EXHIBIT 10.25
ENVIRONMENTAL INDEMNITY AGREEMENT
This Environmental Indemnity
Agreement (this “ Agreement ”), which is dated
as of February 15, 2008, is executed by NNN WESTERN PLACE,
LLC, a Delaware limited liability company, NNN WESTERN PLACE 1,
LLC, a Delaware limited liability company, NNN WESTERN PLACE 2,
LLC, a Delaware limited liability company, NNN WESTERN PLACE 3,
LLC, a Delaware limited liability company, NNN WESTERN PLACE 4,
LLC, a Delaware limited liability company, NNN WESTERN PLACE 5,
LLC, a Delaware limited liability company, NNN WESTERN PLACE 6,
LLC, a Delaware limited liability company, NNN WESTERN PLACE 7,
LLC, a Delaware limited liability company, and GREIT —
WESTERN PLACE, LP, a Texas limited partnership (individually and
collectively, the “ Borrower ”), GARY H. HUNT,
W. BRAND INLOW, EDWARD A. JOHNSON, D. FLEET WALLACE, and GARY T.
WESCOMBE, as Trustees of the G REIT Liquidating Trust dated
January 22, 2008, and NNN REALTY ADVISORS, INC., a Delaware
corporation (individually and collectively, “
Indemnitor ”), as a condition of, and to induce
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association
(“ 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 $28,000,000.00
(the “ Note ”). The Loan is secured or to be
secured by a Deed of Trust, Assignment, Security Agreement and
Fixture Filing (the “ Deed of Trust ”) 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 Deed of Trust have been paid and performed in full
and the Deed of Trust has been released; or (b) the date on
which the lien of the Deed of Trust 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.
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“
Default ” has the meaning ascribed to such term in the
Deed of Trust 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 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
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(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.
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“
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) Trustee; (c) any persons or entities owned
or controlled by, owning or controlling, or under common control or
affiliated with, Lender, any subsequent holder of the Note, and/or
Trustee; (d) any participants and co-lenders in the Loan;
(e) the directors, officers, partners, employees, attorneys
and agents of each of the foregoing persons and entities; and
(f) 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 Deed of Trust.
“
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.”
“
Trustee ” means the Trustee under the Deed of
Trust.
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 Deed of Trust:
(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
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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.
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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 obligated to, remove or cause the removal of any
Hazardous Material from the Property (or if removal is prohibited
by any Environmental Requirement, take or cause the taking of such
other action as is required by any Environmental Requirement) if
Obligors fail to promptly commence such remedial actions following
discovery and thereafter diligently prosecute the same to the
satisfaction of Lender (without limitation of Lender’s rights
to declare a Default under any of the Loan Documents and to
exercise all rights and remedies available by
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reason
thereof). After the occurrence and
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