Exhibit 10.33
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Loan No.:
50-2827820
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Jacksonville,
Florida
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Residence Inn II [Pool
2]
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ENVIRONMENTAL INDEMNITY
AGREEMENT
THIS ENVIRONMENTAL INDEMNITY
AGREEMENT (this “ Agreement ”), made as of
November 10, 2004 jointly and severally by MARRIOTT RESIDENCE INN
II LIMITED PARTNERSHIP, a Delaware limited partnership (“
Borrower ”), whose address is 814 E. Main Street,
Richmond, Virginia 23219, and by APPLE HOSPITALITY TWO, INC., a
Virginia corporation (“ Principal ”) whose
address is 814 E. Main Street, Richmond, Virginia 23219 (Borrower
and Principal being referred to herein collectively as “
Indemnitors ” and individually as “
Indemnitor ”), in favor of WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association (“ Lender
”), whose address is 301 South Tryon Street, PMB 35-123,
Charlotte, North Carolina 28282.
W
I T N
E S S E T H
:
WHEREAS, Lender has extended to
Borrower a loan (the “ Loan ”) in the principal
amount of Four Million Eight Hundred Seventy-Five Thousand and
No/100 Dollars ($4,875,000.00); and
WHEREAS, the Loan is evidenced by a
Promissory Note (the “ Note ”) dated of even
date herewith, executed by Borrower and payable to the order of
Lender, in the stated principal amount of Four Million Eight
Hundred Seventy-Five Thousand and No/100 Dollars ($4,875,000.00),
and is secured by a Mortgage and Security Agreement (the “
Mortgage ”) dated of even date herewith, from Borrower
for the benefit of Lender, encumbering that certain real property
situated in the County of Duval, State of Florida, as is more
particularly described on Exhibit A attached hereto and
incorporated herein by this reference, together with the buildings,
structures and other improvements now or hereafter located thereon
(said real property, buildings, structures and other improvements
being hereinafter collectively referred to as the “
Property ”), and by the other Loan Documents (as
defined in the Mortgage); and
WHEREAS, as a condition to making
the Loan, Lender has required that Indemnitors indemnify Lender
with respect to any past, present or future environmental
conditions or liabilities on, in, under, affecting or in any way
associated with 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, Indemnitors
hereby covenant and agree for the benefit of Lender, as
follows:
1. Indemnity . Indemnitors
hereby agree to pay, protect, defend (at trial and appellate levels
and with attorneys, consultants and experts reasonably acceptable
to Lender), and save Lender harmless from and against, and hereby
indemnify Lender from and against any
and all liens, damages (including, without
limitation, punitive or exemplary damages), losses, liabilities
(including, without limitation, strict liability), obligations,
settlement payments, penalties, fines, 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, Indemnitors or the Property, and arising from or
out of, whether now, hereafter or heretofore occurring: (i) any
violation or alleged violation of, or liability or alleged
liability under, any local, state or federal law, rule or
regulation or common law duty pertaining to human health as
affected by the environment, natural resources or the environment,
including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C.
§9601 et seq.) (“ CERCLA ”), 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.), the Clean Air Act (42 U.S.C. § 7401 et
seq.), the Emergency Planning and Community-Right-to-Know Act (42
U.S.C. § 11001 et seq.), the Endangered Species Act (16 U.S.C.
§ 1531 et seq.), the Toxic Substances Control Act (15 U.S.C.
§ 2601 et seq.), the Occupational Safety and Health Act (29
U.S.C. § 651 et seq.) and the Hazardous Materials
Transportation Act (49 U.S.C. §1801 et seq.), and those
relating to Lead Based Paint (as hereinafter defined) and the
regulations promulgated pursuant to said laws, all as amended from
time to time, (collectively, “ Environmental Laws
”), relating to or affecting the Property, whether or not
caused by or within the control of Indemnitors; (ii) the presence,
release or threat of release of or exposure to any hazardous, toxic
or harmful substances, wastes, materials containing more than 1%
asbestos, pollutants or contaminants (including, without
limitation, polychlorinated biphenyls, petroleum or petroleum
products or byproducts, flammable explosives, radioactive
materials, paint containing more than .05% lead by dry weight
(“ Lead Based Paint ”), Toxic Mold (as
hereinafter defined), 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 ”) or
radon, 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 Indemnitors; (iii) any
transport, treatment, recycling, storage, disposal or arrangement
therefor of Hazardous Substances whether on the Property,
originating from the Property, or otherwise associated with the
Indemnitors or any operations conducted on the Property at any
time; (iv) the failure by Indemnitors to comply fully with the
terms and conditions of this Agreement; (v) the breach of any
representation or warranty contained in this Agreement in any
material respect; (vi) the enforcement of this Agreement, or (vii)
any environmental investigation, assessment, audit or review
conducted in connection with the Property or the operations
conducted at any time thereon, including, without limitation, the
cost of assessment, investigation, and to the extent required by
Environmental Laws, containment, removal and/or remediation 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 Environmental Laws in connection with all or any
portion of the Property or any surrounding
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areas. “ Costs ” as used in
this Agreement shall also include, but not be limited to, 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 Section 1. 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 successor or assigns, or which are finally determined
by a court of competent jurisdiction to have been caused by the
gross negligence or willful misconduct of Lender. For the purposes
hereof, “ Toxic Mold ” shall mean any mold or
fungus at the Property which is of a type (i) that might pose a
significant risk to human health or the environment or (ii) that
would negatively impact the value of the Property.
