Environmental Certification And Indemnity Agreement

Exhibit 10.4

ENVIRONMENTAL CERTIFICATION

AND INDEMNITY AGREEMENT This Environmental Certification and Indemnity Agreement (" Agreement" ) is executed as of August 3, 2009 (" Agreement Date" ), by Quest Software, Inc., a Delaware corporation (" Obligor" ), in favor of Mutual of Omaha Bank, a federally chartered thrift (" Lender" ). This Agreement is made and given by the Obligor as a condition to, and to induce Lender to make a loan (" Loan" ) described in the concurrently dated Loan and Security Agreement and evidenced by a concurrently dated Secured Promissory Note executed by Obligor, as maker, and payable to the order of Lender in the original principal face amount of $34,000,000.00. The Loan is secured by a Deed of Trust, Security Agreement, Assignment of Rents and Leases, and Fixture Filing (" Deed of Trust" ) dated concurrently with this Agreement, encumbering the real and personal property as described in the Deed of Trust (collectively, the " Property" ), including the land described in the attached Exhibit " A" . The term " Loan Documents ," as used in this Agreement, will have the same meaning as established in the Loan and Security Agreement dated concurrently with this Agreement between Obligor and Lender (" Loan Agreement" ). 1. Definitions . As used in this Agreement:

(a) " Environmental Assessment" means a report (including all drafts) of an environmental assessment of the Property of the scope (including but not limited to the taking of soil borings and air and groundwater samples and other above and below ground testing) as Lender may request, by a consulting firm acceptable to Lender and made in accordance with Lender' s established guidelines. (b) " Environmental Claim" means any investigative, enforcement, cleanup, removal, containment, remedial, or other private or governmental or regulatory action at any time threatened, instituted, or completed pursuant to any applicable Environmental Requirement against Obligor or against or with respect to the Property or any condition, use, or activity on the Property, including any action against Lender, and any claim at any time threatened or made by any person against Obligor or against or with respect to the Property or any condition, use, or activity on the Property, including any claim against Lender, relating to damage, contribution, cost recovery, compensation, loss, or injury resulting from or in any way arising in connection with any Hazardous Material or any Environmental Requirement, except to the extent the action is based upon the breach of an express contractual warranty made by Lender in connection with the conveyance of the Property.

(c) " Environmental Damages" means all claims, demands, liabilities (including strict liability), losses, damages (including consequential damages), liabilities, causes of action, suits, proceedings, judgments, penalties, fines, costs and expenses (including fees, costs and expenses of attorneys, consultants, contractors, experts and laboratories), of any and every kind or character, contingent or otherwise, matured or unmatured, known or unknown, foreseeable or unforeseeable, made, incurred, suffered, brought, or imposed at any time and from time to time, arising directly or indirectly in whole or in part from: (i) the presence of any Hazardous Material on the Property, or any

escape, seepage, leakage, spillage, emission, release, discharge, or disposal of any Hazardous Material on or from the Property, or the migration or release or threatened migration or release of any Hazardous Material to, from or through the Property; (ii) any act, omission, event, or circumstance existing or occurring in connection with the handling, treatment, containment, removal, storage, decontamination, clean-up, transport, or disposal of any Hazardous Material that is at any time present on the Property; (iii) the breach of any representation, warranty, covenant, or agreement contained in this Agreement; (iv) any violation of any Environmental Requirement, regardless of whether any act, omission, event, or circumstance giving rise to the violation constituted a violation at the time of the occurrence or inception of the act, omission, event, or circumstance; (v) any Environmental Claim, or the filing or imposition of any environmental lien against the Property, because of, resulting from, in connection with, or arising out of any of the preceding matters, regardless of whether caused by an Obligor or a tenant or subtenant or licensee, or a prior owner of the Property or its tenant or subtenant or licensee, or any third party. By way of example, but not limitation, Environmental Damages include: (I) injury or damage to any person, property, or natural resource occurring on or off of the Property, including but not limited to the cost of demolition and rebuilding of any improvements on real property; (II) the investigation or remediation of any the Hazardous Material or violation of Environmental Requirement, including but not limited to the preparation of any feasibility studies or reports and the performance of any cleanup, remediation, removal, response, abatement, containment, closure, restoration, monitoring, or similar work required by any Environmental Requirement or necessary to have full use and benefit of the Property as contemplated by the Loan Documents (including any of the same in connection with any foreclosure action or transfer in lieu of foreclosure); (III) all liability to pay or indemnify any person or governmental authority for costs expended in connection with any of the foregoing; (IV) the investigation and defense of any claim, whether or not the claim is ultimately defeated; and (V) the settlement of any claim or judgment.

