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EXHIBIT 10.21
ENVIRONMENTAL INDEMNITY AGREEMENT
( )
THIS AGREEMENT is made as of the 30th day of September, 1997, by and
between TC REALTY CORPORATION __, a Delaware corporation (the "Lessee"); BCC
DEVELOPMENT AND MANAGEMENT CO., a Delaware corporation, having its principal
place of business at 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxxx, XX 00000 (the
"Developer"); and MEDITRUST ACQUISITION CORPORATION II, a Delaware corporation,
having its principal address at 000 Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx
00000 (the "Lessor").
W I T N E S S E T H
WHEREAS, the Lessor has agreed to lease to the Lessee certain real
property located in _________, as more particularly described in EXHIBIT A
attached hereto and incorporated herein by reference and all of the improvements
now or hereafter situated thereon (such real property and improvements are
hereinafter collectively referred to as the "Leased Property"), pursuant to a
Facility Lease Agreement of even date herewith by and between the Lessor and the
Lessee (the "Lease") and all capitalized terms used herein and not specifically
defined herein shall have the same meanings ascribed to such terms in the Lease;
WHEREAS, the Developer, being a party to the Leasehold Improvement
Agreement (as defined in the Lease) of even date herewith with the Lessor and
the Lessee regarding the development of the Leased Property, shall derive
substantial benefits from the consummation of the transaction described in the
Lease and the other Lease Documents;
WHEREAS, the Lessee and the Developer are hereinafter collectively
referred to as the "Indemnitors";
WHEREAS, the Lessor has required that the Indemnitors execute and
deliver this Agreement as a condition of the Lessor's agreeing to purchase the
Leased Property, enter into the Lease and to enter into or accept delivery of
the other Lease Documents; and
WHEREAS, as a material inducement to the Lessor to purchase the Leased
Property and to consummate the transaction described in the Lease and the other
Lease Documents, the Indemnitors have agreed to enter into this Agreement,
acknowledging that the Lessor intends to rely upon the representations,
warranties, covenants and indemnifications contained herein.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and
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valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto do hereby covenant and agree as follows:
1. DEFINITIONS: For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires, the terms defined
in this Section have the meanings ascribed to them in this Section:
ENVIRONMENTAL ENFORCEMENT ACTIONS: Collectively, all actions or orders
instituted, threatened, required or completed by any Governmental Authority and
all claims made or threatened by any Person against any of the Indemnitors or
the Leased Property (or any other occupant, prior occupant or prior owner
thereof), arising out of or in connection with any of the Environmental Laws or
the assessment, monitoring, clean-up, containment, remediation or removal of, or
damages caused or alleged to be caused by, any Hazardous Substances (i) located
on or under the Leased Property, (ii) emanating from the Leased Property or
(iii) generated, stored, transported, utilized, disposed of, managed or released
by any of the Indemnitors (whether or not on, under or from the Leased
Property).
ENVIRONMENTAL LAWS: Collectively, all Legal Requirements applicable to
(i) environmental conditions on, under or emanating from the Leased Property
including, without limitation, the ___________, the Comprehensive Environmental
Response, Compensation and Liability Act, the Resource Conservation and Recovery
Act, the Federal Water Pollution Control Act and the Federal Clean Air Act and
(ii) the generation, storage, transportation, utilization, disposal, management
or release (whether or not on, under or from the Leased Property) of Hazardous
Substances by either of the Indemnitors.
ENVIRONMENTAL REPORT: The Environmental Site Assessment Report as more
particularly set forth in EXHIBIT B attached hereto and made a part hereof.
GOVERNMENTAL AUTHORITIES: Collectively, all agencies, authorities,
bodies, boards, commissions, courts, instrumentalities, legislatures and offices
of any nature whatsoever for any government unit or political subdivision,
whether federal, state, county, district, municipal, city or otherwise, and
whether now or hereafter in existence.
HAZARDOUS SUBSTANCES: Collectively, (i) any "hazardous material,"
"hazardous substance," "hazardous waste," "oil," "regulated substance," "toxic
substance," "restricted hazardous waste", "special waste" or words of similar
import as defined under any of the Environmental Laws; (ii) asbestos in any
form; (iii) urea formaldehyde foam insulation; (iv) polychlorinated biphenyls;
(v) radon gas; (vi) flammable explosives; (vii) radioactive materials; (viii)
any chemical, contaminant, solvent, material, pollutant or substance that may be
dangerous or detrimental to the Leased Property, the environment, or the health
and safety of the patients, residents and other occupants of the Leased Property
or of the owners or occupants of any other real property nearby the Leased
Property and (ix) any substance, the generation, storage, transportation,
utilization, disposal, management, release or location of
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which, on, under or from the Leased Property is prohibited or otherwise
regulated pursuant to any of the Environmental Laws.
