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ENVIRONMENTAL INDEMNITY
AGREEMENT
This
Environmental Indemnity Agreement (this “ Agreement
”), which is dated as of December 20, 2007, is executed
by G&E HEALTHCARE REIT LINCOLN PARK BOULEVARD, LLC, a Delaware
limited liability company (“ Borrower ”), and
GRUBB & ELLIS HEALTHCARE REIT, INC., a Maryland corporation
(“ Indemnitor ”), as a condition of, and to
induce WACHOVIA FINANCIAL SERVICES, INC., a North Carolina
corporation (“ Lender ”), to make, a loan (the
“ Loan ”) to Borrower evidenced or to be
evidenced by a Promissory Note of even date herewith, made by
Borrower payable to the order of Lender in the face principal
amount of $10,943,000.00 (the “ Note ”). The
Loan is secured or to be secured by an Open-End Mortgage,
Assignment, Security Agreement and Fixture Filing (the “
Mortgage ”) of even date herewith, encumbering certain
real and personal property as therein described (collectively, the
“ Property ”), including the land described in
Exhibit A which is attached hereto and made a part hereof.
1.
Certain Definitions . As used in this Agreement:
"
Claim ” means any controversy or claim between one or
more Obligors and Lender, whether arising in contract or tort or by
statute, that arises out of or relates to this Agreement, including
any renewals, extensions or modifications hereof.
"
Cut-Off Date ” means the earlier of the following two
dates: (a) the date on which the indebtedness and obligations
secured by the Mortgage have been paid and performed in full and
the Mortgage has been released; or (b) the date on which the
lien of the Mortgage is fully and finally foreclosed or a
conveyance by deed in lieu of such foreclosure is fully and finally
effective and possession of the Property has been given to and
accepted by the purchaser or grantee free of occupancy and claims
to occupancy by Obligors and their heirs, devisees,
representatives, successors and assigns; provided, however, that if
such payment, performance, release, foreclosure or conveyance is
challenged in proceedings under any Debtor Relief Law or otherwise,
the Cut-Off Date shall be deemed not to have occurred until such
challenge is validly released, dismissed with prejudice or
otherwise barred by law from further assertion.
"
Debtor Relief Law ” means any federal, state or local
law, domestic or foreign, as now or hereafter in effect relating to
bankruptcy, insolvency, liquidation, receivership, reorganization,
arrangement, composition, extension or adjustment of debts, or any
similar law affecting the rights of creditors.
"
Default ” has the meaning ascribed to such term in the
Mortgage and includes any breach of any covenant, representation or
warranty and any other default under this Agreement, subject to any
applicable notice and cure period.
"
Default Rate ” has the meaning ascribed to such term
in the Note.
"
Environmental Assessment ” means a report (including
all drafts thereof) of an environmental assessment of the Property
of such scope as may be requested by Lender or another Indemnified
Party, including the taking of soil borings and air and groundwater
samples and other above- and below-ground testing, by a consulting
firm acceptable to such Indemnified Party and made in accordance
with the established guidelines of such Indemnified Party.
"
Environmental Claim ” means any investigative,
enforcement, cleanup, removal, containment, remedial or other
private or governmental or regulatory action at any time
threatened, instituted or completed pursuant to any applicable
Environmental Requirement, against Borrower or any Obligor, against
or with respect to the Property or any condition, use or activity
on the Property (including any such action against any Indemnified
Party), and any claim at any time threatened or made by any person
against any Obligor or against or with respect to the Property or
any condition, use or activity on the Property (including any such
claim against any Indemnified Party), relating to damage,
contribution, cost recovery, compensation, loss or injury resulting
from or in any way arising in connection with any Hazardous
Material or any Environmental Requirement.
