Exhibit 10.51
UNSECURED INDEMNITY AGREEMENT
DEFINED TERMS
================================================================================
Execution Date: January __, 1998
--------------------------------------------------------------------------------
Loan: A first mortgage loan in an amount of $121,800,000.00 from Indemnitee to
Borrower
--------------------------------------------------------------------------------
Borrower & Address:
Boston Properties Limited Partnership
▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
--------------------------------------------------------------------------------
Liable Parties & Address:
N/A
--------------------------------------------------------------------------------
Indemnitee & Address:
Metropolitan Life Insurance Company, a New York corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice-President, Real Estate Investments
with a copy to:
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
--------------------------------------------------------------------------------
Note: A Promissory Note executed by Borrower in favor of Indemnitee in the
amount of the Loan dated as of January __, 1998.
--------------------------------------------------------------------------------
Deed of Trust: A Deed of Trust, Security Agreement and Fixture Filing dated as
of January __, 1998, executed by Borrower, to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇., as Trustees, for the benefit of Indemnitee securing repayment of the
Note to be recorded in the records of the County in which the Property is
located.
================================================================================
This Unsecured Indemnity Agreement (the "Agreement") effective as of
January 22, 1998 is entered into as of the Execution Date by Borrower (who is
referred to in this Agreement as "Indemnitor"), in favor of Indemnitee, with
reference to the following facts:
A. Indemnitee has loaned or will loan to Borrower the Loan. Payment of the
Note is
secured by the Deed of Trust. The Deed of Trust encumbers the real property more
particularly described in Exhibit A to this Agreement and other property
---------
referred to in the Deed of Trust and this Agreement as the "Property".
B. As a condition to making the Loan, Indemnitee requires Indemnitor to
indemnify and hold Indemnitee harmless from any Environmental Claim (as defined
in Section 2 of this Agreement). Indemnitee would not make the Loan without this
Agreement and Indemnitor acknowledges and understands that this Agreement is a
material inducement for Indemnitee's agreement to make the Loan.
NOW THEREFORE, in consideration of the premises and for other
consideration, Indemnitor agrees as follows:
1. Defined Terms. Capitalized terms which are not defined in this Agreement
-------------
shall have the meanings set forth in the Deed of Trust.
2. Definitions. For purposes of this Agreement, the following terms shall
-----------
have the following meanings:
A. "Environmental Claim" shall mean any claim, demand, action, suit,
loss, cost, damage, fine, penalty, expense, liability, judgment, proceeding, or
injury that seeks to impose costs or liabilities, including any consequential
damages, directly or indirectly related to the Property in connection with any
of the following which may occur from and after the date hereof,
(i) pollution or contamination of the air, surface water, ground water,
or land;
(ii) solid, gaseous, or liquid waste generation, handling, treatment,
storage, disposal, or transportation;
(iii) the presence or alleged release of Hazardous Materials on or under
the Property, the soil, groundwater, or soil vapor on or under the Property, or
the migration or alleged spreading of Hazardous Materials from the Property,
whether or not known to Indemnitor, regardless of the source of such presence or
release or, except as expressly provided in this Agreement, regardless of when
such release or presence occurred;
(iv) the manufacture, processing, distribution in commerce, use, or
storage of Hazardous Materials;
(v) injury to or death of any person or persons arising from or in
connection with Hazardous Materials;
(vi) destruction or contamination of any property connected with
Hazardous Materials;
(vii) the removal of Hazardous Materials from the Property or the taking
of necessary precautions to protect against the release of Hazardous Materials
from or onto the Property
2
including the air, ground water or surface water;
(viii) compliance with all Requirements of Environmental Law and/or any
asserted breach or violation of any Requirements of Environmental Law;
(ix) any restriction on use, ownership, transferability as a result of
Hazardous Materials; and
(x) remedial, response, abatement, cleanup, investigative, and monitoring
work in connection with any Hazardous Materials related to the Property from and
after the date hereof (collectively, the "Remedial Work").
