EXHIBIT 10.28
HAZARDOUS SUBSTANCES INDEMNIFICATION AGREEMENT
THIS HAZARDOUS SUBSTANCES INDEMNIFICATION AGREEMENT (this "AGREEMENT") is
made as of September 12, 2006 by NNN CRAWFORDSVILLE, 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").
RECITALS:
A. Lender has agreed to loan to Borrower the principal amount of
$4,264,000.00 (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 July 6, 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 Mortgage, 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:
2
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
3
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.
4
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 installed any
Asbestos or Storage Tanks at the Property and shall remedy all violations of
Environmental Laws with respect thereto including, but not limited to, removal
of Asbestos and/or Storage Tanks in the manner and as required by applicable
Environmental Laws.
Section 3.2. COMPLIANCE. Borrower shall keep and maintain the Property in
compliance with, and shall not cause or permit the Property to be in violation
of, any Environmental Law and upon discovery of any noncompliance shall promptly
take corrective action to remedy such noncompliance.
Section 3.3. MONITORING. Borrower shall establish and maintain, at
Borrower's sole expense, a system to assure and monitor continued compliance
with Environmental Laws, the existence of any Storage Tank on the Property and
the presence of Hazardous Substances on the Property, by any and all owners or
operators of the Property, which system shall include, upon request of Lender,
the execution and delivery to Lender of a certain Annual Environmental
Questionnaire in the form attached hereto as EXHIBIT B by a duly authorized
officer, partner, or manager, as applicable, of Borrower who is familiar with
the Property and the requirements of applicable Environmental Law, and, at the
request of Lender (which request shall not be made by Lender unless (a) an Event
of Default shall have occurred, (b) a material adverse change shall have
occurred in the financial condition of the Borrower or the Property as
determined by Lender, or (c) facts or circumstances as determined by Lender
occur or arise, including any change of tenants, which could result in an
increased risk that Hazardous Substances will be present (or present in greater
quantities) or discharged at the Property or that the Environmental Laws will
not be complied with) no more than once each year, a detailed review of such
compliance of the environmental condition of the Property ("ENVIRONMENTAL
COMPLIANCE REPORT") in scope satisfactory to Lender by an environmental
consulting firm approved in advance by Lender; provided, however, that if any
Environmental Compliance Report indicates a violation of any Environmental Law
or a need for Remediation, such system shall include at the request of Lender a
detailed review ("ENVIRONMENTAL REMEDIATION REPORT") of the status of such
violation by such environmental consultant. Borrower shall furnish each
Environmental Compliance Report or Environmental Remediation Report to Lender
within sixty (60) days after Lender so requests, together with such additional
information as Lender may reasonably request. If Borrower fails to contract for
such an Environmental Compliance Report or Environmental Remediation Report
after ten (10) days notice, or fails to provide either such report within sixty
(60) days, Lender may order same, and Borrower grants to Lender and its
employees, agents, contractors and consultants access to the Property and a
license (which is coupled with an interest and irrevocable while the Security
Instrument is in effect) to perform inspections and tests, including (but not
limited to) the taking of soil borings and air and groundwater samples. All
costs of such reports, inspections and
5
tests shall be an obligation of Indemnitors which Indemnitors promise to pay to
Lender pursuant to this Agreement. All such costs shall constitute a portion of
the Loan, secured by the Security Instrument and the other Loan Documents.
Section 3.4. NOTICES. Indemnitors shall give prompt written notices to
Lender of: (a) any proceeding or inquiry by any governmental or nongovernmental
entity or person with respect to the presence of any Hazardous Substance on,
under, from or about the Property, the migration thereof from or to other
property, the disposal, storage, or treatment of any Hazardous Substance
generated or used on, under or about the Property, (b) all claims made or
threatened by any third party against Indemnitors or the Property or any other
owner or operator of the Property relating to any release reportable under any
applicable Environmental Law, loss or injury resulting from any Storage Tank or
Hazardous Substance, and (c) Indemnitors' discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Property that
could cause the Property or any part thereof to be subject to any investigation
or cleanup of the Property pursuant to any Environmental Law or that could
result in Indemnitors becoming liable for any cost related to any investigation
or cleanup of such Property.
Section 3.5. LEGAL PROCEEDINGS. Indemnitors shall permit Lender to join and
participate in, as a party if it so elects, any legal proceedings or actions
initiated with respect to the Property in connection with any Environmental Law,
Hazardous Substance or Storage Tank and Indemnitors shall pay all reasonable
attorneys' fees incurred by Lender in connection therewith.
Section 3.6. REMEDIATION. In the event that the Property (or any portion
thereof) becomes the subject of any Remediation, Indemnitors shall commence such
Remediation no later than the earlier of (a) thirty (30) days after written
demand by Lender for performance thereof, or (b) such shorter period of time as
may be required under applicable law, and thereafter shall diligently prosecute
the same to completion in accordance with applicable law. All Remediation shall
be performed by contractors approved in advance by Lender, and under the
supervision of a consulting engineer approved by Lender. All costs and expenses
of such Remediation shall be paid by Indemnitors, including, without limitation,
Lender's reasonable attorneys' fees and costs incurred in connection with
monitoring or review of such Remediation. In the event Indemnitors shall fail to
timely commence, or cause to be commenced, or fail to diligently prosecute to
completion, such Remediation, Lender may, but shall not be required to, cause
such Remediation to be performed, and all costs and expenses thereof, or
incurred in connection therewith, shall become part of the Loan.
