HAZARDOUS
SUBSTANCES INDEMNIFICATION AGREEMENT
THIS HAZARDOUS SUBSTANCES
INDEMNIFICATION AGREEMENT (this “Agreement” ) is
made as of January 2, 2007 by NNN Lenox Medical, LLC, a
Delaware limited liability company ( “Borrower
”) and Triple Net Properties, LLC , a Virginia limited
liability company (said individuals or entities are hereinafter
referred to jointly as “Guarantors” ) (Borrower
and the Guarantors are hereinafter collectively referred to as the
“Indemnitors” ) to and for the benefit of
LaSalle Bank National Association , a national banking
association, its successors and assigns (
“Lender” ).
R E C I T A L
S :
A. Lender has agreed to loan to
Borrower the principal amount of $12,000,000.00 (the
“Loan” ). The Loan shall be evidenced by a
certain Promissory Note of even date herewith (the
“Note” ), and shall be secured by, among other
things, that certain Guaranty of even date herewith) (the
“Guaranty” ) made by the Guarantors.
B. A condition precedent to
Lender’s extension of the Loan to Borrower is the execution
and delivery of this Agreement by Indemnitors.
C. Subsequent to the closing of
the Loan, subject to the terms of Paragraph 15 of the Security
Instrument (hereinafter defined), Borrower may transfer undivided
tenant in common interests in the Property (provided, however,
there may be no more than thirty-five (35) tenants in common
in the aggregate), including Borrower, with the consent of Lender,
as more specifically set forth in one or more Loan Assumption,
Ratification and Consent Agreement(s) by and between Borrower,
Guarantor, the tenant(s) in common and Lender executed concurrently
herewith or subsequently hereafter.
NOW, THEREFORE , for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Indemnitor hereby jointly and severally
agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.1.
Definitions . As used herein, the following terms
shall have the following meanings:
“
Asbestos ” : Asbestos or any substance containing
asbestos.
“
Environmental Law ” : Any present or future
federal, state and/or local law, statute, ordinance, code, rule,
regulation, license, authorization, decision, order, injunction or
decree and/or other governmental directive or requirement, as well
as common law, which pertains or relates to health, safety or the
environment (including but not limited to, ground or air or water
or noise pollution or contamination, and underground or aboveground
tanks) and shall include, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended ( “CERCLA” ), the Resource Conservation
and Recovery Act of 1976, as amended ( “RCRA” ),
and any state or federal lien or superlien or environmental
clean-up statutes, and regulations, rules, guidelines, or standards
promulgated pursuant thereto all as amended from time to time.
“
Environmental Report ” : The environmental report
dated November 30, 2006, prepared by LandAmerica Commercial
Services, a true, correct and complete copy of which has been
delivered to Lender.
“
Hazardous Substance ” : Any substance, whether
solid, liquid or gaseous: (i) 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 Law; or
(ii) which is or contains Asbestos, radon, any polychlorinated
biphenyl, urea formaldehyde foam insulation, explosive or
radioactive material, lead paint, microbial matter, biological
toxins, mold or mold spores, or motor fuel or other petroleum
hydrocarbons; or (iii) 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 or about the Property.
“
Release ” : Includes, but is not limited to, any
release, deposit, discharge, emission, leaking, spilling, seeping,
migrating, injecting, pumping, pouring, emptying, escaping,
dumping, disposing or other movement of Hazardous Substances.
“
Remediation ” : Any investigation, site
monitoring, containment, cleanup, removal, restoration, or other
activity of any kind which are reasonably necessary or desirable
under an applicable Environmental Law.
“
Security Instrument ” : That certain Deed of
Trust, Security Agreement and Fixture Filing, of even date
herewith, executed by Borrower for the benefit of Lender, covering
the Property more particularly described therein, including the
real property or interest therein described in
Exhibit A attached hereto and incorporated
herein by this reference.
“
Storage Tanks ” : Any underground or aboveground
storage tanks, whether full, empty, or partially full with any
substance.
Section 1.2. Other Defined
Terms . Any capitalized term utilized herein shall have the
meaning as specified in the Security Instrument, unless such term
is otherwise specifically defined herein.
ARTICLE II
WARRANTIES AND
REPRESENTATIONS
Indemnitors hereby represent and
warrant to Lender, to the best of Indemnitors’ knowledge,
after due inquiry and investigation, which was limited to providing
Lender the Environmental Report and any other reasonable
investigation as set forth in Section 2.5 below, as
follows:
Section 2.1. Property
Compliance . The Property and the operations conducted
thereon do not violate any Environmental Laws.
Section 2.2. No
Violations . Without limitation to Section 2.1
above, except as previously disclosed in writing to Lender, the
Property and operations conducted thereon by the current owner or
operator of the Property, are not the subject of any existing,
pending, or threatened action, suit, investigation, inquiry, or
proceeding by any governmental or nongovernmental entity or person
or to any Remediation under any Environmental Law.
Section 2.3.
Authorizations . All notices, permits, licenses,
registrations, or similar authorizations, if any, required to be
obtained or filed in connection with the ownership, operation, or
use of the Property, including, without limitation, the existence
of any Storage Tanks at the Property or the past or present
generation, treatment, storage, disposal, or release of a Hazardous
Substance into the environment, have been duly obtained or filed
and have been duly renewed or maintained.