B. "Environmental Permit" means any permit, license, approval, or other
authorization with respect to any activities, operations, or businesses
conducted on the Property under any applicable law, regulation, or other
requirement of the United States or any state, municipality, or other
subdivision or jurisdiction related to pollution, protection of health or the
environment, emissions, discharges, or releases or threatened releases of
Hazardous Materials into ambient air, surface water, ground water, or land, or
otherwise relating to the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transportation, or handling of
Hazardous Materials directly or indirectly related to the Property.
C. The term "Hazardous Materials" shall include without limitation:
(i) Those substances included within the definitions of "hazardous
substances," "hazardous materials," "toxic substances," or "solid waste" in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as
amended, 42 U.S.C. Sections 9601 et seq., the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. Sections 6901 et seq., and the Hazardous Materials
-- ---
Transportation Act, 49 U.S.C. Sections 1801 et seq., and in the regulations
-- ---
promulgated pursuant to said laws;
(ii) Those substances defined as "hazardous wastes" in Va. Code
10.1-1400, Va. Code 1950, as amended and 9 VAC 20-60-10 (Regulations) and in the
regulations promulgated pursuant to such laws;
(iii) Those substances listed in the United States Department of
Transportation Table (49 CFR 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto);
(iv) Any material, waste or substance which is (A) petroleum, (B)
asbestos, (C) polychlorinated biphenyls, (D) designated as a "hazardous
substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. (S) 1251
et seq. (33 U.S.C. (S) 1321) or listed pursuant to Section 307 of the Clean
-- ---
Water Act (33 U.S.C. (S) 1317); (E) a chemical substance or mixture regulated
under the Toxic Substances Control Act of 1976, 15 U.S.C. (S)(S) 2601 et seq.;
-- ---
(F) flammable explosives; or (G) radioactive materials; and
3
(v) Such other substances, materials and wastes which are or become
regulated as hazardous or toxic under applicable local, state or federal law, or
the United States government, or which are classified as hazardous or toxic
under federal, state, or local laws or regulations.
D. "Requirements of Environmental Laws" means all requirements of
environmental laws or regulations or rules of common law related to the
Property, including, without limitation, all requirements imposed by any
Environmental Permit, law, rule, order, or regulation of any federal, state, or
local executive, legislative, judicial, regulatory, or administrative agency,
which relate to (i) exposure to Hazardous Materials; (ii) pollution or
protection of the air, surface water, ground water, land; (iii) solid, gaseous,
or liquid waste generation, treatment, storage, disposal, or transportation; or
(iv) regulation of the manufacture, processing, distribution and commerce, use,
or storage of Hazardous Materials.
3. Representations and Warranties.
------------------------------
a. Borrower represents and warrants that its use of the Property will not
in the future result in the disposal or release of any Hazardous Materials on or
to any portion of the Property.
Borrower covenants that this representation and warranty shall be
continuing and shall be true and correct from the Execution Date to the date of
reconveyance of the Deed of Trust, or the extinguishment of the lien by
foreclosure or action in lieu of foreclosure.
4. Indemnification.
---------------
(a) Indemnitor shall protect, defend, indemnify, and hold harmless
Indemnitee, its successors and assigns and affiliates and their respective
officers, directors, shareholders, and employees (Indemnitee and all such other
persons and entities being referred to in this Agreement individually as an
"Indemnitee" and collectively as "Indemnitees") from and against all
Environmental Claims arising from and after the date hereof.
(b) In the event that any Remedial Work is reasonably necessary or
desirable under the Requirements of Environmental Laws because of, or in
connection with, an Environmental Claim, Indemnitor shall within thirty (30)
days after written demand by Indemnitee (or such shorter period of time as may
be required under Requirements of Environmental Laws), commence to perform, or
cause to be commenced, and diligently prosecute to completion, all Remedial
Work. All Remedial Work shall be performed by one or more contractors, approved
in advance in writing by Indemnitee, and under the supervision of a consulting
engineer approved in advance in writing by Indemnitee. Such approvals not to be
unreasonably withheld. All reasonable costs and expenses incurred by Indemnitees
in connection with the Remedial Work shall be an Environmental Claim and shall
be paid by Indemnitor. In the event Indemnitor does not timely commence, or
cause to be commenced, or fail to diligently prosecute to completion, the
Remedial Work, Indemnitee may, but shall not be required to, cause such Remedial
Work to be performed and all reasonable costs and expenses incurred in
connection the Remedial Work shall be an Environmental Claim under this
Agreement.
