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EXHIBIT 10.5
ENVIRONMENTAL INDEMNITY AGREEMENT
ENVIRONMENTAL INDEMNITY AGREEMENT made as of January 6, 2006, by
CAPE PLACE
(DE), LLC, CLAYTON PLACE (DE), LLC, JACKSONVILLE PLACE (DE), LLC,
MACON PLACE
(DE), LLC, MARTIN PLACE (DE), LLC, MURRAY PLACE (DE), LLC, RIVER
PLACE (DE),
LLC, TROY PLACE (DE), LLC and EDR LEASE HOLDINGS, LLC, each a
Delaware limited
liability company and EDR CLEMSON PLACE LIMITED PARTNERSHIP, a
Delaware limited
partnership, each having an office at c/o Education Realty
Operating
Partnership, LP, 530 Oak Court Drive, Suite 300, Memphis, Tennessee
38117
(hereinafter collectively referred to as "Borrower") and EDUCATION
REALTY
OPERATING PARTNERSHIP, LP, a Delaware limited partnership ("EROP"),
having an
office at 530 Oak Court Drive, Suite 300 Memphis, Tennessee 38117(
Borrower and
EROP are hereinafter collectively referred to as "Indemnitor"), in
favor of
LaSalle Bank, National Association, as Trustee under that certain
Pooling and
Servicing Agreement dated as of February 10, 2005 (the "PSA"), for
the
Registered Holders of Greenwich Capital Commercial Funding Corp.
Commercial
Mortgage Trust 2005-GG3 Commercial Mortgage Pass-Through
Certificates, Series
2005-GG3 ("Lender").
Preliminary Statement
WHEREAS, Lender is the holder of a loan (the "Loan") in the
principal amount of $98,660,000, evidenced by a certain Promissory
Note (the
"Note") in the same principal amount given by Borrower to Greenwich
Capital
Financial Products, Inc. ("Original Lender") and secured by, among
other things,
those a certain Mortgages/Deeds of Trust/Deeds to Secure Debt,
Assignment of
Rents and Security Agreement made by Borrower to Original Lender
(collectively,
the "Instrument"); and
WHEREAS, Borrower owns or has rights in all of the real
properties
and improvements to be encumbered by each Instrument (individually,
each a
"Property" and collectively, the "Properties"); and
WHEREAS, Lender, as the holder of the Note and beneficiary under
the
Instrument, has been asked to consent to (i) the conversion of
Clemson Place
(DE), LLC into EDR Clemson Place Limited Partnership (the
"Conversion"); (ii)
the transfer of 100% of the membership interests or limited
partnership
interests, as applicable in Borrowers and EDR Clemson Place GP,
LLC, the general
partner of EDR Clemson Place Limited Partnership (the ("Transfer"),
from Place
Mezz Borrower, LLC to EROP and (iii) the assumption by EROP of
certain
obligations under the Loan Documents (the "Assumption") and in
connection with
the Conversion, Transfer and Assumption, Lender has also been asked
to consent
to certain leases (the "Master Leases"), all as more fully set out
in the
Consent, Ratification, Assumption and Release Agreement (the
"Consent") of even
date herewith. The Conversion, Transfer, Assumption and Master
Leases are
sometimes referred to herein collectively as the "Transactions";
and
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WHEREAS, Indemnitor as a result of the Transactions will have a
direct or indirect ownership interest in Borrower and will derive
economic or
other benefits from the Consent; and
WHEREAS, as a condition to the Consent, Lender requires
Indemnitor
to provide certain indemnities concerning Hazardous Materials (as
hereinafter
defined) and Asbestos (as hereinafter defined); and
WHEREAS, to induce Lender to consummate the above described
transaction, Indemnitor has agreed to enter into this
Agreement;
NOW
THEREFORE, Indemnitor hereby represents, warrants and covenants
to
Lender as follows:
1.
