ENVIRONMENTAL INDEMNITY AGREEMENT
Exhibit 10.45
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (“Agreement”) made as of July 6, 2010, by TNP
SRT NORTHGATE PLAZA TUCSON, LLC, a Delaware limited liability company (“Borrower”), and TNP
STRATEGIC RETAIL TRUST, INC., a Maryland corporation (“Guarantor”) (Borrower and Guarantor are
hereinafter collectively referred to as “Indemnitors”), in favor of THRIVENT FINANCIAL FOR
LUTHERANS, a Wisconsin corporation (“Indemnitee”), and the other Indemnified Parties (defined
below).
RECITALS
A. Subject to the provisions of that certain Assumption and Second Modification
Agreement of even date herewith (the “Assumption Agreement”), by and among CRESTLINE INVESTMENTS,
L.L.C., an Arizona limited liability company (“Assignor”), as Assignor, Borrower, as Assignee, and
Indemnitee, as Lender, Borrower is, or will be, the owner of the real property described in
Exhibit A attached hereto and incorporated herein by this reference (the “Premises”).
B. The Premises is subject to liens of, among other things, (i) that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing dated July 10, 2002 (the “Original Deed
of Trust”), made by Assignor, as Trustor, to a trustee for the use and benefit of Indemnitee, as
Beneficiary, and recorded July 10, 2002, in Docket 11838, page 269, in the office of the Pima
County Recorder (all recording information contained herein refers to recordings in the office of
the Pima County Recorder), as modified by that certain Modification Agreement dated June 22, 2004
(the “Modification”), by and between Indemnitee, as Lender, and Assignor, as Borrower, and recorded
June 25, 2004, in Docket 12331, page 1269, (the Original Deed of Trust, as modified by the
Modification, is hereinafter referred to as the “Security Instrument”); and (ii) that certain
Assignment of Rents and Leases dated July 10, 2002 (the “Original Lease Assignment”), from
Assignor, as Borrower, to Indemnitee, as Lender, and recorded July 10, 2002, in Docket 11838,
page 302, as modified by the Modification, (the Original Lease Assignment, as modified by the
Modification, is hereinafter referred to as the “Lease Assignment”), which are liens against the
real property described in Exhibit A attached hereto and incorporated herein by this reference (the
“Premises”). The Security Instrument and the Lease Assignment are sometimes hereinafter
collectively referred to as the “Security Documents”.
C. The Security Documents secure, among other things, payment of the indebtedness evidenced by
that certain Promissory Note made by Assignor to the order of Indemnitee dated July 10, 2002 (the
“Original Note”), in the face amount of FIVE MILLION THREE HUNDRED THOUSAND DOLLARS ($5,300,000),
which Original Note was amended and restated by that certain Amended and Restated Promissory Note
dated June 22, 2004 (the “Restated Note”), in the face amount of FIVE MILLION THREE HUNDRED
THOUSAND DOLLARS ($5,300,000), made by Assignor to the
LOAN NO. 00-0000000
2324568.2/ENVIRONMENTAL INDEMNITY/CRESTLINE 2010 ASSUMPTION
order of Indemnitee, (the Original Note, as amended and restated by the Restated Note, is
hereinafter referred to as the “Note”).
D. Indemnitee consented to the transfer of the Premises from Assignor to Borrower (the
“Transfer”), and the assumption by Borrower of the loan evidenced by the Note and secured by the
Security Documents, on the terms and conditions contained in the Assumption Agreement and in that
certain consent to transfer letter dated June 3, 2010 (the “Transfer Consent”), from Indemnitee to
Assignor.
E. Indemnitors enter into this Agreement to induce Indemnitee to consent to the Transfer and
to satisfy certain of the conditions specified in the Transfer Consent. Indemnitors acknowledge
that Indemnitee would not permit the Transfer unless Indemnitors execute and deliver this
Agreement to Indemnitee, and intend that Indemnitee shall rely on this Agreement in consenting
to the Transfer and permitting the Assumption.
AGREEMENT
NOW THEREFORE, in consideration of the above recitals and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Indemnitors hereby
represent, warrant, covenant and agree for the benefit of Indemnified Parties as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
(a) The term “Hazardous Substances or Wastes” includes but is not limited to any and
all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as
pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous
wastes, or words of similar meaning or regulatory effect under any present or future
Environmental Laws or that may have a negative impact on human health or the environment
including, but not limited to, petroleum and petroleum products, asbestos and
asbestos-containing materials, polychlorinated biphenyls, lead, radon,
radioactive materials, flammables, explosives and mold.