4
(c) Indemnitor shall not be liable under this Agreement to the extent of
that portion of the costs and liabilities of any Environmental Claim
attributable to an affirmative act of any Indemnitee which causes (i) the
introduction and initial release of a Hazardous Material at the Property, or
(ii) material aggravation of a then existing Hazardous Material condition at the
Property. In addition, if Indemnitee acquires ownership of the Property through
a foreclosure, bankruptcy sale, trustee's sale or deed in lieu of foreclosure,
Indemnitor shall not be liable under this Agreement for that portion of costs
and liabilities of an Environmental Claim which is attributable to the
introduction and initial release of a Hazardous Material at the Property by any
party, other than an Indemnitor at any time after Indemnitee has acquired title
to the Property. In all other circumstances, the liability of Indemnitor under
this Agreement shall remain in full force and effect after Indemnitee acquires
title to the Property, including without limitation with respect to any
Hazardous Materials which are discovered at the Property after the date
Indemnitee acquires title but which were actually introduced to the Property
after the date hereof but prior to the date of such acquisition, and with
respect to any continuing migration or release of any Hazardous Materials which
commenced after the date hereof but prior to the date that Indemnitee acquires
title.
5. Notice of Actions.
-----------------
(a) Borrower shall give immediate written notice to Indemnitee of (i) any
proceeding, written inquiry or written notice by or from any governmental
authority regarding Hazardous Materials, an Environmental Claim or a Requirement
of Environmental Laws; (ii) all Environmental Claims; (iii) Borrower's discovery
of any occurrence or condition on any real property adjoining or in the vicinity
of the Property that could cause the Property or any part thereof to be in
violation of a Requirement of Environmental Laws or subject to an Environmental
Claim; (iv) Borrower's receipt of any written notice or discovery of any
information regarding the presence or existence of any Hazardous Material on,
under, or about the Property, or any alleged breach or violation of any
Requirements of Environmental Laws pertaining to Borrower or the Property.
(b) Borrower shall deliver to Indemnitee copies of all Environmental
Claims, and all orders, notices, permits, applications, reports, and other
documents pertaining to the subject matter of the Environmental Claim.
6. Procedures Relating to Indemnification.
(a) Subject to the provisions of Section 4(c), Indemnitor shall at its
own cost, expense, and risk (i) defend all Environmental Claims that may be
brought or instituted against any Indemnitee; (ii) pay any judgment or decree
that may be recorded against any Indemnitee in connection with any Environmental
Claim; and (iii) reimburse all Indemnitee for the cost of, or for any payment
made by any of them, with respect to any reasonable expenses incurred in
connection with the Hazardous Materials undertaken as a result of any
Environmental Claims against any Indemnitee arising out of the obligations of
Indemnitor under this Agreement.
(b) Counsel selected by Indemnitor pursuant to Paragraph 6 (a) shall be
subject to the reasonable approval of the Indemnitee asserting a claim under
this Agreement; provided,
5
however, that any Indemnitee may elect to defend any Environmental Claim at the
reasonable cost and expense of Indemnitor, if, in the judgment of the Indemnitee
(i) the defense is not proceeding or being conducted in a satisfactory manner,
or (ii) there is a conflict of interest between any of the parties to the
Environmental Claim.