Indemnitor represents and warrants that except as disclosed in
the
Environmental Report (as defined in the Loan and Security Agreement
dated
December 3, 2004 between Borrower and Original Lender) delivered to
Original
Lender prior to the Closing under the Loan and Security Agreement,
(i) to the
best of Indemnitor's knowledge, after due inquiry and
investigation, (a) there
are no Hazardous Materials or Asbestos on any Property, except
those in
compliance with all applicable Hazardous Materials Law (as
hereinafter defined),
and (b) no owner or occupant nor any prior owner or occupant of any
Property has
received any notice or advice from any governmental agency or any
source
whatsoever with respect to Hazardous Materials or Asbestos on, from
or affecting
any Property; and (ii) to the best of Indemnitor's knowledge, no
property
adjoining any of the Properties is being used, or has ever been
used at any
previous time, for the disposal, storage, treatment, processing or
other
handling of Hazardous Materials or Asbestos.
2.
Indemnitor covenants that (i) each of the Properties shall be kept
free
of Hazardous Materials and Asbestos, except for those Hazardous
Materials
necessary for the operation of such Property, provided that
Indemnitor complies
with all applicable Hazardous Materials Law and (ii) neither
Indemnitor nor any
occupant of any of the Properties shall use, transport, store,
dispose of or in
any manner deal with Hazardous Materials or Asbestos on any
Property, except for
those Hazardous Materials necessary for the operation of such
Property, provided
that such materials are used, transported, stored and disposed of
in compliance
with all applicable Hazardous Materials Law. Indemnitor shall
comply with, and
ensure compliance by all occupants of the Properties with, all
applicable
Hazardous Materials Law, and shall keep the Properties free and
clear of any
liens imposed pursuant to such Hazardous Materials Law. Indemnitor
shall conduct
and complete all investigations, studies, sampling, and testing,
and all
remedial actions necessary to clean up and remove any Hazardous
Materials and
Asbestos from any of the Properties in accordance with all
applicable Hazardous
Materials Law.
3. (a)
Indemnitor covenants and agrees at its sole cost and expense,
to
protect, defend, indemnify and hold Lender and Original Lender,
their directors,
officers, shareholders, employees, agents, successors, assigns and
attorneys
harmless from and against any and all losses (including diminution
in the value
of any of the Properties), liabilities, obligations, claims,
damages, penalties,
causes of action, fines, costs and expenses, including without
limitation,
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litigation costs (including, without limitation, attorneys' fees,
expenses, sums
paid in settlement of claims and any such fees and expenses
incurred in
enforcing this Agreement or collecting any sums due hereunder),
other than those
arising solely from the willful misconduct of Lender (collectively,
the
"Indemnified Claims"), directly or indirectly imposed upon or
incurred by or
asserted against Original Lender, Lender, their directors,
officers,
shareholders, employees, agents, successors, assigns and attorneys,
whether as
mortgagee, mortgagee in possession, successor in interest to
Indemnitor by
foreclosure, exercise of power of sale, acceptance of a
deed-in-lieu of
foreclosure or otherwise, or in any other capacity, arising out of
or in
connection with (1) any violation of Hazardous Materials Law
including, without
limitation, reasonable attorney and consultant fees, investigation
and
laboratory fees, court costs, and litigation expenses; (2) any
lawsuit brought
or threatened, settlement reached, or government order relating to
such
Hazardous Materials or Asbestos; (3) the use, generation, refining,
manufacture,
transportation, transfer, production, processing, storage,
handling, or
treatment of any Hazardous Materials or Asbestos, on, under, from,
or affecting
any of the Properties or any other property; (4) the presence,
disposal,
dumping, escape, seepage, leakage, spillage, discharge, emission,
pumping,
emptying, injecting, leaching, pouring, release, or threatened
release of any
Hazardous Materials or Asbestos on, under, from, or affecting any
of the
Properties or any other property; (5) any remedial action, or
imposition of
standards of conduct, including the clean-up, encapsulation,
treatment,
abatement, removal and/or disposal of any Hazardous Materials or
Asbestos on,
under, from or affecting any of the Properties or any other
property to the
extent required by any Hazardous Materials Law; (6) any personal
injury
(including wrongful death) or property damage (real or personal)
arising out of
or related to such Hazardous Materials or Asbestos; or (7) a
material
misrepresentation or material inaccuracy in any representation or
warranty or a
material breach of or failure to perform any covenant made by
Indemnitor in this
Agreement or in the Instrument, as applicable.
