Exhibit 10.6
ENVIRONMENTAL INDEMNITY
AGREEMENT
This ENVIRONMENTAL INDEMNITY
AGREEMENT (this “ Agreement ”), dated as of
August 24, 2011, is executed by SIR COOPER CREEK, LLC, a
Delaware limited liability company (“ Borrower
”), to and for the benefit of PNC BANK, NATIONAL ASSOCIATION,
a national banking association (“ Lender
”).
RECITALS
:
A. Borrower is the owner of the real
property more particularly described on Exhibit A
attached hereto and made a part hereof (the “ Property
”).
B. Pursuant to that certain
Multifamily Loan and Security Agreement dated as of the date
hereof, by and between Borrower and Lender (as amended, restated,
replaced, supplemented or otherwise modified from time to time, the
“ Loan Agreement ”), Lender is making a loan to
Borrower in the original principal amount of Six Million Seven
Hundred Seventy-Three Thousand and 00/100 Dollars ($6,773,000.00)
(the “ Mortgage Loan ”), as evidenced by that
certain Multifamily Note dated as of the date hereof, executed by
Borrower and made payable to the order of Lender in the amount of
the Mortgage Loan (as amended, restated, replaced, supplemented or
otherwise modified from time to time, the “ Note
”).
C. The Mortgage Loan is evidenced by
the Note issued pursuant to the Loan Agreement and is secured by,
among other things, the Security Instrument and the Loan
Agreement.
D. As a condition to the making of
the Mortgage Loan to Borrower, Lender requires Borrower to deliver
this Agreement.
AGREEMENTS
:
NOW, THEREFORE, for and in
consideration of the foregoing and for other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, Borrower agrees as follows:
The recitals set forth above are
true and correct and are hereby incorporated by
reference.
All capitalized terms used but not
defined in this Agreement shall have the meanings assigned to them
in the Loan Agreement. As used in this Agreement, the following
terms shall have the following meanings:
“ Claim ” means
any claim or action brought under any legal or administrative
proceeding.
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“ Environmental Inspections ”
means environmental inspections, tests, investigations, studies,
audits, reviews or other analyses.
“ Environmental Laws
” means all present and future federal, state and local laws,
ordinances, regulations, standards, rules, policies and other
governmental requirements, administrative rulings, court judgments
and decrees, and all amendments thereto, relating to pollution or
protection of human health, natural resources or the environment
(including ambient air, surface water, ground water, land surface
or subsurface strata) including such laws governing or regulating
the use, generation, storage, removal, remediation, recovery,
treatment, handling, transport, disposal, control, release,
discharge of, or exposure to, Hazardous
Materials. Environmental Laws include the Comprehensive
Environmental Response, Compensation and Liability Act,
42 U.S.C. Section 9601, et seq. , the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901,
et seq. , the Toxic Substances Control Act, 15 U.S.C.
Section 2601, et seq. , the Clean Water Act,
33 U.S.C. Section 1251, et seq. , the Hazardous
Materials Transportation Act, 49 U.S.C. Section 5101,
et seq. , the Clean Air Act, 42 U.S.C.
Sections 7401-7661, et seq. , the Safe Drinking Water
Act, 42 U.S.C. Section 300f, et seq. , the
Occupational Safety and Health Act, 29 U.S.C. Chapter 15,
et seq. , the Federal Water Pollution Control Act,
33 U.S.C. Sections 1251-1376, et seq. , the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
Section 136, et seq. , and the River and Harbors
Appropriation Act, 33 U.S.C. Section 403, et seq.
, and their state and local analogs.
“ Environmental Permit
” means any permit, license or other authorization issued
under any Environmental Law with respect to any activities or
businesses conducted on or in relation to the Mortgaged
Property.
“ Hazardous Materials
” means, but is not limited to, any substance, chemical,
material or waste now or in the future defined as a
“hazardous substance,” “hazardous
material,” “hazardous waste,” “toxic
substance,” “toxic pollutant,”
“contaminant” or “pollutant”
(a) within the meaning of any Environmental Law, or
(b) the presence of which causes a nuisance or trespass of any
kind, including Toxic Mold; petroleum and petroleum products and
compounds containing them, including gasoline, diesel fuel and oil;
radon; carcinogenic materials; explosives; flammable materials;
infectious materials; corrosive materials; mutagenic materials;
radioactive materials; polychlorinated biphenyls (PCBs) and
compounds containing them; lead and lead-based paint; asbestos or
asbestos-containing materials in any form that is or could become
friable; underground or above-ground storage tanks, whether empty
or containing any substance; any substance the presence of which on
the Mortgaged Property is prohibited by any federal, state or local
authority; any substance that is designated, classified or
regulated pursuant to any Environmental Law; and any medical
products or devices, including those materials defined as
“medical waste” or “biological waste” under
relevant statutes or regulations pertaining to any Environmental
Law.
