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ENVIRONMENTAL INDEMNITY
AGREEMENT
This ENVIRONMENTAL
INDEMNITY AGREEMENT dated as of
_____________, 2008 (the " Agreement "), is executed by
APPLE ORCHARD, L.L.C. ,
a Michigan limited liability company, whose address is 27777
Franklin Road, Suite 200, Southfield, Michigan 48034 (the
“ Mortgagor ”), and SUN COMMUNITIES
OPERATING LIMITED PARTNERSHIP , a limited
partnership, whose address is 27777 Franklin Road, Suite 200,
Southfield, Michigan 48034 (the “ Guarantor ;” the Mortgagor and
the Guarantor being referred to herein collectively as the "
Indemnitor "), to and
for the benefit of LASALLE BANK MIDWEST
NATIONAL ASSOCIATION , a national banking
association, whose address is 2600 West Big Beaver Road, Troy,
Michigan 48084, its successors and assigns (the “
Bank ”).
R E C I T A L S :
A. The Bank has
agreed to extend a mortgage loan (the “ Loan ”) to
APPLE ORCHARD, L.L.C. ,
a Michigan limited liability company; SUN
LAKEVIEW LLC , a Michigan limited
liability company; and SUN TAMPA EAST,
LLC , a Michigan limited liability
company (collectively, the “ Borrower ”), in the principal
amount of Twenty Seven Million and 00/100 Dollars ($27,000,000.00)
(the “ Loan Amount
”), evidenced by a promissory note from the
Borrower to the Bank, dated of even date with the Loan Agreement,
in an aggregate principal amount equal to the Loan Amount (as
amended, restated or replaced from time to time, the "
Note ").
B.
Mortgagor has granted to the Bank a mortgage (the
" Mortgage ")
covering certain real property situated in the State of Ohio, as
more particularly described in Exhibit A attached hereto (the
" Property "),
as security for the Loan evidenced by the Note.
C.
As a condition to making the Loan, the Bank has
required that the Indemnitor indemnify the Bank with respect to
environmental conditions and operations at the Property as set
forth below.
NOW, THEREFORE, to induce the Bank to extend the
Loan and in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Indemnitor hereby covenants and
agrees for the benefit of the Bank and the other Indemnified
Parties (as defined below), as follows:
A G R E E M E N T S:
1.1
Definitions . For
purposes of this Agreement the following terms have the following
meanings:
" Business Day
" shall mean a weekday, Monday through Friday,
except a legal holiday or a day on which banking institutions in
Troy, Michigan, are authorized by law to be closed.
" Environmental
Laws " shall mean any and all federal,
state and local laws (whether under common law, statute, rule,
regulation or otherwise), requirements under permits or other
authorizations issued with respect thereto, and other orders,
decrees, judgments, directives or other requirements of any
governmental authority relating to or imposing liability or
standards of conduct (including disclosure or notification)
concerning protection of human health or the
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environment or Hazardous Substances or any activity
involving Hazardous Substances, all as previously and in the future
to be amended.
" Hazardous
Substance " shall mean, but is not
limited to, any substance, chemical, material or waste (a) the
presence of which causes a nuisance or trespass of any kind; (b)
which is regulated by any federal, state or local governmental
authority because of its toxic, flammable, corrosive, reactive,
carcinogenic, mutagenic, infectious, radioactive, or other
hazardous property or because of its effect on the environment,
natural resources or human health and safety, including, but not
limited to, petroleum and petroleum products, asbestos-containing
materials, polychlorinated biphenyls, lead and lead-based paint,
radon, radioactive materials, flammables and explosives; or (c)
which is designated, classified, or regulated as being a hazardous
or toxic substance, material, pollutant, waste (or a similar such
designation) under any federal, state or local law, regulation or
ordinance, including under any Environmental Law such as the
Comprehensive Environmental Response Compensation and Liability Act
(42 U.S.C. §9601 et
seq .), the Emergency
Planning and Community Right-to-Know Act (42 U.S.C.
§11001 et seq .), the Hazardous Substances
Transportation Act (49 U.S.C. §1801 et seq .), or the Clean Air Act (42 U.S.C. §7401
et seq
.).
" Indemnified
Parties " shall mean and includes the
Bank, its parent, subsidiaries, and affiliated companies, assignees
of any of the Bank's interest in the Loan or the Loan Documents,
any servicer or originator of the Loan, and the officers,
directors, employees, agents and contractors of any of the
foregoing parties.
" Loan Documents
" means the documents evidencing or securing the
Loan and this Agreement, as amended from time to time.