Notwithstanding the foregoing, the term Hazardous Substances as defined
herein shall not include (a) pharmaceuticals and cleaning agents of the types
and in the quantities and concentrations normally stocked by health care
providers similar to the Facility, (b) oil in de minimis amounts typically
associated with the use of certain portions of the Leased Property for driving
and parking motor vehicles or (c) medical wastes generated at the Facility;
provided that the foregoing are used, stored, transported and/or disposed of in
accordance with all Legal Requirements.
SURROUNDING PROPERTY: Any real property that is located within a
one-half (1/2) mile radius of the Leased Property.
2. REPRESENTATIONS AND WARRANTIES: The Indemnitors each represent and
warrant to the Lessor, the same to be true as of the date hereof and throughout
the period that the Lease or any of the other Lease Documents shall remain in
force and effect, that:
(i) to the actual knowledge of the Indemnitors, except as may be
disclosed in the Environmental Report, no Hazardous Substance has been or is
currently generated, stored, transported, utilized, disposed of, managed,
released or located on, under or from the Leased Property (whether or not in
reportable quantities), except for de minimis releases typically associated with
the use of certain portions of the Leased Property for driving and parking motor
vehicles, or in any manner introduced onto the Leased Property, including,
without limitation, the septic, sewage or other waste disposal systems serving
the Leased Property;
(ii) except as may be disclosed in the Environmental Report, neither of
the Indemnitors has any knowledge of any threat of release of any Hazardous
Substance on, under or from the Leased Property;
(iii) neither of the Indemnitors has received any notice from any state
or local Governmental Authority in the state where the Facility is located, the
United States Environmental Protection Agency or any other Governmental
Authority claiming that (a) the Leased Property or any use thereof violates any
of the Environmental Laws or (b) either of the Indemnitors or any of their
respective employees or agents have violated any of the Environmental Laws;
(iv) neither of the Indemnitors has incurred any liability to the town,
city or county in which the Facility is located, the State of Arkansas, the
United States of America or any other Governmental Authority under any of the
Environmental Laws;
(v) to the actual knowledge of the Indemnitors, no lien against the
Leased Property has arisen under or related to any of the Environmental Laws;
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(vi) to the actual knowledge of the Indemnitors, except as may be
disclosed in the Environmental Report, there are no Environmental Enforcement
Actions pending, or to the best of the Indemnitors' information, knowledge and
belief, threatened;
(vii) except as may be disclosed in the Environmental Report, neither
of the Indemnitors has any knowledge that any Hazardous Substance has been or is
currently generated, stored, transported, utilized, disposed of, managed,
released or located on, under or from any Surrounding Property in violation of,
or allegedly in violation of any of, the Environmental Laws;
(viii) except as may be disclosed in the Environmental Report, neither
of the Indemnitors has any knowledge of any threat of release of any Hazardous
Substance on, under or from any Surrounding Property;
(ix) neither of the Indemnitors has any knowledge of any action or
order instituted or threatened against any Person by any Governmental Authority
arising out of or in connection with the Environmental Laws involving the
assessment, monitoring, clean-up, containment, remediation or removal of or
damages caused or alleged to be caused by (a) any Hazardous Substances
generated, stored, transported, utilized, disposed of, managed, released or
located on, under or from any Surrounding Property or (b) the threat of release
of any Hazardous Substance on, under or from any Surrounding Property; and
(x) to the actual knowledge of the Indemnitors, except as may be
disclosed in the Environmental Report, there are no underground storage tanks on
or under the Leased Property.
As used in this Agreement, the terms "generated," "stored,"
"transported," "utilized," "disposed," "managed," "released" and "threat of
release" (and all conjugates thereof) shall have the meanings and definitions
set forth in the Environmental Laws.