"
Environmental Damages ” means all claims, demands,
liabilities (including strict liability), losses, damages
(including consequential damages), causes of action, judgments,
penalties, fines, reasonable costs and expenses (including
reasonable fees, costs and expenses of attorneys, consultants,
contractors, experts and laboratories), of any and every kind and
character, contingent or otherwise, matured or unmatured, known or
unknown, foreseeable or unforeseeable, made, incurred, suffered,
brought, or imposed at any time and from time to time, and arising
in whole or in part from any of the following matters, regardless
of whether caused by an Obligor or a tenant or subtenant, or a
prior owner of the Property or its tenant or subtenant, or any
third party:
(a) The
presence of any Hazardous Material on the Property, or any escape,
seepage, leakage, spillage, emission, release, discharge or
disposal of any Hazardous Material on or from the Property, or the
migration or release or threatened migration or release of any
Hazardous Material to, from or through the Property, on or before
the Cut-Off Date; or
(b) Any
act, omission, event or circumstance existing or occurring in
connection with the handling, treatment, containment, removal,
storage, decontamination, cleanup, transport or disposal of any
Hazardous Material which is or was present on the Property on or
before the Cut-Off Date; or
(c) The
breach of any representation, warranty, covenant or agreement
contained in this Agreement because of any event or condition
occurring or existing on or before the Cut-Off Date; or
(d) Any
violation relating to the Property on or before the Cut-Off Date,
of any Environmental Requirement in effect on or before the Cut-Off
Date, regardless of whether any act, omission, event or
circumstance giving rise to the violation constituted a violation
at the time of the occurrence or inception of such act, omission,
event or circumstance; or
(e) Any
Environmental Claim, or the filing or imposition of any
environmental lien against the Property, because of, resulting
from, in connection with, or arising out of any of the matters
referred to in the preceding clauses (a) through (d).
Without
limiting the generality of the foregoing, “ Environmental
Damages ” includes: (i) the investigation or
remediation of any such Hazardous Material or violation of any such
Environmental Requirement, including the preparation of any
feasibility studies or reports and the performance of any cleanup,
remediation, removal, response, abatement, containment, closure,
restoration, monitoring or similar work required by any
Environmental Requirement or necessary to have full use and benefit
of the Property as contemplated by the Loan Documents (including
any of the same in connection with any foreclosure action or
transfer in lieu thereof); (ii) injury or damage to any
person, property or natural resource occurring on or off the
Property, including the cost of demolition and rebuilding of any
improvements on real property; (iii) all liability to pay or
indemnify any person or governmental authority for costs expended
in connection with any of the matters included within this
definition of Environmental Damages; (iv) the investigation
and defense of any claim, whether or not such claim is ultimately
defeated; and (v) the settlement of any claim or judgment.
"
Environmental Law ” means any federal, state or local
law, statute, ordinance, code, rule, regulation, license,
authorization, decision, order, injunction, decree, or rule of
common law, and any judicial interpretation of any of the
foregoing, which pertains to health or safety (as they relate to
natural resources or the environment), any Hazardous Material, or
the environment (including ground or air or water or noise
pollution or contamination, and underground or aboveground tanks)
and shall include the Solid Waste Disposal Act, 42 U.S.C.
§ 6901 et seq.; the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C.
§ 9601 et seq. (“ CERCLA ”), as
amended by the Superfund Amendments and Reauthorization Act of 1986
(“ SARA ”); the Hazardous Materials
Transportation Act, 49 U.S.C. § 1801 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 Toxic Substances Control Act, 15 U.S.C.
§ 2601 et seq.; the Safe Drinking Water Act, 42
U.S.C. § 300f et seq.; and any other state or
federal environmental statutes, and all rules, regulations, orders
and decrees now or hereafter promulgated under any of the
foregoing, as any of the foregoing now exist or may be changed or
amended or come into effect in the future.
"
Environmental Requirement ” means any Environmental
Law, agreement or restriction, as the same now exists or may be
changed or amended or come into effect in the future, which
pertains to health or safety (as they relate to natural resources
or the environment), any Hazardous Material, or the environment,
including ground, air, water or noise pollution or contamination,
and underground or aboveground tanks.