" Release
" shall mean any release, deposit, discharge,
emission, leaking, leaching, spilling, seeping, migrating,
injecting, pumping, pouring, emptying, escaping, dumping, disposing
or other movement of Hazardous Substances.
" Reports
" shall mean the environmental studies and reports
identified on Exhibit B attached hereto and made a part
hereof.
1.2
Definitions . For
purposes of this Agreement the following terms have the following
meanings:
" Business Day
" shall mean a weekday, Monday through Friday,
except a legal holiday or a day on which banking institutions in
Troy, Michigan, are authorized by law to be closed.
" Environmental
Laws " shall mean any and all federal,
state and local laws (whether under common law, statute, rule,
regulation or otherwise), requirements under permits or other
authorizations issued with respect thereto, and other orders,
decrees, judgments, directives or other requirements of any
governmental authority relating to or imposing liability or
standards of conduct (including disclosure or notification)
concerning protection of human health or the environment or
Hazardous Substances or any activity involving Hazardous
Substances, all as previously and in the future to be
amended.
" Hazardous
Substance " shall mean, but is not
limited to, any substance, chemical, material or waste (a) the
presence of which causes a nuisance or trespass of any kind; (b)
which is regulated by any federal, state or local governmental
authority because of its toxic, flammable,
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corrosive, reactive, carcinogenic, mutagenic,
infectious, radioactive, or other hazardous property or because of
its effect on the environment, natural resources or human health
and safety, including, but not limited to, petroleum and petroleum
products, asbestos-containing materials, polychlorinated biphenyls,
lead and lead-based paint, radon, radioactive materials, flammables
and explosives; or (c) which is designated, classified, or
regulated as being a hazardous or toxic substance, material,
pollutant, waste (or a similar such designation) under any federal,
state or local law, regulation or ordinance, including under any
Environmental Law such as the Comprehensive Environmental Response
Compensation and Liability Act (42 U.S.C. §9601
et seq
.), the Emergency Planning and Community
Right-to-Know Act (42 U.S.C. §11001 et seq .), the Hazardous Substances Transportation Act (49 U.S.C.
§1801 et seq .), or the Clean Air Act (42
U.S.C. §7401 et
seq .).
" Indemnified
Parties " shall mean and includes the
Bank, its parent, subsidiaries, and affiliated companies, assignees
of any of the Bank's interest in the Loan or the Loan Documents,
any servicer or originator of the Loan, and the officers,
directors, employees, agents and contractors of any of the
foregoing parties.
" Loan Documents
" means the documents evidencing or securing the
Loan and this Agreement, as amended from time to time.
" Release
" shall mean any release, deposit, discharge,
emission, leaking, leaching, spilling, seeping, migrating,
injecting, pumping, pouring, emptying, escaping, dumping, disposing
or other movement of Hazardous Substances.
" Reports
" shall mean the environmental studies and reports
identified on Exhibit B attached hereto and made a part
hereof.
1.3
Environmental Representations and
Warranties . Except as otherwise fully
disclosed by the Indemnitor to the Indemnified Parties in writing
or fully disclosed to the Indemnified Parties in the Reports, the
Indemnitor hereby represents and warrants to the Indemnified
Parties that, as of the date hereof:
(a)
neither the Property nor any operations of the
Mortgagor are in violation of any Environmental Laws or any permit
or other authorization issued pursuant thereto;
(b)
no Hazardous Substances are, or to the Indemnitor's
knowledge and belief, have been handled, generated, stored,
processed or otherwise managed on or at the Property except for
those substances used by the Mortgagor or tenants under leases at
the Property in the ordinary course of their occupancy and/or their
businesses and in compliance with all Environmental
Laws;
(c)
excluding deminimus Releases or those in accordance
with the Environmental Laws, there are not, to the Indemnitor's
knowledge, any past or present Releases of Hazardous Substances in,
on, under or from the Property;
(d)
the Property is not subject to any private or
governmental lien or judicial or administrative notice or action
relating to Hazardous Substances;
(e)
to Indemnitor’s knowledge, there are no
existing or closed underground storage tanks or other underground
storage receptacles for Hazardous Substances on the
Property;
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(f)
the Indemnitor has received no notice of, and to the
Indemnitor's knowledge, 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 or any of the
Mortgagor's operations, nor does the Indemnitor know of any basis
for such a claim;
(g)
there has been no claim by any party that any use,
operation or condition of the Property or any of the Mortgagor's
operations has caused any nuisance or any other liability or
adverse condition on any other property nor does the Indemnitor
know of any basis for such a claim; and
(h)
there are no agreements, consent orders, decrees,
judgments, license or permit conditions or other orders or
directives of any federal, state or local court, governmental
agency or authority or agreements, whether settlement agreements or
otherwise, with any third parties relating to the ownership, use,
operation, sale, transfer or conveyance of the Property that
require any change in the present condition of the Property or any
work, repairs, construction, containment, clean up, investigations,
studies, removal or other remedial action or capital expenditures
with respect to the Property.
