall, notwithstanding anything to the contrary set forth in this paragraph, be paid by Lender. If any Lender acquires the Collateral pursuant to an exercise of Lender's remedies under the Mortgages is foreclosedPledge Agreement, or if any Property the Collateral is sold pursuant to the provisions of the MortgagesPledge Agreement, or if Borrower Borrower..............................................................
99 14.1 tenders a deed or an assignment in lieu of foreclosure or sale, Borrower shall deliver such Properties the foreclosed, sold or assigned Ownership Interests free and clear of any liabilities to the purchaser at foreclosure or sale or to Lender, its nominee, or wholly wholly-owned subsidiary, as the case may be, in a condition that complies in all respects arising from any failure to comply with all Environmental Requirements. Borrower will defend, indemnify, and hold harmless Lender, its employees, agents, officers, and directors, from and against any and all claims, demands, penalties, causes of action, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or otherwise (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, court costs, and litigation expenses) arising out of, or in any way related to, (i) any breach by Borrower of any of the provisions of this Section, (ii) the presence, disposal, spillage, discharge, emission, leakage, release, or threatened release of any Hazardous Material which is at, in, on, under, about, from or affecting any Property, including, without limitation, any damage or injury resulting from any such Hazardous Material to or affecting any Property or the soil, water, air, vegetation, buildings, personal property, individuals or animals located on any Property or on any other property or otherwise, (iii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any such Hazardous Material, (iv) any lawsuit brought or threatened, settlement reached, or order or directive of or by any Governmental Authority relating to such Hazardous Material, or (v) any violation of any Environmental Requirement. The obligations and liabilities of Borrower under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of whether the Debt has been paid in full and irrespective of any foreclosure of any of the Mortgages, sale of any one or more of the Properties pursuant to the provisions of the Mortgages or acceptance by Lender, its nominees or wholly owned subsidiaries of one or more deeds or assignments in lieu of foreclosure or sale and irrespective of any other fact or circumstance of any nature whatsoever................100
Appears in 1 contract
Environmental Provisions. Borrower hereby represents and warrants to Lender that to the best of Borrower's knowledge
(i) except for standard cleaning products and standard lawn care products used in connection with the landscaping of any Property and petroleum products used in connection with the operation of equipment at the Properties, no Hazardous Material is currently located at, on, in, under or about any Property, except as specifically set forth in the Environmental Reports, (ii) no Hazardous Material is currently located at, in, on, under or about any Property in a manner which violates any Environmental Requirement, or which requires cleanup or corrective action of any kind under any Environmental Requirement, (iii) no releasing, emitting, discharging, leaching, dumping or disposing of any Hazardous Material from any Property onto or into any other property or from any other property onto or into any Property has occurred or is occurring in violation of any Environmental Requirement, (iv) no notice of violation, lien, complaint, suit, order or other notice with respect to any Property is presently outstanding under any Environmental Requirement, and (v) each Property and the operation thereof are in compliance with all Environmental Requirements. Borrower Each Loan Party shall comply, and shall use its best efforts to cause all Expanded Property Owners, tenants or other occupants of all or any part of any of the Expanded Properties and the Improvements to comply, in all respects with all Environmental Requirements, and will not generate, store, handle, process, dispose of or otherwise use, and no Loan Party will, nor will not it permit any Expanded Property Owner, tenant or other occupant of any of the Expanded Property and Improvements to generate, store, handle, process, dispose of or otherwise use, Hazardous Materials at, in, on, under or about any Expanded Property or Improvements in a manner that could lead or potentially lead to the imposition on Borrowerany Loan Party, Expanded Property Owner, Lender or any Property the Expanded Properties of any liability or lien of any nature whatsoever under any Environmental Requirement. Borrower shall notify Lender promptly