3. MAINTENANCE OF LEASED PROPERTY: The Indemnitors each covenant that,
as long as the Lease or any of the other Lease Documents shall remain in force
and effect, neither of the Indemnitors shall:
(i) generate, store, transport, utilize, dispose of, manage, release or
locate, or permit the generation, storage, transportation, utilization,
disposal, management, release or threat of release, or location of any Hazardous
Substances on, under or from the Leased Property, except for de minimis releases
typically associated with the use of certain portions of the Leased Property for
driving and parking motor vehicles; or
(ii) permit any lien arising under or related to any of the
Environmental Laws to attach to the Leased Property.
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In addition to all other covenants contained herein, the Indemnitors
agree that the Leased Property shall be maintained in compliance with the
Environmental Laws.
4. NOTICE OF ENVIRONMENTAL CONDITIONS: The Indemnitors shall provide
the Lessor with immediate written notice upon: (i) either of the Indemnitors
becoming aware of (a) the presence of, any release or any threat of release of
any Hazardous Substances on, under or from the Leased Property (whether or not
caused by any of the Indemnitors), (b) any Environmental Enforcement Action
instituted or threatened, (c) any enforcement, assessment, monitoring, clean-up,
containment, removal, remediation, restoration or other action or order
instituted, threatened, required or completed by any Governmental Authority
pursuant to any of the Environmental Laws with respect to any Surrounding
Property and/or (d) any condition or occurrence on any Surrounding Property that
may constitute a violation of any of the Environmental Laws and (ii) the receipt
by either of the Indemnitors of any notice relating to the Leased Property or
any Hazardous Substance allegedly originating on, under or from the Leased
Property, from any Governmental Authority pursuant to any of the Environmental
Laws.
At least six (6) months, but not more than nine (9) months, prior to
the expiration of the Term of the Lease, the Lessee shall at its own cost and
expense obtain a professional environmental assessment of the Leased Property,
all in accordance with the scope of Section 6 below and with the Lessor's then
standard requirements. Such assessment shall be set forth in a written report
addressed to and delivered to the Lessor at least four (4) months before the end
of the Term of the Lease.
5. INDEMNITORS' AGREEMENT TO TAKE REMEDIAL ACTIONS: Upon either of the
Indemnitors becoming aware of the presence of, any release, or any threat of
release of any Hazardous Substances on, under or from the Leased Property or any
Surrounding Property (whether or not caused by any of the Indemnitors), the
Indemnitors shall immediately take all such actions or cause the responsible
party to take all such actions to arrange for the assessment, monitoring,
clean-up, containment, removal, remediation or restoration of the Leased
Property and the Surrounding Property, but only to the extent that the presence
of any Hazardous Substances on the Surrounding Property originated on, under or
from the Leased Property as (i) are required pursuant to any of the
Environmental Laws or by any Governmental Authority and (ii) may otherwise be
advisable and reasonably requested by the Lessor.
The Indemnitors shall provide the Lessor, or cause the responsible
party to provide the Lessor, within thirty (30) days after a demand by the
Lessor, with a bond, letter of credit or other similar financial assurance, in
form, amount and substance reasonably satisfactory to the Lessor evidencing to
the Lessor's reasonable satisfaction that the necessary financial resources are
available to pay all costs associated with the aforementioned actions, the
release of any lien against the Leased Property, the release or other
satisfaction of the liability, if any, of any of
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the Indemnitors arising under or related to any of the Environmental Laws and
the satisfaction of any applicable Environmental Enforcement Actions.
6. LESSOR'S RIGHTS TO INSPECT THE PROPERTY AND TAKE REMEDIAL ACTIONS:
As long as the Lease or any of the other Lease Documents shall remain in force
and effect, the Lessor shall have the right, but not the obligation, to enter
upon the Leased Property (at reasonable times and upon reasonable notice to the
Lessee, except in the event of an emergency), and may expend funds to:
(i) for good and reasonable cause, cause one or more environmental
assessments of the Leased Property to be undertaken. Such environmental
assessments may include, without limitation, (a) detailed visual inspections of
the Leased Property, including, without limitation, all storage areas, storage
tanks, drains, dry xxxxx and leaching areas, (b) the taking of soil and surface
water samples, (c) the performances of soil and ground water analyses and (d)
the performance of such other investigations or analyses as are necessary or
appropriate and consistent with sound professional environmental engineering
practice in order for the Lessor to obtain a complete assessment of the
compliance of the Leased Property and the use thereof with all Environmental
Laws and to make a determination as to whether there is any risk of
contamination (x) to the Leased Property resulting from Hazardous Substances
originating on, under or from any Surrounding Property or (y) to any Surrounding
Property resulting from Hazardous Substances originating on, under or from the
Leased Property;
(ii) cure any breach of the representations, warranties, conditions and
covenants of this Agreement including, without limitation, any violation by any
of the Indemnitors or the Leased Property (or any other occupant, prior occupant
or prior owner thereof) of any of the Environmental Laws;
(iii) take any actions as are necessary to (a) prevent the migration of
Hazardous Substances on, under or from the Leased Property to any other
property; (b) clean-up, contain, remediate or remove any Hazardous Substances
on, under or from any other property, which Hazardous Substances originated on,
under or from the Leased Property or (c) prevent the migration of any Hazardous
Substances on, under or from any other property to the Leased Property; and
(iv) comply with, settle or otherwise satisfy any Environmental
Enforcement Action (including, without limitation, the payment of any fines or
penalties imposed by any Governmental Authority); PROVIDED, HOWEVER, that unless
a Lease Default has occurred, the Lessor shall not settle or otherwise satisfy
any Environmental Enforcement Action without the prior consent of the
Indemnitors, which consent shall not be unreasonably withheld.