(d) " Environmental Law" means any federal, state, or local law, statute, ordinance, code, rule, regulation, license, authorization, decision, order, injunction, decree, or rule of common law, and any judicial interpretation of any of the foregoing, that pertains to health, safety, any Hazardous Material, or the environment (including but not limited to ground or air or water or noise pollution or contamination, and underground or above ground tanks) and will include without limitation, the Solid Waste Disposal Act, 42 U.S.C. a7 6901 et seq .; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. a7 9601 et seq . (" CERCLA" ), as amended by the Superfund Amendments and Reauthorization Act of 1986 (" SARA" ); the Hazardous Materials Transportation Act, 49 U.S.C. a7 1801 et seq .; the Federal Water Pollution Control Act, 33 U.S.C. a7 1251 et seq. ; the Clean Air Act, 42 U.S.C. a7 7401 et seq .; the Toxic Substances Control Act, 15 U.S.C. a7 2601 et seq .; the Safe Drinking Water Act, 42 U.S.C. a7 300f et seq .; the Porter-Cologne Water Quality Control Act (California Water Code Section 13020 et seq.); the Safe Drinking Water and Toxic Enforcement Act of 1986 (California Health & Safety Code Section 25249.5 et seq.); the Hazardous Substance Account Act (California Health & Safety Code Section 25300 et seq.); the Hazardous Waste Control Act (California Health & Safety Code Section 25100 et seq.); The California Environmental Quality Act (California Public Resources Code


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Section 2100 et seq.); and any other local, state, or federal environmental statutes, and all rules, regulations, orders, and decrees now or in the future promulgated under any of the foregoing, as any of the foregoing now exist or may be changed or amended or come into effect in the future.

(e) " Environmental Report" means that certain Phase I Environmental Site Assessment prepared by Phase One, Inc., dated March 23, 2004, referenced as Project No. 5728. (f) " Environmental Requirement" means any Environmental Law, agreement, or restriction, including but not limited to any condition or requirement imposed by any insurance or surety company, as may now exist or may be changed or amended or come into effect in the future, pertaining to health, safety, any Hazardous Material, or the environment, including but not limited to ground or air or water or noise pollution or contamination, and underground or aboveground tanks.

(g) " Hazardous Material" means any substance, whether solid, liquid or gaseous, that is listed, defined, or regulated as a " hazardous substance" , " hazardous waste" or " solid waste" , or otherwise classified as hazardous or toxic, in or pursuant to any Environmental Requirement or that contains asbestos, radon, any polychlorinated biphenyl, urea formaldehyde foam insulation, explosive or radioactive material, or motor fuel or other petroleum hydrocarbons or that causes or poses a threat to cause a contamination or nuisance on the Property or any adjacent property or a hazard to the environment or to the health or safety of persons on the Property. (h) " On" or " on" , when used with respect to the Property or any property adjacent to the Property, means " on, in, under, above, or about."

2. Representations and Warranties . Obligor, after due inquiry and investigation accordance with good commercial or customary practices to determine whether contamination is present on the Property or elsewhere in connection with any activity on the Property, represents and warrants to, and covenants with, Lender, without regard to whether Lender has or in the future obtains any knowledge or report of the environmental condition of the Property, as follows:

(a) At all times that Obligor owned the Property, and, to the best of Obligor' s knowledge with respect to all other times and except as disclosed in the Environmental Report, neither the Property nor any adjacent property has ever been used for industrial or manufacturing purposes, for landfill, dumping, or other waste disposal activities or operations or for the generation, storage, use, sale, treatment, processing, recycling, or disposal of any Hazardous Material, for underground or aboveground storage tanks, or for any other use that could give rise to the release of any Hazardous Material on the Property;

(b) Except as disclosed in the Environmental Report, ther ...