2. Representations and
Warranties . Indemnitors hereby represent and warrant to and
covenant and agree with Lender as follows:
(a) To the best of
Indemnitors’ knowledge, information and belief, none of the
Borrower nor the Property or any tenant at the Property or the
operations conducted thereon is in direct or indirect violation of
or otherwise exposed to any liability under any Environmental
Law;
(b) To the best of
Indemnitors’ knowledge, information and belief, no Hazardous
Substances are located on, in or under or have been handled,
generated, stored, processed or disposed of on, in or under or
released or discharged from the Property (including underground
contamination), except for those substances used by Borrower in the
ordinary course of its business, in compliance with all
Environmental Laws and where such could not reasonably be expected
to give rise to liability under Environmental Laws;
(c) To the best of
Indemnitors’ knowledge, information and belief, radon is not
present at the Property in excess or in violation of any applicable
thresholds or standards or in amounts that require under applicable
law disclosure to any tenant or occupant of or invitee to the
Property or to any governmental agency or the general
public.
(d) To the best of
Indemnitors’ knowledge, information and belief, the Property
is not subject to any private or governmental lien or judicial or
administrative notice or action arising under Environmental
Laws;
(e) There is no pending, nor, to
Indemnitors’ knowledge, information or belief, threatened
litigation arising under Environmental Laws affecting Borrower or
the Property;
(f) To the best of
Indemnitors’ knowledge, information and belief, there are no
and have been no underground storage tanks or other underground
storage receptacles or surface impoundments for Hazardous
Substances or landfills or dumps on the Property;
(g) Indemnitors have received no
notice of, and to the best of Indemnitors’ 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
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operation of the Property, nor do Indemnitors
know of any basis for such an investigation, action, proceeding or
claim;
(h) Indemnitors have received no
notice that, and to the best of Indemnitors’ 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
do Indemnitors know of any basis for such a claim;
(i) Indemnitors have not received
nor to the best of Indemnitors’ knowledge, information and
belief has there been issued, any notice, notification, demand,
request for information, citation, summons, or order in any way
relating to any actual, alleged or potential violation or liability
arising under Environmental Laws; and
(j) To the best of
Indemnitors’ knowledge, information and belief, the Property
is not listed or, to the best of Indemnitors’ knowledge,
information and belief, proposed for listing on the National
Priorities List promulgated pursuant to CERCLA, on CERCLIS (as
defined in CERCLA) or on any similar federal or state list of sites
requiring environmental investigation or clean-up.
3. Covenants of Indemnitors
.
(a) Indemnitors shall comply with
all applicable Environmental Laws. Indemnitors shall keep or cause
the Property to be kept free from Hazardous Substances (except
those substances used by Borrower in the ordinary course of its
business, in compliance with all Environmental Laws and where such
could not reasonably be expected to give rise to liability under
Environmental Laws) and except in compliance with all Environmental
Laws, Indemnitors shall not install or use any underground storage
tanks. Indemnitors shall expressly prohibit the use, generation,
handling, storage, production, processing and disposal of Hazardous
Substances by all tenants of space in the Improvements in
quantities or conditions that would violate or give rise to any
obligation to take remedial or other action under any applicable
Environmental Laws. Without limiting the generality of the
foregoing, during the term of this Agreement, Indemnitors shall not
install in the Improvements or permit to be installed in the
Improvements any materials containing more than 1% asbestos.
Indemnitors further acknowledge and agree that Lender has no duty
to provide Indemnitors with any information regarding the
Environmental Laws or any interpretation thereof.