(b) The term “Environmental Law” means any present and future federal, state and local
laws, statutes, ordinances, rules, regulations and the like, as well as common law,
relating to protection of human health or the environment, relating to Hazardous
Substances or Wastes, relating to liability for or costs of Remediation or prevention of
Releases of Hazardous Substances or Wastes or relating to liability for or costs of other
actual or threatened danger to human health or the environment. The term “Environmental Law”
includes, but is not limited to, the following statutes, as amended, any successor thereto,
and any regulations promulgated pursuant thereto, and any state or local statutes,
ordinances, rules, regulations and the like addressing similar issues: the
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Comprehensive Environmental Response, Compensation and Liability Act; the Emergency
Planning and Community Right-to-Know Act; the Hazardous Materials Transportation Act; the Resource
Conservation and Recovery Act (including, but not limited to, Subtitle I relating to underground
storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic
Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the
Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the
Endangered Species Act; the National Environmental Policy Act; and the River and Harbors
Appropriation Act. The term “Environmental Law” also includes, but is not limited to, any present
and future federal, state and local laws, statutes, ordinances, rules, regulations and the like,
as well as common law: conditioning transfer of property upon a negative declaration or other
approval of a governmental authority of the environmental condition of the property requiring
notification or disclosure of Releases of Hazardous Substances or Wastes or other environmental
condition of the Premises to any governmental authority or other person or entity, whether or not
in connection with transfer of title to or interest in property; imposing conditions or
requirements in connection with permits or other authorization for lawful activity; relating to
nuisance, trespass or other causes of action related to the Premises; and relating to wrongful
death, personal injury, or property or other damage in connection with any physical condition or
use of the Premises.
(c) The term “Release” with respect to any Hazardous Substances or Wastes includes, but is not
limited to, any release, deposit, discharge, emission, leaking, leaching, spilling, seeping,
migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other
movement of Hazardous Substances or Wastes.
(d) The term “Remediation” includes but is not limited to any response,
remedial, removal, or corrective action; any activity to clean up, detoxify, decontaminate,
contain or otherwise remediate any Hazardous Substances or Wastes; any actions to
prevent, cure or mitigate any Release of any Hazardous Substances or Wastes; any action
to comply with any Environmental Laws or with any permits issued pursuant thereto; any
inspection, investigation, study, monitoring, assessment, audit, sampling and
testing, laboratory or other analysis, or evaluation relating to any Hazardous Substances or Wastes
or to anything referred to herein.
(e) The term “Legal Action” means any claim, suit or proceeding, whether administrative or
judicial in nature.
(f) The term “Indemnified Parties” includes Indemnitee, any person or entity who is or will
have been involved in the origination of the Loan, any person or entity who is or will have been
involved in the servicing of the Loan, any person or entity in whose name the encumbrance created
by the Security Instrument is or will have been recorded, persons and entities who may hold or
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acquire or will have held a full or partial interest in the Loan, including, but
not limited to, custodians, trustees and other fiduciaries who hold or have held a full or
partial interest in the Loan for the benefit of third parties.
(g) The term “Losses” includes any losses, damages, costs, fees, expenses, claims,
suits, judgments, awards, liabilities (including, but not limited to, strict liabilities),
obligations, debts, diminutions in value, fines, penalties, charges, costs of Remediation
(whether or not performed voluntarily), amounts paid in settlement, foreseeable and
unforeseeable consequential damages, litigation costs, attorneys’ fees, engineers’ fees,
environmental consultants’ fees, and investigation costs (including, but not limited to,
costs for sampling, testing and analysis of soil, water, air, building materials, and other
materials and substances whether solid, liquid or gas), of whatever kind or nature, and
whether or not incurred in connection with any judicial or administrative proceedings,
actions, claims, suits, judgments or awards.
2. Indemnitor Representations and Warranties. Each Indemnitor
represents and warrants to Indemnitee that:
(a) If Indemnitor is a corporation, partnership, limited liability company or trust, it
is duly organized, validly existing and in good standing under the laws of the state of its
organization, is duly qualified to do business in all states in which it is required to be
so qualified, and has all requisite power and authority to enter into this Agreement and to
perform its obligations hereunder; the execution, delivery and performance of this Agreement
by Indemnitor has been duly and validly authorized; and all requisite action has been taken
by Indemnitor to make this Agreement valid and binding upon Indemnitor, enforceable in
accordance with its terms.
(b) If Indemnitor is an individual, such individual is of legal age, is under no legal
disability and is fully competent to make, execute and deliver this Agreement.
(c) If Indemnitor is a corporation, partnership, limited liability company or trust,
neither the execution and delivery of this Agreement nor the performance of
the provisions of the agreements herein contained on the part of Indemnitor will contravene,
violate or constitute a default under the organizational and other governing instruments of
such Indemnitor or result in the breach of any term or provision of, or conflict with or
constitute a default under or result in the acceleration of any obligation under any
agreement, indenture, loan or credit agreement or other instrument to which Indemnitor or
the Premises is subject or result in the violation of any law, rule, regulation, order,
judgment or decree to which Indemnitor or the Premises is subject.
