Exhibit 10.6
AMERICANS WITH DISABILITIES ACT OF 1990
INDEMNITY AGREEMENT
This Americans with Disabilities Act of 1990 Indemnity Agreement (“Indemnity”) is entered into this 14th day of March, 2012, byDC-2775 NORTHWOODS PARKWAY, LLC, a Delaware limited liability company (“Borrower”) andCARTER/VALIDUS OPERATING PARTNERSHIP, LP(“Guarantors”) (BorrowerandGuarantorsshall collectively be referred to herein as the “Indemnitors”), to and for the benefit ofAMERICAN FAMILY LIFE INSURANCE COMPANY (“American Family”), its successors and assigns.
RECITALS:
A.American Family has agreed to lendBorrowerthe sum of Three Million Three Hundred Thousand and No/100 Dollars ($3,300,000.00) (the“Loan”), pursuant to the Promissory Note of even date herewith (“Note”), whichLoan is secured by, among other things, a Deed to Secure Debt, Assignment of Rents and Security Agreement of even date herewith fromBorrower toAmerican Family (“Security Deed”)on the real estate described in Exhibit A attached hereto, and the improvements constructed thereon and thereto (the“Premises”), the terms of which are hereby incorporated herein by reference.
B. It is a condition ofAmerican Family’s advancing funds toBorrowerpursuant to theNote that thisIndemnity be executed and delivered toAmerican Family byIndemnitors.
NOW THEREFORE,
IN CONSIDERATION OF THE FOREGOING AND OTHER VALUABLE CONSIDERATION, the receipt and sufficiency of which is acknowledged,Indemnitors agree as follows:
1.Indemnitors agree, jointly and severally, to indemnify, defend and holdAmerican Family harmless from and against, and shall reimburseAmerican Family for, any and all losses, claims, liabilities, damages (including compensatory, consequential and punitive), injunctive relief, injuries to person or property, costs, expenses, actions or causes of action, occurring or arising from or in connection with any violation of the Americans with Disabilities Act of 1990, 42 U.S.C. Section 12101,et seq., all amendments thereto and reauthorizations thereof(“ADA”), and all regulations, orders, rules, policies, and rules of common law promulgated or arising in connection therewith (collectively“Disabilities Regulations”), arising from or relating to thePremises while thePremises are owned or controlled by any of theIndemnitors,other than those arising solely from the gross negligence or willful misconduct of American Family or a state of facts, in each case, that first occurs or comes into existence after the date that the holder of the Security Deed or a receiver takes possession of the Premises or acquires title to the Premises by foreclosure or deed in lieu of foreclosure.
a. The foregoingIndemnity includes, without limitation, all costs (in law or in equity) of remediation of any kind; all investigatory costs and all costs incurred in order to comply with, or remedy any violation of, theADA orDisabilities Regulations; all costs associated with claims for damages to persons or property; all fines; andAmerican Family’s reasonable attorneys’ and paralegals’ fees and costs, consultants’ fees and court costs arising from or relating to thePremises.
b. Under no circumstances shallAmerican Family be required or obligated to seek recovery from third parties or otherwise to mitigate its losses in order to maintain a claim againstIndemnitors.Indemnitors agree that the failure to pursue such recovery or to mitigate any loss will in no way reduce the amounts recoverable byAmerican Family fromIndemnitors.
c.Indemnitors, on behalf of themselves and their respective successors and assigns, waive and releaseAmerican Family from any and all claims of any kind or character arising under or pursuant to theADA orDisabilities Regulations with respect to thePremises,other than those arising solely from the gross negligence or willful misconduct of American Family or a state of facts, in each case, that first occurs or comes into existence after the date that the holder of the Security Deed or a receiver takes possession of the Premises or acquires title to the Premises by foreclosure or deed in lieu of foreclosure.
d.Indemnitors shall defend any claim or action subject to thisIndemnity using counsel reasonably acceptable toAmerican Family. IfIndemnitors’defense is not reasonably acceptable toAmerican Family,American Family may elect, at is sole option, to defend, atIndemnitors’ sole cost, expense and risk, and using counsel selected byAmerican Family and reasonably acceptable toIndemnitors, any claim or action asserted by any third party which is subject to thisIndemnity, by sending prompt written notice of such election toIndemnitors.
2. The obligations ofIndemnitors under thisIndemnity shall terminate upon satisfaction of theLoan; provided, however, such obligations shall be independent of the obligations ofBorrower toAmerican Family in connection with theLoan. The rights ofAmerican Family under thisIndemnity shall be in addition to any other rights and remedies ofAmerican Family under anyLoan Document, at law or in equity. Except as set forth in Paragraph 7, below,American Family shall have full recourse to the assets ofIndemnitors for payment of the obligations ofIndemnitors under thisIndemnity.
3. Any amount properly claimed hereunder byAmerican Family not paid byIndemnitors within thirty (30) days after written demand fromAmerican Family shall bear interest from the postmarked date of such demand at a rate per annum equal to theDefault Rate.
4. ThisIndemnity shall inure to the benefit ofAmerican Family, American Family’s successors and assigns, and shall be binding uponIndemnitors, their respective executors, representatives, heirs, successors and assigns.
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5.Indemnitors andAmerican Family agree, notwithstanding any conflict of law principles, that thisIndemnity is made byIndemnitors and accepted byAmerican Family in the State of Georgia and is intended to be and shall be governed by and construed in accordance with the laws of the State of Georgia.