1.4
Environmental Covenants . The Mortgagor covenants and agrees that the Mortgagor: (a)
shall keep or cause the Property to be kept free from Hazardous
Substances (except those substances used by the Mortgagor or
tenants under leases at the Property in the ordinary course of
their occupancy and/or businesses and in material compliance with
all Environmental Laws); (b) shall not install or use any
underground storage tanks, shall not itself engage in and shall
include in its leases an express prohibition from tenants engaging
in the use, generation, handling, storage, production, processing
or management of Hazardous Substances, except in the ordinary
course of their occupancy and/or their businesses and in compliance
with all Environmental Laws; (c) shall not itself cause or allow
and shall expressly prohibit the Release of Hazardous Substances
at, on, under, or from the Property; (d) shall itself comply and
shall expressly require in its leases that all tenants shall, and
shall require that its agents and contractors, comply with all
Environmental Laws; (e) shall keep the Property free and clear of
all liens and other encumbrances imposed pursuant to any
Environmental Law, whether due to any act or omission of the
Mortgagor or any other person or entity (" Environmental Liens "); (f) shall
comply and cause all occupants of the Property to comply with the
recommendations of any qualified environmental engineer or other
expert retained by an Indemnitor or Indemnified Party hereunder
that apply or pertain to the Property; and (g) without limiting the
generality of the foregoing, during the term of this Agreement,
shall not use any construction materials which contain asbestos nor
install in the Improvements on the Property
, or permit
to be installed in the Improvements on the Property, any materials
which contain asbestos.
1.5
Notice and Access . The
Indemnitor shall promptly notify the Indemnified Parties in writing
if the Indemnitor knows, suspects or believes there is or are (a)
any Hazardous Substances, other than those used by the Mortgagor or
tenants under leases at the Property in the ordinary course of
their occupancy and/or their businesses and in material compliance
with all Environmental Laws, present on the Property; (b) any
Release of Hazardous Substances in, on, under, from or migrating
towards the Property; (c) any material non-compliance with
Environmental Laws related in any way to the Property; (d) any
actual or potential Environmental Liens; (e) any investigation or
action or claim, whether threatened or pending, by any governmental
agency or third party pertaining to the Release of Hazardous
Substances in, on, under, from, or migrating towards the Property;
and/or (f) any installation of wells, piping, or other equipment at
the Property to investigate, remediate or otherwise address any
Release of
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Hazardous Substances at, on, in or in the vicinity
of the Property. The Indemnitor shall promptly, at the Indemnitor's
sole cost and expense, take all reasonable actions with respect to
any Hazardous Substances or other environmental condition at, on or
under the Property or other affected property, including all
investigative, monitoring, removal, containment and remedial
actions in accordance with all applicable Environmental Laws,
including the payment, at no expense to the Indemnified Parties, of
all clean-up, administrative and enforcement costs of applicable
governmental agencies which may be asserted against the Property in
all instances as necessary to (i) comply with all applicable
Environmental Laws; (ii) protect human health or the environment;
(iii) allow continued use, occupation, or operation of the
Property; and/or (iv) maintain the fair market value of the
Property (collectively, the " Completion
of the Clean-up "). Such Completion of
the Clean-up may include the imposition of institutional controls
such as deed and/or use restrictions in the reasonable judgment of
the Indemnitor, provided that such controls or restrictions do not
impact the ability to use the property for its intended use. In the
event the Indemnitor fails to do so, the Indemnified Parties may,
but shall not be obligated or have any duty to, cause the
Completion of the Clean-up of the Property. The Mortgagor hereby
grants to the Indemnified Parties and their agents and employees
access to the Property as provided in Section 1.6 below, and a
license to remove any items deemed by the Indemnified Parties to be
Hazardous Substances and to do all things the Indemnified Parties
shall deem necessary to cause the Completion of the Clean-up of the
Property.