(d) If Indemnitor is an individual, neither the execution and delivery of this
Agreement nor the performance of the provisions of the agreements herein
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contained on the part of such Indemnitor will result in the breach of any term
or provision of, or conflict with or constitute a default under or result in the
acceleration of any obligation under any agreement, indenture, loan or credit agreement or
other instrument to which Indemnitor or the Premises is subject or result in the violation
of any law, rule, regulation, order, judgment or decree to which Indemnitor or the Premises
is subject.
(e) There are no (i) bankruptcy proceedings involving Indemnitor and none is
contemplated; (ii) dissolution proceedings involving Indemnitor and none is contemplated;
(iii) unsatisfied judgments of record against Indemnitor; or (iv) tax liens filed against
Indemnitor.
(f) This Agreement has been duly executed and delivered by Indemnitor
and constitutes the legal, valid and binding obligation of Indemnitor, enforceable in
accordance with its terms, except as to enforcement of remedies, as may be limited by
bankruptcy, insolvency or similar laws affecting generally the exercise and enforcement of
creditor’s rights and remedies.
(g) There are no judgments, suits, actions or proceedings at law or in equity or by or
before any governmental instrumentality or agency now pending against or, to the best of
Indemnitor’s knowledge, threatened against or affecting Indemnitor or Indemnitor’s assets,
or both, nor has any judgment, decree or order been issued against Indemnitor or
Indemnitor’s assets, or both.
(h) No consent or approval of any regulatory authority having jurisdiction over
Indemnitor is necessary or required by law as a prerequisite to the execution, delivery and
performance of the terms of this Agreement.
(i) Indemnitor is not, to the extent such would have a material adverse effect on
Indemnitor and as of the date hereof, (i) in default in the payment or performance of any
of Indemnitor’s obligations in connection with borrowed money or any other major
obligation, or (ii) in default under any other contract or agreement to which Indemnitor is
a party.
(j) Any and all balance sheets, net worth statements and other financial statements
and data which have heretofore been given to Indemnitee with respect to Indemnitor fairly
and accurately represent the financial condition of Indemnitor as of the date thereof, and,
since the date thereof, there has been no material adverse change in the financial
condition of Indemnitor.
3. Environmental Representations and Warranties. To the best of Indemnitors’
knowledge, based solely upon the “Environmental Report” (as hereinafter defined), (a) there are no
Hazardous Substances or Wastes or underground storage tanks in, on, or under the Premises, except
those that are both (i) in compliance with all Environmental Laws and with permits issued pursuant
thereto and (ii) fully disclosed to Indemnitee in writing pursuant to the written report(s)
resulting from the environmental
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assessment(s) of the Premises delivered to Indemnitee (such report(s) are identified in
Exhibit “B” attached hereto and are referred to below collectively as the “Environmental Report”);
(b) there are no past, present or threatened Releases of Hazardous Substances or Wastes in, on,
under or from the Premises except as described in the Environmental Report; (c) there is no threat
of any Release of Hazardous Substances or Wastes migrating to the Premises except as described in
the Environmental Report; (d) there is no past or present non-compliance with Environmental Laws,
or with permits issued pursuant thereto, in connection with the Premises, except as described in
the Environmental Report; (e) Indemnitors do not know of, and have not received, any written
notice or other communication from any person or entity (including, but not limited to, a
governmental entity) relating to Hazardous Substances or Wastes or Remediation thereof, of
possible liability of any person or entity pursuant to any Environmental Law, other environmental
conditions in connection with the Premises, or any actual or potential administrative or judicial
proceedings in connection with any of the foregoing; and (f) Indemnitors have truthfully and fully
provided to Indemnitee, in writing, any and all information relating to conditions in, on, under
or from the Premises that is known to any Indemnitor and that is contained in files and records of
any Indemnitor including, but not limited to, any reports relating to Hazardous Substances or
Wastes in, on, under or from the Premises and/or to the environmental condition of the Premises.
