Environmental Indemnity Agreement

EXHIBIT 10.30


ENVIRONMENTAL INDEMNITY AGREEMENT


THIS ENVIRONMENTAL INDEMNITY AGREEMENT (the "Agreement") is made as of the 13th day of December, 2002 by WESCO REAL ESTATE IV, LLC, a Delaware limited liability company ("BORROWER") having an address at c/o Wesco Distribution, Inc., 225 West Station Square Drive, Suite 700, Pittsburgh, Pennsylvania 15219 and WESCO INTERNATIONAL, INC., a Delaware corporation ("COMPANY") having an address at 2325-13 Renaissance Drive, Las Vegas, Nevada (Borrower and Company hereinafter referred to, individually and collectively, as the context may require, as "INDEMNITOR"), in favor of BEAR STEARNS COMMERCIAL MORTGAGE, INC. ("INDEMNITEE"), having an address at 383 Madison Avenue, New York, New York 10179 and other Indemnified Parties (defined below).


RECITALS:


A. Borrower is the owner of certain parcels of real property more particularly described in Exhibit A attached hereto (said real property being referred to collectively as the "PARCELS"; the Parcels, together with all structures, buildings and improvements now or hereafter located on the Parcels, being collectively referred to as the "PROPERTY").


B. Indemnitee is prepared to make a loan (the "LOAN") to Borrower in the principal amount of $13,340,000.00 pursuant to a Loan Agreement of even date herewith between Indemnitor and Indemnitee (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the "LOAN AGREEMENT"), which Loan shall be evidenced by that certain Promissory Note of even date herewith given by Indemnitor in favor of Indemnitee (as amended, restated, replaced, supplemented or otherwise modified from time to time, the "NOTE") and secured by, among other things, that certain Mortgage and Security Agreement of even date herewith given by Indemnitor to Indemnitee and encumbering the Property (as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, the "MORTGAGE").


C. Indemnitee is unwilling to make the Loan unless Indemnitor agrees to provide the indemnification, representations, warranties, covenants and other matters described in this Agreement for the benefit of the Indemnified Parties.


D. Indemnitor is entering into this Agreement to induce Indemnitee to make the Loan.


AGREEMENT:


NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Indemnitor hereby represents, warrants, covenants and agrees for the benefit of the Indemnified Parties as follows:


1. ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES. Except as otherwise disclosed by that certain Phase I environmental report (or Phase II environmental report, if required) with respect to the Property delivered to Indemnitee by Indemnitor in connection with the origination of the Loan (referred to below as the "ENVIRONMENTAL REPORT"), a copy of which


has been provided to Indemnitee, (a) during Borrower's ownership of the Property (and with respect to the period of time prior to Borrower's ownership of the Property, to the best knowledge of Borrower), there are no Hazardous Substances (defined below) or underground storage tanks in, on, or under the Property, except those that are both (i) in compliance with Environmental Laws (defined below) and with permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in writing pursuant to the Environmental Report; (b)(i) during Borrower's ownership of the Property, there are no present or threatened Releases of Hazardous Substances (defined below) and (ii) with respect to the period of time prior to Borrower's ownership of the Property, to the best knowledge of Borrower, there were no Releases, in, on, under or from the Property which have not been (or were not) fully remediated in accordance with Environmental Law; (c) (i) during Borrower's ownership of the Property, there is no threat of any Release of Hazardous Substances migrating to the Property and (ii) with respect to the period of time prior to Borrower's ownership of the Property, to the best knowledge of Borrower, there was no threat of any Release of Hazardous Substances migrating to the Property; (d) Indemnitor has complied and is now complying in all material respects with all Environmental Laws and the requirements of any permits issued under such Environmental Laws with respect to the Property; (e) Indemnitor does not know of, and has not received, any written or oral notice or other communication from any Person (including but not limited to a Governmental Authority) relating to Hazardous Substances or Remediation (defined below) thereof, of possible liability of any Person pursuant to any Environmental Law, of other environmental conditions in connection with the Property, or of any actual or potential administrative or judicial proceedings in connection with the foregoing; and (f) Indemnitor has truthfully provided to Indemnitee, in writing, any and all information relating to conditions in, on, under or from the Property that is known to Indemnitor and all information that is contained in files and records of Indemnitor, including but not limited to any reports relating to Hazardous Substances in, on, under or from the Property and/or to the environmental condition of the Property.