Any amounts paid or advanced by the Lessor and all costs and expenses
reasonably incurred in connection with any action taken pursuant to the terms of
this Section 6 (including, without limitation, environmental consultants' and
experts' fees and expenses, attorneys' fees
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and expenses, court costs and all costs of assessment, monitoring, clean-up,
containment, remediation, removal and restoration) shall be a demand obligation
of the Indemnitors to the Lessor, and, to the extent permitted by applicable
law, shall be added to the Lease Obligations and, if not paid within ten (10)
days after demand, shall thereafter, to the extent permitted by applicable law,
bear interest at the Overdue Rate until the date of payment.
Subject to the provisions of applicable law, the exercise by the Lessor
of any of the rights and remedies set forth in this Section 6 shall not operate
or be deemed (a) to place upon the Lessor any responsibility for the operation,
control, care, service, management, maintenance or repair of the Leased Property
or (b) to make the Lessor the "operator" of the Leased Property or a
"responsible party" within the meaning of any of the Environmental Laws.
Furthermore, the Lessor, by making any such payment or incurring any such costs,
shall be subrogated (but only until the complete payment and performance of the
Obligations) to all rights of each of the Indemnitors or any other occupant of
the Leased Property to seek reimbursement from any Person, including, without
limitation, any predecessor to the Lessor's fee title to the Leased Property,
who may be a "responsible party" under any of the Environmental Laws, in
connection with the presence of Hazardous Substances on, under or from the
Leased Property.
Without limiting the generality of the provisions incorporated by
reference pursuant to Section 11 hereof, any partial exercise by the Lessor of
any of the rights and remedies set forth in this Section 6, including, without
limitation, any partial undertaking on the part of the Lessor to cure any
failure by either of the Indemnitors or the Leased Property (or any other
occupant, prior occupant or prior owner thereof) to comply with any of the
Environmental Laws, shall not obligate the Lessor to complete such actions taken
or require the Lessor to expend further sums to cure such non-compliance.
7. INDEMNIFICATION: Each of the Indemnitors shall and hereby agrees to
indemnify, defend (with counsel reasonably acceptable to the Lessor) and hold
the Lessor harmless from and against any claim, liability, loss, cost, damage or
expense (including, without limitation, environmental consultants' and experts'
fees and expenses, attorneys' fees and expenses, court costs and all costs of
assessment, monitoring, clean-up, containment, removal, remediation and
restoration reasonably incurred by the Lessor) arising out of or in connection
with (i) any breach of any of the representations, warranties, conditions and
covenants of this Agreement or any of the other Lease Documents (whether any
such matters arise before or after any action is commenced to terminate the
Lease or to evict the Lessee), (ii) the Lessor's exercise of any of its rights
and remedies hereunder or (iii) the enforcement of the aforesaid indemnification
agreement; EXCLUDING, HOWEVER, any claim, liability, loss, cost, damage or
expense resulting from the Lessor's gross negligence or willful misconduct.
Notwithstanding the foregoing, the Lessor shall have the option of conducting
its defense with counsel of the Lessor's choice, but at the expense of the
Indemnitors as aforesaid.