4. Environmental Covenants. Indemnitors covenant and agree that: (a) all uses and
operations on or of the Premises, by Indemnitors or any other person or entity, shall be in
material compliance with all Environmental Laws and permits issued pursuant thereto; (b) there
shall be no Releases of Hazardous Substances or Wastes in, on, under or from the Premises by
Indemnitors or anyone controlled by, controlling or under common control with Indemnitors; (c)
Indemnitors shall keep the Premises free and clear of all liens and other encumbrances imposed
pursuant to any Environmental Law, whether due to any act or omission of Indemnitors or any other
person or entity (the “Environmental Liens”); (d) Indemnitors shall, at their sole cost and
expense, perform any environmental site assessment or other investigation of environmental
conditions in connection with the Premises, pursuant to any written request of Indemnitee (provided
that such request is made based upon Indemnitee’s reasonable belief that there are Hazardous
Substances or Wastes in, or under the Premises which are not in compliance with Environmental
Laws), and share with Indemnitee the reports and other results thereof, and Indemnitee and other
Indemnified Parties shall be entitled to rely on such reports and other results thereof; (e)
Indemnitors shall, at their sole cost and expense, comply with all written requests of Indemnitee
to (i) effectuate Remediation of any condition (including, but not limited to, a Release of a
Hazardous Substance) in, on, under or from the Premises; (ii) comply with any Environmental Law;
(iii) comply with any directive from any governmental authority; and (iv) take any other action
necessary or appropriate for protection of human health or the environment; (f) Indemnitors shall
not do or knowingly allow any tenant or other user of the Premises to do any act that materially
increases the dangers to human health or the environment, poses an unreasonable risk of harm to any
person or entity (whether on or off the
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Premises), impairs or may impair the value of the Premises, is contrary to any requirement
of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any
covenant, condition, agreement or easement applicable to the Premises; and (g) Indemnitors shall
immediately notify Indemnitee in writing of (i) any presence or Releases or threatened Releases of
Hazardous Substances or Wastes in, on, under, from or migrating towards the Premises; (ii) any
non-compliance with any Environmental Laws related in any way to the Premises; (iii) any actual or
potential Environmental Lien; (iv) any required or proposed Remediation of environmental
conditions relating to the Premises; and (v) any written or oral notice or other communication of
which any Indemnitor becomes aware from any source whatsoever (including, but not limited to, a
governmental entity) relating in any way to Hazardous Substances or Wastes or Remediation thereof,
possible liability of any person or entity pursuant to any Environmental Law, other environmental
conditions in connection with the Premises, or any actual or potential administrative or judicial
proceedings in connection with anything referred to in this Agreement.
5. Indemnified Parties’ Rights/Cooperation and Access. The Indemnified Parties and any
other person or entity designated by Indemnified Parties (including, but not limited to, any
receiver, any representative of a governmental entity and any environmental consultant), shall have
the right but not the obligation to enter upon the Premises at all reasonable times to assess any
and all aspects of the environmental condition of the Premises and its use including, but not
limited to, conducting any environmental assessment or audit (the scope of which shall be
determined in Indemnitee’s sole and absolute discretion) and taking samples of soil, groundwater
or other water, air or building materials, and conducting other invasive testing; provided,
however, that Indemnified Parties shall not conduct such testing or assessments unless there has
been an Event of Default under the Loan Documents, or Indemnified Parties have a reasonable belief
or expectation that there exists a violation of an Environmental Law or an actual or threatened
release of Hazardous Substances or Wastes on the Premises. Indemnitors shall cooperate with and
provide access to the Indemnified Parties and any such person or entity designated by the
Indemnified Parties. All such investigations shall be performed at
Indemnitors, sole
cost and expense.
6. Indemnification. Indemnitors covenant and agree at their sole cost and expense,
to protect, defend, indemnify, release and hold Indemnified Parties harmless from and against and
actually incurred by any and all Losses imposed upon or incurred by or asserted against any
Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or
more of the following: (a) the past, present or future presence, Release or threatened Release of
any Hazardous Substances or Wastes in, on, above, or under the Premises; (b) any past, present or
threatened non-compliance or violations of any Environmental Laws (or permits issued
pursuant to any Environmental Law) in connection with the Premises or operations thereon; (c)
any legal or administrative processes or proceedings or judicial proceedings in any way
connected with any matter addressed in this Agreement; (d) any personal injury, wrongful death, or
property or other damage arising under any statutory or common law
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or tort law theory concerning Hazardous Substances or Wastes; and (e) any
misrepresentation or inaccuracy in any representation or warranty or material breach or failure to
perform any covenants or other obligations in this Agreement or any covenants which are related to
Hazardous Substances or Wastes or Environmental Law.
7. Duty to Defend and Attorneys and Other Fees and Expenses. Upon written request by
any Indemnified Party, Indemnitors shall defend and provide legal representation for such
Indemnified Party with respect to any of the matters referenced in Section 6 above (if requested by
any Indemnified Party, in the name of the Indemnified Party) by attorneys and other professionals
approved by the Indemnified Parties. Notwithstanding the foregoing, any Indemnified Parties may,
in their sole and absolute discretion, engage their own attorneys and other professionals to defend
or assist them with respect to such matters, and, at the option of Indemnified Parties, their
attorneys shall control the resolution of such matters. Upon demand, Indemnitors shall pay or, in
the sole and absolute discretion of the Indemnified Parties, reimburse, the Indemnified Parties for
the payment of fees and disbursements of attorneys, engineers, environmental consultants,
laboratories and other professionals in connection therewith.