in the event of any spill or other release of any Hazardous Material at, in, on, under or about any Expanded Property or Improvements which is required to be reported to a Governmental Authority under any Environmental Requirement, will promptly forward to Lender copies of any notices received by Borrower any Loan Party or Expanded Property Owner relating to alleged violations of any Environmental Requirement and will promptly pay when due any fine or assessment against Lender, any Borrower Loan Party or any Expanded Property Owner or such Expanded Property relating to any Environmental Requirement. If at any time it is determined that the operation or use of any Expanded Property violates any applicable Environmental Requirement or that there are Hazardous Materials located at, in, on, on or under any Expanded Property or about any Property Improvements which, under any Environmental Requirement, require special handling in collection, storage, treatment or disposal, or any other form of cleanup or corrective action, Borrower shall, or shall cause any Loan Party or Expanded Property Owner to take, within sixty thirty (6030) days after receipt of notice thereof from any Governmental Authority or from Lender (or such shorter period of time as may be required by any such Governmental Authority or under applicable Environmental Requirements), takeLender, at Borrower's its sole cost and expense, such actions as may be necessary to fully comply in all respects with all Environmental Requirements; , provided, however, that if such compliance cannot reasonably be completed within such sixty thirty (6030) day period, Borrower then such Person shall commence such necessary action within such sixty thirty (6030) day period and shall thereafter diligently and expeditiously proceed to fully comply in all respects and in a timely fashion with all Environmental Requirements. If Borrower such Person fails to timely take, or to diligently and expeditiously proceed to complete in a timely fashion, any such action, Lender Lender, may, in its sole and absolute discretion, make advances or payments towards the performance or satisfaction of the same, but shall in no event be under any obligation to do so. All sums so advanced or paid by Lender (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, and fines or other penalty payments) and all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto, will immediately, upon demand, become due and payable from Borrower and shall bear interest at the Default Rate from the date any such sums are so advanced or paid by Lender until the date any such sums are repaid by Borrower to Lender. Borrower will execute and deliver, promptly upon request, such instruments as Lender may reasonably deem useful or necessary to permit Lender to take any such action, and Borrower shall execute and deliver such additional notesnotes and security instruments, as Lender may reasonably require to secure all sums so advanced or paid by Lender. If a lien is filed against any Expanded Property by any Governmental Authority related to Environmental Requirements and resulting from the need to expend or the actual expending of monies arising from an action or omission, whether intentional or unintentional, of Borrower or for which Borrower is responsible, resulting in the releasing, spilling, leaking, leaching, pumping, emitting, pouring, emptying or dumping of any Hazardous Material into the waters or onto land located within or without the State in which any Property is located, then Borrower will, within thirty (30) days from the date that Borrower is first given notice that such lien has been placed against such any Expanded Property (or within such shorter period of time as may be specified by Lender if such Governmental Authority has commenced steps to cause such the Expanded Property to be sold pursuant to such lien) either (a) pay the claim and remove the lien, or (b) furnish a cash deposit, bond, or such other security with respect thereto as is satisfactory in all respects to Lender and is sufficient to effect a complete discharge of such lien on such Expanded Property. Notwithstanding the foregoing, in the case of any material item, Borrower, at its own expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the validity or enforceability, in whole or in part, of any Environmental Requirement, provided that (i) Borrower shall have given prior notice of such contest to Lender, (ii) no default shall have occurred and be continuing under the Note, the Mortgages, this Agreement or any of the other Loan Documents, (iii) such proceeding shall suspend the obligation of Borrower to comply with any such Environmental Requirement, (iv) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower, or the Properties, are subject and shall not