EX-10.7






HAZARDOUS MATERIALS INDEMNITY AGREEMENT




THIS HAZARDOUS MATERIALS INDEMNITY AGREEMENT (the “Agreement”) is made as of
October 25, 2007, by NNN VF 7777 BONHOMME AVENUE, LLC, a Delaware limited liability company, and
NNN 2003 VALUE FUND, LLC, a Delaware limited liability company (collectively,
“Indemnitor”), for the benefit of GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation (“Lender”).



RECITALS




A. Contemporaneously with the execution of this Agreement, NNN VF 7777 BONHOMME AVENUE, LLC,
(“Borrower”), has executed and delivered to Lender, as lender, that certain Loan Agreement
(the “Loan Agreement”), between Borrower and Lender, and that certain Promissory Note (the
“Note”) in the principal face amount of $23,500,000.00 or so much thereof as may be
advanced from time to time, in evidence of the loan (the “Loan”) made by Lender to
Borrower.



B. The Loan is secured in part by Borrower’s interest in and to the “Mortgaged Property” (the
“Mortgaged Property”) described in that certain Deed of Trust, Security Agreement and
Fixture Filing of even date herewith (the “Mortgage”) executed by Borrower in favor of
Lender.



C. Lender has required, as a condition of funding the Loan, that Indemnitor indemnify and hold
Lender harmless against and from certain obligations for which Lender may incur liability, whether
as beneficiary under the Mortgage as mortgagee in possession, or by foreclosure, by reason of the
threat or presence of any hazardous substance at or near the Mortgaged Property.



D. Indemnitor is the Borrower and/or owner of a direct or indirect interest in Borrower, and
Indemnitor will directly benefit from Lender’s making the Loan to Borrower.



NOW, THEREFORE, in consideration of the premises, Ten Dollars ($10.00), and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Indemnitor,
intending to be legally bound, hereby agrees as follows:



1. Recitals. The foregoing recitals are incorporated into this Agreement by this
reference.



2. Certain Definitions. As used herein, the following terms have the meanings
indicated:



2.1 “Environmental Laws” means any federal, state or local law (whether imposed by
statute, ordinance, rule, regulation, administrative or judicial order, or common law), now or
hereafter enacted, governing health, safety, industrial hygiene, the environment or natural
resources, or Hazardous Materials, including, without limitation, such laws governing or regulating
(a) the use, generation, storage, removal, recovery, treatment, handling, transport, disposal,
control, release discharge of, or exposure to, Hazardous Materials, (b) the transfer of property
upon a negative declaration or other approval of a governmental authority of the environmental
condition of such property, or (c) requiring notification or disclosure of releases of Hazardous
Materials or other environmental conditions whether or not in connection with a transfer of title
to or interest in property.



2.2 “Hazardous Materials” means (a) petroleum or petroleum-containing chemical
products, whether in liquid, solid, or gaseous form, or any fraction or by-product thereof, (b)
asbestos or asbestos-containing materials, (c) polychlorinated biphenyls (pcbs), (d) radon gas,
(e) underground storage tanks, (f) any explosive or radioactive substances, (g) lead or
lead-based paint, or (h) any other substance, material, waste or mixture which is or shall be
listed, defined, or otherwise determined by any governmental authority to be hazardous, toxic,
dangerous or otherwise regulated, controlled or giving rise to liability under any Environmental
Laws.



2.3 “Site Assessment” means an environmental engineering report for the Mortgaged
Property prepared by an engineer engaged by Lender at Indemnitor’s expense, and prepared in a
manner satisfactory to Lender, based upon an investigation relating to and making appropriate
inquiries concerning the existence of Hazardous Materials on or about the Mortgaged Property, and
the past or present discharge, disposal, release or escape of any such substances, all consistent
with ASTM Standard E1527-93 (or any successor thereto published by ASTM) and other good customary
and commercial practice.



Other capitalized terms used in this Agreement and not defined shall have the meanings
assigned to such terms in the Loan Agreement.