8. Unimpaired Liability. The liability of Indemnitors under this Agreement shall in
no way be limited or impaired by, and Indemnitors hereby consent to and agree to be bound by, any
amendment or modification of the provisions of the Note, the Security Instrument or any of the
other “Loan Documents” (as hereinafter defined). In addition, the liability of Indemnitors under
this Agreement shall in no way be limited or impaired by (i) any extensions of time for performance
required by the Note, the Security Instrument or any of the other Loan Documents, (ii) any sale or
transfer of all or part of the Premises, (iii) any exculpatory provision in the Note, the Security
Instrument, or any of the other Loan Documents limiting Indemnitee’s recourse to the Premises or to
any other security for the Note, or limiting Indemnitee’s rights to a deficiency judgment against
Indemnitors, (iv)the accuracy or inaccuracy of the representations and warranties made by
Indemnitors under the Note, the Security Instrument or any of the other Loan Documents or herein,
(v) the release of any Indemnitor or any other person from performance or observance of any of the
agreements, covenants, terms or condition contained in any of the other Loan Documents by
operation of law, Indemnitee’s voluntary act, or otherwise, (vi) the release or substitution in
whole or in part of any security for the Note, or (vii) Indemnitee’s failure to record the Security
Instrument or file any UCC financing statements (or Indemnitee’s improper recording or filing of
any thereof) or to otherwise perfect, protect, secure or insure any security interest or lien given
as security for the Note; and, in any such case, whether with or without notice to Indemnitors and
with or without consideration.
9. Enforcement. The Indemnified Parties may enforce the obligations of Indemnitors
without first resorting to or exhausting any security or collateral or without first having
recourse to the Note, the Security Instrument or any other Loan Documents or any of the Premises,
through foreclosure proceedings or otherwise, provided,
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however, that nothing herein shall inhibit or prevent Indemnitee from suing on the Note,
foreclosing, or exercising any power of sale under, the Security Instrument, or exercising any
other rights and remedies thereunder. This Agreement is not collateral or security for the debt of
Indemnitors pursuant to the Loan. It is not necessary for an “Event of Default” (as defined in the
Security Instrument) to have occurred for the Indemnified Parties to exercise their rights
pursuant to this Agreement. Notwithstanding any provision of the Security Instrument, the
obligations pursuant to this Agreement are exceptions to any non-recourse or exculpation provision
of the Security Instrument; Indemnitors are fully and personally liable for such obligations, and
Indemnitors, liability is not limited to the original or amortized principal balance of
the Loan or the value of the Premises.
10. Survival. The obligations and liabilities of Indemnitors under this
Indemnity shall fully survive indefinitely notwithstanding any termination, satisfaction,
assignment, entry of a judgment of foreclosure, exercise of any power of sale, or delivery of a
deed in lieu of foreclosure of the Security Instrument.
11. Interest. Any amounts payable to any Indemnified Parties under this Agreement
shall become immediately due and payable on demand and, if not paid within ten (10) days of such
demand therefor, shall bear interest at the rate of twelve percent (12%) per annum, from the date
payment was due.
12. Waivers. Indemnitors unconditionally waive the following defenses to
enforcement of this Agreement: (i) all presentments, demands, demands for
performance, notices of nonperformance, protests, notices of protest, dishonor,
nonpayment, partial payment, default and protest, notices of acceptance of this Agreement and
all other notices and formalities to which Indemnitors may be entitled; (ii) any right to require
Indemnitee to proceed against Borrower or any guarantor or to proceed against or exhaust any
collateral described in the Note, the Security Instrument or any other document securing the Loan
(the “Loan Documents”); (iii) any defense arising by reason of any invalidity or unenforceability
of any of the Loan Documents or any disability of Borrower or any guarantor; (iv) any defense
arising by reason of the manner in which Indemnitee has exercised its remedies under the Loan
Documents; (v) any defense based upon an election of remedies by Indemnitee; and (vi) any right of
subrogation and any rights to enforce any remedy which Indemnitee now has or may hereafter have
against Borrower and any benefit of, and any right to participate in, any security now or hereafter
held by Indemnitee.
13. Subrogation. Indemnitors shall take any and all actions, including
institution of legal action against third-parties, necessary or appropriate to obtain
reimbursement, payment or compensation from such persons responsible for the presence of any
Hazardous Substances or Wastes at, in, on, under or near the Premises or otherwise obligated by law
to bear the cost. The Indemnified Parties shall be and hereby are subrogated to all of Indemnitors’
rights now or hereafter in such claims.
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14. Notice of Legal Actions. Each party hereto shall, within five (5)
business days of receipt thereof, give written notice to the other party hereto of (i) any notice,
advice or other communication from any governmental entity or any source whatsoever with respect to
Hazardous Substances or Wastes on, from or affecting the Premises, and (ii) any Legal Action
brought against such party or related to the Premises, with respect to which any Indemnitor may
have liability under this Agreement. Such notice shall comply with the provisions of Section 26
hereof.
15. Examination of Books and Records. The Indemnified Parties and their accountants
shall have the right to examine the records, books, management and other papers of Indemnitors
which reflect upon their financial condition, at the Premises or at any office regularly maintained
by Indemnitors where the books and records are located. The Indemnified Parties and their
accountants shall have the right to make copies and extracts from the foregoing records and other
papers. In addition, the Indemnified Parties and their accountants shall have the right to
examine and audit the books and records of Indemnitors pertaining to the income, expenses and
operation of the Premises during reasonable business hours at any office of Indemnitors where the
books and records are located.