“ Indemnitees ”
means, collectively:
(a) Lender;
(b) any prior owner or holder of the
Note;
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(c) the Loan Servicer;
(d) any prior Loan
Servicer;
(e) the officers, directors,
shareholders, partners, managers, members, employees and trustees
of any of the foregoing; and
(f) the heirs, legal
representatives, successors and assigns of each of the
foregoing.
“ O&M Program
” means one or more written programs of operations and
maintenance approved in writing by Lender.
“ Prohibited Activities or
Conditions ” means any of the following:
(a) the presence, use, generation,
release, treatment, processing, storage (including storage in
above-ground and underground storage tanks), handling or disposal
of any Hazardous Materials on or under the Mortgaged Property or
any other property owned by Borrower, Guarantor, Key Principal or
any Borrower Affiliate that is adjacent to the Mortgaged
Property;
(b) the transportation of any
Hazardous Materials to, from or across the Mortgaged
Property;
(c) any activity on the Mortgaged
Property that requires an Environmental Permit or other
authorization under Environmental Laws without Lender’s prior
written consent;
(d) any occurrence or condition on
the Mortgaged Property or any other property owned by Borrower,
Guarantor, Key Principal or any Borrower Affiliate that is adjacent
to the Mortgaged Property, which occurrence or condition is or may
be in violation of or noncompliance with Environmental Laws, or in
violation of or noncompliance with the terms of any Environmental
Permit; or
(e) any activities on the Mortgaged
Property that directly or indirectly result in other property
adjacent to the Mortgaged Property being contaminated with
Hazardous Materials or which may cause such other property to be in
violation of or noncompliance with Environmental Laws;
provided, however, that the
foregoing Prohibited Activities or Conditions shall not be deemed
to prohibit or restrict of the safe and lawful use and storage of
quantities of:
(1) pre-packaged supplies, cleaning
materials and petroleum products customarily used in the operation
and maintenance of comparable multifamily properties so long as all
of the foregoing are used, stored, handled, transported and
disposed of in compliance with Environmental Laws;
(2) cleaning materials, personal
grooming items and other items sold in pre-packaged containers for
consumer use and used by tenants and occupants of residential
dwelling units in the Mortgaged Property; and
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(3) petroleum products used in the
operation and maintenance of motor vehicles from time to time
located on the Mortgaged Property’s parking areas, so long as
all of the foregoing are used, stored, handled, transported and
disposed of in compliance with Environmental Laws.
“ Remedial Work ”
means any investigation, site monitoring, containment, clean-up,
restoration or other remedial work in connection with any
Environmental Laws or order of any Governmental Authority that has
or acquires jurisdiction over the Mortgaged Property, or the use,
operation or improvement of the Mortgaged Property under any
Environmental Law.
“ Toxic Mold ”
means any mold, fungus, microbial contaminations or pathogenic
organisms at the Mortgaged Property of a type or quantity
that:
(a) might reasonably be expected to
pose a significant risk to human health or the environment;
or
(b) would negatively impact the
value of the Mortgaged Property.
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3.
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Environmental Representations
and Warranties.
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Borrower represents and warrants to
Lender that, except as previously disclosed by Borrower to Lender
in writing or as set forth in that certain Environmental
Inspection, if any, performed with respect to the origination of
the Mortgage Loan dated prior to the Effective Date:
(a) neither Borrower nor any
Borrower Affiliates are in possession of any Environmental
Inspections that have not been provided to Lender, nor have any
Environmental Inspections been conducted by or on behalf of
Borrower that have not been provided to Lender;
(b) Borrower has not at any time
engaged in, caused or permitted any Prohibited Activities or
Conditions;
(c) Guarantor has not at any time
engaged in, caused or permitted any Prohibited Activities or
Conditions with respect to the Mortgaged Property or any adjacent
property owned by Borrower, Guarantor, Key Principal or any
Borrower Affiliate;
(d) to the best of Borrower’s
knowledge, no Prohibited Activities or Conditions exist or have
existed on the Mortgaged Property or on any adjacent property owned
by Borrower, Guarantor, Key Principal or any Borrower
Affiliate;
(e) the Mortgaged Property does not
now contain any underground storage tanks, and, to the best of
Borrower’s knowledge, the Mortgaged Property has not
contained any underground storage tanks in the past. If there is or
was an underground storage tank located on the Mortgaged Property
which has been previously disclosed by Borrower to Lender in
writing, that tank complies with, or has been removed in accordance
with, all requirements of Environmental Laws;
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(f) Borrower has complied with all
Environmental Laws, including all requirements for notification
regarding releases of Hazardous Materials. Without limiting the
generality of the foregoing, Borrower has obtained all
Environmental Permits required for the operation of the Mortgaged
Property in accordance with Environmental Laws now in effect,
Borrower has disclosed all such Environmental Permits to Lender,
and all such Environmental Permits are in full force and
effect;
(g) to the best of Borrower’s
knowledge after reasonable and diligent inquiry, no event has
occurred with respect to the Mortgaged Property that constitutes,
or with the passing of time or the giving of notice would
constitute, noncompliance with the terms of any Environmental
Permit;
(h) there are no actions, suits,
claims or proceedings pending or, to the best of Borrower’s
knowledge, threatened that involve the Mortgaged Property and
allege, arise out of or relate to any Prohibited Activity or
Condition; and
(i) Borrower has not received any
written complaint, order, notice of violation or other
communication from any Governmental Authority with regard to air
emissions, water discharges, noise emissions or Hazardous
Materials, or any other environmental, health or safety matters
affecting the Mortgaged Property or any other property owned by
Borrower, Guarantor, Key Principal or any Borrower Affiliate that
is adjacent to the Mortgaged Property.
