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ENVIRONMENTAL INDEMNITY
AGREEMENT
This
Environmental Indemnity Agreement (this “ Agreement
”), which is dated as of December 19, 2007, is executed
by G&E HEALTHCARE REIT COUNTY LINE ROAD, 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 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 $8,853,000.00
(the “ Note ”). The Loan is secured or to be
secured by a Deed of Trust, 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 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 Bo
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