16. Survival of Indemnities. The indemnities given in this Agreement are in addition
to and separate from those set forth in the Security Instrument. The indemnities given in this
Agreement are given in consideration of Indemnitee making the Loan to Borrower but are not given as
security for repayment of the Loan and shall fully survive repayment of the Loan, the foreclosure
of the Security Instrument, and/or acceptance of a deed in lieu of foreclosure; provided, however,
that Indemnitors obligations hereunder shall not extend to any violations of Environmental Law or
Releases of Hazardous Substances or Wastes occurring after the date of any foreclosure sale,
recordation of any deed in lieu of foreclosure or any other transfer of the Premises to a party
which is not an affiliate of Indemnitors.
17. Release of Liability. Any one or more parties liable upon or in respect of this
Agreement may be released without affecting the liability of any party not so released.
18. Governing Law. This Agreement and the rights and obligations of all parties
hereunder shall be governed by and construed in accordance with the laws of the state or
commonwealth in which the Premises are located.
19. Jurisdiction. The parties hereto irrevocably (a) agree that any suit, action or
other legal proceeding arising out of or relating to this Agreement may be brought in a court of
record in the state or commonwealth in which the Premises are located or in the courts of the
United States of America located in such state or commonwealth, (b) consent to the non-exclusive
jurisdiction of each such court in any suit, action or proceeding, and (c) waive any objection
which it may have to the laying of venue of any such suit, action or proceeding in any of such
courts and any claim that any such suit, action or proceeding has been brought in an inconvenient
forum. Nothing contained
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herein shall prevent Indemnitee from bringing any action or exercising any rights
against any security given to Indemnitee by Indemnitors, or against Indemnitors personally, or
against any property of Indemnitors, within any other state. Commencement of any such action or
proceeding in any other state shall not constitute a waiver of the agreement as to the laws of the
state which shall govern the rights and obligations of Indemnitors and Indemnitee hereunder.
20. Indemnitors Not Released. No delay or omission of Indemnitee to exercise any of
its rights and remedies under this Agreement shall constitute a waiver of the right of Indemnitee
to exercise such rights and remedies at a later time. The acceptance by Indemnitee of payment of
any sum payable hereunder after the due date of such payment shall not be a waiver of Indemnitee’s
right to either require prompt payment when due of all other sums payable hereunder or to declare a
default for failure to make prompt payment.
21. Captions. The captions to the Sections of this Agreement are for convenience
only and shall not be deemed part of the text of the respective Sections and shall not vary, by
implication or otherwise, any of the provisions of this Agreement.
22. Severability. The parties hereto intend and believe that each provision of this
Agreement comports with all applicable local, state and federal laws and judicial decisions.
However, if any provision or any portion of any provision contained in this Agreement is held by a
court of law to be invalid, illegal, unlawful, void or unenforceable as written in any respect,
then it is the intent of all parties hereto that such portion or provision shall be given force to
the fullest possible extent that it is legal, valid and enforceable, that the remainder of the
Agreement shall be construed as if such illegal, invalid, unlawful, void or unenforceable portion
or provision was not contained therein, and the rights, obligations and interests of Indemnitors
and Indemnitee under the remainder of this Agreement shall continue in full force and effect.
23. Successors and Assigns. The provisions of this Agreement shall be binding upon
Indemnitors and upon Indemnitors’ heirs, administrators, representatives, executors, successors and
assigns and shall inure to the benefit of Indemnitee and its successors and assigns. As used
herein the words “successors and assigns” shall also be deemed to include the heirs,
representatives, administrators and executors of any natural person who is a party to this
Agreement.
24. Remedies Cumulative. The remedies of Indemnitee as provided in this Agreement and
in the Note, the Security Instrument and any other Loan Document and the warranties contained
herein or therein shall be cumulative and concurrent, may be pursued singly, successively or
together at the sole discretion of Indemnitee, may be exercised as often as occasion for their
exercise shall occur and in no event shall the failure to exercise any such right or remedy be
construed as a waiver or release of such right or remedy. No remedy under this Agreement or under
the Note, the Security Instrument and any other Loan Document conferred upon or reserved to
Indemnitee is intended to be exclusive of any other remedy provided in this Agreement or in any
other
11
Loan Document or provided by law, but each shall be cumulative and shall be in addition
to every other remedy given under this Agreement or in the Note, the Security Instrument and any
other Loan Document or now or hereafter existing at law or in equity or by statute.
25. No Oral Modification. No waiver, amendment, release or modification of this
Agreement shall be made orally or shall be established by conduct, custom or course of dealing but
only by an instrument in writing duly executed by Indemnitee and Indemnitors.