Section 2.4. Hazardous
Substance . The Property does not contain any Hazardous
Substance in violation of applicable Environmental Laws or that
does or could present a threat to human health and safety. Except
as disclosed in writing to Lender, the Property does not contain
any Storage Tanks or Asbestos and the Property is not listed by any
governmental agency as containing any Hazardous Substance.
Section 2.5. Indemnitors
Investigation . Indemnitors have taken commercially
reasonable steps necessary to determine, and have determined, that
no Hazardous Substances are, have been or threatened to be
generated, treated, stored, used, disposed of or released on,
under, from, or about the Property except in compliance with
applicable Environmental Laws and/or as could not be anticipated to
result in a nuisance condition or threat to human health and
safety.
Section 2.6. Indemnitors
Compliance . Indemnitors have not undertaken, permitted,
authorized, or suffered and will not undertake, permit, authorize,
or suffer the presence, use, manufacture, handling, generation,
transportation, storage, treatment, discharge, release, burial, or
disposal on, under, from or about the Property of any Hazardous
Substance or the transportation to or from the Property of any
Hazardous Substance except in compliance with applicable
Environmental Laws and/or as could not be anticipated to result in
a nuisance condition or threat to human health and safety.
Section 2.7. No Pending
Litigation . Except as otherwise previously disclosed to
Lender in writing, there is no pending or threatened litigation,
proceedings, or investigations before or by any administrative
agency in which any person or entity alleges or is investigating
any alleged presence, release, threat of release, placement on,
under, from or about the Property, or the manufacture, handling,
generation, transportation, storage, treatment, discharge, burial,
or disposal on, under, from or about the Property, or the
transportation to or from the Property, of any Hazardous
Substance.
Section 2.8. No
Notices . Except as otherwise previously disclosed to
Lender in writing, Indemnitors have not received any notice, and
have no actual or constructive knowledge, that any governmental
authority or any employee or agent thereof has determined, or
threatens to determine, or is investigating any allegation that
there is a presence, release, threat of release, placement on,
under, from or about the Property, or the use, manufacture,
handling, generation, transportation, storage, treatment,
discharge, burial, or disposal on, under, from or about the
Property, or the transportation to or from the Property, of any
Hazardous Substance.
Section 2.9. No
Communications . Except as otherwise previously disclosed
to Lender in writing, there have been no communications or
agreements with any governmental authority thereof or any private
entity, including, but not limited to, any prior owners or
operators of the Property, relating in any way to the presence,
release, threat of release, placement on, under or about the
Property, or the use, manufacture, handling, generation,
transportation, storage, treatment, discharge, burial, or disposal
on, under or about the Property, or the transportation to or from
the Property, of any Hazardous Substance, except for communications
made in the ordinary course of business in connection with permits,
reports, and routine inspections issued, prepared or conducted by
government agencies or authorities having jurisdiction over the
Property.
Section 2.10. Other
Properties . Neither Indemnitors, nor, to the best
knowledge of Indemnitors, any other person, including, but not
limited to, any predecessor owner, tenant, licensee, occupant,
user, or operator of all or any portion of the Property, has ever
caused, permitted, authorized or suffered, and Indemnitors will not
cause, permit, authorize, or suffer, any Hazardous Substance to be
placed, held, located, or disposed of, on, under or about any other
real property, all or any portion of which is legally or
beneficially owned (or any interest or estate therein which is
owned) by Indemnitors in any jurisdiction now or hereafter having
in effect a so-called “superlien” law or ordinance or
any part thereof, the effect of which law or ordinance would be to
create a lien on the Property to secure any obligation in
connection with the “superlien” law of such other
jurisdiction.
Section 2.11.
Permits . Borrower has been issued all required
federal, state, and local licenses, certificates, or permits
relating to, and Borrower and the Property are in compliance in all
respects with all applicable Environmental Laws, including but not
limited to, federal, state, and local laws, rules, and regulations
relating to, air emissions, water discharge, noise emissions, solid
or liquid waste disposal, hazardous waste or materials, or other
environmental, health, or safety matters.
Section 2.12. Release To
Property . There is no threat of any Release of any
Hazardous Substance migrating to the Property except as described
in the Environmental Report.
Section 2.13. All
Information . Indemnitors have truthfully and fully
provided to Lender, in writing, any and all information relating to
environmental conditions in, on, under or from the Property known
to Indemnitors or contained in Indemnitors’ files and
records, including but not limited to any reports relating to any
Hazardous Substance in, on, under or migrating to or from the
Property and/or to the environmental condition of the Property.
ARTICLE III
AFFIRMATIVE
COVENANTS
Indemnitors hereby unconditionally
covenant and agree with Lender, until the entire Loan (as defined
in the Note) shall have been paid in full and all of the
obligations of Borrower under the Loan Documents shall have been
fully performed and discharged, as follows:
Section 3.1.
Operations . Borrower shall not use, generate,
manufacture, produce, store, release, discharge, treat, or dispose
of on, under, from or about the Property or transport to or from
the Property any Hazardous Substance or allow any other person or
entity to do so except in compliance with Environmental Laws.
Borrower shall not install or permit to be instal
