EXHIBIT 10.72
AMENDED AND RESTATED
ENVIRONMENTAL AND HAZARDOUS
SUBSTANCE
INDEMNIFICATION AGREEMENT
THIS AMENDED AND RESTATED ENVIRONMENTAL AND
HAZARDOUS SUBSTANCE INDEMNIFICATION AGREEMENT (this "
Agreement "),
made as of December 29, 2006, is by CONTINENTAL TOWERS, L.L.C. , a
Delaware limited liability company, (the " Borrower "), whose address is c/o
Prime Group Realty Trust, 77 West Wacker Drive, Suite 3900,
Chicago, Illinois 60601, in favor of WELLS
FARGO BANK, N.A., as trustee for the registered holders of COBALT
CMBS COMMERCIAL MORTGAGE TRUST 2006-C1, COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-C1 (together with its successors and assigns, "
Lender "),
having an address at c/o CWCapital LLC, One Charles River Place,
63 Kendrick Street, Needham, Massachusetts 02494.
W I T N E S S E T H:
WHEREAS, Lender has extended to Borrower a loan in
the principal amount of SEVENTY-THREE
MILLION SIX HUNDRED THOUSAND AND NO/100 DOLLARS
($73,600,000.00 ) (the "
Loan ");
and
WHEREAS, the Loan is evidenced by an Amended and
Restated Promissory Note dated of even date herewith (the "
Note "),
executed by Borrower and payable to the order of Lender in the
principal amount of the Loan and is secured by an Amended and
Restated Mortgage, Security Agreement and Fixture Financing
Statement dated of even date herewith (the "
Security Instrument "), made by Borrower in favor of Lender, encumbering the real
property, buildings, structures and other improvements described
therein (collectively, the " Property ") and by other
documents and instruments (the Note, the Security Instrument and
such other documents and instruments, as the same may from time to
time be amended, consolidated, renewed or replaced, being
collectively referred to herein as the " Loan Documents "); and
WHEREAS, as a condition to making the Loan, Lender
has required that Borrower indemnifies Lender with respect to
hazardous wastes on, in, under or affecting the Property as herein
set forth.
NOW, THEREFORE, to induce Lender to extend the Loan
to Borrower and in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Borrower hereby covenants and
agrees for the benefit of Lender, as follows:
1.
Indemnity . Borrower hereby assumes liability
for, and hereby agrees to pay, protect, defend (at trial and
appellate levels) and with attorneys, consultants and experts
acceptable to Lender, and save Lender harmless from and against,
and hereby indemnifies
AMENDED AND RESTATED ENVIRONMENTAL AND HAZARDOUS
SUBSTANCE
INDEMNIFICATION AGREEMENT - Page 1
43412-20/Continental Towers
Lender from and against any and all liens, damages,
losses, liabilities, obligations, settlement payments, penalties,
assessments, citations, directives, claims, litigation, demands,
defenses, judgments, suits, proceedings, costs, disbursements and
expenses of any kind or of any nature whatsoever (including,
without limitation, reasonable attorneys', consultants' and
experts' fees and disbursements actually incurred in investigating,
defending, settling or prosecuting any claim, litigation or
proceeding) (collectively " Costs ") which may at any time be
imposed upon, incurred by or asserted or awarded against Lender or
the Property, and arising directly or indirectly from or out of:
(i) the violation of any local, state or federal law, rule or
regulation pertaining to environmental regulation, contamination or
clean-up (collectively, " Environmental
Laws "), including, without
limitation, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (42 U.S.C. §9601 et seq. and
40 CFR §302.1 et seq.), the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. §6901 et seq.), The
Federal Water Pollution Control Act (33 U.S.C. §1251 et
seq. and 40 CFR §116.1 et seq.), and the Hazardous
Materials Transportation Act (49 U.S.C. §1801 et seq.),
and the regulations promulgated pursuant to said laws, all as
amended, relating to or affecting the Property, whether or not
caused by or within the control of Borrower; (ii) the
presence, release or threat of release of any hazardous, toxic or
harmful substances, wastes, materials, pollutants or contaminants
(including, without limitation, asbestos, polychlorinated
biphenyls, petroleum products, flammable explosives, radioactive
materials, infectious substances or raw materials which include
hazardous constituents) or any other substances or materials which
are included under or regulated by Environmental Laws
(collectively, " Hazardous
Substances "), on, in, under or
effecting all or any portion of the Property or any surrounding
areas, regardless of whether or not caused by or within the control
of Borrower; (iii) the failure by Borrower to comply fully
with the terms and conditions of this Agreement; (iv) the
breach of any representation or warranty contained in this
Agreement; or (v) the enforcement of this Agreement,
including, without limitation, the cost of assessment, containment
and/or removal of any and all Hazardous Substances from all or any
portion of the Property or any surrounding areas, the cost of any
actions taken in response to the presence, release or threat of
release of any Hazardous Substances on, in, under or affecting any
portion of the Property or any surrounding areas to prevent or
minimize such release or threat of release so that it does not
migrate or otherwise cause or threaten danger to present or future
public health, safety, welfare or the environment, and costs
incurred to comply with the Environmental Laws in connection with
all or any portion of the Property or any surrounding areas.