(b) Indemnitor understands and agrees that its liability to
Original
Lender and Lender shall arise upon the earlier to occur of (1) the
discovery of,
or the threat or suspected presence of, any Hazardous Materials or
Asbestos on,
under or about any of the Properties, whether or not the
Environmental
Protection Agency, any other federal agency or any state or local
environmental
or other agency or political subdivision or any court,
administrative panel or
tribunal has taken or threatened any action in connection with the
presence, or
threatened or suspected presence, of any Hazardous Materials or
Asbestos or (2)
the institution of any Indemnified Claims, and not upon the
realization of loss
or damage. Indemnitor shall also indemnify and hold harmless
Original Lender and
Lender from and against all loss, costs, damages, or expenses
(including,
without limitation, attorney's fees) arising out of the enforcement
of this
Agreement, or the assertion by any Indemnitor of any defense to its
obligations
hereunder.
4. The
term "Hazardous Materials" as used in this Agreement shall
include,
without limitation, petroleum and petroleum products (excluding a
small quantity
of gasoline used in maintenance equipment on any of the Properties
in compliance
with all applicable Hazardous Materials Law), flammable explosives,
radioactive
materials (excluding radioactive materials in smoke detectors),
polychlorinated
biphenyls, asbestos in any form that is or could become friable,
paint with more
than 0.5 percent lead by dry weight, hazardous waste, toxic or
hazardous
substances or other related materials whether in the form of a
chemical,
element, compound,
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solution, mixture or otherwise including, but not limited to, those
materials
defined as "hazardous substances," "extremely hazardous
substances," "hazardous
chemicals", "hazardous materials", "toxic substances", "toxic
chemicals", "air
pollutants", "toxic pollutants", "hazardous wastes", "extremely
hazardous
waste", or "restricted hazardous waste" by Hazardous Materials
Law."
5. The
term "Asbestos" as used in this Agreement shall mean any
asbestos
or material containing asbestos.
6. The
term "Hazardous Materials Law", as used in this Agreement,
means
any federal, state, or local law, ordinance or regulation or any
court judgment
or order of any federal, state or local agency or regulatory body
applicable to
Indemnitor or to any Property relating to industrial hygiene or to
environmental
or unsafe conditions including, but not limited to, those relating
to the
generation, manufacture, storage, handling, transportation,
disposal, release,
emission or discharge of Hazardous Materials and Asbestos, those in
connection
with the construction, fuel supply, power generation and
transmission, waste
disposal or any other operations or processes relating to any
Property, and
those relating to the atmosphere, soil, surface and ground water,
wetlands,
stream sediments and vegetation on, under, in or about any
Property. "Hazardous
Materials Law" also shall include, but not be limited to, the
Comprehensive
Environmental Response, Compensation and Liability Act, the
Emergency Planning
and Community Right-to-Know Act of 1986, the Hazardous Materials
Transportation
Act, the Resource Conservation and Recovery Act, the Solid Waste
Disposal Act,
the Clean Water Act, the Clean Air Act, the Toxic Substance Control
Act, the
Safe Drinking Water Act and the Occupational Safety and Health Act,
and all
regulations adopted in respect to the foregoing laws.
7. This
Agreement, the payment of all sums due hereunder and the
performance and discharge of each and every obligation, covenant
and agreement
of Indemnitor contained herein, are, and shall be deemed to be,
secured by the
Instrument