The matters covered by the foregoing indemnity with respect to any
property other than
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the Leased Property shall not include any costs incurred as
a result of the clean-up, containment, remediation or removal of Hazardous
Substances on, under or from such other property or the restoration thereof if
such Hazardous Substances did not originate on, under or from the Leased
Property, unless the clean-up, containment, remediation or removal thereof or
the restoration of such other property is either required in connection with any
Environmental Enforcement Action or is necessary to prevent the migration of
Hazardous Substances from such other property to the Leased Property. The
Indemnitors each acknowledge and agree that their obligations pursuant to the
provisions hereof are in addition to any and all other legal liabilities and
responsibilities (at law or in equity) that either of the Indemnitors may
otherwise have as an "operator" of the Leased Property or a "responsible party"
within the meaning of any of the Environmental Laws, as the case may be.
The indemnity provisions of this Section 7 shall survive the payment
and performance of the Obligations and/or the expiration or termination of the
Lease.
8. JOINT AND SEVERAL LIABILITY: All obligations of the Indemnitors
under this Agreement shall be joint and several.
9. NOTICES: Any notice, request, demand, statement or consent made
hereunder shall be in writing and shall be deemed duly given if personally
delivered, sent by certified mail, return receipt requested, or sent by a
nationally recognized commercial overnight delivery service with provisions for
a receipt, postage or delivery charges prepaid, and shall be deemed given when
postmarked or placed in the possession of such mail or delivery service and
addressed as follows:
IF TO THE DEVELOPER: BCC Development and Management Co.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx, President
WITH COPIES TO: Balanced Care Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: General Counsel
Xxxxxxxxxxx & Xxxxxxxx
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxxx, Esq.
IF TO THE LESSEE: TC Realty Corporation __
0000 Xxxxxxxxx Xxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: President
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WITH COPIES TO: Xxxxxxxx X. Xxxxx, P.A.
0000 Xxxxxxxxx Xxxxxx Xxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
IF TO THE LESSOR: Meditrust Acquisition Corporation II
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
WITH COPIES TO: Meditrust Acquisition Corporation II
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: General Counsel
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxxxx Xxxxxxx, Esq.
or at such other place as any of the parties hereto may from time to time
hereafter designate to the others in writing. Any notice given to either of the
Indemnitors by the Lessor at any time shall not imply that such notice or any
further or similar notice was or is required.
10. INTENTIONALLY OMITTED.
11. GENERAL PROVISIONS; RULES OF CONSTRUCTION: The provisions set forth
in Article 23 and Sections 2.2, 16.8 through 16.10, 24.2 through 24.12 of the
Lease are hereby incorporated herein by reference, MUTATIS, MUTANDIS and shall
be applicable to this Agreement as if set forth in full herein.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as a sealed instrument on the date first above-mentioned.
WITNESSES: LESSEE:
TC REALTY CORPORATION __, a Delaware corporation
By: /s/ XXX X. XXXXXXXX
---------------------- ---------------------------------------
Name: Name: Xxx X. Xxxxxxxx
Title: President
----------------------
Name:
WITNESSES: DEVELOPER:
BCC DEVELOPMENT AND MANAGEMENT CO.,
a Delaware corporation
By:
---------------------- ---------------------------------------
Name: Name:
Title:
----------------------
Name:
WITNESSES: LESSOR:
MEDITRUST ACQUISITION CORPORATION II,
a Delaware corporation
By:
---------------------- ---------------------------------------
Name: Name:
Title:
----------------------
Name:
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SCHEDULE TO EXHIBIT 10.21 FILED PURSUANT TO INSTRUCTION 2 OF ITEM 601(a) OF
REGULATION S-K
ENVIRONMENTAL INDEMNITY AGREEMENT
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PROJECT PARTIES FACILITY
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Lima, OH TC Realty Corporation I (Lessee), Outlook Pointe at Lima
BCC Development and Management
Corporation (Developer) and
Meditrust Acquisition Corporation II
(Lessor)
Mansfield, OH TC Realty Corporation II (Lessee), Outlook Pointe at Ontario Village
BCC Development and Management
Corporation (Developer) and
Meditrust Acquisition Corporation II
(Lessor)
Scranton, PA TC Realty Corporation III (Lessee), Outlook Pointe at Scranton
BCC Development and Management
Corporation (Developer) and
Meditrust Acquisition Corporation II
(Lessor)
Xenia, OH TC Realty Corporation IV (Lessee), Outlook Pointe at Xenia
BCC Development and Management
Corporation (Developer) and
Meditrust Acquisition Corporation II
(Lessor)