(c) Notwithstanding anything in this Agreement to the contrary,
Indemnitor shall not, without the prior written consent of Indemnitee (which
consent shall not be unreasonably withheld or delayed), (i) settle or compromise
any Environmental Claim or consent to the entry of any judgment that does not
include the delivery by the claimant or plaintiff to Indemnitee of a written
release of Indemnitee (in form, scope and substance reasonably satisfactory to
Indemnitee) from all liability in respect of the Environmental Claim; or (ii)
settle or compromise any Environmental Claim in any manner that may materially
and adversely affect Indemnitee as determined by Indemnitee in the good faith
exercise of its discretion.
(d) Indemnitee shall have the right to join and participate in, as a
party if it so elects, any legal proceedings or actions in connection with the
Property involving any Environmental Claim, any Hazardous Material or any
Requirements of Environmental Laws. In any circumstance in which this indemnity
applies, Indemnitee may employ its own legal counsel and consultants to
prosecute, negotiate, or defend any claim, action, or cause of action, and
Indemnitee shall have the right to compromise or settle the same in the exercise
of its good faith discretion. Indemnitor shall reimburse Indemnitee upon demand
for all costs and expenses incurred by Indemnitee, including the amount of all
costs of settlements entered into in good faith, and the reasonable fees and
other reasonable costs and expenses of its attorneys and consultants, including
without limitation those incurred in connection with monitoring and
participating in any action or proceeding.
7. Independent Nature of Agreement. This Agreement is an independent
-------------------------------
obligation of Indemnitor and is not intended to nor shall it secure payment of
the Note or amounts due to Indemnitee under the Deed of Trust. The obligations
of Indemnitor under this Agreement are not secured by the Deed of Trust or any
of the Loan Documents.
8. Survival of Agreement. This Agreement, and all rights and obligations
---------------------
under this Agreement, shall survive (i) performance and repayment of the Loan,
(ii) reconveyance of the Deed of Trust, and release of other security provided
in connection with the Loan, and (iii) bankruptcy sale, trustee's sale or
foreclosure under the Deed of Trust and/or any of the other Loan Documents
(whether by deed or other assignment in lieu of foreclosure), and (iv) and
transfer of all of Indemnitee's rights in the Loan, the Loan Documents, and the
Property.
9. Rights of Contribution. Nothing contained in this Agreement shall
----------------------
prevent or in any way diminish or interfere with any rights and remedies,
including without limitation, the right to contribution, which Indemnitee may
have against Borrower or any other party under the Federal Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (codified at
Title 42 U.S.C. (S)(S) 9601 et seq.), as it may be amended from time to time, or
any other applicable Federal or state laws.
10. Binding Effect. This Agreement shall be binding upon and benefit
--------------
Indemnitor
6
and Indemnitee and their respective heirs, personal representatives, successors
and assigns. Any holder of the Note and any affiliate of Indemnitee which
acquires all or part of the Property by any sale, assignment or foreclosure
under the Deed of Trust or by deed or other assignment in lieu of foreclosure
shall be a successor of this Agreement. In no event shall any Indemnitee be
bound by any obligations or liabilities of any Indemnitor even if any such
Indemnitee acquires ownership of all or any part of the Property.
11. Liability of Indemnitor. The liability of Indemnitor under this
-----------------------
Agreement shall not be limited or impaired by (i) any amendment or modification
of the provisions of the Loan Documents to or with Indemnitee by Borrower or any
person who succeeds Borrower as owner of the Property or (ii) any extensions of
time for performance required by any of the Loan Documents; (iii) any sale,
assignment, or foreclosure of the Note or Deed of Trust or any sale or transfer
of all or part of the Property; (iv) any exculpatory provision in any of the
Loan Documents limiting Indemnitee's recourse to property encumbered by the Deed
of Trust or to any other security, or limiting Indemnitee's rights to a
deficiency judgment against Borrower (including, without limitation, Section 11
of the Note and Section 9.01 of the Deed of Trust); (v) the release of Borrower
or any other person or entity from performance or observance of any of the Loan
Documents by operation of law, Indemnitee's voluntary act, or otherwise; or (vi)
the release or substitution in whole or in part of any security for the Note.