3. Representations and Warranties.



3.1 Indemnitor represents and warrants that to Indemnitor’s knowledge, except as set forth in
the Site Assessment, (a) no Hazardous Material is now or was formerly used, stored, generated,
manufactured, installed, disposed of or otherwise present at or about the Mortgaged Property or any
property adjacent to the Mortgaged Property (except for cleaning and other products currently used
in connection with the routine maintenance or repair of the Mortgaged Property in full compliance
with Environmental Laws), (b) all permits, licenses, approvals and filings required by
Environmental Laws have been obtained, and the use, operation and condition of the Mortgaged
Property do not, and did not previously, violate any Environmental Laws, and (c) no civil, criminal
or administrative action, suit, claim, hearing, investigation or proceeding has been brought or
been threatened, nor have any settlements been reached by or with any parties or any liens imposed
in connection with the Mortgaged Property concerning Hazardous Materials or Environmental Laws.



3.2 Indemnitor further represents and warrants that:



(a) Indemnitor has not been, is not and will not be involved in operations at or near the
Mortgaged Property which operations have caused or could lead to (A) a discharge of any Hazardous
Materials at, upon, under or within the Mortgaged Property or any contiguous real estate, (B) the
imposition of liability on Indemnitor or on any subsequent or former owner of the Mortgaged
Property, or (C) the creation of a lien on the Mortgaged Property under the Environmental Laws or
under any similar laws and regulations;



(b) To Indemnitor’s knowledge, except as set forth in the Site Assessment, no third party has
been, is or will be involved in operations at or near the Mortgaged Property which operations have
caused or could lead to (A) a discharge of any Hazardous Materials at, upon, under or within the
Mortgaged Property or any contiguous real estate, (B) the imposition of liability on Indemnitor or
on any subsequent or former owner of the Mortgaged Property, or (C) the creation of a lien on the
Mortgaged Property under the Environmental Laws or under any similar laws or regulations; and



(c) Indemnitor has not permitted, and will not permit, any tenant or occupant of the Mortgaged
Property to engage in any activity that has caused or could lead to a discharge of any Hazardous
Materials at, upon, under or within the Mortgaged Property or any contiguous real estate, or that
could impose liability under the Environmental Laws on such tenant or occupant, on Indemnitor or on
any other owner of any of the Mortgaged Property.



4. Covenants.



4.1 Indemnitor shall (a) comply strictly and in all respects with applicable Environmental
Laws; (b) notify Lender immediately upon Indemnitor’s discovery of any spill, discharge, release or
presence of any Hazardous Material at, upon, under, within, contiguous to or otherwise affecting
the Mortgaged Property; (c) promptly remove such Hazardous Materials and remediate the Mortgaged
Property in full compliance with Environmental Laws and in accordance with the recommendations and
specifications of an independent environmental consultant approved by Lender; and (d) promptly
forward to Lender copies of all orders, notices, permits, applications or other communications and
reports in connection with any spill, discharge, release or the presence of any Hazardous Material
or any other matters relating to the Environmental Laws or any similar laws or regulations, as they
may affect the Mortgaged Property or Indemnitor.



4.2 Indemnitor shall not cause, shall prohibit any other Person within the control of
Indemnitor from causing, and shall use prudent, commercially reasonable efforts to prohibit other
Persons (including tenants) from (a) causing any spill, discharge or release, or the use, storage,
generation, manufacture, installation, or disposal, of any Hazardous Materials at, upon, under,
within or about the Mortgaged Property or the transportation of any Hazardous Materials to or from
the Mortgaged Property (except for cleaning and other products used in connection with routine
maintenance or repair of the Mortgaged Property in full compliance with Environmental Laws), (b)
installing any underground storage tanks at the Mortgaged Property, or (c) conducting any activity
that requires a permit or other authorization under Environmental Laws.



4.3 Indemnitor shall provide to Lender, at Indemnitor’s expense promptly upon the written
request of Lender from time to time, a Site Assessment or, if required by Lender, an update to any
existing Site Assessment, to assess the presence or absence of any Hazardous Materials and the
potential costs in connection with abatement, cleanup or removal of any Hazardous Materials found
on, under, at or within the Mortgaged Property. Indemnitor shall pay the cost of no more than one
such Site Assessment or update in any twelve (12) month period, unless Lender’s request for a Site
Assessment is based on information provided under Section 4.1, a reasonable suspicion of Hazardous
Materials at or near the Mortgaged Property, a breach of representations under Section 3, or an
Event of Default, in which case any such Site Assessment or update shall be at Indemnitor’s
expense.