1.6
Indemnification . The
Indemnitor covenants and agrees, at the Indemnitor's sole cost and
expense, to indemnify, defend (at trial and appellate levels, and
with attorneys, consultants and experts reasonably acceptable to
the Indemnified Parties), and hold the Indemnified Parties harmless
from and against any and all liens, damages (including, without
limitation, consequential damages), losses, liabilities,
obligations, settlement payments, penalties, claims, judgments,
suits, proceedings, costs, disbursements or expenses of any kind or
of any nature whatsoever (including reasonable attorneys',
consultants' and experts' fees and disbursements actually incurred
in investigating, defending, settling or prosecuting any claim,
litigation or proceeding) which may at any time be imposed upon,
incurred by or asserted against the Indemnified Parties or the
Property, and arising directly or indirectly from or out
of:
(a)
the past, present or future presence, Release or
threat of Release of any Hazardous Substances on, in, under or
affecting all or any portion of the Property or any surrounding
areas, regardless of whether or not caused by or within the control
of the Indemnitor;
(b)
the past, present or future violation of any
Environmental Laws, relating to or affecting the Property or the
Mortgagor's operations, whether or not caused by or within the
control of the Indemnitor;
(c)
the failure by the Indemnitor to comply fully with
the terms and conditions of this Section 1;
(d)
any misrepresentation or inaccuracy in or the breach
of any representation or warranty contained in this Section 1;
or
(e)
the enforcement of this Section 1, including any
liabilities that arise as a result of the actions taken or caused
to be taken by the Indemnified Parties under this Section 1, 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
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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. The Indemnified Parties' rights under this
Section 1 shall survive payment in full of the Mortgagor's
obligations under the Loan Documents and shall be in addition to
all other rights of the Indemnified Parties under the Mortgage and
the other Loan Documents. The foregoing notwithstanding, the
Indemnitor's obligations under this Section 1 with regard to any
Post Transfer Indemnification Responsibilities (as hereinafter
defined) shall be limited to such obligations directly or
indirectly arising out of or resulting from any Hazardous
Substances that were present or released in, on, or around any part
of the Property, or in the soil, groundwater or soil vapor on or
under the Property at any time before or while the Mortgagor held
title to or was in possession or control of the Property and shall
not relate to any Release of Hazardous Substances caused by an
Indemnified Party, its agents or those under its control at any
time nor to the extent of any exacerbation of exhisting
environmental conditions caused by an Indemnified Party, its agents
or those under its control (the " Indemnitor's Continuing Responsibility "); provided, however, that any Post Transfer Indemnification
Responsibilities incurred or suffered by the Indemnified Parties
shall be presumed, unless shown by a preponderance of the evidence
to the contrary, to be the Indemnitor's Continuing Responsibility.
" Post Transfer Indemnification
Responsibilities " shall mean any
obligations hereunder to indemnify, defend, and hold the
Indemnified Parties harmless arising after the Indemnified Parties
cease to hold a security interest in the Property or acquire title
to the Property as a result of foreclosure, deed in lieu of
foreclosure, or other transfer of the Property.
1.7
Site Visits, Observation and Testing
. The Indemnified Parties and their agents and
representatives shall have the right at any reasonable time to
enter and visit the Property for the purposes of observing the
Property, taking and removing soil or groundwater samples, and
conducting tests on any part of the Property. The Indemnified
Parties have no duty, however, to visit or observe the Property or
to conduct tests, and no site visit, observation or testing by any
Indemnified Party shall impose any liability on any Indemnified
Party. In no event shall any site visit, observation or testing by
any Indemnified Party be a representation that Hazardous Substances
are or are not present in, on or under the Property, or that there
has been or shall be compliance with any law, regulation or
ordinance pertaining to Hazardous Substances or any other
applicable governmental law. Neither the Indemnitor nor any other
party is entitled to rely on any site visit, observation or testing
by any Indemnified Party. The Indemnified Parties owe no duty of
care to protect the Indemnitor or any other party against, or to
inform the Indemnitor or any other party of, any Hazardous
Substances or any other adverse condition affecting the Property.
The Indemnified Parties may in their discretion disclose to the
Indemnitor or any other party any report or findings made as a
result of, or in connection with, any site visit, observation or
testing by the Indemnified Parties. The Indemnitor understands and
agrees that the Indemnified Parties make no representation or
warranty to the Indemnitor or any other party regarding the truth,
accuracy or completeness of any such report or findings that may be
disclosed. The Indemnitor also understands that, depending on the
results of any site visit, observation or testing by any
Indemnified Party which are disclosed to the Indemnitor, the
Indemnitor may have a legal obligation to notify one or more
environmental agencies of the results and that such reporting
requirements are site-specific and are to be evaluated by the
Indemnitor without advice or assistance from the In
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