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Northmeadow Medical Center
ENVIRONMENTAL
CERTIFICATION AND
INDEMNITY AGREEMENT
THIS
ENVIRONMENTAL CERTIFICATION AND INDEMNITY AGREEMENT
(“Agreement”) is made and delivered as of
November 20, 2007, by NNN HEALTHCARE/OFFICE REIT NORTHMEADOW,
LLC, a Georgia limited liability company (“Borrower”),
and NNN HEALTHCARE/OFFICE REIT, INC., a Maryland corporation
(“Guarantor”), jointly and severally (collectively with
Borrower, the “Indemnitor”) for the benefit of and in
favor of EQUITRUST LIFE INSURANCE COMPANY, an Iowa corporation
(“Lender”).
RECITALS:
A. Borrower desires to obtain financing from Lender (the
“Loan”) in the aggregate amount of $8,000,000.00 to be
evidenced by a Secured Installment Note in an original principal
amount of $8,000,000.00 (the “Note”). The Note will be
secured by, among other things, a Deed to Secure Debt, Security
Agreement and Financing Statement with Absolute Assignment of Rents
and Leases (the “Security Deed”). Additionally,
Borrower has or will execute in favor of Lender an Absolute
Assignment of Leases, Rents and Income (the “Assignment of
Leases”) and certain other documents evidencing, creating or
securing the Note. The Note, the Security Deed, the Assignment of
Leases and such other documents, agreements or instruments as shall
now or hereafter evidence, create or secure the Loan are
hereinafter sometimes collectively called the “Loan
Documents.”
B. Lender is willing to make the Loan to Borrower only under
certain terms and conditions, which include the execution and
delivery of this Agreement by Indemnitor.
C. The parties other than Borrower comprising Indemnitor have
a direct or indirect financial interest in Borrower and receive
benefit from Lender making the Loan to Borrower.
NOW
THEREFORE in consideration of the Loan and for other good and
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by Indemnitor, Indemnitor hereby covenants and
agrees with Lender as follows:
1.
Definitions . All terms not otherwise defined herein shall
have the same meanings as set forth in the Security Deed. As used
herein, the following terms shall have the following meanings:
(A) “Hazardous Materials” means any asbestos,
asbestos containing materials, PCB’S, formaldehyde,
carcinogens, hydrocarbons and other petroleum products or
byproducts, harmful or toxic chemicals, pollutants, contaminants,
flammables, explosives, radioactive or radon-containing materials,
mold and mycotoxins, and other gases, substances, chemicals and
materials defined under federal, state or local laws and
regulations (whether now existing or hereafter enacted, formulated
or imposed) as “hazardous substances,” “hazardous
materials,” “hazardous waste,” “toxic
substances,” “pollutants” or
“contaminants.” The term “Permitted Hazardous
Materials” means commercially sold products otherwise within
the definition of the term “Hazardous Materials,” but
(1) which are used or disposed of by Borrower or used or sold
by tenants of the Property in the ordinary course of their
respective businesses, (2) the presence of which product is
not prohibited by Applicable Environmental Laws, and (3) the
use and disposal of which are in all respects in accordance with
Applicable Environmental Laws.
(B) “Applicable Environmental Law(s)” shall mean
all statutes, laws, ordinances, acts, rules, regulations, decrees,
and rulings of all governmental authorities which relate or pertain
to health, safety, the environment or Hazardous Materials,
including without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, 42 U.S.C.A. Sec.
9601 et seq. (“CERCLA”); the Resource Conservation and
Recovery Act of 1976, 42 U.S.C.A. Sec. 6901 et seq.; the Hazardous
and Solid Waste Amendments of 1984, 42 U.S.C.A. Sec. 6901 et seq.;
the Hazardous Materials Transportation Act, 49 U.S.C.A. Sec. 5101
et seq.; the Toxic Substances Control Act, 15 U.S.C.A. Sec. 2601 et
seq.; the Clean Air Act, 42 U.S.C.A. Sec. 7401 et seq.; the Clean
Water Act, 33 U.S.C.A. Sec. 1251 et seq.; and all similar or
related laws of the State of Georgia, and all environmental
regulation, cleaning and control laws of the State of Georgia, all
as amended from time to time.
