EX-10.5 6 a17-26522_2ex10d5.htm EX-10.5 Execution Original ENVIRONMENTAL INDEMNITY AGREEMENT (Unsecured)
Execution Original
ENVIRONMENTAL INDEMNITY AGREEMENT
(Unsecured)
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (“Agreement”), made effective November 6, 2017, by and between X.XXX LAND, LLC, a Utah limited liability company (hereafter referred to as the “Borrower” and/or the “Indemnitor”) of 000 Xxxx Xxxxxxxx Xxx, Xxxxxxx, Xxxx 00000, for the benefit of PCL L.L.C., a Utah limited liability company (hereafter referred to as the “Lender” and/or “Indemnitee”) of 00000 Xxxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxx Xxxx, Xxxx 00000. The term “Indemnitee” shall also include any successor or assignee of Lender, including, in the case of Lender, any participant in, or other holder of any interest in, the Loan (as hereinafter defined) or any other Person that may from time to time be included within the meaning of the term “Lender” or “Beneficiary” as defined in the Trust Deed, together with partners, shareholders, officers, directors, agents, representatives, attorneys, successors and assigns of any of the foregoing, and the term “Indemnitor” shall also include any successor or assignor of Indemnitor.
1. Definitions. For purposes hereof, the following terms shall have the following meanings:
“Environmental Laws” means any and all federal, state and local Laws, including, without limitation, any and all requirements to register underground storage tanks, relating to: (i) emissions, discharges, spills, releases or threatened releases of pollutants, contaminants, Hazardous Materials (as hereinafter defined), or hazardous or toxic materials or wastes into ambient air, surface water, groundwater, watercourses, publicly or privately owned treatment works, drains,
sewer systems, wetlands, septic systems or onto land; (ii) the use, treatment, storage, disposal, handling, manufacturing, transportation, or shipment of Hazardous Materials (as defined below), materials containing Hazardous Materials or hazardous and/or toxic wastes, material, products or by-products (or of equipment or apparatus containing Hazardous Materials), or (iii) pollution or the protection of human health or the environment;
“Hazardous Materials” means (1) hazardous materials, hazardous wastes, and hazardous substances as those terms are defined under any Environmental Laws, including, but not limited to, the following: the Hazardous Materials Transportation Act, 49 U.S. C. § 1801 et seq., and as further amended from time to time (“HMTA”), the Resource Conservation and Recovery Act, U.S. C. § 9601 et seq., as amended from time to time (“RCRA”), the Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund Amendments and Reauthorization Act, 42 U.S.C. § 9601 et seq., and as further amended from time to time (“CERCLA”), the Clean Water Act, 33 U.S.C. § 1251 et seq., as amended from time to time (“CWA”), the Clean Air Act, 42 U.S.C. § 7401 et seq., as amended from time to time (“CAA”) and/or the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., as amended from time to time (“TSCA”); (2) petroleum and petroleum products including crude oil and any fractions thereof; (3) natural gas, synthetic gas, and any mixtures thereof; (4) asbestos and/or any material which contains any hydrated mineral silicate, including, but not limited to, chrysotile, amosite, crocidolite, tremolite, anthophylite and/or actinolite, whether friable or non-friable; (5) PCBs, or PCB-containing materials, or fluids; (6) radon; (7) any other hazardous or radioactive substance, material, pollutant, contaminant, or waste; and (8) any substance with respect to which any federal, state or local Environmental Law or governmental agency requires environmental investigation, monitoring or remediation. Indemnitor hereby acknowledges and agrees that Indemnitor’s obligations hereunder with respect to Hazardous Materials and Environmental Laws are intended to extend to and cover all matters and conditions in, on, under, beneath, with respect to, affecting, related to, in connection with or involving the Property or any part thereof, without regard to whether Indemnitor has actually caused or participated in the event or circumstance giving rise to the matter in question, and without regard to whether the matter in question arose prior to or during the term of the Loan.
“Event of Default” means any default, failure, or refusal by Indemnitor to pay any amount and/or perform any obligation under this Agreement, which default, failure, or refusal remains uncured (i) in the case of matters that can be cured solely by the payment of money, ten (10) days after written notice of such failure to pay is given to Indemnitor by one or more of the Indemnitee, and (ii) in the case of any other matter, thirty (30) days after written notice of such failure to perform is given to Indemnitor by the Indemnitee; provided, that in the case of matters covered by clause (ii) above such cure period shall be extended so long as Indemnitor has commenced curative efforts within such thirty (30) day period, is diligently pursuing such efforts and is delivering periodic progress reports on such curative efforts to the Indemnitee, unless Lender determines reasonably that the interests of the Indemnitee will be materially adversely affected by such extension.
(a) Liability for costs or removal or remedial action, incurred by the United States Government or any state or local government, or response costs incurred by any other person, or damages from injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss, incurred pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S. C. § 9601 et seq., as amended or any comparable federal, state, or local statute;
(b) Liability for cost and expenses of site assessment, testing, laboratory fees, monitoring, abatement, correction or clean-up, fines, damages, response costs or penalties which arise from the provisions of any other Environmental Law, whether state, federal, local, or otherwise; and
(c) Liability for personal injury or property damage arising under any statutory or common-law theory, including damages assessed for the maintenance of the public or private nuisance, response costs or for the carrying on of an abnormally dangerous activity.
Notwithstanding the foregoing, no Indemnitee shall be entitled to indemnification hereunder to the extent of costs, liabilities, losses, or damages that are attributable (on a comparative basis) to the negligence or intentional misconduct of the Indemnitee in question; provided, however, that the negligence or intentional misconduct of any particular Indemnitee shall not be imputed to any other Indemnitee, and such Indemnitee as did not participate in the negligence or intentional misconduct in question shall remain fully entitled to indemnification hereunder without regard to such negligence or intentional misconduct of the Indemnitee that did so participate.