5. Indemnity.



5.1 As between Indemnitor and Lender, all risk of loss associated with non-compliance with
Environmental Laws, or with the presence of any Hazardous Material at, upon, within, contiguous to
or otherwise affecting the Mortgaged Property shall lie solely with Indemnitor. Accordingly,
Indemnitor shall bear all risks and costs associated with any loss (including any loss in value
attributable to Hazardous Materials), damage or liability therefrom, including all costs of removal
of Hazardous Materials or other remediation required by Lender or by law. Indemnitor shall at all
times indemnify, defend and hold Lender harmless from and against any and all claims, suits,
actions, debts, damages, losses, liabilities, litigations, judgments, charges, costs and expenses
(including reasonable costs of defense, of any nature whatsoever proffered or incurred by Lender,
whether as mortgagee or beneficiary under the Mortgage, as mortgagee in possession, or as
successor-in-interest to Indemnitor by foreclosure deed or deed in lieu of foreclosure, and whether
based in contract, tort, implied or express warranty, strict liability, criminal or civil statute
or common law, including those arising from the joint, concurrent or comparative negligence of
Lender, under or on account of the Environmental Laws, including the assertion of any lien
thereunder, with respect to:



(a) a breach of any representation, warranty or covenant of Indemnitor contained in this
Agreement;



(b) any acts performed by Lender pursuant to the provisions of this Agreement;



(c) any discharge of Hazardous Materials, the threat of discharge of any Hazardous Materials
or the storage or presence of any Hazardous Materials affecting the Mortgaged Property whether or
not the same originates or emanates from the Mortgaged Property or any contiguous real estate,
including any loss of value of the Mortgaged Property as a result of the foregoing;



(d) any costs of removal or remedial action incurred by the United States Government or any
costs incurred by any other person or damages from injury to, destruction of, or loss of natural
resources including reasonable costs of assessing such injury, destruction or loss incurred
pursuant to any Environmental Laws;



(e) liability for personal injury or property damage arising under any statutory or common law
tort theory, including without limitation damages assessed for the maintenance of a public or
private nuisance or for the carrying on of an abnormally dangerous activity at, upon, under or
within the Mortgaged Property; and/or



(f) any other environmental matter affecting the Mortgaged Property within the jurisdiction of
the Environmental Protection Agency, any other federal agency or any state or local environmental
agency.



The foregoing notwithstanding Indemnitor shall not be liable under the foregoing indemnification to
the extent any such loss, liability, damage, claim, cost or expense results solely from Lender’s
gross negligence or willful misconduct. Indemnitor’s obligations under this Agreement shall arise
upon the discovery of the presence of any Hazardous Material, whether or not the Environmental
Protection Agency, any other federal agency or any state or local environmental agency has taken or
threatened any action in connection with the presence of any Hazardous Materials and whether or not
the existence of any such Hazardous Material or potential liability on account thereof is disclosed
in the Site Assessment, and shall continue notwithstanding the repayment of the Loan or any
transfer or sale of any right, title and interest in the Mortgaged Property (by foreclosure, deed
in lieu of foreclosure or otherwise).



5.2 In the event of (a) any discharge of Hazardous Materials or the threat of a discharge of
Hazardous Material affecting the Mortgaged Property, whether or not the same originates or emanates
from the Mortgaged Property or any contiguous real estate, and/or (b) Indemnitor’s failure to
comply with any of the requirements of the Environmental Laws or related regulations, Lender may at
its election, but without the obligation so to do, give such notices and/or cause such work to be
performed at the Mortgaged Property and/or take any and all other actions as Lender shall deem
necessary or advisable in order to abate the discharge of any Hazardous Material, remove the
Hazardous Material or cure Indemnitor’s noncompliance.