" Costs "
as used in this Agreement shall also include (without double
counting to the extent such diminution is already reflected in the
costs covered above) any diminution in the value of the security
afforded by the Property or any future reduction of the sales price
of the Property by reason of any matter set forth in this
Paragraph 1 ;
provided, however, the costs attributable to diminution in value as
described herein shall not exceed the outstanding indebtedness
evidenced by the Note plus any costs incurred by Lender in
disposing of the Property or the Loan and shall be payable if and
only to the extent such diminution or reduction results in a damage
or loss to Lender as a result of its inability to recover the
outstanding indebtedness upon disposing of the Property or the Loan
by Lender or an affiliated entity. The foregoing indemnity shall
specifically not include any such costs relating to Hazardous
Substances which are initially placed on, in or under the Property
after foreclosure or other taking of title to the Property by
Lender or its successors or assignee or a purchaser at a
foreclosure or a grantee of a deed in lieu of
foreclosure.
AMENDED AND RESTATED ENVIRONMENTAL AND HAZARDOUS
SUBSTANCE
INDEMNIFICATION AGREEMENT - Page 2
43412-20/Continental Towers
2.
Representations Regarding Hazardous
Substances .
Borrower hereby represents and warrants to and
covenants and agrees with Lender as follows:
(a)
To the best of Borrower's knowledge, information and
belief, after due inquiry and investigation, and except as
otherwise disclosed in the Phase I Report (as defined in the
Security Instrument) the Property is not in violation of any
Environmental Law;
(b)
To the best of Borrower's knowledge, information and
belief, after due inquiry and investigation, and except as
otherwise disclosed in the Phase I Report (as defined in the
Security Instrument) no Hazardous Substances are located on or have
been handled, generated, stored, processed or disposed of on or
released or discharged from the Property (including underground
contamination) except for those substances used in the ordinary
course of business and in compliance with all Environmental
Laws;
(c)
The Property is not subject to any private or
governmental lien or judicial or administrative notice or action
relating to Hazardous Substances;
(d)
To the best of Borrower's knowledge and belief,
after due inquiry and investigation, and except as otherwise
disclosed in the Phase I Report, there are no existing or closed
underground storage tanks or other underground storage receptacles
for Hazardous Substances on the Property;
(e)
Borrower has received no notice of, and to the best
of Borrower's knowledge and belief, there exists no investigation,
action, proceeding or claim by any agency, authority or unit of
government or by any third party which could result in any
liability, penalty, sanction or judgment under any Environmental
Laws with respect to any condition, use or operation of the
Property nor does Borrower know of any basis for such a claim;
and
(f)
Borrower has received no notice that, and to the
best of Borrower's knowledge and belief, there has been no claim by
any party that, any use, operation or condition of the Property has
caused any nuisance or any other liability or adverse condition on
any other property nor does Borrower know of any basis for such a
claim.
|
|
3.
|
Covenants of Borrower
.
|
(a)
Borrower shall keep or cause the Property to be kept
free from Hazardous Substances (except those substances used and
stored by Borrower or any tenant of the Property in the ordinary
course of its business and in compliance with all Environmental
Laws and, if applicable, its Lease), shall not install or use any
underground storage tanks, shall expressly prohibit the use,
generation, handling, storage, production, processing and disposal
of Hazardous Substances by all tenants of space in the Improvements
(except those substances used in the ordinary course of business
and in compliance with all Environmental Laws and its Lease), and,
without limiting the generality of the foregoing,
AMENDED AND RESTATED ENVIRONMENTAL AND HAZARDOUS
SUBSTANCE
INDEMNIFICATION AGREEMENT - Page 3
43412-20/Continental Towers
during the term of this Agreement, shall not install
in the Improvements or permit to be installed in the Improvements
asbestos or any substance containing asbestos.