constitute a default thereunder, (v) failure to immediately comply with any such law, order, ordinance, rule or regulation will not invalidate or vitiate any Insurance Policies, in whole or in part, and will not in the opinion of Lender constitute a present danger to the Properties or any portion thereof, or to the individuals using and entering upon the Properties, (vi) neither the Properties nor any part thereof nor any interest therein will in the opinion of Lender be in danger of being sold, forfeited, confiscated, terminated, canceled or lost, (vii) delay in the compliance with any Environmental Requirement will not, in the opinion of Lender, result in a worsening or deterioration in the condition requiring remediation, (viii) Borrower shall have delivered to Lender in escrow all sums necessary to insure the payment by Borrower of all costs of compliance, fines and penalties, together with interest thereon, as may be incurred by Borrower in the event of a determination in such proceeding adverse to Borrower, and (ix) neither Borrower nor Lender will in the opinion of Lender be subject to any criminal or civil liability as the result of such contestment by Borrower. Lender may, at its option, at intervals of not more frequently less than once a one year, or more frequently if Lender reasonably believes suspects that a Hazardous Material or other environmental condition violates may violate or threatens threaten to violate any Environmental Requirement applicable to a PropertyRequirement, and also upon the occurrence of an Event of Default, cause an environmental audit of such the relevant Expanded Property or Improvements or portions thereof to be conducted to confirm Borrower's compliance with the provisions of this paragraph in respect of such Propertyparagraph, and Borrower shall cooperate in all reasonable ways with Lender in connection with any such audit, and Borrower shall provide to Lender and its representatives access to such Expanded Property to permit and facilitate the conduct of such audit. If such audit discloses that a violation of an Environmental Requirement exists, or if such audit is conducted upon the occurrence of an Event of Default, then Borrower shall pay all costs and expenses incurred in connection with such audit, otherwise, the costs and expenses of such audit shall, notwithstanding anything to the contrary set forth in this paragraph, be paid by Lender. If any Lender acquires the Collateral pursuant to an exercise of Lender's remedies under the Mortgages is foreclosedPledge Agreement, or if any Property the Collateral is sold pursuant to the provisions of the MortgagesPledge Agreement, or if Borrower tenders a deed or an assignment in lieu of foreclosure or sale, Borrower shall deliver such Properties the foreclosed, sold or assigned Ownership Interests free and clear of any liabilities to the purchaser at foreclosure or sale or to Lender, its nominee, or wholly wholly-owned subsidiary, as the case may be, in a condition that complies in all respects arising from any failure to comply with all Environmental Requirements. Borrower will defend, indemnify, and hold harmless Lender, its employees, agents, officers, and directors, from and against any and all claims, demands, penalties, causes of action, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or otherwise (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, court costs, and litigation expenses) arising out of, or in any way related to, (i) any breach by Borrower of any of the provisions of this Section, (ii) the presence, disposal, spillage, discharge, emission, leakage, release, or threatened release of any Hazardous Material which is at, in, on, under, about, from or affecting any Property, including, without limitation, any damage or injury resulting from any such Hazardous Material to or affecting any Property or the soil, water, air, vegetation, buildings, personal property, individuals or animals located on any Property or on any other property or otherwise, (iii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any such Hazardous Material, (iv) any lawsuit brought or threatened, settlement reached, or order or directive of or by any Governmental Authority relating to such Hazardous Material, or (v) any violation of any Environmental Requirement. The obligations and liabilities of Borrower under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of whether the Debt has been paid in full and irrespective of any foreclosure of any of the Mortgages, sale of any one or more of the Properties pursuant to the provisions of the Mortgages or acceptance by Lender, its nominees or wholly owned subsidiaries of one or more deeds or assignments in lieu of foreclosure or sale and irrespective of any other fact or circumstance of any nature whatsoever.
