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

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