12. Waiver. Indemnitor waives any right or claim of right to cause a
------
marshalling of the assets of Indemnitor or to cause Indemnitee to proceed
against any of the security for the Loan before proceeding under this Agreement
against Indemnitor or to proceed against Indemnitor in any particular order.
Indemnitor agrees that any payments required to be made under this Agreement
shall become due on demand. Indemnitor expressly waives and relinquishes all
rights and remedies accorded by applicable law to Indemnitor or guarantors,
except any rights of subrogation that Indemnitor may have. The indemnity
provided for under this Agreement shall not be contingent upon the existence of
any such rights of subrogation nor subject to any claims or defenses that may be
asserted in connection with the enforcement or attempted enforcement of any
subrogation rights, including, without limitation, any claim that the
subrogation rights were abrogated by any acts of Indemnitee. Indemnitor agrees
to postpone the exercise of any rights of subrogation to the rights of
Indemnitee against Indemnitor under this Agreement until the Loan shall have
been paid in full.
13. Delay. No delay on the part of any Indemnitee in exercising any right,
-----
power, or privilege under this Agreement or any of the Loan Documents shall
operate as a waiver of any such privilege, power, or right.
14. Execution. This Agreement may be executed in one or more counterparts,
---------
each of which shall be deemed an original.
15. Notices. All notices, consents, approvals, elections and other
-------
communications (collectively "Notices") under this Agreement shall be in writing
and shall be deemed to have been duly given if mailed by United States
registered or certified mail, with return receipt requested, postage prepaid, or
by United States Express Mail or reputable overnight courier service to the
parties at the addresses set forth in the Defined Terms (or at such other
addresses as shall be given in writing by any party to the others pursuant to
this Section) and shall be deemed complete upon receipt or refusal to accept
delivery as indicated in the return receipt or in the receipt of such Express
Mail or courier service.
7
16. Attorneys' Fees. In the event that any Indemnitor or any Indemnitee
---------------
brings any suit or other proceeding with respect to the subject matter or
enforcement of this Agreement, including without limitation, in appellate
proceedings or in any action or participation in, or in connection with, any
case or proceeding under Chapter 7, 11 or 13 of the Bankruptcy ▇▇▇▇, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Code Sections 101 et seq., or any successor statutes, the prevailing
-- ---
party (as determined by the court, agency or other authority before which such
suit or proceeding is commenced) shall, in addition to such other relief as may
be awarded, be entitled to recover reasonable attorneys' fees, expenses and
costs of investigation.
17. Successive Actions. Separate and successive actions may be brought
------------------
under this Agreement to enforce any provision at any time and from time to time.
No action under this Agreement shall preclude any subsequent action, and
Indemnitor waives and covenants not to assert any defense in the nature of
splitting of causes of action or merger of judgments.
18. Partial Invalidity. If any provision of this Agreement shall be
------------------
determined to be unenforceable in any circumstances by an court of competent
jurisdiction, then the balance of this Agreement shall be enforceable, and the
subject provision shall be enforceable to the extent permitted.
19. Interest on Unpaid Amounts. All amounts required to be paid or
--------------------------
reimbursed to any Indemnitee under this Agreement shall bear interest from the
date of expenditure by the Indemnitee until paid. The interest rate shall be the
lesser of (a) twelve percent (12%) per annum and (b) the maximum rate then
permitted for the parties to contract for under applicable law.
20. Governing Law. This Agreement and the rights and obligations of the
-------------
parties under this Agreement shall in all respects be governed by, and construed
and enforced in accordance with, the laws of the State in which the Property is
located.
IN WITNESS WHEREOF, Indemnitor has executed this Unsecured Indemnity
Agreement as of the Execution Date.
BOSTON PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Boston Properties, Inc.,
doing business in Virginia as
Delaware Boston Properties, Inc.,
its general partner
By:
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Senior Vice President
8
EXHIBIT A TO
UNSECURED INDEMNITY AGREEMENT
PROPERTY DESCRIPTION
--------------------
9