"
Hazardous Material ” means any substance, whether
solid, liquid or gaseous: (a) which is listed, defined or
regulated as a “hazardous substance”, “hazardous
waste” or “solid waste”, or otherwise classified
as hazardous or toxic, in or pursuant to any Environmental
Requirement; or (b) which is or which contains asbestos,
radon, any polychlorinated biphenyl, urea formaldehyde foam
insulation, explosive or radioactive material, or motor fuel or
other petroleum hydrocarbons; or (c) which causes or poses a
threat to cause a contamination or nuisance on the Property or any
adjacent property or a hazard to the environment or to the health
or safety of persons on the Property.
"
Indemnified Party ” means each of the following
persons and entities: (a) Lender or any subsequent holder of
the Note; (b) any persons or entities owned or controlled by,
owning or controlling, or under common control or affiliated with,
Lender, and/or any subsequent holder of the Note; (c) any
participants and co-lenders in the Loan; (d) the directors,
officers, partners, employees, attorneys and agents of each of the
foregoing persons and entities; and (e) the heirs, personal
representatives, successors and assigns of each of the foregoing
persons and entities.
" Loan
Documents ” has the meaning ascribed to such term in the
Mortgage.
"
Obligor ” means any individual Borrower or Indemnitor
and “ Obligors ” means some or all of the
persons and entities comprising Borrower and/or Indemnitor,
collectively.
"
On ” or “ on ”, when used with
respect to the Property or any property adjacent to the Property,
means “on, in, under, above or about.”
2.
Representations and Warranties . Each Obligor hereby
represents and warrants to, and covenants with, Lender, that,
except as disclosed in that certain Phase 1 Environmental Site
Assessment Report provided to Lender in connection with the closing
of the Loan, as of the date of recordation of the Mortgage:
(a) During the period of Borrower’s ownership of the
Property, the Property has not been used for industrial or
manufacturing purposes, for landfill, dumping or other waste
disposal activities or operations, for generation, storage, use,
sale, treatment, processing, recycling or disposal of any Hazardous
Material, for underground or aboveground storage tanks, or for any
other use that could give rise to the release of any Hazardous
Material on the Property; to the best of Obligors’ knowledge,
no such use of the Property occurred at any time prior to the
period of Borrower’s ownership of the Property; and to the
best of Obligors’ knowledge, no such use on any adjacent
property occurred at any time prior to the date hereof;
(b) To the best of Obligors’ knowledge, there is no
Hazardous Material, storage tank (or similar vessel) whether
underground or otherwise, sump or well currently on the
Property;
(c) Obligors have received no written notice and have no
knowledge of any Environmental Claim or any completed, pending or
proposed or threatened investigation or inquiry concerning the
presence or release of any Hazardous Material on the Property or
any adjacent property or concerning whether any condition, use or
activity on the Property or any adjacent property is in violation
of any existing Environmental Requirement;
(d) To the best of Obligors’ knowledge, the present
conditions, uses and activities of and on the Property do not
violate any existing Environmental Requirement and the use of the
Property which Borrower (and each tenant and subtenant, if any)
makes and intends to make of the Property complies and will comply
with all applicable existing Environmental Requirements;
(e) The Property does not appear on and to the best of
Obligors’ knowledge has never been on the National Priorities
List, any federal or state “ superfund ” or
“ superlien ” list, or any other list or
database of properties maintained by any local, state or federal
agency or department showing properties which are known to contain
or which are suspected of containing a Hazardous Material;
(f) To the best of Obligors’ knowledge, no action has
been taken to designate the Property as a hazardous waste property
or border zone property or otherwise to restrict the land use of
the Property (including through a moratorium on new land uses), nor
does any Obligor know of any basis for such designation or other
restriction;
(g) Obligors have never applied for and been denied
environmental impairment liability insurance coverage relating to
the Property; and
(h) No Obligor, and to Obligors’ knowledge no tenant or
subtenant, has obtained or is required to obtain any permit or
authorization to construct, occupy, operate, use or conduct any
activity on any of the Property by reason of any existing
Environmental Requirement.
3.