(C) “Disposal,” “release,”
“threatened release,” “use,”
“storage,” “disposition,” and
“manufacture” shall have the definitions assigned
thereto by CERCLA or other Applicable Environmental Laws.
(D) “Property” means the “Property,”
the “Improvements” and all other “Deed
Property” as those terms are defined in the Security
Deed.
2.
Representations and Agreements .
(A) Indemnitor hereby represents and warrants that:
(i) to the best of Indemnitor’s knowledge, except to the
extent set forth in any environmental reports provided to Lender,
the Property does not contain or incorporate and is not threatened
with contamination from Hazardous Materials; (ii) to the best of
Indemnitor’s knowledge, the Property has never been used in
connection with the handling, generation, storage, manufacture,
release or disposal of Hazardous Materials other than Permitted
Hazardous Materials; (iii) there have been no releases and, to
Indemnitor’s knowledge, there are no threatened releases of
Hazardous Materials on, onto, from, or under the Property; (iv) all
current, and to the best of Indemnitor’s knowledge, all past
uses of the Property comply with all Applicable Environmental Laws;
(v) Indemnitor has never received notice of, and has no
knowledge of a violation of any Applicable Environmental Law, and
no action has been commenced or, to Indemnitor’s knowledge,
threatened for non-compliance with any such laws;
(vi) Indemnitor has not obtained and is not required by any
Applicable Environmental Law to obtain any permit or license to
construct or use the Property; (vii) the Property does not
contain and to the best of Indemnitor’s knowledge has never
contained an underground storage tank (including without
limitation, a tank for which a permit to operate was obtained under
the Underground Storage of Hazardous Substances Act or other
Applicable Environmental Laws); (viii) no event has occurred
which requires or required the owner of the Property to give any
public entity notice of any spill, release, threatened release,
disposal, disposition or existence of Hazardous Materials on,
around, under or from the Property; and (ix) there has been no
litigation brought or, to Indemnitor’s knowledge, threatened
against Indemnitor or to Indemnitor’s knowledge after due
investigation any prior owner of the Property, nor have any
settlements been reached by or with Indemnitor or to
Indemnitor’s knowledge any other party alleging the presence,
generation, disposal, disposition, release, or threatened release
of any Hazardous Materials on, onto, from, or under the
Property.
(B) Indemnitor shall not use or permit the use (by lease or
otherwise) of the Property for the generation, manufacture,
release, transportation, treatment, handling, storage, or disposal
of Hazardous Materials, other than Permitted Hazardous
Materials.
(C) Indemnitor shall keep and maintain the Property and
require all tenants, occupants, licensees and users of any portion
of the Property to keep and maintain the Property in compliance
with all Applicable Environmental Laws. Without limiting the
generality of the foregoing, Indemnitor shall perform and pay for
all clean-up or remediation requirements of all governmental
authorities.
(D) Indemnitor shall clean up and lawfully dispose of all
Hazardous Materials promptly upon discovery thereof.
(E) Indemnitor shall provide Lender with immediate written
notice: (i) of Indemnitor’s obtaining knowledge of any
potential or known release, spill, or threatened release of
Hazardous Materials (other than Permitted Hazardous Materials) on,
onto, from or under the Property, whether from a federal, state or
other governmental authority, or otherwise; or (ii) of all
claims made or threatened by any third party relating to any loss
or injury from Hazardous Materials in, on, from, or under the
Property.
(F) Indemnitor shall promptly report any release of Hazardous
Materials (other than Permitted Hazardous Materials) in accordance
with Applicable Environmental Laws.
(G) Indemnitor shall promptly deliver copies of any documents
relating to any governmental proceedings relating to Hazardous
Materials and all engineering reports, test reports and laboratory
analyses concerning the Hazardous Materials affecting the Property
to Lender.
3.
Investigation . If any governmental entity requires the
investigation of the Property and/or groundwater for the existence
of Hazardous Materials, or Lender reasonably suspects or believes
that there exists the threat of or there has been Hazardous
Materials contamination of the Property and/or groundwater,
Indemnitor, at its expense, shall promptly and tho
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