Appears in 1 contract
Environmental Provisions. Borrower hereby represents and warrants to Lender that to the best of Borrower's knowledge
(i) except for standard cleaning products and standard lawn care products used in connection with the landscaping of any Property and petroleum products used in connection with the operation of equipment at the Properties, no Hazardous Material is currently located at, on, in, under or about any Property, except as specifically set forth in the Environmental Reports, (ii) no Hazardous Material is currently located at, in, on, under or about any Property in a manner which violates any Environmental Requirement, or which requires cleanup or corrective action of any kind under any Environmental Requirement, (iii) no releasing, emitting, discharging, leaching, dumping or disposing of any Hazardous Material from any Property onto or into any other property or from any other property onto or into any Property has occurred or is occurring in violation of any Environmental Requirement, (iv) no notice of violation, lien, complaint, suit, order or other notice with respect to any Property is presently outstanding under any Environmental Requirement, and (v) each Property and the operation thereof are in compliance with all Environmental Requirements. Borrower shall comply, and shall use its best efforts to cause all tenants or other occupants of the Properties to comply, in all respects with all Environmental Requirements, and will not generate, store, handle, process, dispose of or otherwise use, and will not permit any tenant or other occupant of any Property to generate, store, handle, process, dispose of or otherwise use, Hazardous Materials at, in, on, under or about any Property in a manner that could lead or potentially lead to the imposition on Borrower, Lender or any Property of any liability or lien of any nature whatsoever under any Environmental Requirement. Borrower shall notify Lender promptly in the event of any spill or other release of any Hazardous Material at, in, on, under or about any Property which is required to be reported to a Governmental Authority under any Environmental Requirement, will promptly forward Lender copies of any notices received by Borrower relating to alleged violations of any Environmental Requirement and will promptly pay when due any fine or assessment against Lender, any Borrower or any Property relating to any Environmental Requirement. If at any time it is -45- determined that the operation or use of any Property violates any applicable Environmental Requirement or that there are Hazardous Materials located at, in, on, under or about any Property which, under any Environmental Requirement, require special handling in collection, storage, treatment or disposal, or any other form of cleanup or corrective action, Borrower shall, within sixty (60) days after receipt of notice thereof from any Governmental Authority or from Lender (or such shorter period of time as may be required by any such Governmental Authority or under applicable Environmental Requirements), take, at Borrower's sole cost and expense, such actions as may be necessary to fully comply in all respects with all Environmental Requirements; provided, however, that if such compliance cannot reasonably be completed within such sixty (60) day period, Borrower shall commence such necessary action within such sixty (60) day period and shall thereafter diligently and expeditiously proceed to fully comply in all respects and in a timely fashion with all Environmental Requirements. If Borrower fails to timely take, or to diligently and expeditiously proceed to complete in a timely fashion, any such action, Lender may, in its sole and absolute discretion, make advances or payments towards the performance or satisfaction of the same, but shall in no event be under any obligation to do so. All sums so advanced or paid by Lender (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, and fines or other penalty payments) and all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto, will immediately, upon demand, become due and payable from Borrower and shall bear interest at the Default Rate from the date any such sums are so advanced or paid by Lender until the date any such sums are repaid by Borrower to Lender. Borrower will execute and deliver, promptly upon request, such instruments as Lender may deem useful or necessary to permit Lender to take any such action, and such additional notes, as Lender may require to secure all sums so advanced or paid by Lender. If a lien is filed against any Property by any Governmental Authority resulting from the need to expend or the actual expending of monies arising from an action or omission, whether intentional or unintentional, of Borrower or for which Borrower is responsible, resulting in the releasing, spilling, leaking, leaching, pumping, emitting, pouring, emptying or dumping of any Hazardous Material into the waters or onto land located within or without the State in which any Property is located, then Borrower will, within thirty (30) days from the date that Borrower is first given notice that such lien has been placed against such Property (or within such shorter period of time as may be specified by Lender if such Governmental Authority has commenced steps to cause such Property to be sold pursuant to such lien) either (a) pay the claim and remove the lien, or (b) furnish a cash deposit, bond, or such other security with respect thereto as is satisfactory in all respects to Lender and is sufficient to effect