5.3 Indemnitor acknowledges that Lender has agreed to make the Loan in reliance upon
Indemnitor’s representations, warranties and covenants in this Agreement. For this reason, it is
the intention of Indemnitor and Lender that the provisions of this Agreement shall supersede any
provisions in the Loan Documents (as defined in the Loan Agreement) which in any way limit the
personal liability of Indemnitor, including but not limited to those contained in Article 13 of the
Loan Agreement, and that Indemnitor shall be personally liable for any and all obligations arising
under this Agreement even if the amount of liability incurred exceeds the amount of the Loan. All
of the representations, warranties, covenants and indemnities of this Agreement shall survive the
repayment of the Note and/or the release of the lien of the Mortgage from the Mortgaged Property,
and shall survive the transfer of any or all right, title and interest in and to the Mortgaged
Property by Indemnitor to any party, whether or not affiliated with Indemnitor. Indemnitor hereby
acknowledges and agrees that, notwithstanding anything contained in any of the other Loan Documents
to the contrary, (a) this Agreement and the obligations of Indemnitor under this Agreement shall
not be secured by the Mortgage, or any other mortgages, deeds of trust or other security documents
from time to time securing any obligations of Indemnitor in connection with the Loan; and (b)
Indemnitor shall have no obligation or liability under any of the other Loan Documents for any
obligation or liability of Indemnitor under this Agreement. Indemnitor acknowledges that Lender’s
assessment of the value of the Mortgaged Property is such that Lender would not make the Loan but
for the personal liability undertaken by Indemnitor for the obligations under this Agreement.



5.4 Notwithstanding any provision in this Agreement or elsewhere in the Loan Documents, or any
rights or remedies granted by the Loan Documents, Lender does not waive and expressly reserves all
rights and benefits now or hereafter accruing to Lender under any “security interest” or “secured
creditor” exception under applicable Environmental Laws, as the same may be amended. No action
taken by Lender pursuant to the Loan Documents shall be deemed or construed to be a waiver or
relinquishment of any such rights or benefits under any “security interest exception.”



6. Attorneys’ Fees. In the event that either party brings an action or proceeding
against the other to enforce or interpret any term or condition hereof, the party prevailing in
such action or proceeding shall be entitled to receive from the party not prevailing its reasonable
attorneys’ fees, costs and expenses of suit as determined by the court.



7. Interest. In the event that Lender incurs any obligations, costs or expenses under
this Agreement, Indemnitor shall pay Lender immediately on demand, and if such payment is not
received within ten (10) days, interest on such amount shall, after the expiration of the ten (10)
day period, accrue at the Default Rate until such amount, plus interest, is paid in full.



8. Joint and Several Liability. In the event that this Agreement is executed by more
than one party as Indemnitor, the liability of such parties is joint and several. In addition,
Indemnitor’s obligations hereunder are joint and several with any other person now or hereafter
obligated under the Loan Documents (as defined in the Loan Agreement) and are independent of the
obligations of Indemnitor under the Loan Documents. A separate action or actions may be brought and
prosecuted against Indemnitor, whether or not action is brought against any other person or whether
or not any other person is joined in such action or actions.



9. Notices. Any notice required or permitted to be given under this Agreement shall
be in writing and either shall be mailed by certified mail, postage prepaid, return receipt
requested, or sent by overnight air courier service, or personally delivered to a representative of
the receiving party, or sent by telecopy or electronic mail (provided that for both telecopy and
electronic mail delivery, an identical notice is also sent simultaneously by mail, overnight
courier, or personal delivery as otherwise provided in this Section 10). All such notices shall be
mailed, sent or delivered, addressed to the party for whom it is intended at its address set forth
below.



	 	 	 
	If to Indemnitor:

	 	NNN VF 7777 Bonhomme Avenue, LLC

NNN 2003 Value Fund, LLC

c/o Triple Net Properties, LLC

1551 Tustin, Suite 200

Santa Ana, California 92705

Attention: Richard Hutton

Telecopy: (714)      -     

Email: rhutton@1031nnn.com
	If to Lender:

	 	General Electric Capital Corporation

16479 Dallas Parkway, Suite 500

Two Bent Tree Tower

Addison, Texas 75001-2512

Attention: Sherri Jardine/The Sevens Bldg.