Violations . Prior to the Cut-Off Date, Obligors will not
cause, commit, permit or allow to continue any violation of any
Environmental Requirement (a) by any person or entity,
including any Obligor, or (b) by or with respect to the
Property or any use of or activity on the Property. In addition,
Obligors will not cause, permit or allow to continue the attachment
of any environmental lien to the Property. Obligors will not place,
install, dispose of or release, or cause, permit, or allow the
placing, installation, disposal, spilling, leaking, dumping or
release of, any Hazardous Material or storage tank (or similar
vessel) on the Property and will keep the Property free of
Hazardous Material. Notwithstanding the foregoing provisions of
this Section 3 , Obligors shall not be in Default under
this Section 3 should Obligors store minimal quantities
of substances on the Property which technically could be considered
Hazardous Material; provided that such substances are of a type and
are held only in a quantity normally used in connection with the
construction, occupancy or operation of comparable buildings (such
as cleaning fluids and supplies normally used in the day-to-day
operation of business offices), and such substances are being held,
stored and used in compliance with all applicable Environmental
Requirements. The indemnity in Section 6 of this
Agreement shall always apply to such substances, and it shall be
and continue to be the responsibility of Obligors to take all
remedial actions required under and in accordance with
Section 5 of this Agreement in the event of any
unlawful release of any such substance.
4.
Notice to Lender . Obligors shall promptly deliver to Lender
a copy of each report pertaining to the Property or to any Obligor
prepared by or on behalf of any Obligor pursuant to any
Environmental Requirement. Obligors shall promptly advise Lender in
writing of any Environmental Claim or of the discovery of any
Hazardous Material on the Property as soon as any Obligor first
obtains knowledge thereof, including a full description of the
nature and extent of the Environmental Claim and/or Hazardous
Material and all relevant circumstances.
5.
Remedial Actions .
(a) Except as permitted under Section 3 above, if
any Hazardous Material is discovered on the Property at any time,
prior to the Cut-Off Date, and regardless of the cause, Obligors
shall promptly at Obligors’ sole risk and expense and solely
under the names of Obligors or any of them: (i) remove, treat,
and dispose of the Hazardous Material in compliance with all
applicable Environmental Requirements, or if such removal is
prohibited by any Environmental Requirement, take whatever action
as is required by any Environmental Requirement; and (ii) take
such other action as is necessary to have the full use and benefit
of the Property as contemplated by the Loan Documents. Obligors at
their sole expense shall provide Lender with satisfactory evidence
of the actions taken as required in this clause (a). Obligors
shall provide to Lender within thirty (30) days of
Lender’s request a bond, letter of credit or other financial
assurance evidencing to Lender’s satisfaction that all
necessary funds are readily available to pay the costs and expenses
of the actions required by this clause (a) and to discharge
any assessments or liens established against the Property as a
result of the presence of the Hazardous Material on the
Property.
(b) All remedial actions shall be conducted (i) in a
diligent and timely fashion by licensed contractors acting under
the supervision of a consultant or consulting environmental
engineer, and (ii) in accordance with all Environmental
Requirements and all other applicable governmental requirements.
The selection of the contractors and consultant or consulting
environmental engineer for the remedial actions, the contracts
entered into with such parties, any disclosures to or agreements
with any public or private agencies or parties relating to the
remedial actions and any written plan for the remedial actions (and
any changes thereto) shall each, at the option of Lender, be
subject to the prior written approval of Lender, which approval
shall not be unreasonably withheld, conditioned or delayed. Within
fifteen (15) days after completion of such remedial actions,
Obligors shall obtain and deliver to Lender an Environmental
Assessment of the Property made after such completion which shall
confirm to Lender’s satisfaction that all required remedial
action as stated above has been taken and successfully completed
and that there is no evidence or suspicion of any contamination or
risk of contamination on the Property or any adjacent property or
of violation of any Environmental Requirement with respect to any
such Hazardous Material.
(c) After the occurrence and during the continuance of a
Default, Lender may, but shall never be obl
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