a complete discharge of such lien on such Property. Notwithstanding the foregoing, in the case of any material item, Borrower, at its own expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the validity or enforceability, in whole or in part, of any Environmental Requirement, provided that (i) Borrower shall have given prior notice of such contest to Lender, (ii) no default shall have occurred and be continuing under the Note, the Mortgages, this Agreement or any of the other Loan Documents, (iii) such proceeding shall suspend the obligation of Borrower to comply with any such Environmental Requirement, (iv) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower, or the Properties, are subject and shall not constitute a default thereunder, (v) failure to immediately comply with any such law, order, ordinance, rule or regulation will not invalidate or vitiate any Insurance Policies, in whole or in part, and will not in the opinion of Lender constitute a present danger to the Properties or any portion thereof, or to the individuals using and entering upon the Properties, (vi) neither the Properties nor any part thereof nor any interest therein will in the opinion of Lender be in danger of being sold, forfeited, confiscated, terminated, canceled or lost, (vii) delay in the compliance with any Environmental Requirement will not, in the opinion of Lender, result in a worsening or deterioration in the condition requiring remediation, (viii) Borrower shall have delivered to Lender in escrow all sums necessary to insure the payment by Borrower of all costs of compliance, fines and penalties, together with interest thereon, as may be incurred by Borrower in the event of a determination in such proceeding adverse to Borrower, and (ix) neither Borrower nor Lender will in the opinion of Lender be subject to any criminal or civil liability as the result of such contestment by Borrower. Lender may, at its option, at intervals of not more frequently than once a year, or more frequently if Lender reasonably believes that a Hazardous Material or other environmental condition violates or threatens to violate any Environmental Requirement applicable to a Property, cause an environmental audit of such Property to be conducted to confirm Borrower's compliance with the provisions of this paragraph in respect of such Property, and Borrower shall cooperate in all reasonable ways with Lender in connection with any such audit. Borrower shall pay all costs and expenses incurred in connection with such audit. If any of the Mortgages is foreclosed, or if any Property is sold pursuant to the provisions of the Mortgages, or if Borrower tenders a deed or assignment in lieu of foreclosure or sale, Borrower shall deliver such Properties to the purchaser at foreclosure or sale or to Lender, its nominee, or wholly owned subsidiary, as the case may be, in a condition that complies in all respects with all Environmental Requirements. Borrower will defend, indemnify, and hold harmless Lender, its employees, agents, officers, and directors, from and against any and all claims, demands, penalties, causes of action, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or otherwise (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, court costs, and litigation expenses) arising out of, or in any way related to, (i) any breach by Borrower of any of the provisions of this Section, (ii) the presence, disposal, spillage, discharge, emission, leakage, release, or threatened release of any Hazardous Material which is at, in, on, under, about, from or affecting any Property, including, without limitation, any damage or injury resulting from any such Hazardous Material to or affecting any Property or the soil, water, air, vegetation, buildings, personal property, individuals or animals located on any Property or on any other property or otherwise, (iii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any such Hazardous Material, (iv) any lawsuit brought or threatened, settlement reached, or order or directive of or by any Governmental Authority relating to such Hazardous Material, or (v) any violation of any Environmental Requirement. The obligations and liabilities of Borrower under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of whether the Debt has been paid in full and irrespective of any foreclosure of any of the Mortgages, sale of any one or more of the Properties pursuant to the provisions of the Mortgages or acceptance by Lender, its nominees or wholly owned subsidiaries of one or more deeds or assignments in lieu of foreclosure or sale and irrespective of any other fact or circumstance of any nature whatsoever.
Appears in 1 contract
Samples: Loan Agreement (Affordable Residential Communities Inc)
Environmental Provisions. Borrower hereby represents and warrants to Lender that to the best of Borrower's knowledge