6. All terms used in thisIndemnity which appear inboldface type and are not defined herein, shall have the meaning ascribed to such term or terms in theSecurity Deed.
7. Notwithstanding anything to the contrary contained in thisIndemnity, the liability ofGuarantors andBorrower for the Indebtedness and for the performance of other agreements, covenants and obligations contained herein shall be limited as set forth in theGuaranty andNote.
IN WITNESS WHEREOF, thisIndemnity is executed byIndemnitors as of the day and year first above written.
| | | | | | |
| DC-2775 NORTHWOODS PARKWAY, LLC, |
| a Delaware limited liability company |
| |
| By: | | Carter Validus Operating Partnership, LP, |
| | a Delaware limited partnership, its manager |
| | |
| | By: | | Carter Validus Mission Critical REIT, Inc., |
| | | | a Maryland corporation, its general partner |
| | | |
| | | | By: | | /s/ John E. Carter |
| | | | | | John E. Carter, |
| | | | | | Chief Executive Officer |
| | |
| STATE OF FLORIDA | | ) |
| | ) ss. |
| COUNTY OF HILLSBOROUGH | | ) |
This instrument was acknowledged before me this 13th day of March, 2012, by John E. Carter, Chief Executive Officer of Carter Validus Mission Critical REIT, Inc., general partner of Carter Validus Operating Partnership, L.P., manager of DC-2775 Northwoods Parkway, LLC, a Delaware limited liability company, to me known to be the person who executed the foregoing instrument by virtue of the authority vested in him in such capacity and acknowledged that he executed the same as the voluntary act and authorized deed of the limited liability company.
|
/s/ Elizabeth Fay |
| Elizabeth Fay |
| Notary Public, State of Florida |
| My commission expires: August 24, 2015 |
(CONTINUED)
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| | | | |
| CARTER VALIDUS OPERATING |
| PARTNERSHIP, LP, a Delaware limited partnership |
| |
| By: | | Carter Validus Mission Critical Reit, Inc., |
| | a Maryland corporation, its general partner |
| | |
| | By: | | /s/ John E. Carter |
| | | | John E. Carter, Chief Executive Officer |
| | |
| STATE OF FLORIDA | | ) |
| | ) ss. |
| COUNTY OF HILLSBOROUGH | | ) |
This instrument was acknowledged before me this 13th day of March, 2012, by John E. Carter, Chief Executive Officer of Carter Validus Mission Critical Reit, Inc., General Partner of Carter Validus Operating Partnership, LP, a Delaware limited partnership, to me known to be the person who executed the foregoing instrument by virtue of the authority vested in on behalf of said entity.
|
/s/ Elizabeth Fay |
| Elizabeth Fay |
| Notary Public, State of Florida |
| My commission expires: August 24, 2015 |
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EXHIBIT A
LEGAL DESCRIPTION
All that tract or parcel of land containing 3.222 acres lying and being in Land Lot 256 of the 6th District of Gwinnett County, Georgia, and being more fully described as follows:
Beginning at a concrete monument found at the Southerly end of a miter of the right-of-way intersection of the Northeasterly right-of-way of Langford Road, a right-of-way of varying widths (at this point being a 100 foot right-of-way), with the Southeasterly right-of-way of Northwoods Parkway, a right-of-way of varying widths; thence along said right-of-way and miter North 06°07’42” East a distance of 19.41 feet to a 1/2 inch rebar pin found on said Southeasterly right-of-way of Northwoods Parkway; thence along said right-of-way of Northwoods Parkway North 49°24’00” East a distance of 69.97 feet to a point; thence continuing along said right-of-way along a curve to the left having a radius of 507.47 feet an arc distance of 62.44 feet (said arc being subtended by a chord bearing North 45°52’30” East a distance of 62.40 feet) to a point; thence continuing along said right-of-way North 42°21’00” East a distance of 65.55 feet to a point; thence continuing along said right-of-way along a curve to the right having a radius of 447.46 feet an arc distance of 108.07 feet (said arc being subtended by a chord bearing North 49°16’00” East a distance of 107.81 feet) to a point; thence continuing along said right-of-way North 56°11’15” East a distance of 250.36 feet to a point; thence continuing along said right-of-way along a curve to the left having a radius of 600.00 feet an arc distance of 172.43 feet (said arc being subtended by a chord bearing North 51°22’45” East a distance of 171.84 feet) to a point; thence continuing along said right-of-way North 39°57’45” East a distance of 16.73 feet to a nail found and the TRUE POINT OF BEGINNING.
From the TRUE POINT OF BEGINNING thus established thence continuing along said right-of-way North 39°57’45” East a distance of 359.64 feet to a 1/2 inch rebar pin found; thence leaving said right-of-way South 40°35”30” East a distance of 425.22 feet to a 5/8 inch rebar pin found on the Northwesterly right-of-way of a 200 foot right-of-way of Southern Railroad; thence along said Railroad right-of-way South 49°24’30” West a distance of 354.54 feet to a 1/2 inch rebar pin found; thence leaving said right-of-way North 40°37’32” West a distance of 366.20 feet to a nail found on aforesaid Southeasterly right-of-way of Northwoods Parkway and the TRUE POINT OF BEGINNING.