Nothing in this Agreement shall be deemed or construed as an admission by Indemnitor of liability or responsibility hereunder for any violation or alleged violations of Environmental Laws as between Indemnitor and any governmental agency or other third party, notwithstanding that, as between Indemnitor and the Indemnitee, Indemnitor has responsibility hereunder for such matter and for indemnifying the Indemnitee from the consequences thereof.
(a) Indemnitee shall have the right, but not the obligation, subsequent to any Event of Default by Indemnitor hereunder, without in any manner limiting Indemnitee’s other rights and remedies under this Agreement, to enter onto the Property or to take such other actions as Indemnitee deems necessary or advisable to clean up, remove, resolve or minimize the impact of, or otherwise deal with, any Hazardous Materials or a violation of Environmental Laws at the Property. Except in an emergency situation, so long as Indemnitor or Tenants of Indemnitor are in occupancy of the portion of the Property in question, Indemnitee shall give reasonable advance notice (either written or verbal) of its intention to enter the Property for any such purpose to afford Indemnitor the opportunity to have a representative accompany the agents or representatives of such Indemnitee in question should Indemnitor elect to do so. All reasonable costs and expenses paid or incurred by Indemnitee in the exercise of any such rights shall be payable by Indemnitor upon demand.
(b) In the event that the Indemnitor is engaged in the remediation of any violation of Environmental Laws and/or presence of Hazardous Materials at the Property at the time of a Default or Event of Default occurs under the Loan and the Default or Event of Default in question does not arise out of such violation of Environmental Laws and/or presence of Hazardous Materials or the remediation actions or inactions of Indemnitor with respect thereto, then Indemnitee agrees that Indemnitor shall be permitted to control the completion of such remediation activities so long, as Indemnitor diligently proceeds therewith in a manner reasonably satisfactory to Indemnitee and Indemnitor keeps Indemnitee reasonably informed as to the progress of such remediation efforts. In any such event, however, this Agreement and the indemnification rights provided for herein shall remain in full force and effect.
the Lender or any other party in order to acquire the Property, or any portion thereof, in any foreclosure or other sale, (iv) the modification, expiration, release or termination of the Loan or any document or instrument relating thereto or (v) the discharge or repayment in full of the Loan (including, without limitation, by amounts paid or credit bid at a foreclosure sale or by discharge in connection with a deed in lieu of foreclosure). Notwithstanding anything herein to the contrary, Indemnitor shall not be liable to Indemnitee hereunder in respect of any Hazardous Materials that are first manufactured, emitted, generated, treated, stored, or disposed of on the Property, or any violation of Environmental Laws that first occurred on or with respect to the Property, after the Loan is repaid and/or the Property is transferred to Lender or its successor by foreclosure sale, deed in lieu of foreclosure, or similar transfer except to the extent such manufacture, emission, generation, treatment, storage, or disposal, or violation is actually caused by Indemnitor or those for whose actions Indemnitor is legally responsible.
12. Inspections Shall Not Affect Liability. Neither any environmental audits nor assessments, nor any inspections conducted by Indemnitee or its representatives, nor the consummation of the Loan in light of the matters disclosed as a result of these inspections, nor any other term or provision of this Agreement shall affect, modify, or constitute a waiver of, the rights and obligations of the parties to this Agreement under applicable Environmental Laws and the rights and remedies of Indemnitee under this Agreement shall be cumulative of and not modify the rights and remedies that Indemnitee would have in the absence of this Agreement. Indemnitor hereby expressly releases any contribution or other claims or rights it now has or may hereafter have against Indemnitee under applicable Environmental Laws, excepting only contribution rights or other claims against any particular Indemnitee with respect to matters for which such Indemnitee is not entitled to indemnification hereunder as a result of the negligence or intentional misconduct of the particular Indemnitee in question.
If to Indemnitor: |
X.XXX LAND, LLC |
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000 X. Xxxxxxxx Xxx, |
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Xxxxxxx, XX 00000 |
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Attention: President |
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With a copy, which shall not constitute notice, to: |
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XXXXXXXXX.XXX, INC. |
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000 X. Xxxxxxxx Xxx, |
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Xxxxxxx, XX 00000 |
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Attention: General Counsel |
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If to Lender: |
PCL L.L.C. |
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c/o Cirque Property |
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00000 Xxxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000 |
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Xxxxx Xxxx, Xxxx 00000 |
Notice sent by any means shall be deemed given upon receipt. Any party may designate a change of address by written notice to the others, at least ten (10) days before such change of address is to become effective.
21. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF UTAH, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
22. Unsecured Indemnity. THE OBLIGATIONS AND DUTIES OF THE INDEMNITOR UNDER THIS AGREEMENT ARE NOT SECURED BY THE TRUST DEED OR BY ANY OTHER SECURITY AGREEMENT OR LIEN EXECUTED IN CONNECTION WITH THE LOAN, IT BEING THE EXPRESS INTENT OF THE PARTIES THAT THESE OBLIGATIONS AND DUTIES SHALL BE UNSECURED.
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BORROWER / INDEMNITOR: | ||
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X.XXX LAND, LLC, a Utah limited liability company, | ||
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By: |
/s/ Xxxxxx Xxx | |
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Name: |
Xxxxxx Xxx | |
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Its: |
Manager | |
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LENDER / INDEMNITEE: | ||
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PCL L.L.C., a Utah limited liability company, | ||
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By: CIRQUE PROPERTIES, INC., its Manger | ||
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By: |
/s/ Xxxxxxx X. Xxxxxxxxxxx | |
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Name: |
Xxxxxxx X. Xxxxxxxxxxx | |
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Its: |
Vice President | |