ARTICLE IV
INDEMNIFICATION
INDEMNITORS SHALL PROTECT, INDEMNIFY, DEFEND AND HOLD HARMLESS LENDER, ITS
PARENTS, SUBSIDIARIES, TRUSTEES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES,
REPRESENTATIVES, AGENTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, "INDEMNIFIED
PARTIES") FROM AND AGAINST ALL LIABILITIES, OBLIGATIONS, CLAIMS, DEMANDS,
DAMAGES, INJURIES, PENALTIES, CAUSES OF ACTION, LOSSES,
6
FINES, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION CONSEQUENTIAL DAMAGES
AND REASONABLE ATTORNEYS' FEES AND EXPENSES), DIRECTLY OR INDIRECTLY ARISING
FROM OR RELATED TO (A) ANY BREACH OF A REPRESENTATION, WARRANTY OR COVENANT
CONTAINED HEREIN, AND/OR (B) ANY RELEASE OF OR EXPOSURE TO ANY HAZARDOUS
SUBSTANCE (INCLUDING PERSONAL INJURY OR DAMAGE TO PROPERTY), NONCOMPLIANCE WITH
ANY ENVIRONMENTAL LAW, REMEDIATION, OR ARISING UNDER ANY ENVIRONMENTAL LAW.
ARTICLE V
GENERAL
Section 5.1. 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 other document which
evidences, secures or guarantees all or any portion of the Loan or is executed
and delivered in connection with the Loan (the "Loan Documents") to or with
Lender by Borrower or any person who succeeds Borrower or any person as owner of
the Property. 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 Loan
Documents, (ii) any sale or transfer of all or part of the Property, (iii)
except as provided herein, any exculpatory provision in the Note, the Security
Instrument, or any of the Loan Documents limiting Lender's recourse to the
Property or to any other security for the Note, or limiting Lender's rights to a
deficiency judgment against Borrower, (iv) the accuracy or inaccuracy of the
representations and warranties made by Borrower under the Note, the Security
Instrument or any of the Loan Documents or herein, (v) the release of one or
more Indemnitors or any other person from performance or observance of any of
the agreements, covenants, terms or conditions contained in any of the Loan
Documents by operation of law, Lender's voluntary act, or otherwise, (vi) the
release or substitution in whole or in part of any security for the Note, or
(vii) Lender's failure to record the Security Instrument or file any UCC
financing statements (or Lender'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.
Section 5.2. ENFORCEMENT. 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 Loan Documents or any of the Property, through foreclosure
proceedings or otherwise, provided, however, that nothing herein shall inhibit
or prevent Lender 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, unless Lender expressly elects in writing
to make this Agreement additional collateral or security for the debt of
Borrower pursuant to the Loan, which Lender is entitled to do in its sole
discretion. It is not necessary for an Event of Default to have occurred
pursuant to and as defined in the Security Instrument for 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
7
Instrument; Indemnitors are fully, personally, jointly and severally liable for
such obligations, and their liability is not limited to the original or
amortized principal balance of the Loan or the value of the Property.
Section 5.3. WAIVERS. (a) Indemnitors hereby waive (i) any right or claim
of right to cause a marshalling of any Indemnitor's assets or to cause Lender or
other Indemnified Parties to proceed against any of the security for the Loan
before proceeding under this Agreement against any Indemnitors; (ii) and
relinquish all rights and remedies accorded by applicable law to indemnitors or
guarantors, except any rights of subrogation which Indemnitors may have,
provided that the indemnity provided for hereunder shall neither be contingent
upon the existence of any such rights of subrogation nor subject to any claims
or defenses whatsoever which may be asserted in connection with the enforcement
or attempted enforcement of such subrogation rights including, without
limitation, any claim that such subrogation rights were abrogated by any acts of
Lender or other Indemnified Parties; (iii) the right to assert a counterclaim,
other than a mandatory or compulsory counterclaim, in any action or proceeding
brought against or by Lender or other Indemnified Parties; (iv) notice of
acceptance hereof and of any action taken or omitted in reliance hereon; (v)
presentment for payment, demand of payment, protest or notice of nonpayment or
failure to perform or observe, or other proof, or notice or demand; and (vi) all
homestead exemption rights against the obligations hereunder and the benefits of
any statutes of limitations or repose. Notwithstanding anything to the contrary
contained herein, Indemnitors hereby agree to postpone the exercise of any
rights of subrogation with respect to any collateral securing the Loan until the
Loan shall have been paid in full. No delay by any Indemnified Party in
exercising any right, power or privilege under this Agreement shall operate as a
waiver of any such right, power or privilege.