The representations and warranties
in this Agreement shall be continuing representations and
warranties that shall be deemed to be made by Borrower until the
Mortgage Loan has been paid in full.
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4.
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Environmental
Covenants.
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(a) Borrower shall not cause or
permit any Prohibited Activities or Conditions.
(b) Borrower shall take all
commercially reasonable actions (including the inclusion of
appropriate provisions in any Leases executed after the date of
this Agreement) to prevent its employees, agents and contractors,
and all tenants and other occupants from causing or permitting any
Prohibited Activities or Conditions. Borrower shall not lease or
allow the sublease or use of all or any portion of the Mortgaged
Property to any tenant or subtenant for nonresidential use by any
user that, in the ordinary course of its business, would cause or
permit any Prohibited Activity or Condition.
(c) Lender shall have the right to
establish, monitor and review an O&M Program with respect to
Hazardous Materials on the Mortgaged Property or any other property
owned by Borrower, Guarantor, Key Principal or any Borrower
Affiliate that is adjacent to the Mortgaged Property. If an O&M
Program has been established, Borrower shall comply in a timely
manner with, and cause all employees, agents and contractors of
Borrower and any other persons present on the Mortgaged Property to
comply with, the O&M Program. All costs of performance of
Borrower’s obligations under any O&M Program shall be
paid by Borrower, and Lender’s reasonable out-of-pocket costs
incurred in connection with the monitoring and review of
the
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O&M Program and Borrower’s performance
shall be paid by Borrower upon demand by Lender. Any such
out-of-pocket costs of Lender which Borrower fails to pay promptly
shall become an additional part of the Indebtedness as provided in
the Security Instrument.
(d) Borrower shall comply with all
Environmental Laws applicable to the Mortgaged Property. Without
limiting the generality of the previous sentence, Borrower shall
obtain and maintain all Environmental Permits required by
Environmental Laws and comply with all conditions of such
Environmental Permits.
(e) Borrower shall promptly notify
Lender in writing upon the occurrence of any of the following
events:
(1) Borrower’s discovery of
any Prohibited Activity or Condition;
(2) Borrower’s receipt of or
knowledge of any complaint, order, notice of violation or other
communication from any property management agents, Governmental
Authority or other Person with regard to present or future alleged
Prohibited Activities or Conditions or any other environmental,
health or safety matters affecting the Mortgaged Property or any
other property owned by Borrower, Guarantor, Key Principal or any
Borrower Affiliate that is adjacent to the Mortgaged Property;
and
(3) any representation or warranty
in this Agreement becomes untrue after the date of this Agreement
or Borrower’s breach of any of its obligations under this
Section 4.
Any such notice given by Borrower
shall not relieve Borrower of, or result in a waiver of, any
obligation under this Agreement, the Note or any other Loan
Document.
Lender shall have the right to
obtain any Environmental Inspections in connection with any
Foreclosure Event, or as a condition of Lender’s consent to
any Transfer, or required by Lender following a reasonable
determination by Lender that Prohibited Activities or Conditions
may exist. Borrower shall pay promptly the costs of any
Environmental Inspections required by Lender. Any such costs
incurred by Lender (including the fees and out-of-pocket costs of
attorneys and technical consultants whether incurred in connection
with any judicial or administrative process or otherwise) which
Borrower fails to pay promptly after notice and request by Lender
shall become an additional part of the Indebtedness as provided in
the Security Instrument. The results of all Environmental
Inspections made by Lender shall at all times remain the property
of Lender and Lender shall have no obligation to disclose or
otherwise make available to Borrower or any other party such
results or any other information obtained by Lender in connection
with its Environmental Inspections; provided, however, if Borrower
reimbursed Lender for the cost of such Environmental Inspections,
upon request by Borrower, Lender shall provide a copy of such
Environmental Inspections to Borrower. Lender hereby reserves the
right, and Borrower hereby expressly authorizes Lender, to make
available to any party, including any prospective bidder at a
foreclosure sale of the Mortgaged Property, the results of
any
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Environmental Inspections made by Lender or
Borrower with respect to the Mortgaged Property. Borrower
consents to Lender notifying any party (either as part of a notice
of sale or otherwise) of the results of any Environmental
Inspections. Borrower acknowledges that Lender cannot control or
otherwise assure the truthfu