2. ENVIRONMENTAL COVENANTS. Indemnitor covenants and agrees that: (a) Indemnitor has taken all commercially reasonable steps to ensure that all uses and operations on or of the Property, whether by Indemnitor or any other Person, will be in compliance with all Environmental Laws and permits issued pursuant thereto; (b) Indemnitor will take all commercially reasonable precautions to prevent Releases of Hazardous Substances in, on, under or from the Property which do not comply with Environmental Laws; (c) there will be no Hazardous Substances in, on, or under the Property, except those that are both (i) in compliance with all Environmental Laws and with permits issued pursuant thereto and (ii) fully disclosed to Indemnitee in writing; (d) Indemnitor 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 Indemnitor or any other Person (the "ENVIRONMENTAL LIENS"); (e) Indemnitor shall, at its sole cost and expense, fully and expeditiously cooperate in all activities pursuant to Paragraph 3 of this Agreement, including but not limited to providing all relevant information and making knowledgeable persons available for interviews; (f) Indemnitor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Property, as may be required by Environmental Laws or directives from any Governmental Authority (including but not limited to sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), and share with Indemnitee the reports and other results thereof, and Indemnitee and the other


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Indemnified Parties shall be entitled to rely on such reports and other results thereof; (g) Indemnitor shall, at its sole cost and expense, comply with all Environmental Laws or directives of any Governmental Authority to (i) effectuate Remediation of any condition (including but not limited to a Release of a Hazardous Substance) in, on, under or from the Property; (ii) comply with any Environmental Law; (iii) comply with any directive from any Governmental Authority; and (iv) take any other reasonable action necessary or appropriate for protection of human health or the environment; (h) Indemnitor shall not do, and shall take all commercially reasonable measures to prevent any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any Person (whether on or off the Property), impairs or may impair the value of the Property, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property; and (i) Indemnitor shall immediately notify Indemnitee in writing of (A) any presence or Releases or threatened Releases of Hazardous Substances in, on, under, from or migrating towards the Property; (B) any non-compliance with Environmental Laws related in any way to the Property; (C) any actual or potential Environmental Lien; (D) any required or proposed Remediation of environmental conditions relating to the Property; and (E) any written or oral notice or other communication of which any Indemnitor becomes aware from any source whatsoever (including but not limited to a governmental entity) relating in any way to Hazardous Substances or Remediation thereof, possible liability of any Person pursuant to Environmental Law, other environmental conditions in connection with the Property, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Agreement.


3. INDEMNIFIED RIGHTS/COOPERATION AND ACCESS. In the event the Indemnified Parties, in their commercially reasonable judgement, have reason to believe that an environmental hazard exists on the Property that does not, in the commercially reasonable judgment of the Indemnified Parties, endanger any tenants or other occupants of the Property or their guests or the general public or materially and adversely affect the value of the Property, upon reasonable notice from the Indemnitee, Indemnitor shall, at Indemnitor's expense, promptly cause an engineer or consultant satisfactory to the Indemnified Parties to conduct any environmental assessment or audit (the scope of which shall be determined in the sole and absolute discretion of the Indemnified Parties) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Indemnitee and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to the Indemnified Parties within a reasonable period or if the Indemnified Parties have a commercially reasonable belief that an environmental hazard exists on the Property that, in the sole judgment of the Indemnified Parties, endangers any tenant or other occupant of the Property or their guests or the general public or may materially and adversely affect the value of the Property, upon reasonable notice to Indemnitor, the Indemnified Parties and any other Person designated by the Indemnified Parties, including but not limited to any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in the sole and absolute discretion of the Indemnified Parties) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other


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invasive testing. Indemnitor shall cooperate with and provide the Indemnified Parties and any such Person designated by the Indemnified Parties with access to the Property.


4. INDEMNIFICATION. Indemnitor covenants and agrees, at its sole cost and expense, to protect, defend, indemnify, release and hold Indemnified Parties harmless from and against any and all Losses (defined below) imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following (except for Losses that are directly related to the gross negligence or willful misconduct of an Indemnified Party): (a) any presence of any Hazardous Substances in, on, above, or under the Property; (b) any past, present or threatened Release of Hazardous Substances in, on, above, under or from the Property; (c) any activity by Indemnitor, any Person affiliated with Indemnitor, and any tenant or other user of the Property in connection with any actual, proposed or threatened use, treatment, storage, holding, existence, disposition or other Release, generation, production, manufacturing, processing, refining, control, management, abatement, removal, handling, transfer or transportation to or from the Property of any Hazardous Substances at any time located in, under, on or above the Property; (d) any activity by Indemnitor, any Person affiliated with Indemnitor, and any tenant or other user of the Property in connection with any actual or proposed Remediation of any Hazardous Substances at any time located in, under, on or above the Property, whether or not such Remediation is voluntary or pursuant to court or administrative order, including but not limited to any removal, remedial or corrective action; (e) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Law) in connection with the Property or operations thereon, including but not limited to any failure by Indemnitor, any Person affiliated with Indemnitor, and any tenant or other user of the Property to comply with any order of any Governmental Authority in connection with any Environmental Laws; (f) the imposition, recording or filing or the threatened imposition, recording or filing of any Environmental Lien encumbering the Property; (g) any administrative processes or proce ...