(i) except for standard cleaning products and standard lawn care products used in connection with the landscaping of any Property and petroleum products used in connection with the operation of equipment at the Properties, no Hazardous Material is currently located at, on, in, under or about any Property, except as specifically set forth in the Environmental Reports, (ii) no Hazardous Material is currently located at, in, on, under or about any Property in a manner which violates any Environmental Requirement, or which requires cleanup or corrective action of any kind under any Environmental Requirement, (iii) no releasing, emitting, discharging, leaching, dumping or disposing of any Hazardous Material from any Property onto or into any other property or from any other property onto or into any Property has occurred or is occurring in violation of any Environmental Requirement, (iv) no notice of violation, lien, complaint, suit, order or other notice with respect to any Property is presently outstanding under any Environmental Requirement, and (v) each Property and the operation thereof are in compliance with all Environmental Requirements. Borrower Each Loan Party shall comply, comply and shall use its best efforts cause the Property Owner to cause all tenants or other occupants of the Properties to comply, comply in all respects with all Environmental Requirements, and will not generate, store, handle, process, dispose of or otherwise use, and the Loan Parties will not permit any tenant or other occupant of any and shall cause the Property Owner to not generate, store, handle, process, dispose of or otherwise use, Hazardous Materials at, in, on, under or about any Property or Improvements in a manner that could lead or potentially lead to the imposition on Borrower, any Loan Party or the Property Owner or Lender or any Property of any liability or lien of any nature whatsoever under any Environmental Requirement. Borrower shall notify Lender promptly in the event of any spill or other release of any Hazardous Material at, in, on, under or about any Property or Improvements which is required to be reported to a Governmental Authority under any Environmental Requirement, will promptly forward to Lender copies of any notices received by Borrower any Loan Party or the Property Owner relating to alleged violations of any Environmental Requirement and will promptly pay when due any fine or assessment against Lender, any Borrower Lender or any Loan Party or the Property Owner relating to any Environmental Requirement. If at any time it is determined that the operation or use of any the Property violates any applicable Environmental Requirement or that there are Hazardous Materials located at, in, on, on or under or about any Property or Improvements which, under any Environmental Requirement, require special handling in collection, storage, treatment or disposal, or any other form of cleanup or corrective action, Borrower shall, or shall cause any Loan Party or the Property Owner to take, within sixty thirty (6030) days after receipt of notice thereof from any Governmental Authority or from Lender (or such shorter period of time as may be required by any such Governmental Authority or under applicable Environmental Requirements), takeLender, at Borrower's its sole cost and expense, such actions as may be necessary to fully comply in all respects with all Environmental Requirements; , provided, however, that if such compliance cannot reasonably be completed within such sixty thirty (6030) day period, Borrower then such Person shall commence such necessary action within such sixty thirty (6030) day period and shall thereafter diligently and expeditiously proceed to fully comply in all respects and in a timely fashion with all Environmental Requirements. If Borrower such Person fails to timely take, or to diligently and expeditiously proceed to complete in a timely fashion, any such action, Lender Lender, may, in its sole and absolute discretion, make advances or payments towards the performance or satisfaction of the same, but shall in no event be under any obligation to do so. All sums so advanced or paid by Lender (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, and fines or other penalty payments) and all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto, will immediately, upon demand, become due and payable from Borrower and shall bear interest at the Protective Advance Default Rate from the date any such sums are so advanced or paid by Lender until the date any such sums are repaid by Borrower to Lender. Borrower will execute and deliver, promptly upon request, such instruments as Lender may reasonably deem useful or necessary to permit Lender to take any such action, and Borrower shall execute and deliver such additional notesnotes and security instruments, as Lender may reasonably require to secure all sums so advanced or paid by Lender. If a lien Lien is filed against any the Property by any Governmental Authority related to Environmental Requirements and resulting from the need to expend or the actual expending of monies arising from an action or omission, whether intentional or unintentional, of Borrower or for which Borrower is responsible, resulting in the releasing, spilling, leaking, leaching, pumping, emitting, pouring, emptying or dumping of any Hazardous Material into the waters or onto land located within or without the State in which any Property is located, then Borrower will, within thirty (30) days from the date that Borrower is first given notice that such lien Lien has been placed against such the Property (or within such shorter period of time as may be specified by Lender if such Governmental Authority has commenced steps to cause such the Property to be sold pursuant to such lienLien) either (a) pay the claim and remove the lienLien, or (b) furnish a cash deposit, bond, or such other security with respect thereto as is satisfactory in all respects to Lender and is sufficient to effect a complete discharge of such lien Lien on such Property. Notwithstanding the foregoing, in the case of any material item, Borrower, at its own expense, may contest by appropriate legal proceedings, promptly initiated and conducted in good faith and with due diligence, the