Telecopy: (972) 728-7654

Email: sherri.jardine@ge.com






Any notice so addressed and sent by U.S. mail or overnight courier shall be deemed to be given on
the earliest of (1) when actually delivered, (2) on the first Business Day after deposit with an
overnight air courier service, or (3) on the third Business Day after deposit in the United States
mail, postage prepaid, in each case to the address of the intended addressee. Any notice so
delivered in person shall be deemed to be given when receipted for by, or actually received by
Lender or Indemnitor, as the case may be. If given by telecopy, a notice shall be deemed given and
received when the telecopy is transmitted to the party’s telecopy number specified above and
confirmation of complete receipt is received by the transmitting party during normal business hours
or on the next Business Day if not confirmed during normal business hours, and an identical notice
is also sent simultaneously by mail, overnight courier, or personal delivery as otherwise provided
in this Section 9. If given by electronic mail, a notice shall be deemed given and received when
the electronic mail is transmitted to the recipient’s electronic mail address specified above and
electronic confirmation of receipt (either by reply from the recipient or by automated response to
a request for delivery receipt) is received by the sending party during normal business hours or on
the next Business Day if not confirmed during normal business hours, and an identical notice is
also sent simultaneously by mail, overnight courier or personal delivery as otherwise provided in
this Section 9. Except for telecopy and electronic mail notices sent as expressly described above,
no notice hereunder shall be effective if sent or delivered by electronic means. Either party may
designate a change of address by written notice to the other by giving at least ten (10) days prior
written notice of such change of address.



10. Waivers. No course of dealing on the part of Lender, its officers, employees,
consultants or agents, nor any failure or delay by Lender with respect to exercising any right,
power or privilege of Lender hereunder, shall operate as a waiver thereof.



11. Severability. If any clause or provision herein contained operates or would
prospectively operate to invalidate this Agreement in whole or in part, then such clause or
provision shall be held for naught as though not contained herein, and the remainder of this
Agreement shall remain operative and in full force and effect.



12. Inconsistencies Among the Loan Documents. Nothing contained herein is intended to
modify in any way the obligations of Indemnitor under the Loan Agreement, the Note, the Mortgage or
any other Loan Document. Any inconsistencies among the Loan Documents shall be construed,
interpreted and resolved so as to benefit Lender, and Lender’s election of which interpretation or
construction is for Lender’s benefit shall govern.



13. Successors and Assigns. This Agreement shall be binding upon Indemnitor’s
successors, assigns, heirs, personal representatives and estate and shall inure to the benefit of
Lender and its successors and assigns.



14. Controlling Laws. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Missouri.



15. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, INDEMNITOR AND
LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF
EITHER PARTY OR ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS HEREUNDER OR IN ANY WAY
RELATING TO THE LOAN OR THE MORTGAGED PROPERTY (INCLUDING, WITHOUT LIMITATION, ANY ACTION TO
RESCIND OR CANCEL THIS AGREEMENT, AND ANY CLAIM OR DEFENSE ASSERTING THAT THIS AGREEMENT WAS
FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR
LENDER TO MAKE THE LOAN.



16. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original, but all of which shall constitute one document.



17. Oral Agreements. Oral agreements or commitments to loan money, extend credit or
to forebear from enforcing repayment of a debt including promises to extend or renew such debt are
not enforceable. To protect you (borrower[s]) and us (creditor) from misunderstanding or
disappointment, any agreements we reach covering such matters are contained in this writing, which
is the complete and exclusive statement of the agreement between us, except as we may later agree
in writing to modify it.



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IN WITNESS WHEREOF, Indemnitor has executed this Hazardous Materials Indemnity
Agreement as of the date first above written.



INDEMNITOR/BORROWER:



NNN VF 7777 BONHOMME AVENUE, LLC,


a Delaware limited liability company



	 	 	 	 	 
	By:	 	NNN 2003 VALUE FUND, LLC,
	 	 	a Delaware limited liability company,
	
 
	 	Sole Member
	 	

	
 
	 	By:
	 	TRIPLE NET PROPERTIES, LLC,







a Virginia limited liability company,


Manager




By: /s/ Richard Hutton

Name: Richard Hutton

Title: Executive Vice President




INDEMNITOR:



NNN 2003 VALUE FUND, LLC,





a Delaware limited liability company



By: TRIPLE NET PROPERTIES, LLC,




a Virginia limited liability company,


Manager




By: /s/ Richard Hutton

Name: Richard Hutton

Title: Executive Vice President





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