(b)
Borrower shall promptly notify Lender should
Borrower become aware of (i) any Hazardous Substances, or
other potential environmental problem or liability, with respect to
the Property, (ii) any lien, action or notice affecting the
Property or Borrower resulting from any violation or alleged
violation of the Environmental Law, (iii) the institution of
any investigation, inquiry or proceeding concerning Borrower or the
Property pursuant to any Environmental Law or otherwise relating to
Hazardous Substances, or (iv) the discovery of any occurrence,
condition or state of facts which would render any representation
or warranty contained in this Agreement incorrect in any material
respect if made at the time of such discovery. Borrower shall,
promptly and when and as required and regardless of the source of
the contamination, at their own expense, take all actions as shall
be necessary or advisable for the clean-up of any and all portions
of the Property or other affected property, including, without
limitation, all investigative, monitoring, removal, containment and
remedial actions in accordance with all applicable Environmental
Laws (and in all events in a manner reasonably satisfactory to
Lender), and shall further pay or cause to be paid, at no expense
to Lender, all clean-up, administrative and enforcement costs of
applicable governmental agencies which may be asserted against the
Property. In the event Borrower fails to do so, Lender may, upon
not less than ten (10) days prior written notice to Borrower, cause
the Property or other affected property to be freed from any
Hazardous Substances or otherwise brought into conformance with
Environmental Laws and any reasonable out-of-pocket costs incurred
in connection therewith shall be included in Costs and shall be
paid by Borrower in accordance with the terms of
Paragraph 4(c) hereof. In furtherance of the foregoing, Borrower hereby grants
to Lender access to the Property and an irrevocable license to
remove any items deemed by Lender to be Hazardous Substances and to
do all things Lender shall reasonably deem necessary to bring the
Property into conformance with Environmental Laws.
(c)
Upon the written request of Lender, at any time and
from time to time after the occurrence of and during the
continuance of an Event of Default under this Agreement or the Loan
Documents or at such other time as Lender has determined (in the
exercise of its good faith judgment but in no event more than one
(1) time in any consecutive twelve (12) month period absent the
occurrence and continuance of an Event of Default) that reasonable
grounds exist to believe that Hazardous Substances are or have been
released, stored or disposed of on or around the Property in
violation of the Environmental Laws, Borrower shall provide, at
Borrower's sole expense, an inspection or audit of the Property
prepared by a hydrogeologist or environmental engineer or other
appropriate consultant reasonably approved by Lender indicating the
presence or absence of Hazardous Substances on the Property in
violation of Environmental Laws or an inspection or audit of the
improvements located on the Property prepared by an engineering or
consulting firm reasonably acceptable to Lender indicating the
presence or absence of friable asbestos or substances containing
asbestos on the Property. If Borrower fails to provide such
inspection or audit within sixty (60) days after such
AMENDED AND RESTATED ENVIRONMENTAL AND HAZARDOUS
SUBSTANCE
INDEMNIFICATION AGREEMENT - Page 4
43412-20/Continental Towers
written request, Lender may, upon not less than ten
(10) days prior written notice to Borrower, order the same, and
Borrower hereby grants to Lender access to the Property and an
irrevocable license to undertake such inspection or audit. The cost
of such inspection or audit shall be included in Costs and shall be
paid by Borrower in accordance with the terms of
Paragraph 4(c) hereof. If no Event of Default has occurred and is continuing
and in the event Lender requests any such inspection or audit more
than one (1) time in any consecutive twelve (12) month period,
Lender shall have the right to obtain such additional audit or
inspection at Lender's sole cost and expense.
|
|
4.
|
Indemnification Procedures
.
|
(a)
If any action shall be brought against Lender based
upon any of the matters for which Lender is indemnified hereunder,
Lender shall notify Borrower in writing thereof and Borrower shall
promptly assume the defense thereof, including, without limitation,
the employment of counsel reasonably acceptable to Lender and the
negotiation of any settlement; provided, however, that any failure
of Lender to notify Borrower of such matter shall not impair or
reduce the obligations of Borrower hereunder. Lender shall have the
right, at the expense of Borrower (which expense shall be included
in Costs), to employ separate counsel in any such action and to
participate in the defense thereof. In the event Borrower shall
fail to discharge or undertake to defend Lender against any claim,
loss or liability for which Lender is indemnified hereunder, Lender
may, at its sole option and election, defend or settle such claim,
loss or liability. The liability of Borrower to Lender hereunder
shall be conclusively established by such settlement, provided such
settlement is made in good faith, the amount of such liability to
include both the settlement consideration and the costs and
expenses, including, without limitation attorneys' fees and
disbursements, incurred by Lender in effecting such settlement. In
such event, such settlement consideration, costs and expenses shall
be included in Costs and Borrower shall pay the same as hereinafter
provided. Lender's good faith in any such settlement shall be
conclusively established if the settlement is made on the advice of
independent legal counsel for Lender.
|
|
(b)
|
Borrower shall not, without the prior written
consent of Lender:
|
(i)
settle or compromise any action, suit, proceeding or
claim or consent to