validity or enforceability, in whole or in part, of any Environmental Requirement, provided that (i) Borrower shall have given prior notice of such contest to Lender, (ii) no default shall have occurred and be continuing under the Note, the Mortgages, this Agreement or any of the other Loan Documents, (iii) such proceeding shall suspend the obligation of Borrower to comply with any such Environmental Requirement, (iv) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower, or the Properties, are subject and shall not constitute a default thereunder, (v) failure to immediately comply with any such law, order, ordinance, rule or regulation will not invalidate or vitiate any Insurance Policies, in whole or in part, and will not in the opinion of Lender constitute a present danger to the Properties or any portion thereof, or to the individuals using and entering upon the Properties, (vi) neither the Properties nor any part thereof nor any interest therein will in the opinion of Lender be in danger of being sold, forfeited, confiscated, terminated, canceled or lost, (vii) delay in the compliance with any Environmental Requirement will not, in the opinion of Lender, result in a worsening or deterioration in the condition requiring remediation, (viii) Borrower shall have delivered to Lender in escrow all sums necessary to insure the payment by Borrower of all costs of compliance, fines and penalties, together with interest thereon, as may be incurred by Borrower in the event of a determination in such proceeding adverse to Borrower, and (ix) neither Borrower nor Lender will in the opinion of Lender be subject to any criminal or civil liability as the result of such contestment by Borrower. Lender may, at its option, at intervals of not more frequently less than once a one year, or more frequently if Lender reasonably believes suspects that a Hazardous Material or other environmental condition violates may violate or threatens threaten to violate any Environmental Requirement applicable to a PropertyRequirement, and also upon the occurrence of an Event of Default, cause an environmental audit of such the Property or Improvements or portions thereof to be conducted to confirm Borrower's ’s compliance with the provisions of this paragraph in respect of such Propertyparagraph, and Borrower shall cooperate in all reasonable ways with Lender in connection with any such audit, and Borrower shall provide to Lender and its representatives access to such Property to permit and facilitate the conduct of such audit. If such audit discloses that a violation of an Environmental Requirement exists, or if such audit is conducted upon the occurrence of an Event of Default, then Borrower shall pay all costs and expenses incurred in connection with such audit, otherwise, the costs and expenses of such audit shall, notwithstanding anything to the contrary set forth in this paragraph, be paid by Lender. If any Lender acquires the Collateral pursuant to an exercise of Lender’s remedies under one of the Mortgages is foreclosedPledge Agreements, or if any Property the Collateral is sold pursuant to the provisions of one of the MortgagesPledge Agreements, or if Borrower tenders a deed or an assignment in lieu of foreclosure or sale, Borrower shall deliver such Properties the foreclosed, sold or assigned Ownership Interests free and clear of any liabilities to the purchaser at foreclosure or sale or to Lender, its nominee, or wholly wholly-owned subsidiary, as the case may be, in a condition that complies in all respects arising from any failure to comply with all Environmental Requirements. Borrower will defend, indemnify, and hold harmless Lender, its employees, agents, officers, and directors, from and against any and all claims, demands, penalties, causes of action, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, foreseen or unforeseen, contingent or otherwise (including, without limitation, counsel and consultant fees and expenses, investigation and laboratory fees and expenses, court costs, and litigation expenses) arising out of, or in any way related to, (i) any breach by Borrower of any of the provisions of this Section, (ii) the presence, disposal, spillage, discharge, emission, leakage, release, or threatened release of any Hazardous Material which is at, in, on, under, about, from or affecting any Property, including, without limitation, any damage or injury resulting from any such Hazardous Material to or affecting any Property or the soil, water, air, vegetation, buildings, personal property, individuals or animals located on any Property or on any other property or otherwise, (iii) any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to any such Hazardous Material, (iv) any lawsuit brought or threatened, settlement reached, or order or directive of or by any Governmental Authority relating to such Hazardous Material, or (v) any violation of any Environmental Requirement. The obligations and liabilities of Borrower under this Section shall survive and continue in full force and effect and shall not be terminated, discharged or released, in whole or in part, irrespective of whether the Debt has been paid in full and irrespective of any foreclosure of any of the Mortgages, sale of any one or more of the Properties pursuant to the provisions of the Mortgages or acceptance by Lender, its nominees or wholly owned subsidiaries of one or more deeds or assignments in lieu of foreclosure or sale and irrespective of any other fact or circumstance of any nature whatsoever.
Appears in 1 contract