26. Notices. Any notice which any party hereto may desire or may be required to
give to any other party shall be in writing and either (a) mailed by certified mail, return receipt
requested, or (b) sent by a nationally recognized overnight carrier which provides for a return
receipt. Any such notice shall be sent to the respective party’s addresses as set forth below or
to such other address as such party may, by notice in writing, designate as its address:
| Indemnitors: | TNP SRT Northgate Plaza Tucson, LLC c/o Thompson National Properties, LLC 0000 Xxxx Xxxxxx Xxxxx 000 Xxxxxx, Xxxxxxxxxx 00000 Attention: Xx. Xxxxx Xxxxx TNP Strategic Retail Trust, Inc. c/o Thompson National Properties, LLC 0000 Xxxx Xxxxxx Xxxxx 000 Xxxxxx, Xxxxxxxxxx 00000 Attention: Xx. Xxxxx Xxxxx |
| Indemnitee: | Thrivent Financial for Lutherans Attention: Loan Administration — Mortgages and Real Estate 000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxxx, Xxxxxxxxx 00000 |
Any such notice shall constitute service of notice hereunder three (3) days after the mailing
thereof by certified mail or one (1) day after the sending thereof by overnight carrier.
27. Joint and Several Liability. The promises and agreements herein shall be
construed to be and are hereby declared to be the joint and several promises and agreements of
Indemnitors and shall constitute the joint and several obligations of Indemnitors and shall be
fully binding upon and enforceable against all of Indemnitors. Neither the death nor release of any
person or party to this Agreement shall affect or release the joint and several liability of any
other person or party. Indemnitee may at its
12
option enforce this Agreement against one or all of Indemnitors, and Indemnitee shall not
be required to resort to enforcement against each of Indemnitors and the failure to proceed
against or join any of Indemnitors shall not affect the joint and several liability of any of the
other Indemnitors.
28. WAIVER OF JURY TRIAL. INDEMNITEE BY ITS ACCEPTANCE HEREOF AND
INDEMNITORS HEREBY VOLUNTARILY, KNOWINGLY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT,
REGARDLESS OF WHETHER SUCH ACTION OR PROCEEDING CONCERNS ANY CONTRACTUAL OR TORTIOUS OR
OTHER CLAIM. INDEMNITORS ACKNOWLEDGE THAT THIS WAIVER OF JURY TRIAL IS A
MATERIAL INDUCEMENT TO INDEMNITEE IN EXTENDING CREDIT TO BORROWER, THAT INDEMNITEE WOULD NOT HAVE
EXTENDED SUCH CREDIT WITHOUT THIS JURY TRIAL WAIVER, AND THAT INDEMNITORS HAVE BEEN REPRESENTED BY
AN ATTORNEY OR HAVE HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN
CONNECTION WITH THIS JURY TRIAL WAIVER AND UNDERSTAND THE LEGAL EFFECT OF THIS
WAIVER.
29. Counterparts. This Agreement may be executed in one or more
counterparts by some or all of the parties hereto, each of which counterparts shall be an original
and all of which together shall constitute a single Agreement. The failure of any party hereto to
execute this Agreement, or any counterpart hereof, shall not relieve the other signatories from
their obligations hereunder.
30. Incorporation of State Law Provisions. Certain provisions/sections of this
Agreement and certain additional provisions/sections that are required by laws of the State or
Commonwealth in which the Premises are located may be amended, described and/or otherwise set forth
in more detail on Exhibit “C” attached hereto, which such Exhibit by this reference, is
incorporated into and made a part of this Agreement. In the event of any conflict between such
state law provisions and any provision herein, the state law provisions shall control.
31. Dating of this Agreement. Indemnitors hereby authorize Indemnitee to date this
Agreement with the date on which the Assumption Agreement is offered for recordation in the office
of the Pima County Recorder.
13
IN WITNESS WHEREOF, this Environmental Indemnity Agreement has been
executed and delivered by Indemnitors to be effective (although not necessarily signed) as of
the day and year first above written.
| BORROWER | ||||||||||||
| TNP SRT NORTHGATE PLAZA TUCSON, LLC, a Delaware limited liability company |
||||||||||||
| By: | TNP SRT NORTHGATE PLAZA TUCSON HOLDINGS, LLC, a Delaware limited liability company Its Sole Member |
|||||||||||
| By: | TNP STRATEGIC RETAIL OPERATING PARTNERSHIP, LP, a Delaware limited partnership Its Sole Member |
|||||||||||
| By: | TNP STRATEGIC RETAIL
TRUST, INC., a Maryland corporation General Partner |
|||||||||||
| By Name |
/s/ Xxxxx Xxxxxxxxx
|
|||||||||||
| Title | CFO | |||||||||||
| GUARANTOR | ||||||||||||
| TNP STRATEGIC RETAIL TRUST, INC., a Maryland corporation |
||||||||||||
| By | /s/ Xxxxx Xxxxxxxxx | |||||||||||
| Name | Xxxxx Xxxxxxxxx | |||||||||||
| Title | CFO | |||||||||||
14
STATE OF CALIFORNIA
|
) | |||
| ) ss. | ||||
County of Orange
|
) | |||
On
June 29, 2010, before me, Bhriza Xxxxxxx, a Notary Public, personally appeared Xxxxx Xxxxxxxxx, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS
my hand and official seal.