(b) Indemnitors shall immediately
notify Lender should Indemnitors, or either of them, become aware
of (i) the actual or potential existence of any Hazardous
Substances on the Property, other than those occurring in the
ordinary course of Borrower’s business and which do not
violate, or would not otherwise give rise to liability under
Environmental Laws, (ii) any violation of, or other exposure to
liability under, any Environmental Laws, (iii) any lien, action or
notice affecting the Property or Borrower resulting from any
violation or alleged violation of or liability or alleged liability
under any Environmental Laws, (iv) the institution of any
investigation, inquiry or proceeding concerning Borrower or the
Property pursuant to any Environmental Laws or otherwise relating
to Hazardous Substances, or (v) the discovery of any occurrence,
condition or state of facts which would render any representation
or warranty
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contained in this Agreement incorrect in any
material respect if made at the time of such discovery. Immediately
upon receipt of same, Indemnitors, or either of them, shall deliver
to Lender copies of any and all requests for information,
complaints, citations, summonses, orders, notices, reports or other
communications, documents or instruments in any way relating to any
actual, alleged or potential violation or liability of any nature
whatsoever arising under Environmental Laws and relating to the
Property or to Borrower. Indemnitors shall remedy or cause to be
remedied in a timely manner (and in any event within the time
period permitted by applicable Environmental Laws) any violation of
Environmental Laws or any condition that could give rise to
liability under Environmental Laws. Without limiting the foregoing,
Indemnitors shall, at their own expense, take all actions required
by applicable Environmental Laws, 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 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
Indemnitors or the Property.
(c) Upon the request of Lender
following the occurrence and continuance of an Event of Default or
at such other time as Lender has reasonable grounds to believe that
Hazardous Substances are or have been released, stored or disposed
of on or around the Property or that the Property may be in
violation of the Environmental Laws, Indemnitors shall perform or
cause to be performed, at Indemnitors’ sole expense and in
scope, form and substance satisfactory to Lender, an inspection or
audit of the Property prepared by a hydrogeologist or environmental
engineer or other appropriate consultant approved by Lender
indicating the presence or absence of Hazardous Substances on the
Property, the compliance or non-compliance status of the Property
and the operations conducted thereon with applicable Environmental
Laws, or an inspection or audit of the Property prepared by an
engineering or consulting firm approved by Lender indicating the
presence or absence of friable asbestos or substances containing in
excess of 1% asbestos or lead or substances containing lead on the
Property. If Indemnitors fail to provide reports of such inspection
or audit within thirty (30) days after such request, Lender may
order the same, and Indemnitors hereby grant 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 Indemnitors in accordance
with the terms of Section 4(c) hereof.
(d) If, prior to the date hereof, it
was determined that the Property contains Lead Based Paint, the
assessment report describing the location and condition of the Lead
Based Paint (a “ Lead Based Paint Report ”) is
attached hereto and made a part hereof as Exhibit B . If, at
any time hereafter, Lead Based Paint is suspected of being present
on the Property, Indemnitors agree, at their sole cost and expense
and within sixty (60) days thereafter, to cause to be prepared a
Lead Based Paint Report prepared by an expert, and in form, scope
and substance, acceptable to Lender.
(e) Indemnitors agree that if it has
been, or if at any time hereafter it is, determined that the
Property contains Lead Based Paint, on or before thirty (30) days
following (i) the date hereof, if such determination was made prior
to the date hereof or (ii) such determination, if such
5
determination is hereafter made, as applicable,
Indemnitors shall, at their sole cost and expenses, develop and
implement, and thereafter diligently and continuously carry out (or
cause to be developed and implemented and thereafter diligently and
continually to be carried out), an operations, abatement and
maintenance plan for the Lead Based Paint on the Property, which
plan shall be prepared by an expert, and be in form, scope and
substance, acceptable to Lender (together with any plan attached
hereto as Exhibit C , the “ O&M Plan
”). (If an O&M Plan has been prepared prior to the date
hereof, same is attached hereto and made a part hereof as
Exhibit C , and Indemnitors agree to diligently and
continually carry out (or cause to be carried out) the provisions
thereof.) Compliance with the O&M Plan shall require or be
deemed to require, without limitation, the proper preparation and
maintenance of all records, papers and forms required under the
Environmental Laws.
4. Indemnification Procedures
.
(a) If any action shall be brought
against Lender based upon any of the Costs for which Lender is
indemnified