ARTICLE VI
MISCELLANEOUS
Section 6.1. SURVIVAL OF OBLIGATIONS. Each and all of the representations,
covenants and agreements and indemnities contained herein shall survive any
termination, satisfaction or assignment of the Loan Documents or the entry of a
judgment of foreclosure, sale of the Property by nonjudicial foreclosure sale,
delivery of a deed in lieu of foreclosure or the exercise by Lender of any of
its other rights and remedies under the Loan Documents; provided, however, that
such covenants, agreements and indemnities shall not apply to (a) events
occurring after transfer of the Property to Lender (or its designee) pursuant to
a foreclosure of the Security Instrument (or otherwise in satisfaction thereof)
which are based upon or arise out of circumstances or conditions which are not
caused by any Indemnitor and which are first created or which first arise or
come into existence after such transfer or (b) legal requirements which are
first enacted after such transfer. Notwithstanding the foregoing, the covenants
and agreements and indemnities contained in this Section 6.1 shall terminate two
(2) years after the Note has been paid in full and all obligations of Borrower
and Guarantor under the Loan Documents are satisfied, provided Borrower has
delivered to Lender a Phase I environmental assessment of the Property in form
and substance reasonable satisfactory to Lender which concludes that there are
no Hazardous Substances in, on or adjacent to the Property.
8
Section 6.2. JOINT AND SEVERAL. The obligations and liabilities of the
Indemnitors under this Agreement shall be joint and several.
Section 6.3. NOTICES. All notices or other communications required or
permitted to be given hereunder shall be given to the parties and become
effective as provided in the Security Instrument.
Section 6.4. BINDING EFFECT. This Agreement shall be binding on the parties
hereto, their successors, assigns, heirs and legal representatives and all other
persons claiming by, through or under them.
Section 6.5. COUNTERPARTS. This Agreement may be executed in any number of
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
Section 6.6. GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES. INDEMNITORS HEREBY IRREVOCABLY SUBMIT TO
THE JURISDICTION OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN XXX XXXX XX
XXXXXXX XXX XXXXX XX XXXXXXXX IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT.
Section 6.7. WAIVER OF TRIAL BY JURY. INDEMNITORS HEREBY WAIVE THEIR RIGHT
TO A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THE NOTE, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR
ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH
INCLUDING, BUT NOT LIMITED TO THOSE RELATING TO (A) ALLEGATIONS THAT A
PARTNERSHIP EXISTS BETWEEN ANY INDEMNITOR AND LENDER; (B) USURY OR PENALTIES OR
DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE TRADE
PRACTICE, LACK OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL REASONABLENESS,
OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR CONFIDENTIAL
RELATIONSHIPS); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO,
INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION, DURESS, COERCION,
UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS
INTERFERENCE WITH PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST;
OR (F) SLANDER, LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS GIVEN KNOWINGLY, INTENTIONALLY AND VOLUNTARILY BY INDEMNITORS, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO
FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY INDEMNITORS. INDEMNITORS
9
ACKNOWLEDGE THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF OF LENDER HAS
MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR HAS
TAKEN ANY ACTION WHICH IN ANY WAY MODIFIES OR NULLIFIES ITS EFFECT. INDEMNITORS
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO THE LOAN,
THAT LENDER HAS RELIED ON THIS WAIVER IN ENTERING INTO THE LOAN DOCUMENTS AND
THAT LENDER WILL CONTINUE TO RELY ON THIS WAIVER IN ITS FUTURE DEALINGS.
INDEMNITORS FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED (OR HAVE HAD THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS AGREEMENT AND ANY OTHER
LOAN DOCUMENTS THAT INDEMNITORS HAVE ENTERED INTO AND IN THE MAKING OF THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT
THEY HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
Section 6.8. RELIANCE. Indemnitors recognize and acknowledge that in
entering into the loan transaction evidenced by the Loan Documents and accepting
the Security Instrument, Lender is expressly and primarily relying on the truth
and accuracy of the warranties and representations set forth in this Agreement
without any obligation to investigate the Property and notwithstanding any
investigation of the Property by Lender; that such reliance exists on the part
of Lender prior hereto; that such warranties and representations are a material
inducement to Lender in making the loan evidenced by the Loan Documents and
accepting the Security Instrument; and that Lender would not be willing to make
the loan evidenced by the Loan Documents and accept the Security Instrument in
the absence of such warranties and representations.
Section 6.9. HEADINGS. The article, section and subsection headings are for
convenience of reference only and shall in no way alter, modify, or define, or
be used in construing the text of such articles, sections or subsections.
Section 6.10. NO ORAL CHANGE. This Agreement may not be waived, extended,
changed, discharged or terminated orally, or by any act or failure to act on the
part of Indemnitors or Lender, but only by an agreement in writing signed by the
party against whom the enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE PAGE FOLLOWS]
10
EXECUTED as of the date first above written.
BORROWER:
NNN Crawfordsville, LLC, a Delaware
limited liability company
By: Triple Net Properties, LLC, a
Virginia limited liability company,
its manager
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Its: Executive Vice President
B-1
GUARANTORS:
Triple Net Properties, LLC,
a Virginia limited liability company
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Its: Executive Vice President
B-2