| Signature: | /s/ Bhriza Xxxxxxx
|
(Seal) |
15
LEGAL DESCRIPTION
The land referred to in this document is situated in the County of Pima, State of Arizona and is
described as follows:
A portion of the Southwest quarter of the Southwest quarter of the Southwest quarter of Section
34, Township 13 South, Range 14 East, Gila and Salt River Base and Meridian, Pima County, Arizona,
more particularly described as follows:
COMMENCING at the Southwest corner of said Section 34 being monumented by a brass cap in casting;
THENCE North 00 degrees 28 minutes 39 seconds West, along the West line of said Section 34, a
distance of 60.00 feet;
THENCE North 89 degrees 53 minutes 28 seconds East, parallel to the South line of said Section 34,
a distance of 60.00 feet to the POINT OF BEGINNING, monumented by a 1/2 inch rebar tagged “LS
4399”;
THENCE North 00 degrees 28 minutes 39 seconds West, parallel to the West line of said Section 34,
a distance of 15.00 feet to a point, monumented by a 1/2 inch rebar tagged “LS 4399”;
THENCE North 04 degrees 05 minutes 42 seconds East, a distance of 125.43 feet to a chiseled “X”;
THENCE North 00 degrees 28 minutes 39 seconds West, parallel to the West line of said Section 34, a
distance of 124.78 feet;
THENCE North 45 degrees 28 minutes 39 seconds West, a distance of 14.14 feet to a
1/2 inch rebar tagged “LS 4399”;
THENCE North 00 degrees 28 minutes 39 seconds West, parallel to and distant 60.00 feet Easterly of
the West line of said Section 34, a distance of 305.16 feet to a concrete nail tagged “LS 19324”,
being 20.00 feet Southerly of the North line of the Southwest quarter of the Southwest quarter of
the Southwest quarter, of said Section 34;
THENCE North 89 degrees 52 minutes 03 seconds East, parallel to the North line of the Southwest
quarter of the Southwest quarter of the Southwest quarter of said Section 34, a distance of 555.33
feet to the beginning of a horizontal curve concave Southwesterly and a 1/2
inch rebar tagged “LS 4399”;
EXHIBIT A
THENCE Southerly along said curve, an arc distance of 39.11 feet, said curve having a
central angle of 89 degrees 37 minutes 25 seconds, and a radius of 25.00 feet, to a
1/2 inch rebar tagged “LS 4399”;
THENCE South 00 degrees 30 minutes 32 seconds East, a distance of 385.23 feet to a
1/2 inch rebar tagged “LS 4399”;
THENCE South 89 degrees 43 minutes 18 seconds East, a distance of 19.91 feet to a
1/2 inch rebar tagged “LS 4399”;
THENCE South 00 degrees 28 minutes 56 seconds East, a distance of 180.00 feet to a
1/2 inch rebar tagged “CE 1322” on the North right-of-way line of Grant
Road;
THENCE South 89 degrees 53 minutes 28 seconds West, parallel to and distant 50.00 feet Northerly
of the South line of said Section 34, a distance of 200.06 feet to a 1/2
inch rebar tagged “CE 1322”;
THENCE North 00 degrees 16 minutes 48 seconds West, a distance of 10.00 feet;
THENCE South 89 degrees 53 minutes 28 seconds West, parallel to and distant 60.00 feet Northerly of
the South line of said Section 34, a distance of 400.30 feet to the POINT OF BEGINNING.
EXCEPT the certain above-ground improvements, buildings and/or structures conveyed in Deed recorded
June 25, 2004 in Docket 12331 at page 1264
| Tax Parcel Nos. | 110-07-414C9 110-07-414D0 110-07-414E1 110-07-414F2 |
ii
EXHIBIT “B”
IDENTIFICATION OF ENVIRONMENTAL REPORT
IDENTIFICATION OF ENVIRONMENTAL REPORT
That certain Phase I Environmental Site Assessment Report Northgate Plaza prepared by CB
Xxxxxxx Xxxxx, CBRE File No. 10-460TX-0114.
EXHIBIT B
EXHIBIT “C”
APPLICABLE STATE LAW PROVISIONS
C.1 Suretyship Waivers. Indemnitors hereby waive the benefits of the provisions of
Arizona Revised Statutes, Sections 12-1641 et seq., Arizona Revised Xxxxxxxx, Xxxxxxx 00-000,
Xxxxxxx Revised Statutes, Section 47-3605, and 16 Arizona Revised Statutes, Rules of Civil
Procedure, Rule 17(f).
C.2 Legal Fees. It is understood and agreed that, in addition to those matters
specified in this Agreement, Indemnitors shall also be responsible for paying all of Indemnitee’s
actual court costs, witness fees and other litigation-related expenses.
C.3 Agreement Not Secured. It is understood and agreed that this Agreement is not
secured by the Security Instrument or any other Loan Document.
EXHIBIT C
